• Transcript
  • Show Notes

In this episode of CAFE Insider, Preet and Anne break down the developments in the investigations into former President Donald Trump, former Trump campaign CEO Steve Bannon, and New York Governor Andrew Cuomo. They also discuss the newly-declassified intelligence report that revealed Saudi Crown Prince Mohammed bin Salman approved the operation that led to the murder of journalist Jamal Khashoggi. 

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

“The Work Continues,” CAFE Insider

DONALD TRUMP

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

“Prosecutors Investigating Trump Focus on His Finance Chief,” NYT, 3/1/21

“Trump’s tax returns and related records turned over to Manhattan district attorney,” CNN, 2/25/21

“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

STEVE BANNON

NY Criminal Procedure Law §40.20. Previous prosecution;  when a bar to second prosecution

Steve Bannon Executive Grant of Clemency, President Trump, 1/20/21

Nixon v. United States, U.S. Supreme Court, opinion, 1993

The People of the State of New York v. Paul Manafort, NY Court of Appeals, order, 2/4/21

United States of America v. Brian Kolfage, Stephen Bannon, Andrew Badolato, and Timothy Shea, SDNY, indictment, 8/20/20

Letter from Assistant U.S. Attorney Nicolas Roos to SDNY Judge Analisa Torres, United States v. Stephen Bannon, 2/25/21

“Steve Bannon investigation gains steam as Manhattan prosecutors subpoena financial records,” CNN, 2/24/21

ANDREW CUOMO

18 U.S. Code §1519. Destruction, alteration, or falsification of records in Federal investigations

New York Executive Law §63-8. General duties

“Nursing Home Response to COVID-19 Pandemic,” New York State Office of the Attorney General Letitia James, report, 1/30/21

“New York AG cleared to ‘move forward’ with inquiry into sexual harassment allegations against Cuomo,” NBC News, 3/1/21

“Cuomo Accused of Unwanted Advance at a Wedding: ‘Can I Kiss You?’” NYT, 3/1/21

“Cuomo Is Accused of Sexual Harassment by a 2nd Former Aide,” NYT, 2/27/21

“FBI, U.S. attorney in Brooklyn probing Cuomo administration on nursing homes,” Albany Times Union, 2/17/21

JAMAL KHASHOGGI

“The Death of Jamal Khashoggi (with Bryan Fogel),” Stay Tuned with Preet

“Assessing the Saudi Government’s Role in the Killing of Jamal Khashoggi,” Office of the Director of National Intelligence, report, 2/11/21

BRUCE SPRINGSTEEN

“Bruce Springsteen’s Drunken-Driving Charges Are Dismissed,” NYT, 2/24/21

“FREE BRUCE (An Emergency Topical Episode‪),” New Jersey Is The World

What’s Next for Investigations Into Trump, Bannon, and Cuomo?

It’s a busy week in New York — several investigations into top political figures are gaining steam. 

Following last week’s Supreme Court decision, former President Donald Trump’s accounting firm, Mazars USA, delivered his financial records to Manhattan District Attorney Cy Vance’s office. Preet and Anne break down how prosecutors will approach the investigation, which includes combing through millions of pages of Trump’s financial records. 

Meanwhile, Vance is reportedly investigating whether to bring state charges against former Trump campaign CEO Steve Bannon, who was pardoned by Trump after being charged with fraud. Preet and Anne analyze the unusual move by prosecutors who are seeking to preserve Bannon’s indictment as a matter of record. 

Also in New York, Governor Andrew Cuomo is facing investigations into his conduct. In recent days, Cuomo has faced allegations of sexual harassment and misrepresenting the number of statewide nursing home deaths due to COVID-19. Preet and Anne explain the controversy surrounding the selection of independent investigators to oversee the probe. 

3/2/2021

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

Welcome back, Anne.

Anne Milgram:

Hey, happy-

Preet Bharara:

It’s Tuesday. We don’t really have a slogan or a tagline. If it’s Tuesday, it’s CAFE Insider. That’s kind of lame. I don’t think we should use that.

Anne Milgram:

We’ll keep working.

Preet Bharara:

We have an interesting email that came into the email mailbox that I want to tell the listeners about. You remember last week we talked about the developments inside Vance’s criminal investigation of Donald Trump. He got the tax information because the Supreme Court blocked Trump’s efforts to not turn over the tax materials. We also discussed how Cy Vance has taken onboard very well-respected, smart, longtime New York lawyer Mark Pomerantz. I said that I believe Mark Pomerantz listens to Stay Tuned, but I wasn’t positive whether he is an avid listener of this podcast, CAFE Insider and we got an email. Guess who it’s from?

Anne Milgram:

Is that a trick question?

Preet Bharara:

Not a trick question.

Anne Milgram:

Mark Pomerantz.

Preet Bharara:

Mark Pomerantz who gave me permission to read his email aloud. This is from Mark, “I was listening this evening,” and by the way, this is the day of,” so he listens the day of. “I was listening this evening to the CAFE Insider Podcast of February 23rd, 2021 and my ears perked up when I heard Preet and Anne discussed my recent appointment as a special assistant district attorney in the office of Cy Vance, the New York County District Attorney. I am happy to confirm one fact that was discussed. I am indeed a devoted listener of Preet and Anne’s CAFE Insider Podcast. I love the podcast and I wouldn’t miss it. Best, Mark.” Good endorsement.

Anne Milgram:

Thanks, Mark. Thanks for listening. We do have a lot of things related to the Manhattan DA’s Office to talk about this week actually, Preet.

