• Transcript
  • Show Notes

In this episode of CAFE Insider, Preet and Anne break down Attorney General Bill Barr’s assertion that DOJ has not found evidence of widespread fraud that could change the results of the election, Barr’s decision to appoint U.S. Attorney John Durham as special counsel to investigate the origins of the Russia probe, and unsealed court documents that revealed a DOJ investigation of a potential bribery-for-pardon scheme.

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

ELECTORAL COLLEGE

3 U.S. Code §5. Determination of controversy as to appointment of electors

3 U.S. Code §7. Meeting and vote of electors

“Election night marks the end of one phase of campaign 2020 – and the start of another,” Pew Research Center, 10/22/20

ELECTION LITIGATION

Mike Kelly v. Commonwealth of Pennsylvania, U.S. Supreme Court, emergency application for writ of injunction, 12/3/20

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

“Trump asks Pennsylvania House speaker for help overturning election results, personally intervening in a third state,” WaPo, 12/8/20

“Just 27 congressional Republicans acknowledge Biden’s win, Washington Post survey finds,” WaPo, 12/5/20

Marc Elias tweet, 12/8/20

BRIBERY-FOR-PARDON SCHEME

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

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

18 U.S. Code §201. Bribery of public officials and witnesses

Partial unsealing order, U.S District Court for the District of Columbia, 12/1/20

“Attorney-Client Privilege,” Cornell Legal Information Institute

“Trump Associates Said to Have Been Scrutinized in Suspected Pardon Scheme,” NYT, 12/3/20

“Justice Department investigating potential presidential pardon bribery scheme, court records reveal,” CNN, 12/2/20

BILL BARR

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

“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

“For Trump advocate Sidney Powell, a playbook steeped in conspiracy theories,” WaPo, 11/28/20

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

JOHN DURHAM

28 CFR §600.7 – Conduct and accountability

Attorney General Barr memo informing Congress of Durham’s appointment as special counsel, 12/1/20

“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

“The Statutory Authority for Barr’s Appointment of Durham as Special Counsel,” Lawfare, 12/2/20

“Barr appoints special counsel in Russia probe investigation,” AP, 12/1/20

“Nora Dannehy, Connecticut prosecutor who was top aide to John Durham’s Trump-Russia investigation, resigns amid concern about pressure from Attorney General William Barr,” Hartford Courant, 9/11/20

“Ex-FBI lawyer admits to falsifying document in probe of Trump’s campaign,” WaPo, 8/19/20

“Trump’s purge of inspectors general, explained,” Vox, 5/28/20

Sen. Graham tweets, 12/1/20

HEIDI STIRRUP

“President Donald J. Trump Announces Intent to Appoint the Following Individuals to Key Administration Posts,” President Trump statement, 12/3/20

“Trump aide banned from Justice after trying to get case info,” AP, 12/3/20

“HUD secretary’s notes show he’s upset with WH appointments,” AP, 9/25/20

“Report Faults Aides in Hiring at Justice Dept,” NYT, 7/29/08

Can Biden Fire Special Counsel John Durham? 

By giving Durham the “special counsel” designation, Barr put additional pressure on the incoming Biden administration

After laying low for a few weeks, Attorney General Bill Barr resurfaced last Tuesday, asserting that DOJ had not found evidence of widespread election fraud that could change the results of the election — contradicting President Trump and his legal team. Preet and Anne discuss the significance of Barr’s comments amidst Trump’s failed election litigation efforts. 

Meanwhile, Barr also informed Congress that he appointed US Attorney John Durham as special counsel to investigate the origins of the Russia probe. Preet and Anne break down Barr’s legal authority to appoint a special counsel, and what Durham’s latest appointment means for the future of the investigation.  

And, unsealed court documents revealed that DOJ is investigating a potential bribery-for-pardon scheme reportedly involving a top GOP donor and an attorney with close ties to the White House. Plus, Preet and Anne analyze why the DOJ-White House liaison position is problematic, and why the current liaison, Heidi Stirrup, was banned from the DOJ building. 

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

How are you Anne? How’s your transition going?

Anne Milgram:

Well, today is a big day. The states have to certify the vote by today.

Preet Bharara:

I was talking about your personal transition. Have you hired all the cabinet secretaries you need [inaudible 00:00:19]? You are always so serious and literal.

Anne Milgram:

I was like, “Transition to the holiday season?” It’s going pretty well. We don’t have our holiday tree yet, but I’m in it. That’s pretty much my transition.

Preet Bharara:

Have you received the funds from GSA to do all the things you need to do during this period?

Anne Milgram:

I have not. How was your transition?

Preet Bharara:

All right, it’s okay. Fine, we can talk about real stuff. You can talk about the real transition.

Anne Milgram:

Well, it’s a big day. I mean, I feel like every day we’re reading about more litigation and even today, the State of Texas has sued other states trying to argue that they shouldn’t be certifying the votes and I mean, there’s been a lot of litigation back and forth around the election, and I think today is the day where the states are going to certify the vote and the electors will come and vote next week on the 14th of December. But I think today’s a really important day.

Preet Bharara:

It’s an important day. Can I go back to the personal?

Anne Milgram:

Yes. Of course.

Preet Bharara:

Not looking at the transition? It’s an important day in the Bharara family, if I may mention. Today is a wedding anniversary of my mom and dad.

Anne Milgram:

Oh, what anniversary?

Preet Bharara:

247.

Anne Milgram:

They’re not going to appreciate that Preet.

Preet Bharara:

No, they’re very young and they got married young. 55 years.

Anne Milgram:

Oh, that’s amazing.

Preet Bharara:

They’re celebrating 55 years today. So happy anniversary mom and dad. I’ll call you later.

