• Transcript
  • Show Notes

In this episode of CAFE Insider, Preet and Anne break down the arguments raised in the pre-trial briefs of the Senate impeachment trial of former President Donald Trump, and they discuss technology company Smartmatic’s defamation lawsuit against Fox News.  

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

Third Degree, CAFE

IMPEACHMENT TRIAL

“Trial 2 for Individual 1 (with Daniel Goldman and Adam Schiff),” Stay Tuned with Preet, 2/4/21

“Free Speech in the Age of Trump (with Floyd Abrams),” Stay Tuned with Preet, 2/1/18

Article I, Section 3, Clause 5 of the U.S. Constitution

Article I, Section 3, Clause 6 of the U.S. Constitution

Article I, Section 3, Clause 7 of the U.S. Constitution

1st Amendment to the U.S. Constitution

5th Amendment to the U.S. Constitution

“Incitement of Insurrection,” Article of Impeachment, 1/11/21

“Trial Memorandum Of Donald J. Trump, 45th President Of The United States Of America,” Donald Trump, 2/8/21

“Trial Memorandum Of The United States House Of Representatives In The Impeachment Trial Of President Donald J. Trump,” House Impeachment Managers, 1/28/21

Roll Call Vote 117th Congress – 1st Session – Vote Number 8, U.S. Senate, 1/26/21

“War Secretary’s Impeachment Trial,” U.S. Senate

“Constitutional Law Scholars on President Trump’s First Amendment Defense,” letter, 2/5/21

“House Impeachment Managers Request Former President Trump Testify Under Oath Next Week,” Rep. Jamie Raskin, 2/4/21

“Brandenburg Test,” Cornell Legal Information Institute

“What we know about how Trump’s second impeachment trial will go,” CNN, 2/8/21

“The Constitution Doesn’t Bar Trump’s Impeachment Trial,” WSJ, 2/7/21

“A wild day that defined the Republican Party,” CNN, 2/4/21

“Trump’s impeachment defense team leaves less than two weeks before trial,” CNN, 1/31/21

“Rand Paul calls impeachment ‘dead on arrival’ after most Republicans signal that trial is unconstitutional,” CNN, 1/27/21

“Why a secret impeachment vote isn’t going to happen,” WaPo, 1/26/21

SMARTMATIC 

Smartmatic v. Fox Corporation, NY Supreme Court, complaint, 2/4/21

“New York Defamation Law,” Digital Media Law Project

“Fox News cancels Lou Dobbs’ show; pro-Trump host not expected to be back on air,” LA Times, 2/5/21

VIDEO: Eddie Perez on Smartmatic, Fox News, 12/20/20

SAG-AFTRA

President Donald J. Trump SAG-AFTRA resignation letter, 2/4/21

“SAG-AFTRA Statement on Donald J. Trump’s Resignation from the Union,” statement, 2/4/21

Does Trump Have a 1st Amendment Impeachment Defense?

Trump’s legal team plans to argue that the President was exercising his freedom of speech when he spoke to a crowd on the morning of the Capitol insurrection — but is that argument legally sound? 

The Senate kicked off the impeachment trial of former President Donald Trump this week, while the House impeachment managers and Trump’s legal team spent the past week filing competing briefs. Preet and Anne break down the merits of each side’s arguments. 

Meanwhile, technology company Smartmatic is suing Fox News for defamation over its coverage of the company’s involvement in the 2020 presidential election. Preet and Anne discuss whether Smartmatic could be deemed a “public figure” — a designation that has implications for the standard required to prove defamation.

2/9/2021

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

How are you, Anne?

Anne Milgram:

Happy second impeachment day.

Preet Bharara:

Happy second impeachment day. And it’s all not happiness-

Anne Milgram:

No, I know.

Preet Bharara:

… but it does feel like déjà vu all over again as Yogi Berra would have said.

Anne Milgram:

That’s true.

Preet Bharara:

But we have a lot of content, by the way, that I should mention. Third episode of Doing Justice comes out Wednesday, February 10th. Our friend and colleague Elie Honig is doing it for the purposes of impeachment. If you can’t get enough of it from just listening to me and Anne for an hour, he’s doing 10 minutes a day, so long as impeachment continues. That show is called Third Degree. You can find it by searching Third Degree wherever you listen to your podcasts.

Preet Bharara:

Doing Justice, same thing. Just search Doing Justice, or I think you can also search my name. Hopefully you’ll enjoy it. Not everyone who’s an insider has been listening, I think. So we’re a little bit hurt by that. But you still have time. Six episodes in total.

Preet Bharara:

So today, Anne, second impeachment trial, a different slate of House managers led by the really … And I think this is an inappropriate word. I mean I don’t mean to take it away from you, but the extraordinary Jamie Raskin, who’s super smart and-

Anne Milgram:

Very impressive.

Preet Bharara:

… has strength that I don’t even know how he has it, given the tragic death of his son a few weeks ago that he wrote about and I think we talked about. But today, day one, February 9th, by the time people listen to this, this debate will have happened, I guess. They have four hours to debate a question that we keep getting asked about that has been already addressed by one procedural vote in the Senate, and it’s embodied in a great question from a listener named Jack.

Preet Bharara:

Jack writes, “It seems that the Republicans’ main defense of Trump is that it’s unconstitutional to impeach someone who has left office. But wasn’t he actually impeached by the House before he left office? Is this just another attempt by Trump and the Republicans to spin this information to the public in an attempt to avoid looking bad?” I think you nailed. Jack nailed it, didn’t he?

Anne Milgram:

Yeah, that’s a great way to put the question. There’s a couple of points to make. The first is I was thinking this morning that, in some ways, the Trump impeachment trials are really different, but in another fundamental way, they’re exactly the same, which is that they both involve the 2020 election.

Anne Milgram:

The first one was about Ukraine and the call that Trump made to the Ukrainian president Zelensky to try to get dirt on Joe Biden. The second, the one that we’re about to see kick off today, is about what Trump did when he lost the election and wasn’t willing to accept the results of the election and now has been charged with incitement of insurrection.

Anne Milgram:

So Jack’s question is a good question, because there’s a number of defenses that Trump is making, and this defense, what’s really interesting about this one to me, Preet, is that it’s a process defense. It’s a procedural defense. It has nothing to do with whether or not Trump is guilty of inciting insurrection.

Anne Milgram:

And so, Rand Paul raised this two weeks ago. There was a vote already once in the Senate, where the Senate held 55 to 45 that the impeachment trial could go forward. But Rand Paul was arguing this isn’t constitutional. The premise of that argument is basically once the president has left office, you can’t impeach him and try him and remove him or disqualify him.

Anne Milgram:

I mean I’d be curious to know what you think about this, but it really does feel like there’s general consensus on both the left and the right in terms of constitutional scholars that you can in fact impeach and remove someone after they’ve been in office, including … And here, to Jack’s point, Trump was impeached when he was still in office, but the trial is going forward after … And it does feel … You and I have talked about this as well, there’s precedent with William Belknap.