Preet Bharara:

We do. We discussed the Supreme Court case and then we learned sometime later last week that all the documents had been assembled and organized and prepared, presumably electronically, and were given to Cy Vance’s office hours after the Supreme Court ruled. Were you surprised it was so quick?

Anne Milgram:

My sense is that Mazars had done them and was waiting for this point in case they were ordered to do it. There’s no way they just started that date. They must have been ready to go, but it is millions of pages. It has been now reported by the AP that the subpoena sought any and all statements of financial condition, annual statements, periodic financial reports and independent auditor’s reports held by the company. It’s a lot. Underlying source documents that gave the accountants raw financial data, workpapers, communications between The Trump Organization and Mazars. They must have prepared it in advance. They must have been anticipating this.

Anne Milgram:

Again, we talked a lot about the forensic accounting firm that the DA’s Office has retained. It’s going to be really important now because that is voluminous. That’s a lot of material. It’s not just reading it. It’s connecting the dots to understand how that relates to witnesses that have been interviewed, what other witnesses need to be interviewed. It becomes a really big part of the investigation now and will be time consuming for them to go through.

Preet Bharara:

On the other hand, not as time consuming as it might sound to some people who haven’t done these kinds of cases, it’s electronic. There are ways to search. They have a large team. There are a lot of resources. Lots of documents are not going to be that important or central to any potential prosecution. It will take some time, but sometimes when people hear millions of documents, they think it’s going to take years and years and the other-

Anne Milgram:

Oh, no, I don’t think so.

Preet Bharara:

The other point is, this is a conclusion I didn’t draw last week and I was thinking about it, so you have Cy Vance who is, I think it’s legit to say lame duck district attorney. He’s coming up on the end of his term. He doesn’t appear to be seeking reelection. If he’s going to do that, he needs to do it really soon because the primary is in June. He’s hired Mark Pomerantz, he’s retained FTI and all of that tells me, I don’t know if there will or will not be a charge, but it tells me that that office believes there’s a likely charge because you don’t gear up in that way and raise public expectations in that way unless you think so. Then the other thing is it may be the case that he wants to make sure that he’s in office and makes the charging decision along with Mark Pomerantz and others before he leaves office, so sometimes-

Anne Milgram:

100%.

Preet Bharara:

It’s not the kind of thing you want to leave to your successor if you’ve spent so much time and energy on it. Everything points to me that there will or will not be a charge this year before Cy Vance leaves office and that, at least at the moment, they believe there’s a high likelihood of a charge. Do you agree with that?

Anne Milgram:

I’ll go even maybe one step further which is that I think it will be charged before the DA election in November even because what happens after an election is that Cy, he will be the district attorney for another two months, but I worked through the Corzine governor transition and it changes, the amount that leaders do and are willing to do. I’m not saying that you wouldn’t still potentially charge the case, but I think they will be pushing to get it done soon. By summer probably or by early fall at the latest is my sense. Also I would say this to, Cy Vance, he’s a serious prosecutor and the amount of time and energy that they have spent litigating Trump’s tax returns leads me to the same conclusion that you have come to, also obviously Mark Pomerantz and also FTI, but really they’ve invested so heavily and arguing case in front of the Supreme Court, that takes a good lawyer months to prepare for.

Anne Milgram:

They’ve really put their shoulder behind this case. My view has always been that they believe that there’s something there. Again, look, this is an ongoing investigation. No one’s been charged. It’s important for you and I to remind folks of that, but I personally think you’re the sitting DA, if you think that there is not a high likelihood that this ends in criminal charges, I don’t think you go to the extraordinary lengths that they’ve gone to.

Preet Bharara:

You pulled out the extraordinary already, very early in the show, Anne, for the extraordinary.

Anne Milgram:

I did, five minutes in.

Preet Bharara:

You usually say that a little bit later, but I get you pulled … This is extraordinary. The other thing that people should focus on is how difficult it will be to charge Donald Trump himself. I keep getting this question, “How do you prove intent and you prove it through a variety of means?” Not just the documents, right? It’s the documents probably plus witness testimony. There’s a lot of reporting that many people have been interviewed. Many more people will be interviewed in connection with the documents that they received. Michael Cohen, the former lawyer to the President, has apparently been interviewed multiple times by the DA’s Office and there may be documents from what you can infer knowledge and intent on the part of Donald Trump if his signatures were on them, right?

Preet Bharara:

On top of his signatures, if Michael Cohen, for example, says, “Hey, in a meeting, Donald Trump, he instructed folks to downplay the value of Property A for purposes of lower taxes or exaggerate the value of Property B for purposes of getting a higher loan from one of his lenders,” that testimony combined with some documentation showing that Trump had knowledge of what the valuations were being represented as, you can maybe argue from that that he had intent. There’s not going to be, I don’t believe, a document or recording in which Donald Trump is instructing people to break the law, right? It’s not as easy as people think.

Anne Milgram:

I agree very much with that. When you look at cases like this, it’s important to think about the fact that Trump is at the top of the organization and there are many people in The Trump Organization who would have been the people dealing with the accountants. The likelihood of him being on an email or on a document flow back and forth is very, very low. Again, that matters if you’re trying to prove that his intent was to defraud a bank or engage in tax fraud or insurance fraud where this becomes interesting is in a couple of ways. I think, first, you just gave a great example. Let’s say you have Michael Cohen saying, “Donald Trump was deflating assets for one purpose and inflating them for loans,” right? Deflating for taxes, inflating to get better loan terms.