Anne Milgram:

Happy anniversary. Oh, wonderful. What’s the gift on 55?

Preet Bharara:

Samosas.

Anne Milgram:

I hope your dad is taking this seriously.

Preet Bharara:

I don’t know. They’re sort of hunkered down in New Jersey for this period before the vaccines are available. I guess you could do online shopping, but they have not been doing a lot of shopping lately. But I’m sure there will be a nice meal cooked not by my father, but by my mother. We should mention one other thing for folks, as a reminder this Thursday at 5:00 PM, I’m going to be doing, I guess cocktails, 5:00 PM Eastern time, with our friend and human rights activist, Bill Browder, who by the way, announced in the last week that the European Union has passed its own Magnitsky Act. So that’s very exciting. It’s very important for a lot of reasons. So if you want to get a free link to that Zoom event, I’ve been doing a lot of Zoom events lately, go to cafe.com/preet and you can join us Thursday, 5:00 PM Eastern time.

Anne Milgram:

I’ll be there.

Preet Bharara:

So back to the serious and current events aside from mama and papa Bharara celebrating their anniversary today, what else happens?

Anne Milgram:

Well, as I was saying, under federal law, every state has until today, December 8th, to resolve any controversy or contest concerning the appointment of its slate of electors under its own state laws. And so that means that all this election litigation that’s happening in the states that relates to state laws, it has to all be done today. And so that gives the states really a month after the election day to settle challenges to the popular vote, certify the results and award the electoral votes. And so today is a really important day if they do so by the safe harbor date. If the states certify their elections, then Congress is bound to respect the result. And that’s important because we’ve talked a little bit about, and there’s a lot of this in the news, is there any way in which President Trump could sort of reverse this and get Congress to intercede?

Anne Milgram:

And it is true that the president has tried to get states to intercede. We know even recently, President Trump called one of the Republican leaders in the Pennsylvania State Legislature asking him to not agree to certify the results of the election. He declined to do that, but so we know that this has been sort of a little bit of an avenue at least, that the president might see as a way to try to retain power, but it’s ending today. And we expect that all the states will in fact certify their election and then it goes to Congress. And then again, Congress is bound to respect the results. So it’s a really, really important day.

Preet Bharara:

But the electors don’t actually vote today, they vote in their respective states separately on December 14th. So in a week.

Anne Milgram:

That’s right. And my husband has said that next week on December 14th, if it’s all officially done, he’s willing to cut his pandemic hair. So say stay tuned for whether that actually happens.

Preet Bharara:

What’s the deal with the pandemic hair, I mean the beard or is there a name?

Anne Milgram:

He’s not gotten a haircut since before the pandemic and he has not let me cut his hair.

Preet Bharara:

Wow. Can you show us pictures later?

Anne Milgram:

Yes. Yes, you got it.

Preet Bharara:

Is it a wavy mane or a mullet type situation?

Anne Milgram:

It’s a wavy mane, but yeah, I mean, I’m excited for next week for many reasons.

Preet Bharara:

He’s been holding out for the Electoral College?

Anne Milgram:

I don’t know. He said yesterday that next on the 14th, he’ll cut his hair. But yes, apparently yes. I didn’t know that.

Preet Bharara:

What’s the beard situation?

Anne Milgram:

Very Santa Claus.

Preet Bharara:

But there’s a full beard in other words.

Anne Milgram:

There’s definitely a full beard, yes.

Preet Bharara:

Oh, I see. So the president and his allies keep losing lawsuits, I forget how many. I just sort of check Mark Elias’s Twitter feed every once in a while to see what the count is, and I think to date, the president’s team still has won only one suit and they continue to file in the wrong court-

Anne Milgram:

And they’ve lost 49. I mean, I think Mark Elias has it as one win, the one in Pennsylvania early on, and 49 losses.

Preet Bharara:

But we should also comment once again, on the craziness of the certainty of Joe Biden being the president-elect and becoming the president on January 20th of next year, compared to the number of elected Republicans in the Congress who are willing to concede that. It’s one thing, Donald Trump with his tunnel vision and his future media plans of grandiosity and whatever else he wants to do and riling up the base and having that crazy rally the other day in Georgia, but there are hundreds of Republicans in the House and the Senate combined, and I think 26 or 27 of them have answered the question from the media, “Do you believe that Joe Biden is the president-elect?” What gives?

Anne Milgram:

Yeah. I mean, this is extraordinary, right? So The Washington Post immediately-

Preet Bharara:

There we go.

Anne Milgram:

Yep. It is. It falls in that-

Preet Bharara:

Nine minutes in, extraordinary.

Anne Milgram:

So The Washington Post has their reporters go out and they send a survey to all the Republicans and they’re asking these questions, “Who won the presidential contest? Do you support or oppose Trump’s continuing efforts to claim victory? And if Biden wins a majority in the Electoral College, will you accept him as the legitimately elected president?” And then they go out and they pull all the statements that the GOP lawmakers have made and they’re trying to figure this out. So the article comes out a few days ago in The Washington Post and they basically find, well, there are two Republicans that consider Trump the winner, despite everything showing otherwise, and then there’s 220 GOP members in the House and the Senate, which is almost 88% of all the Republicans serving in Congress, who will not say who won the election.

Anne Milgram:

And this is despite 49 losses in the courts, repeated federal courts saying, “You have shown no evidence of election fraud.” And it being very clear that not only did Biden win, but he won decisively. He’s ahead of Trump now by over seven million in the popular vote, he’s gotten over 51% of the vote. So there’s a decisive win right now by Biden. And again, this just goes to I think an effort by the current members of Congress to not sort of poke the bear, not have a fight with Trump because they’re worried about it impacting their future elections. But it really is, I am surprised by this. Are you surprised Preet?