Anne Milgram:

But it feels to me like a procedural argument that’s meant to distract and to give the senators an out from having to deal with the substance of what Trump has done and is going to basically … The evidence that’s going to come forward in the next week over the former president’s actions.

Preet Bharara:

A couple of points. I don’t want to belabor it because we’ve talked about it a bunch before, but there are a couple of interesting things in the Trump lawyer’s brief. But just as an initial matter to remind everyone, you’re absolutely right. As Adam Schiff and Dan Goldman discussed on the Stay Tuned podcast in the last week, the argument against the constitutionality of proceeding is greatly undermined by the fact that, yes, Donald Trump was in office when he was impeached.

Preet Bharara:

And Article I, Section 3, Clause 6 of the Constitution says the Senate shall have the sole power to try all impeachments. It doesn’t say some impeachments, it doesn’t say impeachments of presidents who have now left office since being impeached. It says all impeachments. So it’s a very powerful argument.

Preet Bharara:

And it’s been joined by a number of conservatives as well. Most recently, in the pages of the Wall Street Journal Opinions section, Chuck Cooper who is a member of the Federalist Society, who’s been a longtime conservative lawyer, advisor to Republican presidents, advisor to Ted Cruz … This is no liberal, this is no supporter of Joe Biden. This is a person who understands how the Constitution works. And he, combined with a lot of other people, I think, are making the right points. So you mentioned …

Preet Bharara:

To get into a little bit into the weeds for a moment, I kept wondering when I was reading the brief of the President’s lawyers … I didn’t find a typo on page one this time, the new brief that was filed this week, 78 pages or so. I did find a typo on page 6, but I didn’t look that carefully. I was wondering how they were going to distinguish that case that we keep talking about, the secretary of war back in the 1800s, Secretary Belknap, who upon finding out he was going to be impeached quickly resigned so he’d be saved from impeachment and a trial, and that didn’t work.

Preet Bharara:

So you have this precedent in the Senate. There was a trial on the secretary of war. How are they going to recover from that fact? What they do is, and I wonder what you think about it, what they say is it’s not clearly a precedent in favor of proceeding, because even though there was a vote like there was a couple of weeks ago in the current situation to go forward, and it was a majority vote that basically says you can go forward with the trial, even on a former officer, at the end of the day, Belknap was not convicted because they didn’t get a vote of guilty from two-thirds of the senators.

Preet Bharara:

The suggestion is that some of those senators voted no on the ground that it wasn’t constitutional to proceed. And so, therefore, that provides no … I think if I understand the argument correctly, that provides no basis for a valid precedent because some people voted against proceeding anyway. Does that make any sense to you?

Anne Milgram:

So, first of all, just how complicated it was for you to explain that is a sign of how bad a legal argument it actually is.

Preet Bharara:

Yeah, because I think one thing that’s useful to do … And should both do a little bit of this, advocate from the President’s position, just so we can understand the arguments.

Anne Milgram:

Yeah, completely. And I can tell you what I think their good arguments are. This one, to me, is actually a terrible argument. I think they wanted to put something on paper that let them argue that case, the Belknap case, and the Senate vote there is different from here.

Anne Milgram:

This first argument, which they’ve made a little bit before and others have made is, well, this is the President, Belknap was a war secretary. That argument doesn’t hold weight to me. There’s nothing in the constitution that distinguishes between those nor is there any reasonable basis to say, well, you treat presidents one way and you treat war secretaries and other executive officials another.

Anne Milgram:

So I think that this is a little bit of grasping for straws. It’s also, to go to the higher level argument here, I think that this is … In addition to the fact that constitutional scholars, that there’s a consensus saying, no, you can try a former president. I think there’s also a really powerful and important evidence in the fact that the United States Senate, that has the sole power to try impeachments under the Constitution, they voted in the Belknap case to allow that to happen and they voted here also recently by, again, 55 to 45. They voted to allow it to happen here, too.

Anne Milgram:

And so, this is a losing argument for them. And you tell me if I’m wrong on this, I don’t think this argument is about being right under the Constitution and laws of the United States. I think it’s about them giving Republicans an opportunity to dodge the substantive issues here. And so, they just wanted to put something on paper, I suppose.

Preet Bharara:

Well, because you have to. I mean, look, you can at least give credit a little bit to taking something that’s bad for them and trying to distinguish it. I mean that’s what lawyers do. The process of brief writing is in large part trying to explain your narrative, trying to explain how the law supports your position, and any example that supports your opponent’s position, you have to try to distinguish it.

Preet Bharara:

You say, well, they cite to that case or they cite to that president, it’s not quite the same here, and sometimes that works and sometimes it doesn’t. Here I don’t think it does.

Anne Milgram:

But you’re right to make the point. You can’t ignore it. I think you’re very right to make the point that a good lawyer takes head on the arguments.

Preet Bharara:

Yeah, or at least an adequate lawyer. But they do point to another president that they think is in their favor, and I wonder if you agree with this. I’m guessing that you won’t. So they say the Belknap situation is completely different for those convoluted reasons that are hard to explain. Then they say there was another occasion where you had a president who is about to be impeached, and then the Congress declined because that person left office. That’s Richard Nixon.

Preet Bharara:

That’s not similar to me for a hundred different reasons, including that it’s not at all clear that they abandoned impeachment because they thought there was a constitutional infirmity going forward. As an initial matter, unlike here, they hadn’t even impeached Nixon. In this case, as we’ve discussed multiple times, Trump was impeached fully and properly while he was in office.

Preet Bharara:

But, second, Nixon did resign. He didn’t wait until the end of the term. He showed contrition. And so, there were a lot of other things going on there in the decision not to proceed. So I don’t that’s a valid precedent either.

Anne Milgram:

I don’t like that argument.

Preet Bharara:

Yeah, even if they chose not to proceed then doesn’t mean they can’t proceed now.

Anne Milgram:

Right. I don’t like that argument for the exact thing you just said, which is that the question is not how the Senate exercises its power. The question is does the Senate have its power? And so, the fact that the House may choose to impeach and the Senate may choose to try a former president or not, that’s within their rights. The real issue here and really the only issue on this argument, I think, that the defense is making is does the Senate have this power to try a president who was impeached while in office and now is standing trial when he’s no longer in office?

Anne Milgram:

Again, I think they’re doing everything they can to try to argue against it. But I do have a problem with them trying to bootstrap prior historical examples, like Nixon, where the Senate chose not to exercise its power to argue that that means it doesn’t have power.

Preet Bharara:

Right. I think that’s very well put. I mean if there’s [crosstalk].

Anne Milgram:

One other point I just wanted to ask you about, because this whole thing feels just really strange to me, and, let’s just be honest, it’s not a real trial. And so, you and I are used to trying criminal cases. We’re used to being in a court of law. I’m struggling a little bit on this constitutional question because in a case that you or I were bringing, there might be a question of jurisdiction. Does the court have jurisdiction to hear this case, a procedural argument?