Anne Milgram:

Then you have those documents showing that. That’s incredibly helpful. That is evidence potentially of criminal conduct. The question is, what does the DA’s Office want? They want more evidence of that? If you think about this in the big picture, are you going to hang a whole case on Michael Cohen and documents? No, you’re going to want a lot more than that. I’m not saying that there may not be evidence and all those things. I’m just saying that you’re going to want to find, “Were there are other witnesses in the room? Are there other people who are part of these conversations? Are there other documents that show the same thing that may have Trump’s signature?”

Anne Milgram:

Ultimately, what’s going to be really important here and the public reporting has already started to turn to this, but the longtime chief financial officer of The Trump Organization, Allen Weisselberg, who was given a limited grant of immunity in the federal investigation into Michael Cohen, he was a witness in that investigation related to the payments to Stormy Daniels. He’s obviously going to be a witness here. If you were drawing the org chart, he would be the main point between Trump and the accountants. Now there would be other people in the mix, but a lot of questions are going to have to be asked of him, and obviously, there’s a big question of, “Is he someone who the DA’s Office could potentially charge?” We don’t know that. “Is he someone who potentially would flip and cooperate against Donald Trump?” We don’t know that, but that’s the way I would be thinking about a lot of these questions.

Preet Bharara:

Look, he’s the guy, as you mentioned, is probably the bridge between Donald Trump and the accountants. The likelihood that Donald Trump has some instruction to the accountants to do something untoward or unlawful is low because that subjects you to exposure in a very dramatic way, more likely, if you’re going to have conversations like that or have transmissions of email or something else like that, although I don’t know that Donald Trump sends emails, so that’s a problem too as a matter of evidence. He’s going to do it with somebody who’s trusted for so long with all of his records and all of his finances like Mr. Weisselberg. A person like that in an organization tends to be key to investigations like this.

Anne Milgram:

I agree. One other point to make, Andrew Weissman, former federal prosecutor, was on the Mueller team, he made a statement that I thought was important. He’s an NBC legal analyst and he said, “Accounting records enable a prosecutor to see how the reported tax numbers were calculated. The underlying data is key to proving criminal intent.” I think that’s just an also an important point that when they go through all these records, they’re not just looking at this question of, “Okay, what was the amount that you said the business was worth for the loan? What was the amount you said it was worth for the taxes, but what do the raw numbers show and where their changes to those numbers? Were the ultimate numbers you came to different than the underlying data would lead you to usually conclude?” There’s going to be a lot of back and forth in in the actual financial records I think as well.

Preet Bharara:

One thing that I believe is in the materials turned over to Cy Vance’s office are not just final tax return but also draft returns. As you say, to the extent, there are dramatic changes between the draft return … That happens all the time. Everyone has draft returns and you make adjustments as you look at the numbers and make sure that they’re accurate, but sometimes, you make changes to a draft tax return in a way that’s not kosher in a way that’s not appropriate in a way that’s misleading and misrepresenting the facts. That’s something that they will be zeroing in on.

Anne Milgram:

We should stop on that point just for one minute as well to say that when you think about an investigation like this, we’ve been talking a lot about tax fraud, bank fraud, insurance fraud, but there are separate crimes that relate to making a false statement on your taxes or failing to disclose certain things. That will also be something that they look for. A lot of people are focused on the big crimes that potentially are being investigated, but there’s a lot of, I don’t want to call it run-of-the-mill fraud but more standard types of fraud cases you would see that might also be a part of an investigation like this.

Preet Bharara:

Right.

Anne Milgram:

Preet, we got a we got a tweet from @seamusdd that wrote, “Hey, Preet, and the #ExtraordinaryAnne,” and I love that, “What are your thoughts on the Manhattan DA’s and his investigation into Steve Bannon?”

Preet Bharara:

As we have discussed in the past, after Steve Bannon, former aide and campaign guy for Donald Trump, after he was pardoned, with respect to the SDNY’s investigation of his nonprofit, Build The Wall, where it’s alleged that he and three others basically duped people into giving money, made representations that they wouldn’t pocket any of the money in any event, the charges that he did, he was pardoned. The others weren’t. As we discussed, there was no reason why another prosecutor’s office couldn’t pursue charges against Steve Bannon. You used the word garden variety, I think, or every day fraud, this would be an example of that. There’s some reporting that Cy Vance’s office is looking at it.

Preet Bharara:

We don’t have evidence yet, that the US Attorney’s Office in the Southern District has a sharing agreement with respect to their grand jury materials with the DA’s Office. Maybe the DA’s can build an independent separate case, but I would expect that that will proceed and you’ll see a charge against Steve Bannon.

Anne Milgram:

I would agree with that. Again, he hasn’t been charged yet, but what’s critical here is that he was charged by the federal government. They had followed the money trail and the paper trail. They’d found that this group, We Build The Wall, had raised about $25 million from donors across the country, including donors in New York, and obviously, some of the banking efforts were also in New York, so the City of Manhattan has jurisdiction over potential crimes. Then you get to the question of, “Can you prove that Steve Bannon essentially defrauded people and personally benefited from this money?” and in the indictment, it was alleged, I think it was almost a million dollars or so, maybe a little over that that was funneled out of that nonprofit effort into the pockets of Bannon and others to pay for personal expenses.