Preet Bharara:

I’d like to think that I’m not surprised much by anything that happens, but I really didn’t think it would go this long. And I guess people have made a calculation, they’re not going to annoy the president, but there are some Republicans who, in prior days we might’ve criticized for some of the positions they’ve taken, but look in Georgia, you have the Secretary of State Raffensperger, and Governor Kemp who have done things and have views that we may have criticized, but they are standing firm. I can preview for folks this week on Stay Tuned, we have Senate candidate, Jon Ossoff, as a guest. And he is prepared to say that some of these folks in Georgia have more of a spine than maybe would have been expected. And as you and I were discussing earlier, President Trump not only has called members of state legislatures like he did in Pennsylvania, but he’s also trying to put the arm on Governor Kemp to say, “Do something about this, even though it would be unlawful.”

Anne Milgram:

Yeah. And Kemp has made clear that it would be unlawful. He’s also done the president’s bidding in a large way. I mean, he’s asked repeatedly for audits and he doesn’t have the authority to compel any of this. And so he’s honored the law, but he’s done his best, I think, to support the president. And he’s really earned both the president’s ire and efforts by the president, again, to try to undo what has been a lawful process and a free and fair election, and he deserves credit. I mean, look, all the sort of election officials across the country, Republican and Democrat who stood up to this sort of pressure, what it is, is political pressure, not based on facts, they deserve a lot of thanks I think for doing that. We should note that there is one case that’s before the Supreme Court, which was the case brought by Mike Kelly, the Pennsylvania congressman, and we talked about this I think last week, he was trying to throw out the entire vote and certification of electors, so basically-

Preet Bharara:

Yeah, the entire vote. All the votes, right?

Anne Milgram:

The entire vote, yes. I mean, he’s been challenging Pennsylvania’s mail-in law basically saying it was problematic. And so what he wants is, he wants the Supreme Court to basically throw out all the votes and to allow the Pennsylvania legislature to appoint electors, which would obviously go in favor of President Trump. And so the Pennsylvania state Supreme Court dismissed that under a legal doctrine called Latches, basically finding that the Pennsylvania law was passed a long time ago, and that representative Kelly and others had ample opportunity to challenge that law before now and essentially they waited too long to do so.

Preet Bharara:

What they did was they waited until their guy lost, right?

Anne Milgram:

Right. Yes, to decide the law was bad, yes.

Preet Bharara:

And that’s something that the law recognizes as not equitable.

Anne Milgram:

I don’t see any issue. I don’t think the Supreme Court will take this. The Supreme Court has asked for papers to be filed by today because obviously today is the end of the safe harbor date and the electors are about to be certified. But again, I mean the Pennsylvania state Supreme Court has ruled, I don’t think the Supreme Court will take it. And it’s worth noting that even if they did, Biden would still be the president of the United States because he’s won all these other states. And so it really is not an existential threat at all to the election going forward and President Biden, Vice President Harris being sworn in, in January. But it’s just to note that there’s one sort of outstanding case that I think will be resolved probably today or shortly after today.

Preet Bharara:

So, and you and I have been talking about what we expect to be pardoned palooza. We correctly predicted that Michael Flynn would be pardoned although I don’t think we deserve any great awards or prizes for that-

Anne Milgram:

No, not on that one.

Preet Bharara:

But something that I had not predicted and then broke right after we stopped taping last week was a pretty massive revelation about a potential bribery for pardon scheme, going up into the White House. Now there’s no allegation yet that I’m aware of, the people in the White House were responsible for it, or were involved with it or were conspiring with other folks, but it is true, and we know this from an actual court filing. This is not just conjecture. This is not just reporting, but a court filing in the District Court in DC that remains heavily redacted that reveals that the government, the Department of Justice, spent time arguing to a court that it should be able to look at certain materials in connection with an investigation that might’ve been subject to attorney-client privilege and arguing that there was a crime fraud exception, or that the attorney-client privilege didn’t apply because there was a waiver or some other such reason, but reveal that the government was looking at a significant bribery for pardon scheme, which apparently came about and arose from some other investigation they were conducting, that was significant.

Preet Bharara:

And you know it’s significant because the court papers describe that the government wants to exploit 50 electronic devices, iPads, iPhones-

Anne Milgram:

Yeah, that’s a lot.

Preet Bharara:

… That’s a lot of devices and a lot of people. And so somebody based on the evidence the government has, clearly had the idea, “Hey, maybe we make a large political contribution and maybe that could help someone get pardoned.” We don’t know who that person is, and we don’t know who the other people are. So I saw some people cleverly trying to figure out what the name might be by looking at how many inches long the redacted name is, does he have any characters that might fit? But we don’t know that yet. What do you make of that whole big potential case?

Anne Milgram:

There has been some reporting just to sort of talk about what the scheme was related to, was that the scheme may have been orchestrated by a now deceased billionaire in connection with the GOP fundraiser, Elliott Broidy who’s been charged as we know, and pleaded guilty and Abbe Lowell, who has been a lawyer for Jared Kushner and Ivanka Trump. We should sort of step back and just say, there really is a lot that we don’t know. But basically there was a Berkeley psychologist, a man named Hugh Baras, who had received a prison sentence for tax evasion and improperly claiming social security benefits under the sort of suspected scheme. And again, this is just reporting at this moment in time. The idea was that Sanford Diller, who was a San Francisco real estate developer and billionaire would make a substantial political contribution in exchange for the pardon.

