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February 4, 2020

CAFE Insider 2/04: The Verdict

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In this episode of the CAFE Insider podcast, “The Verdict,” Preet and Anne give a postmortem on the impeachment trial, including an analysis of:

— Senators Alexander and Murkowski’s justifications for their votes that prevented witnesses and effectively ended the trial

—The Q & A section of the trial: Chief Justice Roberts’ role as a “potted plant,” Elizabeth Warren’s controversial question, and Alan Dershowitz’s flawed argument

— Adam Schiff’s final closing argument – and whether any of this made a difference at all

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

Preet Bharara:              From CAFE. Welcome to Cafe Insider. I’m Preet Bharara.

Anne Milgram:             And I’m Anne Milgram.

Preet Bharara:              Anne Milgram.

Anne Milgram:             Hey.

Preet Bharara:              It’s Tuesday morning, February 4th and I’m proud to say that the electoral process is not broken. And we have a slate of winners with tickets out of Iowa and they are who?

Anne Milgram:             Yeah.

Preet Bharara:              No idea.

Anne Milgram:             No idea. And in fact I can confirm that everyone who came in this morning for the podcast looks a little tired and cranky from staying up to try to-

Preet Bharara:              I’m cranky for a lot of reasons. Among them-

Anne Milgram:             Give me the list.

Preet Bharara:              … that I chose to keep staying up. Because I kept thinking we were going to get results, so I went to bed after two.

Anne Milgram:             You know what? I went to bed earlier. I sort of had that moment of thinking-

Preet Bharara:              You’re much smarter than I am.

Anne Milgram:             No, I just had that moment of thinking, there’s no end in sight.

Preet Bharara:              Then I woke up and I looked at my phone and I thought, well, now we’ll have the results.

Anne Milgram:             Yeah, nope.

Preet Bharara:              Nope. So by the time people hear this, maybe we will have results.

Anne Milgram:             Yes, I hope so. It’s a very strange thing. And we should talk… I mean-

Preet Bharara:              [crosstalk 00:01:01]. They screwed up the app?

Anne Milgram:             Do you know what my husband always says? He’s a technology guy and a data guy and he always says technology is great until it isn’t. Which sort of.

Preet Bharara:              He’s a wise man.

Anne Milgram:             Apropos of today. But you know, it’s not just the tech. The app piece is obviously… Like, the question is, is there a way they could have tested it? Like, how can this happen that it sort of, you know, it overloads the app or whatever happens. The second piece is, remember Sanders insisted on having paper ballots last time and so that’s a big change too. So they changed a bunch of things. They also changed some of the caucus rules.

Preet Bharara:              Well, it sounds like it’s good to have paper ballots now because there’s going to be corroboration of whatever the tally is.

Anne Milgram:             I’m not saying it’s bad, I’m just saying it’s a pretty… it’s the democratic organization in Iowa, it’s not like the federal reserve, they’re a small operation. And then you change a bunch of things and introduce new technology and then it’s game time-

Preet Bharara:              Don’t defend them.

Anne Milgram:             I’m not defending them. I’m just explaining why I think it’s the app and probably the bulk of it is the app but I think it’s not just the app. This is a real problem on a number of levels I suspect.

Preet Bharara:              You know what really irritated me? You know what I felt like last night? I felt like the times that I’ve been on an airplane on the tarmac and clearly there’s some problem-

Anne Milgram:             And they don’t tell you what it is.

Preet Bharara:              They don’t tell you what it is, they don’t give you an estimate, there’s no updating. My favorite pilots in the world are the ones who “A”, I guess, land you safely, which is most of them. And then “B”, the ones who just tell you what the hell is going on.

Anne Milgram:             Yeah. You just want to know.

Preet Bharara:              Yeah. I mean, they could have just said, we have this glitch, we don’t know exactly when it will be fixed. It could be shortly, it might not be until later, it might not be until tomorrow, so you set some expectations.

Anne Milgram:             And you know why they don’t tell you?

Preet Bharara:              Why?

Anne Milgram:             Because they’re embarrassed and they don’t want it to look like they don’t know what’s happening.

Preet Bharara:              But it’s worse.

Anne Milgram:             I could not agree more.

Preet Bharara:              Note to pilots who are in the audience.

Anne Milgram:             And people who run elections.

Preet Bharara:              Just tell people what’s going on. It’s better to tell people you don’t know what’s going on.

Anne Milgram:             Wait, is this about the election or is this about a bad travel experience?

Preet Bharara:              It’s kind of like, you know, both journeys can be very, very difficult.

Anne Milgram:             It’s true. What did you think of Pete Buttigieg declaring victory?

Preet Bharara:              Pete Buttigieg emerged victorious, so-

Anne Milgram:             He’s apparently the only one who knows what happened.

Preet Bharara:              Well, so Sanders sounded very victorious and obviously these folks have their own staff in all these caucusing locations and it’s not a secret ballot. Right?

Anne Milgram:             So they might have some information.

Preet Bharara:              They have some information. So I’ve got to believe that Sanders and Buttigieg have some pretty decent idea that they did really, really well. Otherwise, it’s ridiculous.

Anne Milgram:             But do you declare victory, is that the right thing to do?

Preet Bharara:              I don’t know. I mean, maybe strategically smart. Look, here’s the problem for a lot of people who did well. The people who did well don’t get the bump and the bounce that they were supposed to get by giving… Do you remember Obama’s speech in 2008?

Anne Milgram:             Yeah, that was an amazing speech.

Preet Bharara:              It was one of the great political speeches. He like, put himself on the map nationally in a way that was much bigger than… Imagine if that Iowa race had gone into the following day and Obama never got to give that speech and we were already moving on to The State of The Union or something else.

Anne Milgram:             It would have washed a lot of the success away.

Preet Bharara:              It didn’t help them win New Hampshire, he lost New Hampshire. But you know, that’s a big deal.

Anne Milgram:             It helped him nationally though, I think it put him on the map in a different one.

Preet Bharara:              But the winner of Iowa, particularly if it’s someone who’s unexpected or a newcomer, you know, that gives you a lot of momentum and that was robbed for a lot of folks-

Anne Milgram:             Particularly for someone like Buttigieg, to be honest. Because Sanders has been a front runner.

Preet Bharara:              You know, the speculation out of Iowa is that Biden did poorly.

Anne Milgram:             Yes, it helps him to not have [crosstalk 00:04:19] I think it helps him too..

Preet Bharara:              He put out a statement. He complained about, you know, the problems with the tabulations and said, I’m going to New Hampshire.

Anne Milgram:             Yeah, see ya.

Preet Bharara:              So, I don’t know. But look, not that there’s any other news going on. We have the state of the union this evening.

