• Transcript
  • Show Notes

In this episode of CAFE Insider, Preet and Anne break down the Supreme Court’s decision to permit grand jury access to former President Donald Trump’s financial records, Judge Merrick Garland’s Attorney General confirmation hearing, and Rep. Bennie Thompson’s civil suit against Trump for his involvement in the Capitol insurrection.

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:

Doing Justice, CAFE

Renegades: Born in the USA, Spotify

TRUMP v. VANCE

Trump v. Vance, U.S. Supreme Court, order, 2/22/21

Trump v. Vance, U.S. Supreme Court, opinion, 7/9/20

“Justices will not block New York grand jury subpoena for Trump’s records,” SCOTUSblog, 2/22/21

“Manhattan D.A. Recruits Top Prosecutor for Trump Inquiry,” NYT, 2/18/21

“Trump’s former fixer Cohen interviewed by Manhattan DA’s office and newly hired litigator,” Reuters, 2/18/21

“The Supreme Court is still sitting on Trump’s tax returns, and justices aren’t saying why,” CNN, 2/18/21

GARLAND CONFIRMATION HEARING

Garland opening statement, 2/22/21

Garland biography, U.S. Circuit Court of Appeals District of Columbia

“Merrick Garland’s attorney general confirmation hearing: Day 1,” CNN, 2/22/21

“How the Oklahoma City bombing case prepared Merrick Garland to take on domestic terrorism,” WaPo, 2/19/21

“Merrick Garland, Biden’s Pick for Attorney General, Will Finally Get His Hearing,” WSJ, 2/19/21

Sen. Lee tweet, 2/22/21

VIDEO: Attorney General Nominee Merrick Garland Testifies at Confirmation Hearing, 2/22/21

THOMPSON v. TRUMP

42 U.S. Code §1985. Conspiracy to interfere with civil rights

Ku Klux Klan Act, 1871

9 Oath Keepers indictment, U.S. District Court for the District of Columbia, 2/19/21

Thompson v. Trump, U.S. District Court for the District of Columbia, complaint, 2/16/21

“Explainer: What is the Ku Klux Klan Act cited in lawsuit against Trump,” CNN, 2/17/21

“How Biden could find himself on the same side as Trump,” Politico, 2/17/21

“N.A.A.C.P. Sues Trump and Giuliani Over Election Fight and Jan. 6 Riot,” NYT, 2/16/21

POTATO TOE

“‘Human foot’ in Gateshead field turns out to be potato,” BBC, 1/8/21

What’s in Trump’s Tax Returns?

After a lengthy legal battle, the Supreme Court will finally permit Manhattan District Attorney Cy Vance to present former President Donald Trump’s financial records to a grand jury — but will this lead to charges?

In a much-anticipated announcement, the Supreme Court rejected Trump’s last-ditch efforts to shield his financial information from a grand jury subpoena. Preet and Anne break down the implications of the Court’s one-line order, and Vance’s decision to hire prosecutor Mark Pomerantz to join the investigation. 

Meanwhile, Judge Merrick Garland, President Biden’s nominee for Attorney General, testified before the Senate Judiciary Committee in his confirmation hearing — giving us all a glimpse at how Garland plans to oversee the Department of Justice. 

And, Mississippi Congressman Bennie Thompson sued Trump, Rudy Giuliani, and two white supremacist groups for their involvement in the insurrection at the Capitol on January 6th. Preet and Anne explain the legal theory of the case, which rests on the rarely-used Ku Klux Klan Act — an 1871 law enacted to protect former slaves and members of Congress from violence. 

2/23/2021

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

Anne, how are you?

Anne Milgram:

Hey, Preet.

Preet Bharara:

So once again, I want to remind folks about not one, but two podcasts. The first, obviously, Doing Justice, which is coming to its fifth week. Fifth episode drops tomorrow. Thanks for all your comments, especially CAFE Insiders who have been listening and reaching out and telling me what you think. So listen to that first. There’s another new podcast, I don’t know if you’ve heard about it yet, but I think you have, called Renegades: Born in the USA, and the co-hosts are none other than Barack Obama and Bruce Springsteen. And the funny thing about it is, I responded, and people were wondering what my response would be. Big Springsteen fan, as I know you are.

Anne Milgram:

Yeah.

Preet Bharara:

Also happen to be a fan of the former president. I just quote tweeted with the emoji of a head exploding, because I didn’t know what else to say about it, because it’s kind of crazy to put those two cats together.

Anne Milgram:

It’s not obvious, yeah. Definitely.

Preet Bharara:

It’s not obvious at all. Then somebody replied to my tweet. @Jefffos replied to my tweet saying, “Hey, he,” meaning, I guess, Obama. “He’s just like you. He’s doing a podcast with someone from New Jersey.”

Anne Milgram:

Do you know what I love about that the most, Preet?

Preet Bharara:

It’s like the same thing we’re doing.

Anne Milgram:

Yeah. But you know what I love about it the most? I’m Bruce.

Preet Bharara:

Yeah, you’re Bruce. What’s that about?

Anne Milgram:

I’m the person from New Jersey. Yeah. You’re Barack. I mean, I’ve never been compared to a talented… Not that it wouldn’t be an honor to be compared to the former president, because of course it is, but it’s pretty cool to be compared to the other Jersey guy who happens to be one of my favorite singer/songwriters. You know what else is interesting, though, Preet? You’re also a Jersey guy.

Preet Bharara:

I am, so it’s kind of interesting.

Anne Milgram:

Yeah. Sometimes people forget.