Anne Milgram:

Diller died in February 2018, and there’s no evidence that this scheme continued after he died. What’s important, and I think you said this really well Preet, is that there’s no evidence that the White House was involved in any way. And what it more looks like is that there are people and obviously Elliot Broidy, who has been charged with one of the top fundraisers for the president. And so there’s reasons that sort of this idea of a scheme being plausible and being possible is legitimate. That people are speculating that it could have been the kind of thing that Broidy was trying to do, but there’s really no evidence that they connected in with the White House or paid any campaign contribution. It brings up a couple of things to me. One, and I wanted to talk with you a little bit about this, because I think what President Trump has done with the pardons is completely different, the way he’s handled the process of pardons and clemency and commutations has been totally different than other presidents.

Anne Milgram:

So there’s an Office of the Pardon Attorney, that’s at the Department of Justice, I think it’s a really fair question of whether that attorney should be at DOJ because DOJ is the prosecuting entity or whether it should be separate, but presidents as a rule have followed the advice. And there’s a process through which the pardon attorney’s office goes through. They evaluate what did this individual do? Have they shown remorse? Does the sentence feel unfair? How does it compare to others who were similarly charged and convicted? And so there’s a whole process. Then they make a recommendation to the president. And Trump has ignored that office completely. President Trump has basically just done it sort of whoever… And it’s legitimate in the sense that the president has this enormous absolute power to do a part in, but it also sort of shows, I think the pitfalls of not having a standard process that now the president looks like he’s picked his friends, he’s picked people with whom obviously they’ve been charged related to the president’s 2016 campaign. And so it really does feel to me like he’s just done this in such a way that he has exposed himself to all of these questions and concerns about pardons in exchange for money or other or loyalty or silence. And I wonder what you think of that question.

Preet Bharara:

I’ve got a couple of thoughts. One is a very general point that I made before and deserves to be made again, I think, and that is there a lot of supporters of the president who will say when the president lies, civil Barack Obama lied about X once, or Bill Clinton lied about X, the thing that got him impeached. The problem with the argument is it rejects all understanding and recognition of scale and scope. Are there presidents who have said misleading things? Of course. Has there been anyone who’s done something over the course of years that’s been as misleading and mendacious as Donald Trump? No, not in the history of the country. It is also true in the area we’re talking about pardons, people like to point to Bill Clinton’s pardon to Mark Rich at the end of his presidency, which was a bad pardon.

Preet Bharara:

And he was in fact investigated for it by my predecessor Mary Jo White, the person who he appointed to the position of US attorney in the Southern district of New York. And he pardoned his half-brother and the first George Bush also had pardons that could be considered questionable. The problem is, yeah, other presidents have done things, been not fully truthful on occasion, issued bad pardons, but then Donald Trump takes it to the next level. Basically you can call Donald Trump the Hold-My-Beer Presidency. “Oh, I see those pardons. And I raise you, my family, my lawyer, my business associates, my national security advisor, and maybe potentially even myself,” and we’ll see if that all comes to pass. The second point I want to make about this bribery for pardon scheme, and it’s true that there’s no evidence that people in the White House were involved in the conspiracy, but I think it is fair to argue that there’s something about the culture of that White House and the culture around pardons that had caused other people to think, “You know what? Maybe I’ve got a shot. Maybe this is the kind of White House where a plot like this will fly.”

Preet Bharara:

People have to tread very carefully when they’re thinking about bribing a politician. And when it happens, you want to make sure that you’re not going to get turned in, you want to make sure that people are receptive to it. I interviewed Harry Reed, former Senate Majority Leader on my podcast, and the favorite story that he told was when he was a younger man and on the gaming commission, maybe even the head of the gaming commission in Nevada years ago, he was approached with a bribe by folks who wanted to, I guess, get a gambling license. And he went to the FBI and they arranged a sting. And at the time that the bribe was going to be paid, Harry Reed was in his office as the gaming commissioner and his office was equipped with cameras and microphones, and the guy offers the bribe and there’s FBI on the other side of the door. And you know what Harry Reed did? He got up from around his desk and he punched the guy in the face. Now why do I tell that story?

Anne Milgram:

He sent a message.

Preet Bharara:

He punched the guy in the face. He said, “I was insulted that this guy thought I could be bribed,” and how lovely a sentiment is that? And whether or not these people were involved in the White House, I think it is not unfair to suggest that people get the sense that folks in the White House, including the president are not above that kind of corruption.

Anne Milgram:

It reminds me of the Harry Reed story, it reminds me, and I’ve probably told it before, of the James Treffinger story, the Essex County executive in New Jersey, he was convicted on federal bribery charges. He told the story of the sort of first time he was in a room and there were folks who’d come to… He was the County executive so he controlled the finances of Essex County and he was having a meeting on some project and someone left behind an envelope filled with cash. And instead of basically running after the folks turning it down, sending the message he wouldn’t accept it, he took it. And he sort of later told that story as an example of the single biggest… And he’d run intending to not be a corrupt official, and from that moment on, he said, “Everyone knew that I was open for business,” right?

Anne Milgram:

And so that one first bribe, whether you take it or you call the FBI and reject it and punch the person in the face has a huge impact on how everything follows. The other thing I would say about this Preet, and I was thinking about this a little bit, is that this is also just a little bit of a window, I think, into how complicated some of these bribery and type cases can be, because here you have a lot of people involved being willing to allegedly make a campaign contribution on someone else’s behalf. And so when you think about corruption, you and I have both done these cases and so we understand it, but it’s just such a window into the complexity, I think of these cases that it’s not uncommon for one person who’s invested in somebody else’s interests to make an action on their behalf.

Anne Milgram:

And you have to prove that connection, right? Because people make political contributions all the time, you have to prove that, that political contribution is made specifically with the intent to have that person receive some form of pardon. And so it just is sort of a little bit, I think of a window into how there is a lot of conduct that is shady that goes on, that sort of potentially might be criminal, but it would be very difficult to prove as well. And so it just sort of made me think a little bit about that.