Anne Milgram:             We do. Are you going to watch?

Preet Bharara:              Yeah. Yes. Yes, I’m going to watch, I’m going to anger watch.

Anne Milgram:             That’s going to be like a new thing. That’s how I felt during much of the impeachment trial I was anger watching.

Preet Bharara:              I just wonder… I might watch it on mute just to see Nancy Pelosi’s expression sitting behind the president. When she does that, what do you cal that clap that she does?

Anne Milgram:             She does that, I can’t even-

Preet Bharara:              It’s this sideways, or I guess it’s a vertical clap.

Anne Milgram:             Like, I’m not really with you.

Preet Bharara:              I’m exhausted.

Anne Milgram:             I know, it’s been a long couple weeks and it’s also been a couple weeks of a lot of news and information that almost, I mean, I think we’re probably all at saturation.

Preet Bharara:              Do you want me to tell you something that you’ll find surprising?

Anne Milgram:             Yes.

Preet Bharara:              The impeachment trial is still going on.

Anne Milgram:             I know.

Preet Bharara:              Did you know that?

Anne Milgram:             I know, you know what’s funny. Yesterday I was with someone who follows politics a lot and government and law and it was about 20 minutes and I realized we have not… We were talking about Iowa, we were talking about all these other things and I realized we have not even talked about impeachment. And so it’s sort of, it does feel like the world turned to page.

Preet Bharara:              So it’s not over Adam Schiff gave a closing statement. Which is an interesting thing to call it because all we’ve been really hearing have been some combination of closing and opening statements. I said to my law school class at NYU yesterday, talking about the Senate trial before we talked about other stuff. I said, you know what was missing from the trial, as people have been complaining-

Anne Milgram:             A trial.

Preet Bharara:              Evidence. Documents and witnesses. Because literally, judges will instruct you, and we might have mentioned this on the show before, literally there’s a sentence in the jury instructions that says, what the lawyers say is not evidence, only what the witnesses say and what the documents say.

Anne Milgram:             And it’s exactly the opposite here.

Preet Bharara:              And the only humans we heard from were the lawyers. Questions were put to the lawyers, arguments were made by the lawyers, previews were made by the lawyers, the videos were put on by the lawyers. So there was no real trial. So maybe we should just talk about where we are and where we’re going to end up and what the consequences are. And did this trial serve any purpose? A And

Anne Milgram:             I don’t think we can say that it didn’t serve a purpose for sure. And I still need to think more about it because I feel… I’m still deeply entrenched in it. But the thing is that it really wasn’t a trial. It was in some ways a political ad for the president by his counsel. I mean, I have a higher expectation of the United States Senate. Which is that they would… I really did expect that they would consider evidence thoughtfully, that they would require facts and evidence where it was missing.

Anne Milgram:             The way trials usually operate is that it really is about a search for what happened and the facts of what happened. And this was the exact opposite. And we should go back to the fact that the argument by, particularly the moderate Republicans, against doing that… There’s sort of two arguments really. The house didn’t do a proper process and so the trial can never be fair, which I find deeply problematic for a variety of reasons.

Anne Milgram:             One, the house did exactly… You know, if the Senate has full reign to do what they want, the house has full reign. But second, the house followed the existing practices that they follow. The Republicans were able to call witnesses and judiciary, not in the intelligence committee, but they were there to cross examine. And so this whole sort of manufactured outrage over process I think is really wrong, but ultimately undercuts… Essentially, in some ways I feel like Congress committed Harry Carey. Like ,they gutted their authority in a really significant way, going back to this house piece of allowing the president to say, I’ve decided that this isn’t impeachable or that you don’t have a right to ask me about this, and so I’m not providing information documents.

Anne Milgram:             And the Senate ratified that. And so I have a real, real problem with that. I have a problem with some other things too but I think the way I’m… I want to know how you’re sort of thinking about it, but the way I’m thinking about this is very much in terms of, one thing that the president and his supporters, the Republicans in the Senate understand, they understand power and they understand the power of framing. And they consistently reframed their arguments, it was a fascinating thing to watch. In a real trial, you have a jury… I was thinking what would have happened if we sequestered a real jury and had them watch this?

Preet Bharara:              I think there would have been a conviction.

Anne Milgram:             I think there would have been conviction. In part because you can’t keep changing the narrative, right? Like the defense kept changing… First of all, the house Democrats put a lot of evidence in that is, in my view, un-controverted. So, the Republicans can say, well, you don’t have this direct line, but really all the evidence points exactly in the same direction. And frankly, to believe that the president is innocent of this, you would have to believe that those 15 people who testified were all in on some vast conspiracy together. And it’s just incredible to think about, you know, David Holmes sitting in Ukraine is in cahoots with Lieutenant Colonel Veneman.

Anne Milgram:             And so there’s just all these pieces that are just completely impossible. So in a real trial with a real process and a real standard of proof and instructions on what that is, the end result that we saw here doesn’t happen. Now, you and I, I think, bet on the Senate being more fair and more just, and is that wrong to have bet on that?

Preet Bharara:              Did we bet on that?

Anne Milgram:             No, not bet, but like, my expectation-

Preet Bharara:              Oh, counted on that.

Anne Milgram:             Look, I don’t think that I thought the outcome was going to be different than it was. I thought the process was going to be different and I personally think process matters.

Preet Bharara:              Yeah, no, I think process is everything. I think, generally speaking, as I write in the intro to my book, that for someone to believe and conclude that a result is fair, they have to believe two things. One, that the process was fair and that the people who are involved in the process are fair minded. And I think both of those conditions, arguably, were not met in this case.

Preet Bharara:              Although look, the process is not spelled out in the constitution. In the million ways that you and I have discussed, there’s a great deviation from what the normal, traditional criminal trial is. And by the way, criminal trials are not perfect, but there have been centuries of practice and learning about how to make sure they’re as fair as possible. You have rules of evidence, you don’t allow leading questions on direct examination, you don’t allow irrelevancies to come in, you have an appeals process, you have a whole body of rules and practices and checks to make sure that it’s as fair as possible. And it’s a hundred times more fair in the ordinary sense than this thing.

Preet Bharara:              I mean here, you predicted correctly. If it turned out there were going to be 50 senators voting in favor of witnesses and 50 against, and it was a tie, that tie would have to have been broken by Chief Justice John Roberts. It never came to that because they only got two senators to switch sides from the Republicans. But John Roberts said explicitly, before we knew it was going to be 50/50, that he had no intention of breaking that tie.