Anne Milgram:

All of those things would be decided by a judge before anything began, and it wouldn’t be something you argued as a substantive merit-based question of can someone be convicted at trial. So I’m struggling a little bit with that and this is where I wish there was a real judge in impeachment who could just settle this question and then we can move on to the actual substance of the case against Trump.

Preet Bharara:

Yeah. Look, there are some other technical kinds of arguments that the Trump lawyers are making. Maybe we can address one or two of them because I haven’t seen too much discussion of them. One of them, which I think is really fascinating, but again at the end of the day will not be an issue because, as you point out, the senators decide for themselves what arguments are fair, what arguments are not, and these philosophical discussions about whether some procedural matches, what it would be like in a real civil trial or criminal trial, are of no consequence because the senators decide.

Preet Bharara:

One of the things that they’ve argued, which I think is interesting, is that in a single article of impeachment, there are, according to the Trump lawyers, arguably multiple bad acts being described, so multiple things that it has alleged the president has done that could be the subject of separate articles of impeachment. If the requirement is you need two-thirds of the senators to agree on what that conduct constitutes, guilt, for purposes of the article of impeachment, unless you have something like a special verdict form that we have in federal court and in state court sometimes, their argument is you’ll never know what the senators thought the bad act was that constitutes guilt.

Preet Bharara:

So some senators could be voting guilty, based on the call to Ravensburger, hypothetically, in Georgia, some could be voting based on the statements that Donald Trump made on January 6th. But without knowing that there’s unanimity of mind with respect to the particular conduct, you have an unfair result there.

Preet Bharara:

That feels, for a lot of reasons, including the senators decide for themselves, I don’t think there’s a provision for a special verdict form like you might have in a criminal trial, where jurors have to check a box and say, “Do you find guilt based on X? Do you find guilt based on Y?” Also, this argument was made during the Clinton impeachment, and that argument was found not to be meritorious there either.

Preet Bharara:

I guess the final point is, just a repetition of what we’ve said over and over and over again, that maybe is an interesting and fair point in an ordinary trial. This is not an ordinary trial.

Anne Milgram:

Right. I think that’s one of the most important points, which is the Republicans and the Trump defense, they really are arguing that it is like a criminal case when it’s convenient for them and that it’s not when that’s convenient for them. And so, I think that the overriding rule is just that this is not a criminal case. It can be hard for me to remember that sometimes because it does feel strange, but the reality is that there’s so many things about this that would never happen in a real criminal case.

Anne Milgram:

Also, it isn’t a criminal case. Donald Trump isn’t going to go to jail or prison if he’s convicted. Impeachment is about removal and disqualification. And so, it’s really important to remember that it is different and that the-

Preet Bharara:

It’s a disciplinary action in some ways.

Anne Milgram:

It’s a disciplinary proceeding, exactly. I think that’s exactly right. It should be seen as more akin to that. It’s also true that the rules of impeachment are set by the Senate. And so, one thing I’ve noticed, and I think we’ll talk about this in a minute when we talk about some of Trump’s other defenses that his lawyers have spelled out in their pre-trial briefs, but one of things I’ve noticed is that they are really trying to narrow the scope of the allegations against Trump. So they’re trying to make it about one sentence that Trump said on January 6th, this statement …

Donald Trump:

We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.

Anne Milgram:

… because it’s convenient for them to try to argue, to really narrow it in that way. The House impeachment folks didn’t do that. They actually intentionally said the President engaged in incitement of insurrection through all these ways, through his tweets, through his call to the Georgia secretary of state, through his prior comments.

Anne Milgram:

And so, this is one of the key tensions, I think, people should be watching for this week, is that the defense is going to try to make it all about one sentence, and the House managers and the Democrats are going to be saying this is about all of the President’s conduct that led to that moment in time on January 6th, when rioters laid siege to the United States Capitol and tried to stop the elector from being counted.

Anne Milgram:

So, Preet, we got an email also from Peter, who wrote, “Jamie Raskin wrote Trump, saying he would advocate to the Senate that an adverse inference should be drawn from failure to testify. Since Trump is still subject to criminal investigation, how is this so? Does the Fifth Amendment apply at all? Thanks.”

Preet Bharara:

So that’s an interesting question. It’s funny because … Not funny, but interesting, because when I first heard that the House managers might try to make some argument, not just that there should be an adverse inference but they would argue directly and affirmatively that Trump’s failure to testify was evidence of guilt.

Preet Bharara:

I did some twitching because of my training and the background. As you and I both know, the idea that in a criminal trial, and, of course, this is not that, but my instinct was to stiffen up when I heard that argument, in a criminal trial, if the prosecutor stood up and made a statement about the failure to testify and how that supports a finding of guilt, what would happen to that prosecutor?

Anne Milgram:

Yes, the prosecutor will be in big trouble. Big trouble.

Preet Bharara:

They’d be shot. They’d be shot. They’d be shot by the marshal.

Anne Milgram:

And the case would likely be overturned.

Preet Bharara:

A mistrial.

Anne Milgram:

Yeah, it’d be a mistrial and the case would have to be retried.

Preet Bharara:

I mean that’s how serious it is. That’s how serious it is in our system, that the presumption of innocence remains and that the burden of proof remains on the government, on the prosecution. But this is not that.

Preet Bharara:

It still feels a little funny to me because it seems like … And people talk about it like a criminal trial, but it’s not a criminal trial. It’s not a civil trial either. So all this is fair game, no?

Anne Milgram:

Yes, it is fair game, but here’s what I would have preferred. One of the things I think that the House impeachment managers are going to have to do is say, “Here’s this mountain of evidence. Here are the videos, here are the words, here are all the ways in which you know that Donald Trump did what we said he did, from the date of the November elections through January 6th, and it all culminated in this insurrection on January 6th,” and they have to go through and reject his defenses one by one.

Anne Milgram:

One of the issues here is it is not clear how Trump and his lawyers are going to get his defenses into evidence. And so, again, in a normal trial, the defense has … If they want to make an argument about something, it can’t just be the lawyers making arguments. They have to have either documents or witness statements or transcripts or videos. They have to have their own evidence.

Anne Milgram:

And so, here what I think Raskin was doing and the Democratic House managers were doing is, okay, this is what you say. You claim your intent that this was all about election security. You know what? Show up. Like you show up. Also, remember, Raskin did this after the first brief. The defense lawyers have now filed two briefs. In the first brief, they argue the big lie, and we’ll talk about that, I know, in a little bit probably. But they argue that Trump believed that it was true that he’d won the 2020 election.

Anne Milgram:

And so, Raskin is saying a little bit of the, “We have a lot of questions we want to ask you, actually, about your intent. Please come.” In some ways, I think that’s what they were trying to do.

Anne Milgram:

Again, you and I are former prosecutors. It felt strange to me. I mean I think Trump has a right to not testify here. And so, it did feel a little bit more like gamesmanship than about actual evidence. But, again, I understand this is a political process. It’s the United States Senate. They, arguably, could also subpoena him to get his testimony.

Anne Milgram:

Again, remember, he could take the Fifth Amendment because he could argue that there’s a potential that he could be charged with insurrection as a criminal matter. But in terms of this moment in time, the Fifth Amendment doesn’t apply to this proceeding because he’s not facing incarceration. You have a right against incrimination in the context of a criminal case. This isn’t a criminal case.