Preet Bharara:

I don’t think we’ve talked about Bill Barr yet. I don’t think an episode of the CAFE Insider-

Anne Milgram:

Not in a long time.

Preet Bharara:

… Podcast would be complete. Well, because he’s been kind of scarce, although he surfaced last week in a couple of ways that are kind of interesting and that are worthy of discussion. One, and I wonder what your reaction is to this, he made a statement that, what’s the technical term? Oh, pissed off the president when asked about election fraud. We were talking about these cases that have suffered loss after loss, after loss for the president and his allies. But he went out of his way, he doesn’t have to do any interview, he doesn’t have to say any particular thing in any interview-

Anne Milgram:

Or comment on any investigation.

Preet Bharara:

Yeah. He chooses his words extremely carefully. As I’ve said before, he launders certain phrases of the president, spying and other things that he says when he wants to attack his enemies. So this is a man who understands the use of language and his own use of language. DOJ has, “Not seen fraud on a scale that could have affected a different outcome in the election.” That’s a pretty flat statement. That’s not coming from Martin Meyers, that’s not coming from Bob Bauer, that’s not coming from Joe Biden, that’s not coming from Democrats in state assemblies or legislatures around the country, that’s coming from Bill Barr. And one of the reasons it’s striking, if that came out of the mouth of Chris Wray, it wouldn’t necessarily raise a lot of eyebrows. But Bill Barr, as you and I discussed weeks ago, and in the months leading up to the election, went out of his way to speculate admittedly without evidence, all sorts of fraud that was foreseeable to him, including he said on Wolf Blitzer’s show, that he expected there could be thousands of absentee ballots fraudulently submitted by foreign countries.

Preet Bharara:

And that’s just common sense, he said. So this is a guy who’s gone out of his way to sort of feed the fever dream of Trump and his allies, that the only way Trump could lose is through fraud. He did another thing we talked about a few weeks ago, and that is authorized investigations that undid several decades of policy to allow people in the department to investigate election fraud before the votes were certified. And then to say this, I mean, I haven’t asked this question and I don’t have an answer, what was going on in Bill Barr’s head when he said this thing?

Anne Milgram:

That’s the exact right question, because I agree with you. He chooses his words carefully. He actually also went out of his way to say, “Look, people are looking too much at the federal criminal justice system.” Most state election law things are local civil suits. He went on to say, “There’s been one assertion that would be systemic fraud, and that would be the claim that machines were programmed essentially to skew the election results.” And the DHS, Department of Homeland Security and DOJ have looked into that. And so far we haven’t seen anything to substantiate that. And so he’s taking on Sidney Powell’s, remember she was a lawyer for Trump and the Trump campaign sort of. She was part of the elite squad, then they cut her loose, but she’s been pushing this sort of Hugo Chávez narrative about the Dominion voting machines, and Barr basically says, “Yeah, we looked at it, there’s nothing there. We haven’t substantiated anything.”

Anne Milgram:

So that’s also intentional and very powerful. And so he’s turning the page that there is going to be no DOJ action that will save the election for the president. I mean, I wondered, and I don’t know what you think of this, but I did have a moment of sort of wondering whether he was doing that because he knew it was just a matter of time before the president came to him and said, “Charge someone, do something,” just as we saw the president reach out to Governor Kemp in Georgia, just as we saw the president reach out to the Republican legislative leader in Pennsylvania, just as we know the president reached out to some of the election officials, I think it was in Michigan. And so maybe Barr was trying to publicly cut that off, I don’t know. What do you think?

Preet Bharara:

I mean, that’s an interesting thought that he was trying to communicate with the president that way, but you know what the reaction is going to be, and I have not gotten the sense, this has been our criticism for a long time. I have not gotten the sense that Bill Barr wishes to be on the wrong side or crosswise of the president on any issue, whether it’s the special counsel report or voting irregularities. And he could have just kept his mouth shut. I mean, I guess another theory could be he has his limits too. And is it possible that he’s doing this on principle? I mean, I haven’t seen him be very principled up to this point. There’s also all the speculation that he might leave office early, which is odd because there’s only a few weeks left in the term. And he earlier was reported to have been interested in staying on for a second term, if there was going to be one, I really don’t know what’s going on.

Anne Milgram:

Maybe it’s a little bit of seeing what’s to come and maybe preserving a little bit of his dignity or just knowing that this is going a certain direction and not… I don’t know, but I agree with you. Look, It’s really hard to be in Bill Barr’s head.

Preet Bharara:

You can’t read Bill Barr’s mind and-

Anne Milgram:

I cannot. We should also add, it’s really unusual to talk about investigations like this and it also shouldn’t be happening. And so in some ways I think, because this has been such an unusual period of time since the election and the president has taken such relentless efforts to try to undo the election, I think it may be that Barr felt he needed to do it, but it does go against the grain of again, in my view, he shouldn’t have changed the long standing rules about how you do investigations related to election fraud. He now comes out and speaks about it. So while I do think it’s a benefit for the country at this moment in time, because there’s been so much uncertainty, I don’t think we should forget that it’s just another example of Bill Barr sort of doing what Bill Barr thinks is the correct thing to do versus long standing DOJ policy and processes.

Preet Bharara:

Who else got pissed off? Trump’s legal team, Rudy and Jenna Ellis, and they put out a statement. And it’s kind of hard as a spectator and seeing a, can I say pissing contest?

Anne Milgram:

Mm-hmm (affirmative).

Preet Bharara:

I can say that, right?

Anne Milgram:

You can say that.