Preet Bharara:

Obama. Is Obama a Jersey guy?

Anne Milgram:

He is not. He’s not.

Preet Bharara:

He’s a Hawaiian guy.

Anne Milgram:

Have you listened? Has it been released?

Preet Bharara:

I was so busy yesterday that I don’t even know. I think it may be.

Anne Milgram:

Yeah, me neither.

Preet Bharara:

But guys, listen to us first, and listen to Doing Justice first and Stay Tuned first, and then that other podcast with the Hawaii guy and the Jersey guy. All right? That can wait.

Anne Milgram:

In that order.

Preet Bharara:

So lots of things have gone on. Merrick Garland’s confirmation hearing was yesterday, Monday, continues today with witnesses. But before we get to that, there was other breaking news. Totally not unexpected, which is another way of saying totally expected, I guess. The Supreme Court decided that it was no longer going to delay letting Cy Vance, the DA in Manhattan, get those tax records and financial documents from Donald Trump’s accountants, Mazars. What did you make of the lengthy opinion? Went on for… How long was the opinion again?

Anne Milgram:

It’s one sentence, right?

Preet Bharara:

One sentence. Oh.

Anne Milgram:

One sentence.

Preet Bharara:

What does that tell you about the merits?

Anne Milgram:

Well, what’s interesting about it, and what it basically said, Trump versus Vance, said the application for a stay presented to Justice Breyer and referred to the court is denied. Basically, that is what I think we all would have expected, and just to go back for a minute on this, this is the Manhattan DA investigation that’s been going on now for more than 18 months, it’s been. This litigation has gone on for quite some time.

Anne Milgram:

Essentially, the Manhattan DA issued a subpoena to Mazars, which had been the accounting firm of Donald Trump, and they were seeking copies of Donald Trump’s taxes, tax documents from the Trump Organization. And from what we understand, also some of the underlying… And this is from what’s been publicly reported. We have no inside knowledge of this, but it’s been reported they were also looking for the business records that people use to prepare tax documents. Also, information on insurance that the Trump Organization had gotten, loans that they had gotten, and also the communications between the Trump Organization and Mazars as they were preparing taxes and tax returns.

Anne Milgram:

The other piece, just to remind folks, is that initially the reporting had said that the Manhattan DA was investigating the payments to Stormy Daniels by Donald Trump when he was a presidential candidate back in 2016. Remember, Michael Cohen was involved and was charged in the Southern District related to that, and Trump was listed as, I think, Individual #1, was not charged with that. But then it expanded into this conversation that related to whether or not Trump and the Trump Organization had been inflating how many assets they had in order to basically get better loans, to get insurance, but deflating the amount of money that the company was making when it came for taxes so that they could pay less taxes. And there are other-

Preet Bharara:

Very clever, Anne, right?

Anne Milgram:

Yes. And there are other potential things in the taxes. There’s potential allegations of tax fraud and bank fraud and insurance fraud, but a lot of it really relates to these two questions, Trump’s involvement in paying Stormy Daniels and another woman off prior to the 2016 election, and then the question of the Trump Organization and what they were doing in terms of getting loans and insurance and whatnot.

Preet Bharara:

Right. Then for the reminder to folks, this litigation was largely dealt with in a prior opinion from Justice Roberts, the chief justice, in a seven to two opinion, where the Roberts court took great issue with the very, very broad assertion of immunity and privilege that was being made by the former president’s lawyers. So you knew this was going to come down the pipe this way, and lots of people have been asking the question, why has this been lingering for so many months since October? So the Supreme Court decided, “You don’t have these broad claims of immunity, as you have argued.”

Preet Bharara:

It still goes back to the lower court for the president to be able to make the same kinds of arguments that regular people make. He made some of those arguments, saying the subpoenas were over-broad, they were asking for too much, it was a fishing expedition, which is a more mundane argument against enforcement of the subpoenas. Those fell on deaf ears, and that’s why it went back up to the Supreme Court again. The speculation is, the Supreme Court justices were somewhat sensitive to what was going on politically, namely the election, didn’t want to throw a monkey wrench into things in the lead-up to the election, and then after that there was the whole business of challenging the election-

Anne Milgram:

Impeachment. Yeah.

Preet Bharara:

Well, in between. Remember there was that thing in between? And obviously impeachment is related to that. Then finally once the election was over, Donald Trump left office, impeachment was over, with a good little buffer, they saw no reason to delay. That sounds like a reasonable explanation to me.

Anne Milgram:

I think it sounds like a reasonable explanation too. I mean, this is over four months for something that I think all of the Supreme Court watchers predicted would happen. And just to make sure folks understand, the first litigation in Trump v. Vance that you talked about, the seven-two ruling, that was the really substantive legal opinion. This was a challenge that we see brought day in and day out in courts across the United States by defense lawyers who say, “That subpoena is too broad. We don’t want to answer it.” Or, “We want the subpoena to be less broad, to be more specific.” That’s a pretty common, routine argument that defense lawyers make.

Anne Milgram:

So there had already been a series judge, Marrero, who’s the federal judge who’s been overseeing this litigation in Manhattan. He had basically made rulings that Cy Vance was not acting in bad faith. He had seen the request. He understood what the DA’s office was looking for. Obviously, he has access to the subpoena. We haven’t seen that. But he’d made a series of rulings, essentially, that it was consistent with what would be acceptable for the grand jury. The Second Circuit affirmed that.

Anne Milgram:

So really, for the Supreme Court to have gotten too involved in that would have been very odd, I think. Really, grand juries have a lot of latitude to investigate potential criminal conduct, and so-

Preet Bharara:

Yeah.