Anne Milgram:

That shows that there’s a level of evidence that’s already been collected and documents have been subpoenaed and evidence has been pulled together. The Manhattan DA’s Office, certainly, particularly if they get this evidence-sharing agreement, but they’ll be in a position I think with … I think it’s fair to assume that there is a paper trail and that the Southern District was able to build a case with witnesses and evidence. Again, innocent until proven guilty, the case did not go to trial in the federal system. Bannon was just charged. Remember also that he was one of four people that was charged. Those other three folks are also going to go to trial. This is complicating, if you’re Steve Bannon, both because I think he’s likely to be charged in Manhattan and because it’s very possible that the codefendants in the federal case now say, “This was all Steve Bannon.” It’s not uncommon for one defendant to leave a case and then all of a sudden the other defendants say, “Well, it was all his idea and it was all his fault.”

Anne Milgram:

The last point just make on that is that there was a double jeopardy issue with the Paul Manafort case. Remember he was convicted in federal court by the Mueller team. The Manhattan DA’s Office had brought charges against Manafort. Those charges were later dismissed by the New York appellate court basically saying that New York has a statute that prohibits this type of prosecution, a double jeopardy meaning he was already convicted and punished in the federal system, he can’t be then convicted and punished again in the state system for substantially the same type of criminal operation.

Anne Milgram:

That case was basically tossed. That does not exist here, that it was indicted, he was never tried, he was never convicted. Double jeopardy does not attach. This case could very much go forward.

Preet Bharara:

There’s another odd thing and I wonder what you think of it, Steve Bannon has been granted a full pardon by former President Trump, but the case against them, the indictment against them has not yet been dismissed. That still has to happen. In connection with that, my old office put in a letter to the court, objecting to the dismissal of the indictment. They cite some law including a case we’ve talked about before, Nixon versus the United States, pointing out that a pardon is an executive action that mitigates or sets aside punishment for a crime, but it doesn’t undo the allegations. It doesn’t wash the grand jury’s charges away.

Preet Bharara:

They say in their letter, which is interesting, “For the reasons set forth below, while the government does not object to administratively terminating Bannon from the case or exonerating his bail,” meaning giving him his bail money back, “the government does oppose Bannon’s request that the indictment itself be dismissed as to him.” What do you make of that?

Anne Milgram:

It’s a really interesting thing. It’s interesting because they’re basically arguing the pardon washes away the punishment and you can’t be convicted of it, but it doesn’t take away the grand jury’s allegations. I think also they’re pointing to the fact that there are implications like consequences of being charged, even if you’re not convicted and that to dismiss the indictment is to essentially wash everything away. It’s interesting. The DOJ website has said, and this was true under Donald Trump and I haven’t checked it lately, but has said, “A pardon is not an absolution. You’re not being absolved of all guilt. It’s essentially forgiveness for something that you have done.” It’s a really interesting point. I’m very curious to see what the court will do.

Anne Milgram:

The other thing that the US Attorney’s Office did was, it looks like his lawyers had filed a letter with the court but didn’t file it as a formal motion. The prosecutors, and I think they are 100%, right on this to basically say like, “You don’t get to do that. This is this needs to be public. This needs to be a part of the formal record. Criminal proceedings are public and we can’t have this email lying out there basically saying, ‘We want the case to go away.’ This needs to be on the record.” I think that this is going to be interesting to see play out. I think there is some case law for this proposition that it’s a relief from punishment. It’s not essentially a dismissal of the allegations against you, but it’d be interesting to see what the court does.

Preet Bharara:

Part of the reason this is odd is it’s very, very rare for there to be a pardon while a criminal case is pending against someone. Most cases, and the guidelines in the Pardon Attorney’s Office states this explicitly, “Someone has been prosecuted for a crime, been convicted of a crime and has shown contrition, and years later, having lived a good life and been on the straight and narrow, then maybe get pardoned by a president or by a governor, if it’s a state case,” and there’s no issue something pending in the court that needs to be dismissed. As far as I know, unless I’m missing something, I don’t think I have, someone gets pardoned for crimes committed 23 years earlier.

Preet Bharara:

People don’t go back to the court and reopen the case for the purpose of dismissing in some way the judgment or the underlying indictment. Those things still stand. As you say, it’s just a mode of forgiveness that results as an operation of the giving of the pardon. You do have some occasions where there’s a preemptive pardon like Ford did of Nixon, but again, there was nothing to dismiss it. This is a rare sliver of a category of cases where you have an active case, trial is pending and the executive comes in and pardons. I think there might also be some implications that I can’t think of at this moment for the pending trial against Steve Bannon’s former codefendants and whether or not there’ll be some effect or some argument that folks could make, I doubt it, but some arguments that the defendants in that case could make if the indictment against Steve Bannon was dismissed. Off the top of my head, I can’t think of what an appropriate argument would be, but maybe they just want to keep it clean and keep everything on the books.

Anne Milgram:

I think it’s going to be interesting to see what Judge Torres in Southern District does on this because again I think your point is really an important one which is that I don’t know that it’s completely a case of first impression where the court is deciding something for the first time, but there is not a lot of case law out there. This is a really unique situation. Certainly, the US Attorney’s Office felt strongly about it and wanted to go in and basically say like, “The defense is asking for this to be dismissed. Well, we’ll close the case. We’ll give him his bail back, but the indictment, we want that indictment. The fact of him having been charged, we want that to stand as a matter of record.” It’s going to be really interesting, I think, to see how this plays out. I don’t know what the end result will be.