Anne Milgram:

But, again, he could certainly take the Fifth Amendment because there are still outstanding investigations, and he could be charged.

Preet Bharara:

Right. But the other interesting thing is here we keep talking about his right to invoke the Fifth Amendment or not, but he hasn’t done it. And so, some people are speculating that part of the ploy here on the part of the House managers and Jamie Raskin was to say, “We want you want to come testify. To deny that request, you would have to invoke the Fifth Amendment,” which would look bad, which would be politically damaging.

Preet Bharara:

That invocation, by the way, I think Donald Trump has said in the past, is something that only criminals and mobsters do. So I don’t know if it was a gambit to try to get him to invoke the Fifth Amendment, which would have its own implications.

Preet Bharara:

By the way, further to what you said a second ago, Anne, I think it bears quoting from one of the President’s lawyers briefs, this idea that the President was simply stating an opinion about the election, and you can’t know if it was false or not. He write, “Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th president’s statements were accurate or not. And he, therefore, denies they were false.” That’s pretty convoluted.

Anne Milgram:

That’s quite a sense.

Preet Bharara:

He could also write, “Insufficient evidence exists upon which a reasonable jurist could conclude that the moon is made of green cheese,” right, or anyone [crosstalk].

Anne Milgram:

And so, therefore, we deny it’s false. Exactly.

Preet Bharara:

Yeah, and maybe we’ll get to her later, maybe not, Marjorie Taylor Greene. “Insufficient evidence exists that a plane hit the Pentagon on 9/11.” I guess you could say that about any factual assertion in the history of the world to try to get out of trouble here, but that’s the level of argument that they’re engaging in with respect to the big lie, because there’s not much they can do about it.

Anne Milgram:

Yes. So let’s talk about this. There’s so much to say about this part of their first brief. First of all, that sentence is Trump’s lawyers trying not to argue the big lie in the clearest language. They make it complicated, but the end result is basically saying, “It’s true. The big lie is true. The former president Trump thinks that he won the 2020 election.”

Anne Milgram:

It’s a bizarre argument to make, and I’m just guessing, but I suspect that Trump pushed them to make it, because you’ll remember that Trump’s first lawyers for the impeachment trial, the first five lawyers, all resigned and it was publicly reported that those lawyers didn’t want to argue the big lie, that the 2020 election was stolen from Trump.

Anne Milgram:

What’s really interesting about this argument to me, Preet, is that … Well, there’s a couple of points. The first is it doesn’t matter, for the purposes of whether or not Trump incited insurrection, whether or not he believed that he won the 2020 election. So it’s a really odd argument because it doesn’t … Even if he believed it was true, that’s actually, in some ways, evidence for the House managers. It’s evidence for the House managers because it sets out his motive to do what he did and to say what he said. He believed he won, and so he was out there trying to stop those votes from being counted.

Preet Bharara:

Yeah, I think that’s exactly right. I mean they will argue again and again and again, and it’s their best argument, to be fair, that if you parse the precise language of the President on January 6th and on other occasions, sure, he said fight, he said you’ve got to fight, and they’ll say that’s figurative language and Democrats have used that language in the past and it’s what people say in campaigns.

Preet Bharara:

Obviously, the context here is totally different. They will say he used the phrase, “Peacefully and patriotically, make your voice be heard.” Donald Trump’s lawyers would be saying that again and again and again and again. It’s a throwaway line that I think he articulated because somebody on his staff inserted it into his remarks. But there’s an argument to be made there.

Preet Bharara:

But the bottom line, I think, is articulated very, very well in the House managers’ first brief, and that is he wasn’t just engaging in speech. He wasn’t just talking. He was asking them to do something. He was asking them to do something, where? At the Capitol. And when? On January 6th. And what was going on at the time where they were going to be? To be fighting the counting of the votes.

Preet Bharara:

On occasion after occasion, including with officials in Michigan, including with officials in Georgia, including with his own vice president, he was telling them to do something. The thing he was telling those people to do in every single circumstance was overturn the result of the election.

Preet Bharara:

By the way, that speech too, and he’s telling them to overturn the results of the election, when taken in the full context, he’s asking these people not to just protest and make their voices heard for no particular reason, but to change the result of the election.

Preet Bharara:

Then, of course, his reaction afterwards I think goes to his state of mind at the time he’s making the statement and the comments, he seemed to be joyful. I think that’s further evidence, if you can bring it in and have proof of it, that he intended for them to do what they were doing. It stands to reason that if you’re happy about somebody doing something, that you wanted them to do the thing they’re doing. Does that make sense?

Anne Milgram:

It makes total sense. I agree with you. I think the best defense that Trump’s lawyers can make is to argue his … Just to really narrow in on this statement at the January 6th rally about fight, that he didn’t mean it as really fight, those words are used by politicians all the time to say, “Look, we’ve got to fight the other party. We’ve got to fight for our rights.” It’s part of normal conversation in some ways. That’s an important part of their argument.

Anne Milgram:

I think another part of their argument we may see is that the rioters breached some of the capital barricades as Trump was still speaking. And so, I think his lawyers are going to argue, “Look, this was about them doing something they wanted to do. It had nothing to do with Donald Trump.” Again, I think that fails for all the reasons and all the evidence that you just talked about.

Anne Milgram:

But I think that defense, which is that he’s allowed as President of the United States, under the First Amendment, to stand up there and to say whatever he wants to say, that the Democrats are bad, that he thinks he won the election, that’s his right under the First Amendment. So that’s going to be their argument.

Anne Milgram:

I want to note two additional things before we get to the First Amendment piece, which is that one of the things Trump lawyers, [Trumpselors], have done, and I think this was a huge mistake on their part and I would be very curious to know what you think about it, but they decide that they need to offer an explanation for what Trump was talking about on January 6th.

Anne Milgram:

So they don’t want to go in and say, “Yeah, he told them to fight like hell and go to the Capitol, but he didn’t really mean it.” So instead they say he was talking about election security. He is very worried about the security of elections in the United States and the way that some states changed their laws related to COVID.

Anne Milgram:

What’s remarkable about that to me is that the next … Well, first of all, what you say, where he was saying it, he was saying it less than two miles from the United States Capitol. When? At the exact time that the votes for the electors were supposed to be certified. And last but not least, and I think it’s a really important point, when is the next major federal election? 2022.

Preet Bharara:

Not for a while.

Anne Milgram:

It’s not January 6th. And so, I think that the House managers have to really just pick apart this defense, because on its face, especially when you look at Trump’s conduct from November through January, it is simply not possible that he was out there waving the flag for election security. That’s not what this was about. This was about him trying to overturn the results of the election.

Preet Bharara:

I want to follow up on something that you alluded to a second ago because I think it’s important, and that’s this argument that they make fairly assertively, the Trump lawyers, that a lot of these people who came to the Capitol on January 6th already had in mind storming the Capitol, perhaps engaging in violence. It was premeditated. They say that that is proof then that Donald Trump’s remarks on the morning of January 6th could not have incited the violence because they came there, at least some of them, with that in mind.