Anne Milgram:

And to issue subpoenas, yeah.

Preet Bharara:

It was a ridiculous argument, ridiculous delay tactic. And by the way, one of the reasons you know this was widely expected, and particularly it was expected by the DA’s office itself, is that in recent weeks, they’ve taken some steps, showing that they were going to have a sustained, long-term investigation and possible prosecution of the president and people around him. One of those was already reported some time ago. They hired a forensic accounting firm, FTI, that’s well-known in legal circles, and you don’t do that unless you think you’re going to have a long-term investigation and perhaps prosecution.

Preet Bharara:

The other news that broke in the last few days… Cy Vance, even though he has a full office of well-credentialed and smart assistant district attorneys, he took on a special assistant district attorney, a gentleman by the name of Mark Pomerantz, to, I guess, be installed to oversee, or at least be an important part of, a key part of, this Trump investigation.

Anne Milgram:

Preet, we have a tweet from @SeattleSuzieQ, who asks, “Would love to know your thinking on the Pomerantz hiring. Thanks.”

Preet Bharara:

Mark Pomerantz is someone who I’ve known for a long time. He’s very, very well-known in legal circles in New York, was in the US Attorney’s Office for the Southern District of New York, my old office, for two tours of duty. Once as an AUSA, who rose up to be the chief of appeals, and then later Mary Jo White appointed him to be the chief of the criminal division, which is one of the top positions in the office. Long-time partner at Paul Weiss.

Anne Milgram:

Was he the chief of the criminal division when you were there?

Preet Bharara:

He was not. I think I just missed him. I joined in 2000. I think he was the era of ’97 to ’99. By the way, I should also say, and I hope this is not revealing something confidential, I know Mark Pomerantz to be a listener of at least the Stay Tuned podcast, but I believe, I think maybe also the Insider podcast. And if he’s not, he should be.

Anne Milgram:

Now we’ll know, if he tells you. I want to talk both about FTI, the forensic accounting firm, and Pomerantz. Let’s start with Pomerantz, since we’re there. I mean, he’s very well-regarded in legal circles. Why do you think Cy did it?

Preet Bharara:

You know, it’s an interesting question. I have a theory. You know, it’s not something we ever did. I never appointed someone from outside the office. I figured, “We have a great office. We have a lot of people who are seasoned in different disciplines,” and you do the job from within.

Preet Bharara:

Now, there’s a continuity issue in the Cy Vance situation. Many people not from New York may not realize that the election for the next Manhattan DA is taking place this November. The primary is in a few months. Cy Vance has not announced that he’s retiring, but he’s also not announced that he’s running, and there’s a huge slate of folks, many of whom you and I know, and one of them I’ve endorsed, Alvin Bragg. One of them is likely going to be the new district attorney come next January, and whether or not there’s an indictment of the president in connection with this stuff, it likely won’t be resolved. So maybe part of the reason is to sort of secure some continuity over that investigation, but it is an unusual thing to bring someone in from the outside. What do you think?

Anne Milgram:

So you’ve just said essentially what I believe, and I’ll sort of add a couple things to that. But it’s been remarkable to me that in the media coverage of this, I think folks have not called this what it is, which is a special prosecutor brought in to essentially politically insulate this case. That’s what this is, to basically be able to say regardless of who the next district attorney is… And look. Cy Vance has not said that he’s not running for reelection, but if you look at financials, he was a prolific fundraiser. He’s serving his third term, and every time he’s run, he’s raised a serious amount of money. I think right now he has three or four thousand dollars in the bank, so I think the people who are reading tea leaves are not reading that hard, so I assume he’s not running.

Anne Milgram:

Again, he hasn’t said that, and I understand why he wouldn’t make that public announcement, particularly as he’s in the middle of all these sensitive things, but I anticipate that… This is something I would actually think to do if I were sitting in his shoes, which is, okay, maybe he sits in that chair while there’s an indictment, but cases take a long time to go to trial. We’ve already seen Donald Trump’s attorneys, who are good lawyers. They will litigate every single ounce of this. So the idea of having someone who comes in and who has such a well-regarded public reputation. I mean, frankly, I think Pomerantz, in legal circles, is better-known than any of the DA candidates at this moment in time. That’s not to say that whoever gets elected DA won’t obviously become well-known overnight, but Mark Pomerantz has an excellent reputation, and really is a person of some standing.

Anne Milgram:

So I think that the idea is to sort of politically… And I don’t mean politically as in somebody’s definitely going to try to harm an investigation, but it gives a level of continuity, as you said, and just insulates the investigation with someone who’s well-regarded, who has a lot of experience as a federal prosecutor, has done complex white collar cases.

Anne Milgram:

I want to just note this to you. The Manhattan DA’s office is excellent on complex white collar cases. I know you know this from your perch as the US Attorney in the Southern District, but they do big cases, and so I think it’s less thinking that they need the outside expertise than it is basically putting someone in of some stature who has a very strong reputation, who also, obviously, has the expertise. It sort of adds something that no matter what happens with Cy Vance, Cy Vance can turn and say, “Look. I know the investigation is in good hands and will continue to be.” That’s why I think he did it.

Preet Bharara:

Just to be clear, you mentioned… This is kind of an analog to a special prosecutor. We should be clear that, at least to my knowledge, there’s no statutory mechanism or regulation or rule that is in play here under which Mark Pomerantz was appointed, and Cy Vance, at any moment, or the next DA, at any moment, can remove him from the position. There’s no protection.