Preet Bharara:              So to have a trial… I mean, I keep trying to think of what was the greatest deviation from what we think of as a fair trial and I think there are a lot of contenders that spot. But one is, for a fair trial, you need a strong judge who has the final say on important things and shut nonsense down and you didn’t have that here. I don’t blame Justice Roberts necessarily, I think some people do.

Anne Milgram:             I don’t blame him.

Preet Bharara:              Because you have the head of one branch of government, the executive, you have another branch of government, the legislature and they’re in conflict and the founders, arguably, wanted them to work it out amongst themselves. And you have this kind of figurehead person who brings, I guess, some prestige to the proceeding but doesn’t bring any strength or power to the proceeding.

Anne Milgram:             Yeah. Look, I mean, I think Roberts did exactly what we expected him to do and no more, no less. I mean, I do think it’s worth noting that he refused to ask Rand Paul’s question twice about… that related to name the whistleblower or who Rand Paul believed was the whistleblower. And he… What I understand is that he told the parties in advance that he would not ask a question that went into that and that the Senate parliamentarian was vetting the questions. Which is completely, in my view, the right thing to do.

Anne Milgram:             And so it’s not that there was no line, it’s just that the line was pretty far, right? That there was… At the point at which you’re going to name a whistleblower, potentially put someone in danger, do something that is actually contrary to the law. Right? To sort of get into that space, Roberts drew the line, but everything short of that, he essentially sat there.

Preet Bharara:              Going back to the question of what purpose the trial served, I don’t know if this was the intended purpose, but look, I do think that a pretty good record was made that not calling witnesses, and in particular, not calling John Bolton, who’s ready, willing and able and has direct evidence, firsthand evidence, much ballyhooed by the Republicans once upon a time. That he wasn’t called to testify. And as this other trickle, could turn into a stream, could turn into a flood, of additional evidence that incriminates the president comes out, all these people who voted against the witness are going to have to suffer that vote when it comes time to the election.

Anne Milgram:             Yeah, and they should be held accountable. I mean, in some ways it wasn’t surprising and in other ways the timing was really something remarkable. Which is, on Friday night when they adjourn and it’s clear they’ve already voted down the idea of having witnesses and documents, that there are these emails that are turned over as part of existing litigation and 24 of them invoke executive privilege and say that they relate to the president, the Vice president or other senior advisors as to withholding of aid for Ukraine.

Anne Milgram:             And so, it’s this-

Preet Bharara:              Wait, that came out in the middle of the news day, on a weekday?

Anne Milgram:             No, it came out in the middle of the night.

Preet Bharara:              Oh. Friday night.

Anne Milgram:             Yes. It was a was the last possible moment that they could have complied with the court order to turn it over, and then DOJ launches this and they redact, you know, a huge amount, right? They’re saying, this is privileged. And it’s a fascinating moment because it shows us that, and we already know it, but what shows us… It shows us yet again, that there are going to be emails and there are going to be documents that say specifically, the president wants this aid withheld.

Anne Milgram:             And it’s not clear whether they’ll be a smoking gun that says directly like, what Bolton said, which is, the president told me the aid is withheld until these conditions are met. But at the end of the day, you know, there’s a lot of evidence that’s going to come out that proves the president’s guilt. And so, it’s sort of the senators who voted against that will have to live with the idea of it.

Preet Bharara:              Do you know what else establishes the president’s guilt? The statements of Senator Lamar Alexander and Lisa Murkowski.

Anne Milgram:             What do you make of those?

Preet Bharara:              Who voted, remember… There were four Republican senators that people thought might switch and ask for witnesses and documents and that could’ve changed the tide of the Senate trial. Collins and Romney voted in favor, but at the last minute, Alexander and Murkowski voted against. But Senator Alexander, first to go, and it was interesting because amongst folks on the team and others, we were discussing whether or not Lamar Alexander was going to vote one way or the other and there was a little bit of suspense on Friday evening.

Preet Bharara:              And I got to tell you, a lot of thoughtful folks were optimistic given a bunch of things, including the fact that one of his mentors was Howard Baker, who voted a particular way during Watergate. And he ultimately said, I don’t need any witnesses. And it’s not the reason that his colleagues were given. He said, there is no need for more evidence, this is from his statement, there is no need for more evidence to conclude that the president withheld United States aid, at least in part to pressure Ukraine to investigate the Bidens. The house managers have proved this with what they call a mountain of overwhelming evidence. And then he further says, it was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation. I concur with that.

Anne Milgram:             Yes, I concur, there is ample evidence to prove the President-

Preet Bharara:              Now, that’s not the argument that most of his colleagues have been making. They’ve been saying there was no quid pro quo. There was none of this, there was none of that, it was all fine, the aid went, et cetera.

Anne Milgram:             Can I disagree with one part of his argument?

Preet Bharara:              Yeah.

Anne Milgram:             And if you go below in his statement, the same statement, quote, “it was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation.” Then at the end of that same paragraph, he says, but the constitution does not give the Senate the power to remove the president from office and ban him from this year’s ballot, simply fractions that are inappropriate.

Anne Milgram:             Here’s my problem with that. It is inappropriate when my five-year-old yells poop at the top of his lungs in a restaurant, that is inappropriate. This is beyond inappropriate. And inappropriate really downplays like… Inappropriate means, sort of like, you’ve defied a social custom or you’ve done something that, it’s bad judgment, right? It’s sort of like a minor version of making a mistake. It’s not-

Preet Bharara:              Trump’s tweets are inappropriate on a daily basis.

Anne Milgram:             Exactly, that’s a great example of what’s inappropriate. Sometimes… I’m trying to think of other things that people refer to as inappropriate. A lot of times it’s around language. Basically using the vast power of the Presidency, the most powerful person in the world, to withhold lawfully appropriated aid and essentially violate the law with the Impoundment Control Act in order to win an election. That’s way beyond inappropriate.

Anne Milgram:             And so what Lamar Alexander did, in some ways I agree with him, the evidence proves the president’s guilt, I don’t agree with how he downplayed the importance and severity of this. And it felt to me like cowardice and justification for his position, which is, it doesn’t rise to the level of impeachment.

Preet Bharara:              But you know what’s interesting about Lamar Alexander’s comment and argument is, you and I, I think starting some months ago said, the best and most viable argument for the Republicans, short of wanting to convict the president, impeach and convict the president, was to concede something. Concede, at a minimum, that it was inappropriate and it was not good conduct. Remember, the debate has been on the president’s terms most of this time. And I agree with you that inappropriate falls-

Anne Milgram:             I would use a different word. I would say it was wrong.

Preet Bharara:              Right, it falls far short. But the way the president has caused his allies to advance the argument has been, it was a perfect call, it was perfect. So I guess what counts a little bit, in some circles, for courage is to vote against witnesses, to vote for acquittal and say there was overwhelming evidence the case was made. And yet, all I’m going to say about it is that it’s inappropriate.