Preet Bharara:

That’s a problem for a couple of reasons. One, the House managers’ theory of the case is not that it was just the words on January 6th. You’ve made that point very eloquently earlier in the program. But, second, I don’t know how that gets Trump off the hook, because if you can show that law enforcement and members of the executive branch knew that there were violent tendencies among this group that was coming to the Capitol on January 6th, and then presumably this was known to the circle of folks around Trump and to Trump himself, that puts him on notice when he’s making his remarks on the morning of January 6th.

Preet Bharara:

If you have the megaphone that the President has … And, by the way, I think some of this is bound up with the fact that it’s the President, and the President has unique power and authority and influence particularly over his base. If it’s known that there are some folks who were prepared to engage in violence, and then you look at the words used by Donald Trump, they’re more incendiary. I mean as the House managers refer to it, they say, look, there was a tinderbox that was created in part by the words and the perpetuation of the big lie. Then Trump lit a match.

Preet Bharara:

So I don’t know why it’s the case that they think it’s such a powerful reason in favor of their position of innocence, the fact that some of these folks came to the Capitol already intending to engage in violence.

Anne Milgram:

Again, I think it’s evidence against Trump. I think it’s evidence that over the course of the two months prior to this, his branding effort at this stop the deal, this whole idea of the 62 cases that were brought, 61 of which Trump lost in courts across the United States, the constant rallies, the pushing of this narrative that there was election fraud that led to Trump losing the election, all of that, in my view, it falls against him, because if you look …

Anne Milgram:

And, again, you can’t just isolate this to the moment in time. The insurrection is at this moment in time. But there’s so much more here. All of that gets to the point where when you hear the individuals, many of whom have now been charged for their involvement in their insurrection, and you hear them say, “Trump called us as patriots to go to D. C. on January 6th,” then you know that they were there because they believed he wanted them there.

Anne Milgram:

And so, in some ways … And, again, the government bears the burden of proof in trials, whether it’s impeachment or criminal case. But, in some ways, that to me requires some rebuttal by Donald Trump and his lawyers to say there has be another theory of the case for them to explain why those people thought that Trump was calling them and telling them to be there that’s wrong. There has never been a shred of evidence that explains how this whole effort around what Trump was saying and doing … And, again, you have his call to the Georgia secretary of state.

Anne Milgram:

So you don’t have to just rely on what happened on January 6th to know what was going on because you have all these other instances and you have these windows into Trump’s intent that I think are just bolstered by the fact that you have people showing up with serious weapons. You have pipe bombs being laid. You have people storming the Capitol. You have people going and saying that they are looking for members of Congress to stop the vote certification, and chanting, “Hang Mike Pence.”

Anne Milgram:

And so, it’s just one of those things where I don’t know if it will matter the end results of the trial, but it feels to me, just on its face, there is a lot that is very clear here, that it’s very hard for Trump’s lawyers to defend against.

Preet Bharara:

Yeah, because one of the issues here at the heart of the case is foreseeability. I mean it’s all bound up with whether or not he’s guilty of incitement. Was it foreseeable that his words would cause people to engage in violent conduct? As we’ve said, this whole business of knowing that violent folks were coming, knowing that there were violent tendencies among some of these groups.

Preet Bharara:

By the way, warnings, specific warnings by the Republican election official in Georgia, when the lie was being perpetuated over and over and over again. He said, “Look … ,” because I think he was subjected to death threats.

Preet Bharara:

So for a million different reasons, it’s foreseeable that aggressive speech of the sort that the President engaged in on January 6th, and on other occasions, was going to lead to a bad result. People were warning about it all over the place based on commonsense and based on things they were seeing. Maybe we should talk about the First Amendment defense a little bit, because it gets confusing to people.

Anne Milgram:

Yeah, I think we should.

Preet Bharara:

The First Amendment is a very important amendment, and free speech is obviously very important. People like to cite that you can’t shout, “Fire!” in a crowded theater if there’s no fire, et cetera, et cetera. I think more fundamentally you can say, depending on the circumstances, if you engage in a certain kind of speech, that doesn’t protect you from consequences of that speech or accountability for that speech.

Preet Bharara:

Now Donald Trump as the President of the United States is subject to impeachment if he abuses his power in a particular way. I saw Floyd Abrams, the noted … First of all, former Stay Tuned guest, but noted First Amendment lawyer, probably the most prominent First Amendment lawyer, of the last more than one generation in the United States, who is always the guy who argues in favor of an expansive reading of the First Amendment. He’s that guy, he’s that lawyer who represented the New York Times for many, many, many years.

Preet Bharara:

He signed a letter with 143 other First Amendment scholars and lawyers and practitioners to make the point that the President of the United States can’t go around saying … I mean I guess he can, but he has to face the consequences … “Hey, it would be wonderful if China invaded the United States.” It’s a great example, I thought. It would be wonderful if Chinese army were to land on the shores of the United States and invade us. It would be much, much better off, and that’d be traffic, and you say it every day in a speech from the Oval Office. Impeachable, I think, right? You can’t argue there.

Preet Bharara:

Sure, if I said it or you said it, he’s allowed to say it, but that doesn’t mean he’s protected from impeachment, because that’s a dereliction of his duty to uphold the Constitution and to take care of the national security and the homeland security of the country. You can come up with example after example after example of that.

Preet Bharara:

We’ll talk later maybe about Marjorie Taylor Greene, who, on a bipartisan vote, was removed from her committee assignments in the Congress. By the way, the basis on which she was removed from her committee assignments was speech. She said things about 9/11. She said things about Sandy Hook. She said things about the Parkland Shooting, that they didn’t happen. And I didn’t hear anyone saying that she had a First Amendment right to saying those things and, therefore, there couldn’t be some disciplinary action against her. The same is true for the President, right?

Anne Milgram:

Yes. So I think this is an important thing to focus on for a few minutes. I think that seeing impeachment as a disciplinary action, seeing this trial as a disciplinary action and not as a criminal case becomes really important when you start talking about speech. And so, yes, people have … They’ve been fired from jobs, they’ve been stripped of committee assignments over statements that they’ve made.

Anne Milgram:

I agree with Abrams and the others that have made this argument, which is a pretty lofty argument in some ways, which is basically that the President takes an oath of office and he cannot commit high crimes and misdemeanors, as the Constitution lays out, and that his words can be a way in which he violates his oath of office or engages in high crimes and misdemeanors. Remembering again this isn’t a criminal case, this isn’t a civil defamation case. This is really about whether the President can be removed for his words and his conduct. So I think that’s completely right. I think the China example’s a good one.

Anne Milgram:

I also think that if I were one of the House managers, I would argue this two ways. I would argue that. But I would also understand that the American public and the American people, we understand in a very visceral way the First Amendment to the Constitution. It is number one. As you say, it’s a very important amendment.