Preet Bharara:

It’s a pretty New York-centric podcast today, Anne, which I think is okay because we’re in New York, but you have this continuing controversy with respect to our governor, Andrew Cuomo, on two fronts. Front number one is the issue relating to the reporting of deaths in nursing homes from COVID. Letitia James, the attorney general of the State of New York issued a scathing report, and in that report, Letitia James, by the way, ran on the ticket with Andrew Cuomo and we’re supportive of each other’s candidacies, wrote, “OAG,” meaning the Office of the Attorney General, “is currently conducting investigations into more than 20 nursing homes across the state,” and they found that a larger number of nursing home residents die from COVID-19 than the Department of Health Data reflected.

Preet Bharara:

In fact, they write, “Our office found that nursing home resident deaths appear to be under counted by the Department of Health by approximately 50%.” We know there has been a civil division main justice from out of Washington investigation of these reported numbers, and then more recently, we have seen reports that the FBI and the Eastern District US Attorney’s Office, Eastern District of New York, has opened up an inquiry into these issues. Do you see a crime here?

Anne Milgram:

I think that there are two aspects to think about this. The first is just going back to March, last March, which is now astonishingly a year ago, when the Cuomo administration, they formed this Coronavirus Task Force. They, for about two months, required state nursing homes to accept COVID-positive patients from hospitals. There’s some language saying, “As long as they could provide for them safely,” but there’s also, I think, going to be a fair amount of evidence that many of the nursing homes, not all but at least some of the nursing homes, had insufficient staffing, insufficient PPE, no testing available and that bringing COVID-positive patients back into the nursing homes actually ended up being a huge problem and endangering the lives, and in fact, leading to the deaths of many New Yorkers.

Anne Milgram:

That practice ended after about two months, but there were real concerns that were raised. There was a grant of immunity, not immunity from criminal prosecution, but there was a pretty large grant of civil immunity that was given to healthcare providers and nursing homes in last March or April when the coronavirus numbers were surging. There’s a lot that sort of going on there. What the AG found, Letitia James found, is that when you looked at the numbers that the state had reported, I think it was around 8,400-8,500 deaths from nursing homes in the state, but that what the state was doing was that they were classifying only the deaths that had happened inside the nursing homes as COVID deaths.

Anne Milgram:

Individuals who had gotten sick at a nursing home and would have been taken to a hospital, as is frequently the case and who may have passed away from COVID at the hospital, those numbers were not being attributed to nursing home deaths. They were counted as part of the larger number of people whose lives were tragically lost during this pandemic as part of COVID, but they weren’t being counted as coming from or relating to the nursing home. That’s a big deal for a number of reasons including as you think about the percentage of deaths from elderly Americans in nursing homes or care facilities from COVID, it’s astonishing. It’s 30% or 40% of all the deaths.

Anne Milgram:

There are real and I think fair questions about how the State of New York and other states handled what is a very, very vulnerable population and not providing accurate information until just recently. This information was actually disclosed after there was a public records request that was made by a conservative group in New York. The Cuomo administration was actually found in violation of that law for not disclosing this information. At that point, that’s when, and this was after the AG’s, at that point, they reported that there were closer to 15,000 deaths related to nursing homes, so almost double the number.

Anne Milgram:

The other piece that I feel really strongly about is that this was going on at a time that the state also forbid family members and loved ones and friends from being able to visit people in nursing homes. You’re talking about an incredibly vulnerable population that you’re then cutting off one of the few modes of accountability which is friends and visitors and family who might come into a nursing home and then you’re providing information that is, at best, misleading, right? I think this is where the questions will be like, “Were they intentionally misleading people so that they weren’t called to task for their policies?” That’s one piece of it.

Anne Milgram:

Related is this question of the federal investigation which started last summer, the Trump administration under the Civil Rights Division CRIPA which is the Civil Rights Of Institutionalized Persons, they make sure that people who are in care facilities are treated appropriately and that their civil rights are honored. They started investigation to four democratic states, so New York, New Jersey, I believe Pennsylvania and Michigan and the Cuomo administration’s pushback was really this, right? It was this really like, “This is a politically motivated investigation.”

Preet Bharara:

In some contexts … Here’s the funny thing that happens in life that there is actually politicization with respect to some things and then other folks who are in fact guilty of engaging in bad conduct try to get under that umbrella of charges of politicization, so that they can excuse their … I remember this happened with the firing of US attorneys back in 2006 that I’ve mentioned a number of times and then I helped to lead an investigation of. There were a number of US attorneys who were fired under peculiar circumstances, not for cause, had done a great job, but there came a time where there was one US attorney who went to the senator of his state and claimed, well, he was also a victim of this politically motivated firing season and I remember talking to Senator Schumer about it, and based on our analysis, research and investigation, that one guy actually was terrible and actually was fired for cause and for good reason.

Anne Milgram:

Right.

Preet Bharara:

He saw it as an opportunity … I’m not saying that’s what’s happening here, but he saw it as an-

Anne Milgram:

Are you going to tell us who that guy was?

Preet Bharara:

I’m not. I don’t think I should, but let me tell you, that guy deserved to get canned in a big way and shouldn’t have been able to come under the tent of the folks whose firings were really questionable. That could be some of this here. It’s, “What’s good for the goose is good for the gander.” Everyone shouts, “Witch hunt,” and it’s true as you and I have discussed, week after week after week that there’s a lot of politicizing of investigations and other kinds of things in the Trump administration, especially at the Justice Department. That doesn’t mean it happened here.