Anne Milgram:             I don’t put that in the courage bucket. And I particularly don’t put it in the courage bucket because I think what Alexander did was make… And look, maybe McConnell made this for him, like, no one should mistake the fact that McConnell is the puppet master. You know, he’s the OG, he’s controlling everything on the floor of the Senate, the original gangster, right?

Preet Bharara:              He looks like an OG.

Anne Milgram:             He’s a crafty and clever guy for sure. But I think for Alexander, the calculus that was probably made clear to him is, even if you vote for witnesses, the president is not going to be removed and this will be… you have to live with that. Like, essentially you’re stepping halfway in but the end result, it goes to the… You know, when we used to do political corruption cases, there was like always a joke that in the US attorney’s office, no offense, this is when I was AG, there was always a joke that the feds generally wouldn’t prosecute a political corruption case unless they really were confident, 100%. You know, when you shoot at the King, you don’t want to miss. And so there’s… That’s-

Preet Bharara:              I object to that characterization [crosstalk 00:19:04].

Anne Milgram:             Yes. But it’s a fair way to think about, if you’re going against someone, you want to be sure if you’re a United States Senator who’s retiring and is trying to protect his legacy, maybe he was trying to make sure he was on the winning side.

Preet Bharara:              When you put people on a continuum and you have, on the one end, some of the house Republicans saying that this whole thing was ridiculous, and it was a mountain out of a mole hill, and it was a perfect call, and the president’s great, and it’s wonderful. Then you have Lamar Alexander, who’s at least conceding, we’ve defined deviants down a bit.

Anne Milgram:             Right. I think that’s fair. And look, I think it does take a certain amount of fortitude to sort of say publicly that the president of United States did something wrong because he will be at the end of the president’s sword regardless of whether he votes to impeach or quit.

Preet Bharara:              He’s retiring.

Anne Milgram:             He’s retiring. One of the things I found really interesting about both Alexander and Murkowski’s statements is that they take a lot of the defenses that the president’s lawyers were sort of pushing. And so Alexander says there’s no need for more evidence to conclude that the president withheld United States aid, at least in part. It’s the mixed mode of defense, right?

Anne Milgram:             Like, there are all these ways in which… You know, who gets to decide. The presidential election is beginning in Iowa on Monday. That was the big argument of the president’s lawyers yesterday was basically, look, let the people decide, we believe in democracy. We shouldn’t take an elected president out of office before an election.

Anne Milgram:             So they all took pieces of it… And again, if this was a real trial, many of the defenses were inconsistent. They kept shifting, they kept being like manipulated to fit the narrative facts that were coming out. Like, as Bolton’s book release, as things started to leak, the president’s lawyers started to change how they worded things.

Anne Milgram:             Also, here’s my other favorite from Alexander, and I’m saying that sarcastically, is when he says that removing the president or voting from our evidence would rip the country apart. Quote, “rip the country apart, pouring gasoline on the fire of cultural divisions that already exist.” When this was exactly the president’s strategy, was to make this as partisan as possible, as much us versus them because then it negates some of the evidence and the facts of the president’s guilt.

Anne Milgram:             And so, I just would note that there’s like a weird weaving of multiple arguments and defenses.

Preet Bharara:              So going back to Murkowski for a second, we have been discussing Lamar Alexander’s quote, unquote, inappropriate adjective.

Anne Milgram:             Yes.

Preet Bharara:              Murkowski used stronger language on the floor of the Senate yesterday, Monday. She said-

Sen. Murkowski:           The president’s behavior was shameful and wrong. His personal interests do not take precedence over those of this great nation. The president has the responsibility to uphold the integrity and the honor of the office, not just for himself, but for all future presidents. Degrading the office by actions or even name-calling, weakens it for future presidents and it weakens our country.

Preet Bharara:              Better.

Sen. Murkowski:           Yes, much better. Much better. What’s interesting about Murkowski is that, do you remember, and I can’t remember if we talked about this last week or during maybe the panel discussion we did at NYU together but, she really took offense at Schiff’s conversation when he talked about the CBS [particle 00:00:22:21]-

Preet Bharara:              Heads on a pike.

Anne Milgram:             Heads on a pike. And she really took offense and said, you know, he lost me there. And one of the things she talks about a lot in her statement is the partisan nature of the inquiry. And she sort of ultimately concludes, look, Congress has failed. But I will give her more credit, although I want to be careful in giving credit, because I sort of believe the middle of the road is for yellow lines and dead armadillos, as they say. And she and Lamar Alexander are very much trying to like-

Preet Bharara:              How have I known you for 15 years and you’ve never used that line?

Anne Milgram:             Have I never? Yeah. I got a lot of them.

Preet Bharara:              Yeah, clearly. We should put them in the pamphlet.

Anne Milgram:             But there’s a way in which she at least calls the president out for, much more closely, to what he’s really done. But they are still both trying to have it both ways, which is to say, tsk, tsk, you did something wrong, but we think that the process was so severely flawed and that there’s an election coming and so let’s let the people decide.

Preet Bharara:              Do you put any stock in the argument that she made last Friday that this is a political process and that folks are trying to drag the Supreme Court into the fray, quote, while attacking the chief justice, close quote.

Anne Milgram:             Okay, so there’s a lot to unpack there. The first is, Elizabeth Warren’s question that… You know, it did feel a little high school and childish because the Chief Justice had to read the question and the question was essentially like, does this hurt the institution of the Supreme Court because-

Preet Bharara:              And the Chief justice.

Anne Milgram:             And the Chief Justice.

Preet Bharara:              I mean, called him out by name and so he has to read the thing that is about himself. And you know, some of the impeachment trial I listened to on my phone and some I watched. That, I happened to watch. And you see Chief Justice Roberts’ face at the end and he does this little nod like, gosh, this kind of sucks.

Anne Milgram:             Yeah. Look, I thought… He acquits himself, I think, always with decorum. And so, yes-

Preet Bharara:              Nice use of that word.

Anne Milgram:             There was a minor moment of sort of seeing a flash there but by and large there was not a lot. And look, Schiff did a good job of basically saying no, I think that the Chief Justice has acquitted himself well and has represented the Supreme court well. So, I thought Schiff actually did the right thing in that instance of not going in for it.

Anne Milgram:             I don’t think Elizabeth Warren should have asked that question. It felt petty. I do think she should have asked the following question. Which is, what does the way that this process has played out say about the failure of the courts to be able to move quickly enough to be an effective co-equal third branch of government? Because I think one of the things we should be talking about is the fact that the courts… The reason that the house Democrats, that Schiff and others did not go to the courts for rulings on executive privilege is that they predicted correctly.