Anne Milgram:

And so, people think a lot about freedom of speech, and are we basically saying that Trump can’t say that he doesn’t agree with something? Prior Democrats have said they don’t agree with election results, Stacey Abrams challenge election results, and so on.

Anne Milgram:

And so, I personally would be very careful of saying in front of the Senate and the American public that the President doesn’t have any First Amendment rights. I don’t think that’s exactly what they’re saying, but I bristle a little bit at this argument, even though I think it’s legally accurate, because I think the better argument here is to say, yeah, under the way impeachment works, this is a disciplinary process you, can subject the President to removal and disqualification based on how he discharges his oath of office. Here, there’s evidence that he is basically working actively against the United States Constitution, and he does that through word and deed.

Anne Milgram:

But the second part that I would do, and I wonder if you would do this, is to also say, look, even if we took the established Brandenburg standard that’s used in criminal prosecutions and defamation cases, he’s guilty there, and he’s guilty there because all we need to show there is that essentially he intended unlawful conduct that would take place imminently.

Anne Milgram:

Here it’s imminent. It happens within minutes of him speaking on January 6th. It’s unlawful. There are many people who’ve been charged. So the only real question is his intent, which is, in part, as you and I have already talked about, that is part of what this whole House manager case is going to be about. Did he intend for his followers to try to violently overthrow the US government? And so, that is the case anyway. So I wonder what you think about that.

Preet Bharara:

Yeah, I don’t think it has to be as strong as violently overthrow the government, but at least caused them-

Anne Milgram:

Well, engaging insurrection.

Preet Bharara:

Well, yeah, and even milder than that, I think, suffices for this. Although I know the word insurrection is used in the article of impeachment. What he really wanted was them, in some way … And this goes to the elements of seditious conspiracy as well that we’ve discussed before … to stop that vote.

Preet Bharara:

I mean that’s what he wanted Mike Pence to do, to open up the envelopes and say, “No, I don’t agree with this. The election goes to Donald Trump.” He wanted those people who came to the Capitol, in some way or another, to stop the counting of the vote and reverse the counting of the vote to his benefit.

Preet Bharara:

The other point, just to repeat on speech, it gets very easy to demagogue the free speech and First Amendment issues. Just because some words are formed with your vocal cords and come out of your mouth does not automatically immunize you, or a sitting president, from every consequence of that utterance.

Preet Bharara:

You may not think about it this way, Bill Clinton, you could argue, was impeached and had a Senate trial over impeachment based on speech. What was the speech? You can argue that it was rightful or not, but the speech was lying about something in a deposition.

Preet Bharara:

A lie is speech. If you lie under oath, there’s a consequence for it. If you utter racial slurs while you’re the CEO of a company, there’s a consequence for it.

Preet Bharara:

So just because something comes out of your mouth, the First Amendment to the Constitution doesn’t say you are protected from any consequence and adverse action for eternity. That certainly is not true to the President whom we hold to a higher standard than those other people I mentioned.

Anne Milgram:

You know what? One of the things I was thinking about with this, and I think, again, this is where it gets really interesting because it’s not a criminal trial, because in a criminal trial, the defendant’s words … I mean you have a Fifth Amendment right not to talk, but that’s after you’ve been taken into custody.

Anne Milgram:

So think about this. If this were a criminal trial for incitement to insurrection, basically charging Trump with seditious conspiracy and insurrection, his words would be exactly what you use to prosecute him and hold him accountable, because defendant statements are not hearsay. They are allowed to come in at trial. And so, it would be the whole crux of the case.

Anne Milgram:

And so, again, what I think his lawyers are trying to do is to basically make an argument, which I think fails on its face, but is the argument of, look, he was just talking. He said peacefully. Yes, he told them to go to the Capitol and he said fight, but he didn’t really mean it. He’s allowed to say those things under the First Amendment because that’s what we allow people to do.

Anne Milgram:

There is a kernel of truth that, yes, we hear it all the time, one politician saying a negative thing against another politician, or saying vague threats, for which people are not always prosecuted or held accountable for defamation. But this, again, is a question of the impeachment power and the ability to hold the President accountable. In some ways because there’ve been so few, there’s more opportunity to mix up these arguments a little bit and make it more complicated.

Anne Milgram:

I think one thing that Trump’s lawyers have done effectively is to say, look, this is about the First Amendment. Like, yeah, he said some things, and they’re ignoring both the fact that as President, he can be held accountable for his words and he can be removed from office, I agree with that. And also, even under the First Amendment, this wouldn’t be protected even for an ordinary citizen because, again, it meets those three prongs of Brandenburg.

Anne Milgram:

I think that’s the way I would think about it. I wouldn’t totally dismiss the Brandenburg piece if I were the House managers. Again, part of that is just meeting the defense where it is and acknowledging the defenses. But part of it is also that I think the House managers have a very strong case that, yes, on its face, because it’s impeachment, they have the ability to bring actions based on his words, but, second, he did in fact incite an insurrection. Under this standard First Amendment language, they would meet that challenge.

Preet Bharara:

We have another good question that I think is an important one from a listener. It goes to this issue of whether or not the vote is going to be based on senators’ conscience. There are some people who speculate, well, if it was a secret ballot, maybe people would vote one way. If it was not a secret ballot, people would maybe vote a different way. We saw that in the Liz Cheney vote and whether she should be censored by the House for having voted in favor of impeachment.

Preet Bharara:

The email from Holly reads as follows: “Who or what determines whether the impeachment vote in the Senate is by open or secret ballot? It seems like that could mean the difference between acquittal or conviction in the current case.”

Preet Bharara:

I think that’s right. As we’ve been discussing for the entire hour, the Senate basically gets to decide the procedures by which they engage in their business. They could presumably decide that it would be a secret ballot. However, there is a provision in the Constitution that is maybe not that commonly known. The yeas and nays of members of either House on any question shall, at the desire of one-fifth of those present, be entered on the journal, which essentially means the Senate can decide to have a secret vote on something, or the House could. But if a fifth of the members, and on the Senate, that would be 20, 20 members want those things to be publicly recorded, they have to be publicly recorded.

Preet Bharara:

In the current circumstance, I don’t think you’d get a majority of people to say, “We should have a secret ballot in the first place.” But even if you did, I think you could predict there will clearly be 20 senators who want the votes to become known. And even if you didn’t, there’s no provision that I’m aware of that that not only says it’s secret ballot, but that no one is permitted to reveal their vote publicly. You’d imagine there’d be incentives for a lot of people to say, “Well, this is how I voted.” By process of elimination and implication, you’d be able to figure out who voted the other way.

Preet Bharara:

So I think politically, pragmatically, and constitutionally, there’s not going to be a secret ballot. Do you wish there was going to be a secret ballot, Anne?

Anne Milgram:

I was really surprised to learn that. It didn’t occur to me that there could be a secret ballot. Then I think it’s fascinating to understand what the circumstances are in which you could have it. No, I think I understand because there is an element of political fear about Donald Trump, but this is a really important question.