Anne Milgram:

Right. I agree with that, and I sort of use that term just as an analogous way for people to understand and think about this. Like, Mark Pomerantz hasn’t been hired as an assistant DA, from what I can tell. And the DA’s office does do this sometimes. They’ll swear someone in as a special to gain assistance, or to gain expertise in an area.

Anne Milgram:

I agree with you that Cy Vance could, at any point, say, “Okay, Mark Pomerantz is gone.” But it’s really work pointing out that he’s doing this to have someone whose reputation and stature goes beyond the office, and goes beyond the politics of a DA election. Also, I think he wants to send the message… And the allegations have already been made by Donald Trump’s lawyers that this is a political witch hunt. I mean, all the sort of things we saw with the Mueller investigation as well. Donald Trump has said there’s never been a more political investigation. So I think in some ways, Cy is basically putting someone in, he’s trying to insulate it from the politics of going through a DA’s race as well.

Preet Bharara:

I wonder if… Do you think that Letitia James, the New York State attorney general, who’s also overseeing some investigations of President Trump and his businesses, and certainly his charities, that she would have done well to appoint someone from the outside for the same reasons?

Anne Milgram:

It’s interesting. I mean, most of her work is civil, I believe, at this moment in time, and again, the New York State AG has limited criminal jurisdiction. They do have criminal jurisdiction under the Martin Act for financial crimes. They have some official misconduct authority to investigate police shootings. But their jurisdiction is limited, so I think a lot of it is civil. But to your point, I think that it really is an interesting question, because James particularly, she ran on a platform of investigating Donald Trump. Then it does feed into the narrative that Donald Trump will have if a case is brought against him, whether it’s civilly or criminally, by the state AG, that this has always been partisan.

Anne Milgram:

That being said, I have a lot of confidence in both of these offices to do investigations. Look, here’s why I’m not so sure that that’s necessary. I think it’s the right decision for Cy Vance, because I think with the specter of a election coming up with months, of a primary, where I think it’ll be clear, soon, that he isn’t running, I think it makes a lot of sense to pave this path. But for just a normal AG or a normal DA, I don’t think it makes sense to do it.

Anne Milgram:

One of the arguments against doing it is that the thing about cases that you and I know, and I think really appreciate, is that they’re public. Is that if somebody files a civil suit against you, or the grand jury issues an indictment, that’s public, and those cases are tried in public. So whether or not the jury and the public get to look at whether or not there’s sufficient evidence, whether it appears to be a biased or politically motivated prosecution… And certainly Donald Trump and his lawyers will have the opportunity to argue in a court of law if they think something unfair or untoward has happened. But I don’t think, as a normal course, that every AG who is…

Anne Milgram:

Look, I’m sure there are Republican AGs right now who are out there, don’t you think? Who are out there basically figuring out how to sue Joe Biden, and the Biden administration. Again, many of them may have run as being opposed to, or may run being opposed to some of the Biden administration’s actions. That shouldn’t disqualify you, I think. What do you think?

Preet Bharara:

No, I don’t think it should. A couple of final points on this Manhattan DA case, potential case, that I think people know but we want to emphasize. Just because the grand jury materials will be turned over basically immediately to the DA’s office doesn’t mean we will get to see them. Doesn’t mean you’re going to be able to peruse Trump’s tax returns this week. They’re subject to grand jury secrecy rules. They may come to light if there’s a case brought, and some of the things in the materials that are turned over pursuant to the subpoena need to be made public in a charging document or at a hearing or at a trial. So don’t expect to be figuring out what’s on Trump’s 1040s immediately.

Anne Milgram:

Two other quick points, and then I know we’ll continue to track this. Three points, actually. One is, talking about the forensic accounting firm that they’ve hired, FTI. There was some reporting today about what would happen… Just so folks understand, there will be reams of electronic evidence that get turned over, and so they will use pretty sophisticated software, and they have expertise in going through and figuring out what they need to look at and what they don’t. You’re talking about, really, from 2011 to 2019, and you’re not just talking about tax returns. You’re talking about underlying business records, loan applications… I mean, it’s going to be a massive amount of documents.

Anne Milgram:

The second thing just to ask you… Well, the second thing is, I think that this will move as quickly as possible. That doesn’t mean it’s going to happen overnight, but this investigation has been going on for 18 months, and I would presume that there may be leads that come out of this evidence, this financial evidence that they get, but I would presume that a lot of investigation has already been done, so I would expect that we’ll know whether the case will be charged within months, not years.

Anne Milgram:

Then the last thing is just one thing I’ve noticed, Preet, and I wanted to ask you about, is that, I mean, we are reading a lot in the newspapers, and I presume there are a lot of leaks happening. I was reading this morning a New York Times article that was incredibly thorough on 12 additional subpoenas have been recently issued. Michael Cohen was interviewed for the fourth or five… Like, the details of what Pomerantz is doing, and FTI. What do you make of all that?

Preet Bharara:

Yeah, that happens. It’s unclear, but what people need to understand is, often it’s the case that the recipients of the subpoenas, or the defense lawyers of the witnesses who are being called in, or sometimes the witnesses themselves. I wouldn’t put it above Michael… I’m not accusing anyone of anything, and it’s not even clear that it would be problematic to say you’ve been interviewed by the Manhattan DA’s office. But sometimes this information comes from people who are on the receiving end, not the people who are on the sending end.