Anne Milgram:             If you look historically at how long it took the Harriet Myers subpoenas to go through the courts, at how long it’s taking the Don McGahn subpoenas to go through the courts, they predicted correctly that they could not get an answer in time before the election and that there’s a justice issue of waiting too long. And so to me, the better question is, how are we going to have three co-equal branches of government if the judicial branch cannot do what they need to do and make quicker rulings on these things?

Anne Milgram:             And so, that to me is the question, not the poor Chief Justice, trying to be a potted plant sitting there, you know, minding his own business.

Preet Bharara:              So we’re recording this on Tuesday morning. On Wednesday, there will be a vote on the final question, guilty or acquit. And we expect it to be along the same lines. An interesting question to me is, with respect to the two Republicans who voted for more witnesses, at least rhetorically they should be disappointed that we didn’t get those witnesses. What will that cause them to do in terms of a vote on guilt?

Anne Milgram:             Yeah, that’s a great question because in some ways they are asking for more witnesses because ostensibly they have questions that still need to be answered about the president’s guilt or innocence. And so, you could see them voting to acquit and saying there’s insufficient-

Anne Milgram:             … I wanted more evidence, there’s insufficient evidence. Do I think they should, no.

Preet Bharara:              But that’s an odd position to take. I think there’s a lot here that’s really dicey and it doesn’t sound good. And my two colleagues with whom I’m a little bit simpatico have said it’s shameful and wrong, and at least inappropriate. But in the absence of getting more witnesses, I guess I took my shot and now look, acquit.

Anne Milgram:             I mean, you and I-

Preet Bharara:              That’s Collins will do.

Anne Milgram:             That is exactly what Collins will do. You and I would expect a normal person in that circumstance, that was not running for the United States Senate would not do that. They would basically vote to remove under the guise that the Republican party is in control of the Senate. The president and Mitch McConnell have been coordinating his defense from day one and they’ve made a choice not to provide those evidences and those witnesses. And so, it should fall against them. That’s what a normal human being, I think, would do. But look, I think the ostrich defense, the head in the sand, we don’t want more witnesses and evidence, has actually been effective for the Republicans to have. You know, they’re just looking for something to hang their hat on. They’re not looking for the truth or the right result. I’m being cynical here but it feels like-

Preet Bharara:              They’re trying to avoid… Look, it’s yucky for them to have these witnesses come in, to have Bolton say things that undermine the president, the top national security advisor. It’s just, it’s terrible and that’s why they don’t want it. It is also terrible not to have the witness come in and to have John Bolton testify, in a manner of speaking, on television and other [inaudible 00:27:14], we’ll talk about whether or not that will happen, given the controversy over his book.

Preet Bharara:              And they chose the lesser of the two evils. And I think the chickens will come home to roost, you know, one way or the other. But you know, overall, I’m going to say something that maybe is controversial to some folks. So if I were in the Senate, based on what I saw and based on the magnitude of the bad conduct by the president, I think the case has proved, and I would vote to convict and remove, and you would do it solemnly because it’s a big deal.

Preet Bharara:              But I still take the position, I think this is not inconsistent. It is not a crazy position to say, you know, I can see that the president did these awful, terrible things. Given all the circumstances, if I’m a Republican Senator, I do not vote to remove the president. It wouldn’t be my vote. I think it’s not the correct vote.

Anne Milgram:             No, but it’s by far the best argument to make, which is-

Preet Bharara:              But it’s not a crazy vote. And the other thing people should remember is the Republic has been around for a long time and no president has ever been removed. And not only that, I believe the following also to be true, no Senator of the same party as a president has ever voted to convict and remove a president. So you know, in some ways we have lots of things that are different this time around and the procedure has been different and there have been a lot of departures.

Preet Bharara:              And we’ve defined deviance down and I think this is the worst conduct we’ve ever seen by a president in connection with an impeachment or a trial. All of that is true but it’s not like there have been prior proceedings where dozens of Republican senators voted for the removal of their president of the same party. Now, the counterfactual is, that probably would have happened in 1974 but Nixon spared us that.

Anne Milgram:             I think that is the counterfactual, that he stepped down. But the argument you’re making, it’s not a crazy argument at all. Which is that, look, the Senate decides what conduct… The House decides what conduct is impeachable and the Senate decides whether or not to remove the president. And so, I do think that part of the problem is the lack of intellectual honesty that we’re hearing. And that is the, well, it’s about the 2020 election versus just saying like, look, we don’t think this rises to the level of impeachment. And there are versions of this that could, abuse of power could, but it doesn’t here, in our view. And we, the majority of the Senate get to decide.

Anne Milgram:             And so, in some ways that would feel better to me than the sort of largely strange and convoluted, well, it has to be a… You know, there’s 8 million arguments they’ve made. It has to be a crime. You know, the Dershowitz argument is just beyond, and we can talk about that. But there are so many weird defenses swirling around. I agree with you though that that’s always been the best defense.

Anne Milgram:             I also think, and I’d be curious to know what you think about this, that I do think that there’s an argument in all of this for an independent counsel statute to come back and for there to be some form of fact finding that exists that would be… Because I think we live in a hyper-partisan world and I don’t think we’re going to get…

Preet Bharara:              You want Ken Starr back?

Anne Milgram:             I do not want Ken Starr back.

Preet Bharara:              So you want independent counsel but someone who’s better than Ken Starr.

Anne Milgram:             Well, ideally yes.

Preet Bharara:              But that’s the problem, we can’t prescribe that.

Anne Milgram:             You can create a process for the selection and you know, you can create a process through which it’s an option that could be pursued or through which the, you know, the Senate has a fact finding function. I don’t know, I haven’t thought enough about it. I just sort of feel like where we’re left… I don’t like the idea of being left with this idea that we are so hyper-partisan in our country that we’re left with that no president will ever be impeached for any conduct unless the opposing party controls both houses of Congress.

Preet Bharara:              Well the weird thing is, we had a crazy sequence of events that led to where we are today, right? And I wonder if there had been no Russian investigation, if there had been no special counsel and all of a sudden, out of the blue, in the middle of the president’s term, these revelations about Ukraine happened. I don’t know that the house Dems, Adam Schiff in particular, would have seized it unto themselves and done the investigation.

Preet Bharara:              There were no calls for a special counsel with respect to Ukraine. I suspect in part that’s because we just had a special counsel and you got one shot and it would be weird to have another one. Had there not been the first special counsel, I got to imagine there would’ve been a clamoring from a lot of folks for a special counsel to investigate these things relating to Ukraine. And maybe you would have had what we didn’t get here.