Preet Bharara:

Between Bill Barr and Rudy Giuliani. I kind of don’t know how to think about that, but among other things, the Giuliani and Jenna Ella statements said, “Again, with the greatest respect to the attorney general,” and by the way, when people say with the greatest respect to whoever, it’s not respective at all.

Anne Milgram:

You know it’s the opposite, I know.

Preet Bharara:

I’m no racist, but-

Anne Milgram:

And they end, “Again with the greatest respect to the attorney general,” this opinion-

Preet Bharara:

“I’m no racist,” and what’s coming out of your mouth next is going to be some crazy racist stuff.

Anne Milgram:

Here’s my favorite line. The last line of the Giuliani, Ella statement, “Again, with the greatest respect to the attorney general, his opinion appears to be without any knowledge or investigation of the substantial irregularities and evidence of systemic fraud.” So basically we respect you, but you have no idea what you’re doing. You have no idea what’s happening.

Preet Bharara:

So, as I said before, Bill Barr did a couple of things. There were these statements about the election, but he did something else that probably is more pleasing to the president and his allies.

Anne Milgram:

Yeah, this is a fascinating thing for us to talk about. He appointed John Durham, the Connecticut US attorney who has been doing this investigation into the 2016 initiation of the investigation into the Trump campaign. John Durham, he’s made into a special council. And so we got a question from Melissa in NYC, “Preet and Anne, just saw the news about Barr appointing Durham as special counsel. What is significant about the position of special counsel? Does this mean he’ll have free reign to investigate in the Biden administration? Is it an open hunting license? Thanks for everything you do, Melissa.”

Preet Bharara:

Yeah. So look, a lot of people are asking this question about what this means. First, we should say, it’s interesting, the timing of this, right? This appointment of the special counsel was made not at the time that this announcement was made, but it was done a few weeks before the election and secrecy was maintained according to Bill Barr, for purposes of not trying to affect the election in any way. In fact, he explicitly says that. In Barr’s memo to Congress from December 1st, he says, “I’m providing this notification pursuant to a particular regulation. Having previously determined that it was in the public interest to toll notification, given the proximity to the presidential election.” So he did this before the election, before we knew what the results were going to be in an effort to insulate John Durham’s investigation if there was going to be a Biden administration. By the way, it also shows that he wasn’t expecting Trump to win. That’s not the kind of thing you do if you have great confidence that there’s going to be a second Trump term, right?

Anne Milgram:

So just to take one slight step back and read the memo Barr used. Barr has to tell Congress that he’s making this appointment, so Barr writes in a memo to Congress on May 13th, 2019, “I directed John Durham, US attorney for the District of Connecticut to investigate certain intelligence and law enforcement activities surrounding the 2016 presidential election.” And then he goes on to say, he thought Durham would be done by the summer of 2020, but COVID-19 and for other reasons he hasn’t finished yet. And so what Barr writes is, “In advance of the presidential election, I decided to appoint Mr. Durham as a special counsel to provide him and his team with the assurance that they could complete their work without regard to the outcome of the election.” One of the things that’s really interesting about this and I’ll just sort of float a theory to you Preet, is that Durham is doing this investigation, my personal view is that there’s not likely a lot there because it’s gone on for a long time.

Anne Milgram:

We’re now talking about an investigation that’s gone on for more than a year, and I’ve completed entire internal investigations and to massive organizations in far less time during the pandemic than this took place. And so I’m not being insensitive to the complications here with this type of investigation and potential international components, but it’s just a long time. They took one plea, remember from the FBI lawyer, but it was a pretty small charge and allegation that he’d lied in an email. And now you have this sort of timeline of events where Durham is clearly not done. We recall that in sort of early mid-September, Durham’s deputy in his probe, Nora Dannehy resigned. At the time it was reported, and again, Dannehy has never made a statement about this, but it was reported that she resigned because there was a lot of pressure on Durham and his team to put out an “Interim report,” a sort of middle report before the end of the investigation was completed.

Anne Milgram:

That would have been deeply unusual. I mean, again, in criminal investigations you usually bring charges and not reports, but even if you’re going to do a report, the idea of doing an interim report right in the lead up to a presidential election, September being so close to the November election, Nora Dannehy resigned. And so you remember you and I talked a lot at the time that it really stopped in our view I think, John Durham from being able to issue that interim report, because now there would have been an allegation of pure political corruption, right? That you have a lifetime longstanding woman who is very highly respected, has done a lot of political corruption cases, who basically steps out of the department, again, based on public reporting, because she wasn’t comfortable with where this was going.

Anne Milgram:

And I think it not only tied Durham’s hand, I think it also tied Barr’s hand because Durham may have been unwilling to issue the report prior to the election given Dannehy resigning basically put even more pressure on him. And so this looks to me like Barr’s effort to have it continue. And the only other option for them if Barr was insistent on getting it out would have been for it to have been done now, but it was clearly always going to be an interim report. So this, I don’t know what you think, but it feels to me like, I mean, there’s a lot of politics in this and we should unpack even the way Barr did it, is very unusual. But what do you think is happening here?

Preet Bharara:

I don’t think it gets us up to the president, that it was important to the president for there to be this investigation. He really wanted there to be something damaging to his adversaries and potentially could be pinned on Biden and Obama beyond just that mid-level lawyer being charged from the FBI. This is a way of putting a marker down and it was within his authority to do it. We can talk about the way he did it and I want to do it in a way that doesn’t get too in the weeds and parsing the various regulations. So John Durham was made a special counsel. And so one might ask, well, what does that mean? And depending on your view of which regulations apply to him, he is less able to be fired by the next attorney general, right? The point clearly was to give Durham some protection in the same way that Mueller had a certain kind of protection from being fired without cause, elevating him from just a person who was sort of informally appointed to look at something and then elevating that person to special counsel.