Preet Bharara:

There’s another lawsuit with respect to Donald Trump. Congressman Bennie Thompson has sued Donald Trump under the Ku Klux Klan Act, so a lot to talk about with respect to legal jeopardy for the president. But before we get to that, I think we should talk for a few minutes about the other big news happening that I mentioned at the top, and that is a DC Circuit Court judge, should have been Supreme Court justice, Merrick Garland, had the main part of his confirmation hearing yesterday. You and I were talking before we started taping, and I said, “You know, I don’t have a lot to say about it, because Merrick Garland said, “I think a lot of the right things.”” Notably in his opening statement, he said, quote…

Merrick Garland:

The president nominates the attorney general to be the lawyer, not for any individual, but for the people of the United States.

Preet Bharara:

That is about as basic and unobjectionable a statement you can make about the office of the attorney general, and yet it’s refreshing, because that’s not seemed to have been the view of a couple of the predecessors in that position. When I said, “You know, there’s not a lot to talk about, there were not really any fireworks,” you had an interesting reaction.

Anne Milgram:

Yeah. So I was sitting there watching it, and I agree. I thought his opening statement, it isn’t objectionable. It’s also, I think, really important for the Department of Justice. It was very non-political, and made it clear that the Department of Justice would have independence in criminal investigations from the president. It shouldn’t be surprising, but it was refreshing, and I think really important to send that message.

Anne Milgram:

As I was listening, I had this moment of thinking, “It’s so normal, and almost a little bit boring.” And I say that with a lot of… I was very impressed by Judge Garland-

Preet Bharara:

Enthusiasm.

Anne Milgram:

Yes, exactly!

Preet Bharara:

It’s like, “Yay, finally.”

Anne Milgram:

Yeah!

Preet Bharara:

Finally.

Anne Milgram:

I mean, there’s nothing wrong with it being what you would expect to see, although a very good friend of mine, her mom always says when kids say to her, “I’m so bored,” she always says, “Only boring people get bored.” So as I was watching yesterday, I was like, “Am I a boring person?” [crosstalk]-

Preet Bharara:

I take that back. I was not bored at all.

Anne Milgram:

Exactly. And there were some notable moments, but really, it was very matter-of-fact. I mean, he was very thoughtful. One thing he did, Preet, that I wanted to ask you about, that I thought was interesting is, he was asked… I don’t remember who asked him, but he was asked, “Have you had any conversations with President Biden about the investigation into his son, Hunter Biden?”

Anne Milgram:

I mean, we’ve spent four years with Donald Trump saying, “We’re never going to talk about any conversation.” Right? And a lot of people saying, “Well, I couldn’t discuss that. It’s executive privilege,” or whatnot. And one of the things I really liked about Garland is, he basically just answered it. He just said, “No. I haven’t had any conversations, and the president said that the Department of Justice would handle criminal investigations, and I expect that if that’s the way it’s going to go, then that’s how it’s gone.” There was something really refreshing just about him even just being so forthright in answering that question.

Preet Bharara:

Yeah, look, I think that was important. I think he has a lot of work to do to reassure the public that independence of the justice department will be restored. It reminded me a little bit of my own personal experience when I was in the Senate Judiciary Committee, and Alberto Gonzales, who I think failed the institution miserably back in ’05, ’06. Then there was a confirmation hearing of another sitting judge, Michael B. Mukasey, who was being brought in by the Bush administration to do a little bit of what we’re hoping happens now. Query whether or not that was successful back in 2007, but a sitting judge who had a reputation for integrity, after the department has been slammed for politicization and not being independent, and a respected jurist who was used to wearing a robe for a number of years, to sort of calm the waters.

Preet Bharara:

Michael B. Mukasey’s confirmation hearing was not so calm. There were a lot of controversies, and it was a very close vote, and it was very contentious, ultimately. That didn’t happen this time around. You never know what’s going to happen at a confirmation hearing.

Preet Bharara:

So the question is, will Merrick Garland oversee an investigation, and a real investigation, of Donald Trump, in connection with his participation in the events of 1/6, the insurrection? And what’s interesting to me is, as far as I can tell… I didn’t watch every moment, but I did watch a lot of it, and I read a lot of the reports, and I don’t think anyone, including Democrats, asked Merrick Garland directly, naming the president, “Will you think about, consider, contemplate or commit to opening up an investigation of Donald Trump and his responsibility for the events of 1/6?”

Preet Bharara:

That’s a bit of restraint that I think was probably wise, and helps to depoliticize things, and doesn’t put Merrick Garland on the spot. Maybe there was some back and forth ahead of time to make sure that nobody asked that question that’s obviously on everyone’s mind. It was alluded to, I think, one or more times when senators would ask, “Will you go wherever the facts and evidence and the law take you?” And he said, “Yes, of course.” But I was a little bit surprised that nobody asked the direct question about an investigation of Trump, even though a lot of politicians have been talking about it offline.

Anne Milgram:

That’s a great point, and I think you’re right. I think he would have answered exactly the way you just said, which is, “Look, I’ll go where the facts and the evidence lead us.” He was asked about the individuals who’d been charged related to the January 6th riot and insurrection, and so he basically gave the answer I would expect a prosecutor to give, and that they should give, which is, “Got to look at the facts and the evidence, and we’ll work our way up to make sure that we charge those who are responsible.” I’m sort of paraphrasing, but that was my takeaway, was basically saying exactly what you just said. “We’re going to go where the facts and the evidence lead.”

Anne Milgram:

And any other answer, particularly for somebody who’s sitting outside the Department of Justice, who has not seen… And people should know this. Garland will not have seen… I mean, he’ll have seen the public indictments, but I don’t believe he will have been briefed on the details of those cases yet. Once he’s confirmed and gets sworn in, obviously, he will become intimately involved with them, but it really would be pre-judging evidence and facts that he’s not even privy to yet. But you’re right. It’s an interesting point.