Anne Milgram:             Right. But I think the problem with the special counsel rags, and I say this with respect for the people who wrote them following the Ken Starr, limitless investigation of the Clintons… And I think that there was a bipartisan desire at that point to pull back on the independent counsel statute, that it was too broad and needed to be limited more.

Anne Milgram:             So they got rid of it and then they put this special counsel provision into the Department of Justice. But I think, look, we saw what Bill Barr did when this was referred to him, the Ukraine piece was referred to him. He said, nothing there, we don’t need to investigate. And so-

Preet Bharara:              That’s true.

Anne Milgram:             The problem with the special counsel is that you’re assuming that people will have positive, fair motives and will take the law and the facts where they lead them. And I think that we cannot assume that.

Preet Bharara:              I want to go back to the ultimate question. Because you know, part of what we do here, part of what I tell my law students, is that, certainly in the law, and in the public square, and in life, you make arguments. And on the spectrum, some arguments are ridiculous, some arguments are bulletproof, and there’s a whole bunch of stuff in between and it’s important to distinguish them. Rather, if you’re not part of the process, if you’re an advocate, then you make your argument and you say they’re all wonderful and great.

Preet Bharara:              But still, the better advocates pick and choose their arguments. And there are two related arguments, one of which I think is foolish and one of which I don’t ultimately agree with, but I think is reasonable and defensible. And they both relate to the election, right? The first argument is that, well, impeachment is the undoing of an election and you can’t do that, which is silly for a lot of reasons because it’s in the constitution.

Anne Milgram:             It’s supposed to remove the president.

Preet Bharara:              It’s the whole point. Otherwise you could never impeach anyone. And it’s often going to be… So, [inaudible 00:32:44] it’s going to follow an election of someone and there’s a reason they put that in there. And so, that’s silly. It has some surface rhetorical appeal. But there’s related argument that I think is distinct and separate and that is, we have an election coming up.

Preet Bharara:              And I get the arguments that that shouldn’t matter. And I think Adam Schiff was actually very powerful yesterday in his closing arguments saying he’s a recidivist.

Anne Milgram:             Yeah, and it’s your responsibility.

Preet Bharara:              And he’ll do it again and again. I think that’s the most powerful argument. The most powerful argument for removal is not the pure evidence of the commission of this abuse of power and obstruction of Congress, is that the man is a recidivist and doesn’t learn his lesson. He’s going to keep doing it over and over again. Think of how much damage he’s going to do between now and the election, to win it, if he gets a buy.

Preet Bharara:              But it is, again, not crazy to say, you know what, there’s a lot of harm that will come to the country from removing a president nine months before the end of his term, better to let the people decide. Neither one is a great option. But I’m, as a Republican Senator, willing to accept the harm that comes from leaving him in and let the people decide in November, versus taking him out and realize all the difficulty and division that will arise from that. I wouldn’t vote that way, but that argument doesn’t offend me.

Anne Milgram:             Right. I think that it depends on how it’s articulated, how effective it is. Because I heard different versions. I heard the Jay Sekulow saying, you know, the Democrats are trying to steal the 2020 election, which felt too much to me. And I think the more legitimate argument-

Preet Bharara:              Steal the 2020 election? I think there’s an argument, political argument, that if you remove the president of the United States, that the reelection of the Republican president is a lock.

Anne Milgram:             Right? So I think it’s both, probably not necessarily accurate, but also just felt just blatantly partisan and not the right way to argue it. The other version, which is the, we happen to have a moment in time where we are close to an election. And a lot of times if this was three years out, if it was a year after the president was in office, we’d have to wait too long, there could be real harm to the country, but here we’re going to let the people decide whether or not this harm is sufficient to kick the person out of office.

Anne Milgram:             The problem with that is that the framers intentionally did not leave it to the people, right? There are other countries that have different forms of government where they can have no confidence votes in the middle of presidential terms. We’ve seen it, we see it a lot in Europe. And then basically, you know, there’s a lack of confidence, you have to have a vote and the people get to vote on whether or not you stay or you don’t stay.

Anne Milgram:             And that’s not the American system and we’re not a parliamentary system. But it is on its face and we’ve talked about this a lot, the appeal that some arguments can have on their face as a way to frame things. It does make sense, right? That your first reaction is, well, who wants to say we don’t trust the people? Of course we trust the people.

Preet Bharara:              It’s also a balance, right? When you’re assessing the reasonableness of the argument about an upcoming election, I think a lot of people appropriately say, you know, it’s nine months away, there’s a lot of time, there’s a lot of damage that can be done. And Schiff said that, that’s fine. Now just change the hypothetical. Say, okay, now let’s say it’s two months from the election. Let’s say it’s six weeks from the election and they didn’t close the proceedings and there was fights over and documents and now we’re in September, or even late September, and we’re going to have this vote. I think even a lot of reasonable Democrats would say, okay, it’s maybe a bridge too far, the constitution doesn’t say you can’t remove before an election.

Preet Bharara:              So at some point the logic makes sense. Does it make sense at six weeks? Does it make sense at nine months? Does it make sense to two years? You know, I don’t know. And by the way, I think this analysis had to have played a part in the minds of Adam Schiff and Nancy Pelosi and others as to why.

Anne Milgram:             In trying to push quickly, I agree.

Preet Bharara:              Yes. So they get a lot of grief and I get it. They get a lot of grief. They didn’t litigate but they were between a rock and a hard place, as they say. My aphorisms are not as interesting as yours, mine are very trite.

Anne Milgram:             No, it’s nice, I like it. But if they waited, if they litigated it, it would be after the 2020 election. But here’s my fundamental problem with this. You ready?

Preet Bharara:              Yes.

Anne Milgram:             What does this remind you of? It is Merrick Garland 2.0. And here’s what Mitch McConnell does, and here’s what he does incredibly effectively. You know, president Obama had nominated Merrick Garland about eight months before the 2016 election, right? It wasn’t 60 days before. It wasn’t three months before. There was a lot of time. And Mitch McConnell made an argument that it was too close to the next election and the next president… the people should get to decide who goes on the Supreme Court, the next president should get to decide.

Anne Milgram:             That wasn’t right then and it’s not right now in this argument of that the Senate is withheld in some ways from acting and really it’s just political power. To be clear, Mitch McConnell had the power to block Merrick Garland and he did. He has the power here to block the removal of the president and he is doing so.

Anne Milgram:             So I want to basically be just really careful of saying, yeah, it’s a legitimate argument on its face and the closer it gets to the election, the more legitimate it gets, right? This is federal prosecutors, stand down. You know, we’ve talked about this a lot with Comey, but it may be more of a cultural accepted practice than it is an actual rule or regulation in the department.