Preet Bharara:

I also think that depending on the facts, it will be tough to make up an obstruction case. You’d have to show that there was the intent to either falsify evidence, destroy evidence, impede an investigation that was already in existence. Maybe there’s some argument that this civil investigation that you just described was being obstructed by the failure to give accurate information, but it’s an interesting concession that the Cuomo people made. They didn’t say, “Oh, no, we did everything that we were supposed to do. It’s a bit of a concession that we did something funny with the numbers, but that’s because we thought that the investigation and the inquiry was illegitimate.” That’s a problem.

Anne Milgram:

We should talk about that. This is why I think that they’re being investigated and that we’ve seen so much of it in the news. They have this happening. They don’t comply or they don’t honor in the manner that they’re supposed to under the law, the freedom of information request, the state freedom of information request. There’s, I think, some question as to whether they turned over, what information they turned over to the federal government, did they turn over everything that they were supposed to turn over to DOJ, but all that is just a piece of the conversation.

Anne Milgram:

The bigger piece of conversation and why I think we are really talking about it today is that the secretary to the governor which is really the right hand to the governor, it’s very, very powerful position in New York. It’s really, I think, the person who speaks for the governor the most when the governor is not speaking. That’s a woman named Melissa DeRosa. It’s reported that she did a call with the democratic state legislators who were calling for … Governor Cuomo has extensive emergency powers right now. They were basically saying that those powers should be revoked. They wanted this information about nursing home fatalities.

Anne Milgram:

She’s reported to have basically said on a call something to the effect of, “We didn’t give you the information because we didn’t want it to be used against us in a federal investigation,” which certainly seems like an effort to prevent a federal investigation, right? Again I’m not saying it amounts to a crime, but it certainly raises a question of, “Was the administration putting politics about people’s lives and doing so in a way that, if they’d done it differently, could have prevented additional deaths in nursing homes?” That’s why I think this is a conversation. Whether or not it’s a crime either for the actual action of what they did or for an alleged coverup or obstruction, I think that’s a that’s a much harder question that there’s a lot of facts that I think you and I probably would need to know, but just on its face, I think it’s obviously deeply concerning that you have somebody saying like, “Well, we didn’t turn it over because we thought there was a political DOJ investigation.”

Preet Bharara:

You really need to be careful about that and we should say the same thing about Andrew Cuomo that we have said about Donald Trump and that is, just because there’s not a crime doesn’t mean that the conduct was not bad. That’s not the only standard here and we’re going to get to the other controversy surrounding Andrew Cuomo in a moment, but misleading on numbers and trying to make something look better than it is not something that good leaders do. It can be criticized and critiqued, I think, very, very harshly even if at the end of the day, there’s no crime. That’s not the standard for elected officials in this country.

Anne Milgram:

I think that’s really well said. Related to that, we said it many times really to Donald Trump over the past four years, but when a legitimate institution that has subpoena power compels you to provide information, you don’t get to decide whether the institution is doing the job correctly or not. You can go to court, you can litigate that, but this idea that anyone is able to say, “No, I don’t have to honor that subpoena,” or, “I don’t have to listen to that,” is not how the rule of law works or should work. I think that also is implicated in this conversation.

Anne Milgram:

Preet, in the last week or so, the other thing that’s really come up with New York Governor Andrew Cuomo are serious allegations of sexual harassment. There were two employees that have come forward and have made public statements one saying that the governor kissed her on the lips at one point, another saying that he had inappropriate sexual conversations with her, asked her in one instance if she was monogamous, about her sex life, whether she would consider being involved with an older man and she took those all as sexual advances. Then just yesterday, a third woman who is not a New York State employee, but a young woman, I think, said that she had met Governor Cuomo at a wedding.

Anne Milgram:

He had essentially put his hand on her back and on her in a way that she thought was inappropriate, grabbed her face and had essentially tried to kiss her. There’s actually a photograph of him holding her face that that’s been publicly released. He now faces, and I’d be really curious to your thoughts on this, an investigation by the New York State AG on sexual harassment grounds.

Preet Bharara:

The allegations are very serious and I find them quite credible. As always in these cases, I think you need to see what the investigation tells you and see what all the facts are, but Andrew Cuomo, who’s a pretty combative guy, and I should make a disclaimer in a moment, a pretty combative guy, denies things all the time, has denied some things but essentially assented to or seems to have assented to the allegations made by the second woman with whom he had explicit sexual conversations. That’s not common for him. With respect to how the investigation will unfold, we should remind folks who are not following this closely in New York that he tried to be too cute by half a couple of times.

Preet Bharara:

If you’re going to cause an investigation to happen, people have to have faith that it’s going to be a full and fair and independent investigation. Part of that means not choosing the investigator yourself. Initially, the Cuomo camp said, “Okay, we’re going to appoint an outside lawyer, former judge, Barbara Jones, to do a full and fair investigation.” I like Barbara Jones. I’ve appeared in front of her. I had matters in front of her when she was a district court judge in SDNY when I was both the US attorney and when I was a line assistant and she’s terrific. Not impugning her reputation or her skills or her fairness at all, the problem is Cuomo shouldn’t be the one picking the person, number one. Number two, she is or was the partner of one of Cuomo’s closest allies, confidants and representatives, Steve Cohen, so that didn’t look great.