Anne Milgram:

It isn’t a criminal case were jurors have to be unanimous, but in some ways we don’t know which juror argued what in a jury room. But, ultimately, when it comes to a criminal conviction, we know that all the jurors supported that conviction. And so, here it doesn’t feel right to me having this public trial in the United States Senate and having it be secret.

Anne Milgram:

Also, by the way, they all give speeches at the end as to how they’re voting and why, because they want to justify it. And so, it just wouldn’t work.

Preet Bharara:

Yeah. I think the constituents would not be happy on such a consequential vote, that some of the senators say it’s the most consequential vote of their entire Senate careers, and some of them will have done it twice, to go back to your home state and get asked the question, “Did you vote for or against the impeachment or for or against guilt with respect to Donald Trump?” and say, “Well, it’s a secret ballot. I’m not going to tell you.” That’s not going to fly very well, no matter what state you’re from, right?

Anne Milgram:

Yes. I think that’s true. So, Preet, there’s one other thing just to touch on that I’ve been watching in the media. Because there was this vote a couple of weeks ago about the constitutionality of the trial, and that was a 55-45, and so five Republicans switched over to vote with the 50 Democrats to say that the trial should go forward. But that means that 45 Republicans opposed the trial going forward.

Anne Milgram:

And so, the general consensus is, and I agree with this, that in order to convict, it has to be a two-thirds vote at the impeachment trial for conviction, and that it’s deeply unlikely. It may not be 55-45, but, again, it would have to be 67 votes in order to convict Trump. And so, the likelihood of conviction, I think, is very small.

Anne Milgram:

But I do want to make this point that I worry about this … It’s almost this underlying feeling of we’re just going through the routine, we’re just going through the motions on this, because the outcome is going to be that Trump won’t be convicted. Maybe we won’t even call witnesses.

Anne Milgram:

I just want to step back for one minute and argue that you and I have both been criminal prosecutors. We’ve overseen thousands of cases. There have been cases that I have brought and that I have approved others bringing where it was a really tough case, and there are times where you bring really tough cases even though you may not win. You do it because the law and the evidence lead you to believe that someone is guilty of doing something that violates the law.

Anne Milgram:

And so, here, I think it’s really important to remember that the House has done what they believe is right. They believe that there is sufficient evidence to convict Trump. If Republicans do not agree with that, that is on, in my view, the Republican senators. They get to vote. The trial hasn’t started yet, and so some of them may not vote exactly as we think they will.

Anne Milgram:

But at the end of the day, the righteousness of bringing a case that you believe in exists whether or not … And it’s really critically important for the rule of law whether or not the outcome is the outcome that you believe is correct under the evidence and the law.

Anne Milgram:

And so, I just want to note that this will feel a little bit, in some ways, like people are going through motions this week. But to me, it matters greatly. I think that the House should bring and should bring the exact case they want. If they want witnesses, they should have witnesses. It should take as long as it has to take for it to play out and for them to have felt like they’ve brought all the evidence to bear that they can on the charge against Trump.

Preet Bharara:

Hear, hear. So there’s something else is going on that’s relevant to all this, that will actually be, at the end of the day, a real proceeding in a real court of some sort. That is a second voting machine related company has filed a significant defamation suit, Smartmatic. They have sued Fox Corporation in New York State Supreme Court and three of Fox’s hosts. Those would be Maria Bartiromo, Lou Dobbs, and Jeanine Pirro, also Rudy Giuliani and Sidney Powell, lawyers for former president Trump, accusing them of saying all sorts of things that were false and defamatory.

Preet Bharara:

They’re seeking not a large amount of money, you could probably cover this, Anne, $2.7 billion, because of harm that was done to their brand and their business, because these guys went around saying over and over again all sorts of things that the complaint by Smartmatic says are demonstrably false and made up, including allegations about Hugo Chavez being involved, that Dominion and Smartmatic were related to each other in some way or one owned the other. That’s also demonstrably false.

Preet Bharara:

And so, we might get some accountability for these false claims that are part of this big lie that created what the House managers call the tinderbox upon which the match was thrown on January 6th. There’s one immediate consequence in terms of … We were talking about disciplinary proceedings and talking about consequences for saying things in connection with your employment.

Preet Bharara:

Lou Dobbs, who had the highest rated show on Fox Business … Not on regular Fox News, but on Fox Business … was relieved of his duties on Friday evening. All parties believe that that’s related to the suit and the things he was saying that are demonstrably false about Smartmatic and about Dominion.

Anne Milgram:

There’s more consequences, too. I mean because we saw from the Dominion lawsuit that the Fox News hosts stopped saying that the election was stolen.

Preet Bharara:

They did. They did.

Anne Milgram:

And so, they did. Also, when-

Preet Bharara:

And Newsmax also. Newsmax, I think, put out statements … Yeah. I mean, look, these things have consequences, and corporations are not run by idiots. Although it’s query why they allowed some of these statements to go unrefuted for so long.

Anne Milgram:

Well, I think this is really important and I also think it’s a really powerful example of how the law can be used and how important it is for corporations like Dominion and Smartmatic to do what they’re doing. I don’t know if you got a chance to read it, but I love the Smartmatic versus Fox Corporation lawsuit filed in-

Preet Bharara:

Well, the opening paragraph. Do you want to read the opening paragraph?

Anne Milgram:

Yeah, it was filed in New York Supreme Court. It begins: “The Earth is round. Two plus two equals four. Joe Biden and Kamala Harris won the 2020 election for President and Vice President of the United States. The election was not stolen, rigged, or fixed. These are facts. They are demonstrable and irrefutable.”

Anne Milgram:

They go on then to say the defendants have always known this. They knew that Biden and Harris won. They knew it wasn’t stolen. They didn’t want them to win. They wanted Trump to win. They saw an opportunity to capitalize on Trump’s popularity by inventing a story.

Anne Milgram:

They go on to say, and something that I think is so insightful, that basically that Trump and Fox and all these folks, they needed a villain. And so, they made Smartmatic the villain. They put forth a very strong argument, in part also, I was reminded as I was reading this, that Smartmatic, those voting machines were only used in Los Angeles County.

Preet Bharara:

One county.

Anne Milgram:

So in the entire … In one county.

Preet Bharara:

And they said over and over and over again that they were definitive in multiple states. I don’t understand. We should go through what the elements of defamation are, but I think some of these folks are in big trouble. Under New York law, what is required is to show a false statement, one, which I think there’s going to be overwhelming proof of. Two, publish to a third party without privilege or authorization. The same were made on the airwaves. Three, with fault amounting to at least negligence.

Preet Bharara:

That, I think, you have here, among other reasons, the people who are making these statements, Giuliani, Powell, and others, whatever you may think of them, they are sophisticated, trained professionals, one of whom was the mayor of the largest city in the country and who had my former job and who would claim to be someone who investigates things thoroughly, who understands the law. That’s not a mistake when a person like that does it and then, fourth, cause special harm or defamation per se. Special harm here is, presumably they’ll be able to show, that it’s harder to get contracts, that municipalities and other political subdivisions are thinking twice about using their services, et cetera, et cetera.