Anne Milgram:             But you know, there’s a window, two or three months out, where investigations stop because you don’t want to interfere with an election. But short of that, we have to be really careful of letting our systems be bastardized in this way by somebody putting this arbitrary timeline on it. And look, if the constitution wanted there to be a timeline, the constitution would have put a timeline in. So your point about being closer is right but I also think we have to be really honest about what’s happening here and that there’s a pattern.

Preet Bharara:              Look, and I also think people will start talking about the longterm consequences of this. Does it make impeachment in the future more likely or less likely? It’s an odd question to ask. It depends on what the hell the next president does or the president after that does. But assuming they conduct themselves within a range of conduct or are in a similar way to how Trump did or how Clinton did, there’s an argument that it will lessen the likelihood of impeachment because it will have seen to have been ineffectual, didn’t really do anything else.

Preet Bharara:              It depends on what happens to Trump, I think, in the election in 2020. On the other hand, it might cause some people to say, well, you know, you can impeach for anything. I don’t think that’s a viable argument. And it is true that we didn’t have an impeachment for 160 or 170 years and now we’ve had three every couple of decades.

Anne Milgram:             Right. No, there’s some truth in it. I also think though that there’s a political price to be paid at home for where you stand on these things. And we’ve talked about this a lot but, a number of Democrats were not for impeachment even after the Muller findings and they only came on board after Ukraine. And so, I think there is an argument that, you know, ultimately we elect the United States Congress and the United States Congress, if they abuse this power, don’t use it correctly, can be held accountable by us.

Anne Milgram:             But I do see that this is an argument that superficially also has a lot of appeal to some people. My answer is, we don’t know. I mean, again, each impeachment is factually different. And so, it’s a little… You’ve said before, we have to be careful of taking too much precedent. While I agree this happened more frequently in the last number of years, everything also is more public. So you know, you have the internet and media basically, things move at the speed of light and a lot more… We have the freedom of information act. Like ,there’s just a lot of reasons why the world has shifted.

Preet Bharara:              Can we talk about the president’s lawyers for a second?

Anne Milgram:             Yes.

Preet Bharara:              Pat Cipollone. So there have been reports that it turns out he was present at some meetings earlier where issues of Ukraine were discussed. There’s a reasonable argument that he was himself a fact witness and used some of the details of the things that are at the heart of the case. That’s bad, right?

Anne Milgram:             Very bad. I mean, it’s a rule of lawyering that you don’t make yourself a witness or you can’t be a witness in a case that you’re a lawyer and an advocate for our client in, for a variety of reasons. But yeah, I mean, we’ve talked about this and Steve Gellers who teaches ethics at NYU law school with us, he wrote a pretty interesting piece about why the president’s lawyers should not have been able to represent him in the trial.

Preet Bharara:              But this is on top of that.

Anne Milgram:             He wrote that before we knew that Cipollone was in the room, or that it was leaked that Bolton will say in the book that Cipollone was in the room along with Mulvaney when this… When Bolton was told by the president to make sure Zelenskyi would meet with Giuliani. And so, it makes it Cipollone someone who’s an active part of the withholding of aid in The White House meeting in Ukraine and part of the whole deal that went down there.

Anne Milgram:             And so, I do think it raises a lot of issues. I also think that the president and his lawyers made a calculation that no one was going to call them out on it in a way… that no one could stop them, right? That Cipollone… people can talk about it but he walked in there, he’s using tax dollars to defend the president of the United States. Someone could Sue him, someone could bring him to a bar committee obviously, to be disbarred, but no one was going to stop him from doing what he did the past two weeks in the Senate. So what do you make of it?

Preet Bharara:              As you know, I got sort of bent out of shape over something that Pat Cipollone, on the first day of the trial. Where he made a false statement about Adam Schiff’s colleagues, Republican colleagues, not having access to the skiff, which was false to my knowledge, never corrected. It’s not a small thing in my mind to be representative of the people being paid for by the people representing the office of the presidency, not the president himself. [crosstalk 00:41:34]

Anne Milgram:             And then to be involved in the conduct, right?

Preet Bharara:              It’s really disappointing. It’s really disappointing. And we’ll see if anything arises from that. Do we have to talk about Alan Dershowitz? Because I’d rather not.

Anne Milgram:             I mean-

Preet Bharara:              Do you want to? Go ahead.

Anne Milgram:             Yeah.

Preet Bharara:              He made a crazy argument last week and he tried to walk it back.

Anne Milgram:             My favorite was the crime-like-

Preet Bharara:              No, but he made the other argument.

Anne Milgram:             Yes.

Preet Bharara:              That basically, if the president is doing something in the public interest, it’s okay. And by the way, public interest can include someone wanting to be reelected because everyone in their right mind thinks that their own election or reelection is in the public interest. Ergo, you can sort of do whatever you want.

Anne Milgram:             Yeah, basically the quid pro quo could be fine. It’s a crazy argument. It’s not supported by any legal scholars that I know. I haven’t read a single defense of it. It’s also interesting, it made me think a lot about, you know, how he was able to sort of, you and I have talked about some of his arguments as sophistry. How he sort of has, by and large throughout his career, weaved a pretty, you know, intricate web of these legal arguments. Some of which are supported by law, in fact, and others are not. But this was just an extreme example of making this argument that you think you’re running for election and you think you’re the best person and so you could trade any quid pro quo you want, essentially.

Anne Milgram:             And then he did step it back the next day saying, well obviously if it’s a crime or crime-like, it’s not okay. But I was thinking about, you have a mayor, and there’s a contractor who’s going to get all of his employees to vote for the mayor if he gets the contract.

Anne Milgram:             And so, you know, you could see that the mayor could say, well, I’m definitely the best mayor, I should be reelected. You could also see that the mayor would say, the contractor’s not bad, he could legitimately do the work. And so, you know, make this sort of justification for why he gets to engage in conduct, even if that would not be the better, or the contractor that should have been chosen according to government rules.

Anne Milgram:             That’s the argument that to me is almost more interesting and Dershowitz just touched on it briefly. But the bigger thing, I think, that the Republicans were trying to argue in part, was this idea of like the mixed motive. That if the president both thinks that there’s too much corruption in Ukraine and he thinks that the Biden should be investigated to help his political election, that somehow the fact that there could be one plausible argument, like one plausible motive, overcomes the fact that there could be misconduct or criminality or something that was unlawful.