Preet Bharara:

There’s controversy surrounding that potential appointment and then he tries his camp, and this happens with Andrew Cuomo all the time, he tries to get ahead of that by saying, “Okay, well, you don’t like that plan. I have a Plan B.” Plan B is that Letitia James, the state attorney general, together with Janet de Fiore, the chief judge of the New York State Court of Appeals, which is the highest court in New York, they together will pick and appoint an outside lawyer from private practice to conduct a full and fair investigation. People were like, “What is the chief judge of the Court of Appeals have to do with any of this?” Well, one thing she has to do with any of this is she is an ally of the governor and was appointed to her position by the governor. She owes her job to the governor. Again not impugning her integrity in any way at all, but it’s odd. Then finally, the governor relented to what I think people were calling for all along which was to make a referral to the attorney general who has power under state law to appoint someone or proceed in a way that allows the issuance of subpoenas and compulsion to process. That’s what’s finally happening, but it took a while to get there.

Anne Milgram:

It’s really fascinating. It was like head spinning for the past 48-72 hours and I’ve done a number of investigations into sexual harassments as internal investigations into corporations. You may remember, I was co-lead of the Dallas Mavericks basketball team sexual harassment investigation. I’ve done a fair amount of work in this space. In the private sector, what happens with companies is that they do often go out and hire their own lawyers and you sign these agreements saying, “We’re independent,” and but you’re still paid by the company, but you agreed never to do any work for the company, defending them in anything related to the allegations or the potential harassment, but it is this strange relationship even under those in the private sector.

Anne Milgram:

What makes this so different, and so I think that’s what Cuomo was trying to do by hiring Barbara Jones, who is excellent, Janet DiFiore excellent, they’re judges with integrity, lawyers with integrity and reputations. I’m not impugning their reputations. The challenge is that what needs to happen is that people have confidence that the investigation is fair and is free from political bias. By having someone who’s connected closely to the governor, that creates a problem. It creates the appearance of potential bias and impropriety. Why have that? Even if the lawyers could be fair, you’re still buying a problem that is not fair for the people of New York.

Anne Milgram:

You end up going … New York has a really unique state law that allows with a referral and at the direction of the governor that the AG can conduct an investigation. It’s a civil investigation, but it does have subpoena power in the private sector. If you do an internal investigation, you don’t have subpoena power. It’s important to recognize like, “Look, Cuomo is the highest state official. He sits in a position of public trust. This is a really important and serious allegation that needs to be run down.” What the AG has said is she’ll hire an outside law firm and then they’ll issue a public report. She’ll grant subpoena power. That means that we should just talk about this for a second, all text messages, all emails.

Anne Milgram:

The person who handles investigation will have the ability to subpoena witnesses and compel evidence and that’s a really big deal particularly in a situation like this where you have the sitting governor being accused a very, very, very serious allegations of sexual harassment against him. They’ll look at whether he violated the state human rights law or Title VII which prohibits discrimination based on sex and sexual harassment is, of course, a type of that. It’s serious, I think. How long do you think it will take for that investigation to unfold?

Preet Bharara:

Well, I think it depends on whether or not there are more allegations and we’ve had two new sets of allegations in the last few days. It depends. It’s not as complicated in some ways as Cy Vance’s investigation to Donald Trump that involved millions of pages of documents and maybe subpoenaing more bank records and then those bank records maybe get more subpoenas for more materials. You don’t have that here. This is essentially a testimonial investigation, there may be corroborating documents or emails or contemporaneous statements that a victim might have made to family and friends or loved ones. You’ve done this work much more than I have. It can take a while, but it’s a lot of shoe leather work. Depending on the number of allegations, it shouldn’t take quite that long.

Anne Milgram:

I’ll tell you what’s complicated about it. I would anticipate a month, two months and that they’ll move it as quickly as they can. What’s complicated is the assessment that you would make an investigation like this. You just alluded to it which is you would run down what these women, the three women who have already come forward what they’ve said and the evidence there. You’d also look to see whether there were other potential victims and that would include both current and former employees. That requires having a lot of conversations. Also in my experience, it can frequently be challenging to get individuals to speak with you and to be willing to come forward and tell their stories of what happened.

Anne Milgram:

I think that these are challenging investigations in very different ways from your traditional white-collared case, but they’re very important. Again, it goes to the ability of women to work in the governor’s office and be free from inappropriate conduct behavior, unwanted advances and to be able to have the career that they want to have without having that interfered with. I think that the place that the investigation has landed is a good place. I think it now needs to be done as expeditiously as possible, but with full focus on the facts and the evidence, and then the public reporting piece will be really critical.

Preet Bharara:

The other thing that we should mention, and I don’t know how this will hit people’s ears, but there’s a lot that’s happened in this country over the last few years with respect to whataboutism. When allegations are made against Donald Trump, we saw this part of their defense at the trial, “Well, what about Joe Biden?” or, “What about somebody else?” That’s not really a defense and I’m seeing a little bit of that here because Andrew Cuomo is a Democrat. There’s some people who are supporters of his who instead of focusing on the direct allegations against Andrew Cuomo, whether they’re serious, whether they’re credible, whether they merit some consequences, are saying, “Well, what about Trump?”

Preet Bharara:

If the defense of Andrew Cuomo is that Trump also did this and remained in office, I don’t think that’s a really healthy way of thinking about law and justice and fairness. I would hope people would not adopt the techniques and strategies of rhetoric and argument that Trump supporters have for the last number of years. I think we can be better than that.

Anne Milgram:

My beloved grandma, when I was a kid, you always say, “Two wrongs don’t make a right,” and as your talking-

Preet Bharara:

Wait, your grandma is the one …

Anne Milgram:

Yeah.

Preet Bharara:

… who coined that?

Anne Milgram:

No, she didn’t coin it.

Preet Bharara:

I had no idea.