Preet Bharara:

Some of the other interesting moments were when Merrick Garland was asked about the death penalty. He noted that he had serious reservations about it, how it was applied. The numbers of examples where it turns out there had been exonerations of people on death row, racial discrimination in the application of the death penalty… Which is interesting, because he was one of the people, when he was at the Department of Justice, who oversaw and participated in the prosecution of Timothy McVeigh, the Oklahoma City bomber, who was executed.

Preet Bharara:

Although he said that given Biden’s statements and probably policy preference, that we would return to the moratorium on the federal death penalty, after, by the way, Trump and Barr and that administration, particularly during the transition period, raced to execute as many people as possible, I think more than had been executed in decades in this country, so I think that’s a good change. But what did you make of Merrick Garland’s back and forth on the death penalty?

Anne Milgram:

Yeah, I thought it was really interesting. I think you noted just now, and I would say that it was a theme throughout Garland’s testimony, he talked a lot about racial equity, and he talked a lot about the disproportionate impact of the criminal justice system on people of color, and I thought was very thoughtful on systemic bias. Really, the death penalty is one way in which he talked about it, and talked about the existing research in that space, but he really was very articulate on questions of racial justice and equity.

Anne Milgram:

I think on the death penalty, he didn’t go much farther than to say that he has some concerns or questions. I don’t remember the exact words he used, but he talked a lot about expecting that the president would potentially speak on this and issue the moratorium. I thought it was a really interesting colloquy. It was also so different from exactly what you just point out, that in the final days of the Trump administration, Barr and Trump were really racing to get executions done.

Anne Milgram:

The other space that I thought was interesting is that there was a little bit, and I’d be curious to know what you think, it felt to me like there was some teeing up of future attacks to come for other members of the DOJ team who are yet to be confirmed, including Vanita Gupta, who’s been nominated to be the associate attorney general, Kristen Clarke, who I worked with at DOJ Civil Rights, and she’s been nominated to be the assistant attorney general for civil rights. I sort of felt like Garland, he was also being pushed on those nominations as well.

Preet Bharara:

Yeah, as a proxy. This happened a number of times, also with someone who… Josh Hawley, I think, suggested might become the head of the antitrust division. It was a little interesting to see white male senators respectfully treat the white male nominee, the sitting judge, Merrick Garland, and through him, attack women of color who have been nominated for other positions. It was just a little bit of an interesting dynamic, and I think notable, and we’ll see what happens with those other nominations, and maybe they feel like they can, on a bipartisan basis, approve Merrick Garland, and that gives them a little bit of cover to vote no down the line on some of these other nominees whose confirmation hearings come later. I don’t know, but yeah, you’re right. I think you’re absolutely right that it’s being teed up.

Preet Bharara:

So as I mentioned before, there’s this other lawsuit, and I don’t have a lot of experience with the statute that’s at play here, known as the Ku Klux Klan Act, which if you’re playing at home, you can find at Title 42, US Code Section 1985. The suit was brought by Mississippi Representative Member of Congress, Bennie Thompson, and the NAACP, and who did they sue? They sued Donald Trump, Rudy Giuliani, and two groups that were involved in the insurrection, the Proud Boys and the Oath Keepers, for events of 1/6.

Preet Bharara:

If you look at the basics of the statute, it seems to be a pretty good fit, and we’ll talk about and whether it is or is it not, and whether it’s applicable to the former president, but basically the statute says, “Preventing officer from performing duties, colon: if two or more persons in any state or territory conspire to prevent, by force, intimidation or threat, any person holding any office, trust or place of confidence under the United States from discharging any duties thereof, or to induce by like means any officer of the United States to leave any place where his duties as an officer are required to be performed, or to molest, interrupt, hinder or impede him in the discharge of his official duties.”

Preet Bharara:

All those things happened on January 6th. The business of Congress was interrupted, interfered with, intentionally. Members of Congress had to leave the premises, had to shelter and be afraid for their lives. Bennie Thompson, in the complaint, makes concrete allegations about how he feared for his life in connection with the insurrection. So it would seem to fit, wouldn’t you say?

Anne Milgram:

What’s really interesting about this to me in this law is that it tries to stop people from being able to engage in efforts to block members of Congress from doing their job, right? It feels, in some ways, just really consistent with what we saw happen on January 6th. It’s fascinating. It was obviously… It’s called the Ku Klux Klan Act, because it was meant to stop the Ku Klux Klan from interfering with African Americans and members of Congress and sort of intimidating folks from discharging their duties as members of Congress.

Anne Milgram:

So there are a few just high-level points. The first is that what’s really interesting to me is that we talk about members of Congress suing, and remember, members of Congress sued Donald Trump under the Emoluments Clause of the Constitution. There was a whole question of whether or not they had standing to bring that lawsuit. Here, Bennie Thompson is literally… He’s a victim of the insurrection. He’s there. As you note, he tells these pretty compelling stories about what happened to him on January 6th, and he’s a member of Congress, who was prevented, for a period of time, from doing his duty. So there’s something about it that just feels really consistent with what the law is set out to do.