Preet Bharara:

Now, the weird thing that lawyers have been debating on social media and elsewhere is whether it was a proper appointment because one of the regulations that seems to be applicable to making someone a special counsel, sets forth pretty clearly that a special counsel must come from outside of the government. Robert Mueller was in private practice when he was named special counsel, so he was appointed from outside the government. However, even in the Mueller case, and certainly in this case, it seems that what has gone on is not an appointment based on the special counsel regulation, I’m already getting in the weeds here, I can feel it. But rather that Bill Barr used his general statutory authority to make this person special counsel and then said, “Well, certain special counsel regulations that are written down elsewhere, I’m going to say they apply to this special counsel.”

Preet Bharara:

Most notably a regulation section 600.7, It says, “The attorney general may remove a special counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including a violation of departmental policies.” Clearly the reason to give him this different designation was to apply that standard so that it’s not so easy for the new guy to come in and get rid of them. Now, there are some other folks who were saying that because he bypassed the outside of government qualification criteria, the next attorney general probably has the ability, according to some folks, to just rescind the order and do whatever they want. I don’t know if it’s worth continuing to discuss, clearly the intent was to give him up for protection. Does he have it? I’m not positive he does.

Anne Milgram:

I mean, I think Melissa is asking the right question with her writing question to us, because I think a couple of things. One is it’s not really clear from Barr’s memo to Congress, what the scope of Durham’s authority is. And so I do think, is this something that can go on forever and sort of pivot to do other investigations in the Biden administration? I don’t believe so. I believe it’s narrowly focused or at least it appears to be focused on the 2016 investigation. And so I think I’m less concerned about that sprawl than I am about the fact that it’s a very difficult position to put the new AG in also, and the president in, because John Durham is the Connecticut US attorney, and what happens to US attorneys usually when the president from another party comes in, the common practice is-

Preet Bharara:

Well, sometimes you get asked to stay and then you get fired later.

Anne Milgram:

Right, okay. You’re not… I’m sorry. I asked the wrong person for the-

Preet Bharara:

Sometimes, it’s my parents’ wedding anniversary and you bring up this issue. Thanks Anne Milgram.

Anne Milgram:

So, okay. But the standard practice, which hasn’t always been followed, what usually happens when the president of one political party is leaving office and a president from the other political party is coming in, is that the US attorneys, they leave. Sometimes the president will ask for resignations of all the US attorneys, but as a rule, there’s this transition and it’s a political transition that the new president usually within their first sort of six months or so, will appoint a new US attorney of their political party or someone that they believe should be in that job. So it is very likely, I think, that Durham would have either left on his own or have been asked to leave at some point as part of a broader ask for the resignations of the US attorneys who hadn’t already departed their offices.

Anne Milgram:

And it puts the sort of incoming administration, I think, in a difficult bind. You leave Durham in as US attorney in Connecticut, and do you take him out of that job, put him back as sort of a line attorney and let him do this job? I’ve read, and I’m curious to hear your thoughts on this, I’ve read the commentary on Twitter and other websites about Barr did this in a really sort of improper way and therefore it can be removed and Durham can be taken out. I think even if that’s true, I think that there’s a different question, which is I think the Biden administration is put in a very difficult position to take out someone who sensibly has been asked to do an investigation, who you and I, as a rule would want to presume would follow the facts and the laws and the evidence and do that investigation.

Preet Bharara:

Yeah. I mean, there’s two kinds of protection that get accorded to someone like Bob Mueller or John Durham when a special counsel designation gets made, right? One is, do they have the actual protection of a statute or a regulation that’s enforceable and that Congress can hold them to account for. And the second as is often the case, and maybe it’s even the more powerful one, is political protection. That’s why you have a term of 10 years for FBI director, some insular for inspectors general. This President Trump has observed some of those political rules of gravity but sometimes not. So he is fired inspectors general left and right earlier this year, in the spring and the summer, when that’s a very atypical thing to do, and he didn’t care about the political fallout because he just doesn’t care about those things, he doesn’t like inspectors general.

Preet Bharara:

On the other hand, he actually never did fire Bob Mueller, even though he wanted to, he tried to get other people to do it and they refused, the president still could have made that attempt and he didn’t. And so I think what Barr is counting on, and I think you’ve hit on it perfectly is that whether or not there’s some technical argument to be made about the appointment, and by the way I don’t necessarily agree with those who think this was a wholly improper appointment, it’s been done before. I think there was a similar kind of appointment of Pat Fitzgerald back when Jim Comey was the acting attorney general on the Valerie Plame outing issue some years ago, and Pat Fitzgerald was the sitting US attorney in Chicago, he was not outside the government. So there are other examples of this, of the type that we might like and so we’ve got to remember that when we criticize something, but separate apart from whether or not there’s a technical legal argument, I think yeah. There’s some pressure based on norms that you don’t without good cause fire a special counsel, and when Biden comes in, I think you’re going to see a bit of a return to norms.

Anne Milgram:

I agree with that. I also would just note that there was a part of me that sort of watched this whole thing go down and Senator Graham came out very strongly in support of attorney general Barr’s decision to do this. And it was just this moment of thinking, “Gosh, what must Robert Mueller think of this?” Because I mean, they literally attacked the idea of a special counsel, a lot of members of the sort of Trump administration grouping. I mean, obviously Rod Rosenstein had made that decision. He was the one to appoint Mueller, and he was the deputy AG at the time, but there were persistent attacks on the special counsel and the scope of this special council’s authority. And as I watched this, I thought, “Oh, the special counsel is bad until it’s good,” right? Until it’s good because it can be beneficial to President Trump.