Preet Bharara:              This mixed motive argument, that there might’ve been good because but also nefarious motivation. That’s not a crazy argument either in a vacuum. The problem with this whole process, and you and I have discussed it, is we don’t have actually statutes, rules, jury instructions. As I think I’ve mentioned before, this mixed motive issue comes up in public corruption cases all the time. And depending on the circumstances and depending on what the quid pro quo is, there is law in the federal system that says, if some part of your reason for engaging in the official act of voting on a bill or granting money or some other such thing, if a reason is because you got this elicit payment, even if it’s a good thing you would have voted for anyway, even if it’s good for your constituents, you have committed a crime.

Preet Bharara:              But the reason you can make that argument and the reason why it’s clear is the law says so. And when the jury deliberates and when the prosecutors make their arguments beforehand, they know what the law is. And the judge says, so there’s no confusion on the point, you should know that on the question of whether or not there are multiple motivations, if “X” is true, then you can convict, if “Y” is true, then you cannot convict. And there’s some guidance.

Preet Bharara:              Part of the whole craziness and confusion of all this that sometimes, you know, people who talk about this on television don’t always fully appreciate, there’s no guidance. So people can choose their own standards on this. And so, it’s not crazy but we just don’t know what the right rules to apply.

Anne Milgram:             In some ways, it’s one of their best arguments, right? And I really thought that because when you think about it, again on its face, it feels like, well, if there’s any legitimate basis to have done something, then you could always argue, well, that’s why I did it, right? And by the way, take my mayor example again and combine it with your example where, in this case, the mayor gets a bribe from the contractor. The contractor is also someone that the mayor could say like, look, I saw houses he built, they’re not bad.

Preet Bharara:              We would argue it in court, you know, in cases where you have a politician who does something, who might’ve voted the same way on a bill but instead he takes a bribe to vote on that bill that was good for his constituents, it’s the best possible bribery ever, right? It shouldn’t be a point in his favor. It should be point against him. Now he’s getting a bribe for doing what he would have done anyway. You don’t get a buy.

Preet Bharara:              It can’t only be the case that you get convicted if you take a bribe and then do something other than what you would have ordinarily done. Maybe that makes it easier to prove because it shows it was probably only due to the bribe. But man, that’s the luckiest guy ever. He does what he wants to do, helps his constituents and he gets a bribe to boot.

Anne Milgram:             Yeah. And I think that that’s what was very much missing from the trial and why I think some of it felt more like a political ad or a sort of exercise in political argument and sort of framing. Is that when you try a case there are actual statutes, that there are instructions that the judge gives you on the law and there’s a burden of proof and it is very clearly… it’s not this sort of shadow boxing thing where it’s not clear what the standard is or what matters.

Anne Milgram:             And I actually thought it was one of the more effective arguments by the president’s lawyers, was really this whole mixed motive thing that the president could have had this legitimate corruption interest in Ukraine. Now, keep in mind there was some evidence that he’d mentioned corruption twice in Ukraine twice in 2017 but the evidence that was put in by the house managers completely destroys this idea that the president was motivated by trying to stop corruption in Ukraine in this specific incident.

Anne Milgram:             But still, I think that there was a failure to appropriate-

Anne Milgram:             … Like, this is a complicated thing that you and I are just talking about and hopefully now people understand. Yes, the president, even if corruption was in Ukraine was a piece of it, could still be guilty of having done this. But it still, it requires more of an explanation.

Anne Milgram:             And when you’re explaining, you’re losing in some ways because it’s complicated to get people to understand. Should we do a quick lightning round Preet, of a couple of things that have happened? I mean, first of course, Michael Flynn, who I feel like ,he’s like a bad penny. He keeps turning up. Every time I think we’ve turned the page on him he’s back. So it was reported this past week, very strangely, that, you remember, the government initially at Flynn’s sentencing had recommended, you know, his guidelines are zero. Meaning no incarceration to six months. Meaning, six months incarceration. And then the government had recommended a non-incarceration sentence, basically saying he doesn’t have to go in.

Preet Bharara:              For a lot of reasons, including a long term of service and his cooperation and a little bit acceptance of responsibility.

Anne Milgram:             Yes, and then Flynn goes, I don’t know what the right word is, but he basically fires his lawyer. He makes these accusations that the government violated their constitutional obligations to provide information to him as the defendant. The judge rejects those. And then the government comes back, and this is very unusual, usually when someone comes out and the government comes back and says, you should go to jail for six months, right? That basically, you’ve also… He’s very much undercut his cooperation agreement, which was to come forward and say, I did it and I’m prepared to cooperate. He’s really contested his innocence, which is not consistent with cooperators.

Anne Milgram:             And so, the government says six months. Then in a very surprising turn of events, which I really did not see coming, the government came back this past week and said, actually we agree that the sentence should be zero to six and now we think, yet again, that he doesn’t need a sentence of incarceration.

Preet Bharara:              It’s a weird flip flop.

Anne Milgram:             Really weird.

Preet Bharara:              That you never-

Anne Milgram:             You never see it.

Preet Bharara:              I mean, it’s really weird with no explanation. And then, I don’t know exactly the timing and I’m not going to spin a conspiracy theory, but the US attorney in the District of Columbia, Jesse Lou, was removed from her position. I don’t know if they’re touting it as a promotion or a transfer. She now has an assistant secretary job for the Department of the Treasury. It may be my parochial sense because I used to be a US attorney, that does not strike me as a promotion.

Anne Milgram:             It’s not a promotion. I can’t begin to say how strongly it is clear that she was pushed out of her job as the US attorney in DC. What’s also interesting is that there’s a big case that’s pending that we had heard was going to be charged and never was charged, which is the case against Andy McCabe. And so, it’s not clear to me why [Barr 00:49:48] took her out and put in one of his longtime confidence, he put in a guy named Timothy Shay, who’s a longtime Barr confidant, has worked closely with him and, I think, handled the BOP, the Bureau of Prisons reforms after Epstein committed suicide in New York.

Anne Milgram:             And so, Jeffrey Epstein committed suicide so he put in one of his right hand people and took her out. And there’s definitely going to be a reason why he did that. And I think it’s very much, let’s wait and see what happens on Andy McCabe but I think it bodes badly for him.

Preet Bharara:              All right, so, we’ll have the vote tomorrow. We have The State of the Union tonight. And hopefully at this time next week we can announce the results of the Iowa caucuses.

Anne Milgram:             I hope it doesn’t take a week.

Preet Bharara:              See you next time folks.

Anne Milgram:             See you soon, bye.

Preet Bharara:              That’s it for this week’s insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore. And the cafe team is Julia Doyle, Matthew Billy, David Kurlander, Calvin Lord, Sam Ozer Staton, and Jeff Isenman. Our music is by Andrew Dost. Thank you for being a part of the Cafe Insider Community.

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CAFE Insider 2/04: The Verdict

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