Anne Milgram:

The things I think are interesting are that it’s interesting to charge Trump and Giuliani and the Proud Boys and the Oath Keepers. There’s two points, or questions, I would have for you. The first is that, what is really a complicated question of, it’s charged as a conspiracy. So what happened on January 6th? We’ve seen it, I think. The house managers proved a very strong case against the former president? But now the question is, did these four people conspire together? Did they have an agreement, share a common goal and take substantial steps? So that is one question I have for you. How strong do you think the evidence is on that? Because the complaint itself is, like, 32 pages, and it really talks about the actions by the Oath Keepers and the Proud Boys. Their pre-planning, their coordination… And we’re seeing this now in the additional charges to come out of the DC US Attorney’s Office against Proud Boys and Oath Keepers.

Anne Milgram:

It’s clear, I think there’s sufficient evidence, or at least on its face, it’s being charged against the Proud Boys and Oath Keepers, there’s evidence to show conspiracy that the government will argue in a court of law. What about this connection to Trump and Giuliani?

Preet Bharara:

If you look at this through, which is an interesting way to think about it, the prism of the president’s defense lawyers in the second Senate impeachment trial, they would say the case against the Proud Boys and Oath Keepers is made. I mean, they conceded the point, and they tried to argue that Trump was not involved in incitement to insurrection because there were people who came to the Capitol on January 6th with the premeditated intent to engage in violence, destroying the Capitol, to do all these things, which basically makes out the case, under the KKK Act that we’re talking about here.

Preet Bharara:

To the extent that Donald Trump can be roped into the conspiracy, I suppose that the litigants in the case, on behalf of Bennie Thompson and the NAACP, would have to be arguing a lot of the same things that the house managers argued, that Donald Trump had an understanding of what was going to happen, wanted it to happen, it was foreseeable to him.

Preet Bharara:

The potential problem is, to show a meeting of the minds, and show an agreement, arguably means something more than independently wanting something to happen.

Anne Milgram:

That you both agree you want to have happen.

Preet Bharara:

That you both agree you want to have happen. I think there’s a lot of circumstantial evidence to suggest that, but the defense will be, did Donald Trump ever have any conversation? I mean, incitement is different from conspiracy. You need not have met anyone or really had the kind of agreement that people think about in the conspiracy cases to stand in front of a crowd and urge them to go do something, urge them to engage in violence. That’s different from having some conversation or agreement with other people, and so I think it’s a real question. Did Donald Trump conspire?

Preet Bharara:

The language of the complaint, just like the language of the arguments by the house managers at the impeachment trial, uses words like “foreseeable” and “intentionality”. But even if they had common goals, if there was no agreement about it, I think there’s some arguments there. I think there’s also potential arguments about how they’re going to prove their case, and whether they’re going to get discovery, and whether the Biden administration is going to want to provide documents and pieces of evidence relating to the insurrection and what Donald Trump was doing, and things that were happening inside the White House, the argument goes, so that there’s not a slippery slope, and so they’re not putting themselves in the same position to give up privileges if and when, at some point, people want to get documents from the Biden administration.

Preet Bharara:

So it’s a bit complicated. Then Rudy Giuliani, separately. Did Rudy Giuliani? I mean, again, you don’t need Donald Trump to have conspired with dozens of Proud Boys and Oath Keepers. All you need is to find the existence of the conspiracy, and Trump and Rudy Giuliani can have agreed with the goal of the conspiracy, and maybe have had interaction with some subset of folks.

Anne Milgram:

Right. I mean, so I think what’s fascinating about this to me is that in some ways, it feels easier to prove… And I’m not saying it is easy to prove, but it feels to me like incitements feels to me more like a straight line to describe what happened. Conspiracy, you do have to sort of show that meeting of the minds, that agreement. So it’s not clear to me, from the complaint… There’s not a lot on that. It really is an argument of incitement, in many ways, in the complaint. I think that this is going to be fascinating to see it play out.

Anne Milgram:

The other two points to make on this is that there’s also a very interesting racial justice part of this lawsuit, which is to say that the lawsuit is brought on behalf of Bennie Thompson. It’s brought by the NAACP, and by Joe Sellers, who’s a prominent employment civil rights lawyer in Washington. The racial justice piece of this is the allegation about Giuliani, who was trying to not have certain votes counted, and then you look at Detroit, and the argument is, Detroit is 78% minority. So basically, this argument that Giuliani was trying to suppress the African American vote. That is a piece of this lawsuit.

Anne Milgram:

The other piece just to note before I talk about how the Biden administration will act, the other piece just to note is that on its face, remember, this is a civil case. Presidents get a lot of latitude. They get a lot of immunity from their official acts as president, and so the complaint against Trump fronts this, which is one of the core questions is going to be here, was Trump acting within his official capacity? If you can show that Trump was not acting in his official capacity, that this would never be condoned by the United States government to try to actually overthrow the United States government, then you can breach things like discovery and require the former president to come into court. But this will be a fairly large part, I think, of the litigation of, can you haul a president into court on this? That’s not to say I don’t think it’s possible. It’s just to say that I think that this is going to be one of the core challenges.

Preet Bharara:

Yeah, and related to that, which will be interesting. I don’t know if people appreciate that if it is the case that Trump or his aides, anyone implicated in this lawsuit, if they were acting in their official capacity, because of their federal roles, they have the ability to request that lawyers at DOJ represent them. I’ve been sued, my official capacity-

Anne Milgram:

Yeah. I’ve been sued. Yeah, me too.

Preet Bharara:

Prosecutors get sued. Officials in government get sued, and if you were acting in your official capacity, generally speaking, the DOJ lawyers will represent you. The civil division lawyers will act on your behalf in court. I imagine if that wasn’t the case, people could, through frivolous litigation, bankrupt individual public officials who would be afraid of doing their work, and it would have a chilling effect. And by the way, given the track record of lawyers who have been representing Donald Trump at impeachment and in the election cases, he could do worse than having smart career Justice Department civil division attorneys representing him. But it is a kind of a funny thing to think about.