Preet Bharara:

So there’s one more thing that may have fallen under the radar for some folks, but I think it’s important. I don’t want it to get lost because it has echoes of a prior scandal at the justice department. The AP, and some other outlets reported last week, that there was a person who was installed at the justice department. And I don’t like the description. The description itself according to news reports is something that makes me very uneasy. They called this woman, Heidi Stirrup, Donald Trump’s eyes and ears at the justice department. Her formal title, I think was White House liaison. There’ve been White House liaisons before, which I have an issue with and I’ll come back to in a moment, but she’s a top ally of Trump advisor, Stephen Miller, who works in the White House. And it seems that the purpose of her being there was to try to get information that otherwise is appropriately and properly per all norms and ethics policies and principles, walled off from the White House, in particular enforcement matters and everything else.

Preet Bharara:

This is something that was at the heart of why I left office and at the heart of an investigation that I led in the Senate back in 2007. And there are also allegations that Stirrup had extended job offers to political allies at high positions, and doing it without consulting other folks and trying to get information about cases to give back to the White House, which I will say I’m proud of this. And some of the things at the top levels of the justice department I have not been proud of. The reason some of these reports are getting a considerable amount of attention, although not enough I think, is that she was banned from the building. She was told-

Anne Milgram:

I’ve never heard of that.

Preet Bharara:

… “Get the hell out of the building.”

Anne Milgram:

Have you ever heard of it?

Preet Bharara:

I have not. But I don’t know whose decision that was, I don’t know if that was the DAG, the deputy attorney general or Bill Barr, but kudos to whoever decided to do that, because this is not the way you do business. The justice department is not like the commerce department, it’s different. And there are certain things that happen in the justice department that are not supposed to be known to the president and particularly this president.

Anne Milgram:

Well, there’s a lot of tension in every administration, it’s not just the Trump administration, but I think it is a lot more in this administration. It’s been extreme, which is that the White House always wants to have involvement with the executive branches. And as a rule, cabinet secretaries want to run their own departments. And so they want the White House to have less interaction and the White House wants more and because the White House wants to control the policies. And so there was even that time where Ben Carson was testifying and he had notes on the back of his paper complaining about the sort of Presidential Personnel Office, which is the one that sort of was controlling these liaisons to departments. And so there’s that sort of existing, underlying tension, but it is different at DOJ.

Anne Milgram:

And it’s different at DOJ because as you say, in an election fraud investigation, there may be material that is subpoenaed under grand jury subpoenas, that’s secret by law. I mean, you cannot divulge that information to a White House liaison. It just is against the law. I mean, it’s a violation of the law to do so. And obviously it’s clear to me from reading this, that this woman was told that, I’m sure she was warned and told, “We can’t give you that information.” But obviously this is the number one issue for the president, the election fraud and what they’re looking for probably at the White House is any evidence, anything that they can go on that they could then use to spin into, “The federal government is investigating election fraud,” or something like that.

Preet Bharara:

It’s the very definition of using law enforcement for political purposes. I mean, it’s a textbook example of that.

Anne Milgram:

And so I agree we have to give credit to DOJ for kicking her out now whether they did it because it’s the right thing to do, or because they were afraid that she would, or the White House would put something out related to a federal investigation that then reflected badly on DOJ. I don’t know what the motives were, but they did the right thing. But Preet, she’s not gone. As you might have seen, she was appointed to the Air Force Academy board. And so she’s now on the board of visitors to the United States Air Force Academy, that’s a three year appointment. Her loyalty to the president has secured her this longterm position.

Preet Bharara:

Yeah. The reason it’s important is for the considerations that we just mentioned, but it just also took me back to 2007. And one of the things we investigated when I was on the Senate Judiciary Committee was the politicizing of various things at the justice department. And one of the most problematic things, and this is in the wake of the firing of US attorneys at the end of 2006, and one of the most disturbing things we found was exactly this conduct. That was a subject not only of a Senate investigation, also House investigation, and also the inspector general’s office. And there was a parallel, there was a woman named Monica Goodling whose job was what? White House liaison. In the Alberto Gonzales justice department, there was a very scathing inspector general report that found that she and a handful of other aids used interviews and internet searches to screen out candidates who might be too liberal and identify candidates seen as pro Republican for career positions, where that is unlawful. It was against the policies, principles, and rules and regulations of the justice department.

Preet Bharara:

She eventually, when called before Congress, pled the fifth amendment against incrimination and later was given immunity. I believe her lawyer at the time, by the way, another walk down memory lane was John Dowd, lawyer for this president-

Anne Milgram:

President Trump, yeah.

Preet Bharara:

… Donald Trump, that was my first interaction with John Dowd and then I had others later. But the history is not so ancient that lessons couldn’t be learned about it. And maybe the people at the department remembered this instance from back in 2006, seven and eight, and realized this was bad news, and this would get a lot of people in trouble. And that’s another reason that they decided to boot her from the building. Okay. So Anne, when next we meet to do this little show of ours, December 14th, will have passed, the electors will have voted and the game should really, really be over at that point.

Anne Milgram:

It really should be. And I should have had my first experience cutting hair with my husband’s hair. So I’ll report back next week.

Preet Bharara:

Will that be on TikToK?

Anne Milgram:

Oh God, no. That would be funny though. I don’t think he’ll let me video it. I’ll ask.

Preet Bharara:

Take a video to show your closest friends. You’re going to want for posterity. So I’ll see you next Tuesday. Send us your questions to [email protected]

Anne Milgram:

And we’ll do our best to answer them. I’ll see you soon.

Preet Bharara:

Bye.

Anne Milgram:

Bye.

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 Azula, 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.