Preet Bharara:

Now there’s a separate question, which I’m going to ask you because I’m not clear on it yet. Sometimes when the statements are being made about a public figure, there’s a different standard, and you have to show there was actual malice, either in knowing that the statement was false or that you acted not just with negligence but with reckless disregard for the statement’s truth or falsity.

Preet Bharara:

Now corporations can, in some circumstances, be considered public figures. I don’t think these corporations here, Dominion or Smartmatic, are and only became famous in a way because of these false statements that were made about them. I don’t know what you think.

Anne Milgram:

Yeah, I agree. And so, I think this will be litigated, what the standard is, whether it’s negligence that Fox News and Fox hosts this or whether it’s actual malice. An actual malice would require Smartmatic to prove that Fox and the hosts published the statement while either knowing that it’s false or acting with reckless disregard for the statement’s truth or falsity.

Anne Milgram:

I think my own view is that they would be able to meet that standard. It is a very high standard. I’m not convinced either that they need to meet that standard, that they should be treated as public figures. But I think the vast majority of cases, I would say, they probably couldn’t make a standard like that.

Anne Milgram:

Here, I don’t feel that way. I feel like there is concrete evidence that these were false statements and that that was likely known. Again, Smartmatic has to go into court and prove it. But I do think that there’s going to be considerable evidence that they can put forward.

Anne Milgram:

Now in terms of the standard, I think that this is going to be a fascinating discussion, because corporations are not always public figures. Think about a public figure like a sports hero. Think about it as Beyonce, someone who’s incredibly … former president Obama, someone who’s very high profile and is in the public eye. Then there’s something called limited purpose public figures, which are individuals who are not known by everyone, who are known often just in the context of which they work. Corporations are not always considered to be public figures.

Anne Milgram:

And so, I think there’s a really interesting question here of whether Smartmatic, who I’d never heard of, I’m guessing you’ve never heard of it before this-

Preet Bharara:

No.

Anne Milgram:

… whether they can be seen as public figures for this. And so, I think Smartmatic will obviously argue that they should get the negligence standard. Again, even if they have to meet the higher standard, I think they have a really serious case against Fox News.

Anne Milgram:

I think that’s part of why immediately, when Dominion sued and when Smartmatic had issued some demands to Fox News, they’d sent them a letter prior to filing suit, you immediately saw Fox News basically doing a Q&A, question and answer, with an election expert, a guy named Eddie Perez, that they put on all their shows basically, because … And I think that shows us that Fox News, they talked to lawyers and those lawyers said, “You have a problem. You need to fix this.”

Anne Milgram:

And so, I expect that this suit will go on. I don’t know that they’ll get $2.7 billion. But I think it is a great opportunity to see the power of the law to stop conduct that was just irresponsible, that they were basically going on and they made up this conspiracy theory about Hugo Chavez and Venezuela. You and I joked a little bit on the air, but this has been watched now by millions of Americans and will hurt these companies.

Preet Bharara:

Yeah. Look, companies employ real people, and I don’t know the extent of the damage and how much damage control will be accomplished by bringing these suits, but probably a considerable amount. So you fight back not only by holding the cudgel of a lawsuit over the people who defamed you, but because you and I are talking about it, and other people on television and in print media are talking about it, it a little bit helps to mitigate the false statements.

Preet Bharara:

People, after digging into the case, can go out and say … Probably not with the same reach and the same volume as the false statements, but some reach and some volume, that those things were wrong and those companies should not be punished by the marketplace.

Preet Bharara:

So one other consequence of the January 6th insurrection, which we should finish with … I don’t mean to laugh because the insurrection is not funny. But Donald Trump was threatened with expulsion, not from office but from the Screen Actors Guild because of his role in the Capitol riot in January. Before he could be met with the ignominy of being expelled from the Screen Actors Guild, he resigned, and he did it in a letter. Do you think he wrote this letter himself? It sounds like it.

Anne Milgram:

It does sound like it. Can I read it to you?

Preet Bharara:

Dictated. Dictated, but not read. Yes. And so, this is Donald Trump resigning formally from the Screen Actors Guild, which probably many of you didn’t realize he was a member of.

Anne Milgram:

That’s right. That’s right. “I write to you today regarding the so-called disciplinary committee hearing aimed at revoking my union membership. Who cares!”

Preet Bharara:

Who cares, by the way, punctuated with an exclamation.

Anne Milgram:

I’ve never written that in a letter.

Preet Bharara:

Punctuated-

Anne Milgram:

Have you ever written that in a letter?

Preet Bharara:

No. But do you punctuate it with an exclamation mark like he did, or a question mark? You’d probably go question mark and exclamation mark.

Anne Milgram:

He went exclamation mark. “Who cares! Well, I’m not familiar with your work. I’m very proud of my work on movies such as Home Alone 2, Zoolander, and Wall Street: Money Never Sleeps, and television shows including The Fresh Prince of Bel Air, Saturday Night Live, and, of course, one of the most successful shows in television history, The Apprentice, to name just a few!”

Preet Bharara:

Exclamation mark again.

Anne Milgram:

exclamation point. “I’ve also greatly helped the cable news television business, said to be a dying platform with not much time left until I got involved in politics, and created thousands of jobs at networks such as MSDNC, for the Democratic National Committee, and fake news CNN among many others.”

Anne Milgram:

I just want to stop there, Preet, and say that both of us did become CNN legal analysts after Donald Trump became president. So there’s a kernel of truth there. He did create-

Preet Bharara:

Thanks for employing me. Thanks for employing me, Donald.

Anne Milgram:

Thanks for that job. “Which brings me to your blatant attempt at free media attention to distract from your dismal record as a union. Your organization has done little for its members and nothing for me besides collecting dues and promoting dangerous un-American policies and ideas, as evident by your massive unemployment rates and lawsuits, from celebrated actors who even recorded a video asking, ‘Why isn’t the union fighting for me?’

Anne Milgram:

These, however, are policy failures. Your disciplinary failures are even more egregious. I no longer wish to be associated with your union. As such, this letter is to inform you of my immediate resignation from SAG-AFTRA. You have done nothing for me. Regards, President Donald J. Trump.”

Preet Bharara:

Should I tell folks what the response from SAG was?

Anne Milgram:

Yes.

Preet Bharara:

In response to that letter beautifully read by my friend Anne Milgram, SAG issued a two-word statement: “Thank you.”

Anne Milgram:

I mean it’s-

Preet Bharara:

Hilarious.

Anne Milgram:

… classic.

Preet Bharara:

So, folks, we have quite a week ahead of us. Remember to listen to the Doing Justice podcast wherever you listen to podcasts. And to get daily accounting for what’s going on in the impeachment trial, go find Third Degree with host Elie Honig.

Preet Bharara:

Anne and I will be back next week, unless something warrants something in the interim. A lot of proceedings unfolding throughout the week and over the weekend. We’ll talk next week.

Anne Milgram:

Sounds good. See you soon, Preet.

Preet Bharara:

Please send us your questions, we had some really good ones this week, to [email protected]

Anne Milgram:

And we’ll do our best to answer them.

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, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.