Anne Milgram:

Yeah. The other option is… And this has happened at least in states where the state will pay for outside counsel. There’s sort of a set rate for outside counsel, if they decide that it’s at odds with existing litigation that the state has. So the Department of Justice could basically… I assume, I don’t know, but could potentially authorize the hiring of outside counsel.

Anne Milgram:

What is really interesting in cases like this is that if there’s someone… Let’s say you have a government official who’s been convicted of a crime. Let’s say they stole government property, and then they get sued civilly. That government official who basically says, “Well, the government should defend me, and I should have immunity,” the obvious argument is that a crime is not within your official duties. It goes beyond it. That’s a very clear-cut scenario. Here, the former president was impeached, but he was not convicted, and so he has not been charged with a crime at this point in time. So it becomes more of this question of, does he get representation? Is he entitled to immunity? And that would require fact-finding.

Anne Milgram:

So you go back to this point about depositions and this question of was it within his official duty? I mean, it feels like, on its face, if you thought that the house managers’ presentation was effective and was proven, which I personally did, it feels like on its face, it’s strange to be having this question. But that’s the legal question, because the United States government gives broad immunity to the president of the United States. So this is going to be a big thing.

Anne Milgram:

The plaintiffs, Thompson and the lawyers, front this in the complaint. They’re arguing, “This was completely outside of his official duties. This was an insurrection.” But again, this is going to be defense number one by the Trump team.

Preet Bharara:

Look, whether or not the lawsuit ultimately is able to hold Donald Trump or Rudy Giuliani accountable, a lot of the trust of the lawsuit is about the Proud Boys and the Oath Keepers, and this law dating back to 1871 has been used effectively against white supremacist groups like these to bankrupt them. It’s a bankrupting strategy, and the Southern Poverty Law Center, not that long ago, in 2008, obtained a judgment against a Kentucky-based Klan organization in which they were ordered to pay $2.5 million in damages, and they had to shutter. So one strategy to dealing with hate in this country, and hate groups, who are specifically organized around the principles of white supremacy, which is intolerable here, is to use civil litigation to throw them out of business. If this accomplishes just that, it will have been a big deal.

Preet Bharara:

So Anne, let’s end the show with a matter of police intrigue that happened a few weeks ago in northern England, where there was a suggestion that a heinous crime was uncovered. You know, it’s pretty ghastly, and we thought we’d tell you about it.

Anne Milgram:

So Preet, shortly after the new year, Kate Wilkinson, an English dog walker, got the shock of her life when she stumbled across what appeared to be a human foot protruding through the dirt in the countryside. Quote, “I had seen something sticking out the ground, and it looked like a little toe,” Wilkinson said. “I sent the photo I took to friends and family to make sure I wasn’t being daft. Everyone replied that it was definitely a toe, and I needed to ring the police. After I made the call, I started crying, and I felt I couldn’t breathe. I was scared, so I called my mum.”

Preet Bharara:

May I compliment you on your northern English accent?

Anne Milgram:

I didn’t even try. I didn’t try.

Preet Bharara:

That was well done.

Anne Milgram:

I try to do accents with our six-year-old, and they always turn out to be, I don’t know, some amalgamation of many different accents. I can’t do them.

Preet Bharara:

All right, so we shouldn’t be laughing, because this is very serious business. We had the protruding foot. And so what happened next was Inspector Phil Hamlani of the Northumbria Police appears to have said, quote, “The person who called this in was very concerned, and in the picture she sent to us, the object did look like it could be human remains.” So the Northumbria Police deployed seven police cars, two sniffer dogs and handlers, plus two detectives, several sergeants and police constables to the scene.

Anne Milgram:

After a two-hour search in the mud and the dark, a sergeant finally spotted, quote, “The toe. He picked it up off the ground, walked up to Wilkinson, and asked… “Is this your toe?””

Preet Bharara:

“The sergeant held up a baby potato with a mushroom growing on it.”

Anne Milgram:

“”I felt so embarrassed,” Wilkinson said. “I had wasted all their time. I was so apologetic.””

Preet Bharara:

“But the Northumbria Police said there was no need to apologize, and praised Wilkinson’s vigilance. They urged anyone who finds themselves in a similar situation to call the police, adding, quote, “If it does turn out to be a vegetable, our police dogs will thank you for the treat.”” All right, so I think people were worried that we were being so macabre. We’re talking about human remains and a protruding foot.

Anne Milgram:

I was. When I first started to read this, I was like, “Oh, I don’t know if we should go here. It’s super dark.” And then I read on, and I could not stop laughing. You can also see a photo of the toe. We’ll put a link in the show notes, or you can also look it up on-

Preet Bharara:

Remember, it’s not a toe. It’s not a toe. It’s a potato.

Anne Milgram:

Sorry, the potato. Sorry. You can view the photo-

Preet Bharara:

Pota-toe. Toe.

Anne Milgram:

You can view the photo on the BBC, and we’ll put a link to it, but it is a potato.

Preet Bharara:

Okay, on that note, let’s bid farewell, and we’ll talk next week.

Anne Milgram:

Great to talk to you, Preet.

Preet Bharara:

Send us your questions to [email protected], and don’t forget to listen to the next episode of Doing Justice.

Preet Bharara:

That’s it for this week’s CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Jeff Isenman, Chris Boylan, Sean Walsh and Margo Maley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.