Anne Milgram:

She used to frequently remind my sister and I. She used to also say, one of my favorite sayings is, “Today’s the first day of the rest of your life,” which I think I try to-

Preet Bharara:

She coined that one too?

Anne Milgram:

She did not coin them, but she was a good repeater of phrases that when you’re 14, “Oh, what are you talking about?” and then you’re a grown up and you’re like, “Ah.” I’m sitting here listening to you-

Preet Bharara:

Do you know what my Indian grandmother used to say? “A stitch in time saves nine.”

Anne Milgram:

Did she really say that?

Preet Bharara:

Yes, because she was Benjamin Franklin.

Anne Milgram:

No, I think you’re teasing me.

Preet Bharara:

I am the direct descendant of Benjamin Franklin. You did not realize it was my grandmother in India.

Anne Milgram:

I knew you were going to make fun of me. I knew that I was walking-

Preet Bharara:

You said it as if she coined it. I was very impressed.

Anne Milgram:

No, I was just sitting there and listening. I also think both things can be true. Also, another that she did not coin, which is that both Donald Trump could have done things that were inappropriate and violated norms and laws and rules and Andrew Cuomo now stands accused and may have done something that is also inappropriate and warrants accountability and discipline, right? I agree with you very much that the wrong argument is, “Well, somebody else did it too.”

Preet Bharara:

This kind of conduct, sexual harassment, sexual misconduct is not monopolized by either Democrats or Republicans. Lots of the other stuff that Trump did too by the way, financial corruption and other things that are being investigated, they’re not isolated to Republicans or to Donald Trump. It happens in both parties and it’s happened for a long time. Most of the people that we charged with political corruption in New York were Democrats. Let’s try to be clear eyed and openminded about all of this. Something else that’s not New York based for change is there has been a release of information from the intelligence community in the US, the Office of the DNI about the Saudi government’s role in the killing of Washington Post journalist Jamal Khashoggi at the hands of and at the direction of MBS, Mohammed bin Salman, the crown prince in Saudi Arabia.

Preet Bharara:

We’ve known this and I’ve interviewed the director of a film about Khashoggi’s death, but the difference between this and what has happened before is it’s an official declassification of documents that makes pretty clear what we already knew, it just firms it up, that the people who went to the consulate in Turkey went there with the purpose of kidnapping and killing or kidnapping or killing Jamal Khashoggi because he was a critic of the Saudi government and MBS. The implications of that can be discussed by other folks, whether or not there should be sanctions, there’s some criticism of the Biden administration not for releasing this information, but for not doing anything substantial about it, even though there have been sanctions placed against some of the lower level people who were involved in the killing and denial of visa, etcetera.

Preet Bharara:

There’s a swirling controversy about how much you do to an ally and the leader of an ally. Some people are suggesting that MBS should be caused by the United States in some ways not to become the crown prince and it’s a complicated and difficult thing, that I’m not an expert in, but I think it is significant as a matter of transparency on an issue that you and I have talked about a heinous crime, human rights abuse, that this information has come forward and was kept under wraps by the former president who didn’t even say he believed what his own intelligence agencies were telling him.

Anne Milgram:

That’s one of the I think the key the key points is that in 2019 Congress passed a law that required the executive branch, the president and the intelligence agencies to give an unclassified report to lawmakers about Khashoggi’s death and basically what the intelligence community had concluded and the Trump administration refused to comply. I do think that it is really important just to note that putting this kind of information out publicly, it’s a form of accountability and also it is consistent with what we know, but reading about it, I was struck by the fact that the report also explains the motive which is that MBS saw the journalist as a threat to the Kingdom of Saudi Arabia and had broadly supported using violent measures to silence him.

Anne Milgram:

This was a preplanned operation and I think the extent to which it was an intentional and premeditated violent murder of an American resident basically because he was speaking out against the actions of MBS and others in Saudi Arabia. We’ve talked about it before, but it is beyond troubling and it warrants a really important conversation about what the US government should do. Again, I leave that to others to figure that out, but I do think even just the release of the report, it’s a really important step.

Preet Bharara:

I agree. I don’t know if you have, but I’m getting a lot of questions about another legal matter for various reasons, a, because it happened in New Jersey, b, because it involves my idol, singer-songwriter Bruce Springsteen, the only boss I’ve ever acknowledged. Are you familiar with this? He was arrested on a DWI last year apparently at Sandy Hook. Did you go to Sandy Hook as a kid, the beach?

Anne Milgram:

Oh, yes, of course. Yup. We even took school trips there. It’s a public beach. It’s a beautiful beach.

Preet Bharara:

School trip to the beach.

Anne Milgram:

Yeah, it’s part of the National Park Service.

Preet Bharara:

New Jersey is a great place to live and there’s a place called Gateway National Recreation Area which is a federal park. Apparently, Bruce was there at some point last year. We heard about this only a month later and he was on a motorcycle. He likes to ride his motorcycle. Apparently, there were some fans in the area and they stopped him and to socialize with them. Apparently, he did a couple of shots of Patron Tequila which is quite a nice tequila, although they’re not an advertiser of the podcast.

Preet Bharara:

One or more officers see Bruce do that and get back on his motorcycle. They arrested him. When they got back to the station, he took a breath test and he blew a 0.02%. Now, I have not practiced law in New Jersey or done any prosecutions in New Jersey. What’s the significance of 0.02%?

Anne Milgram:

Well, the New Jersey legal limit for intoxication is 0.08.

Preet Bharara:

0.08?

Anne Milgram:

He was well beneath it, below that and so-

Preet Bharara:

When you were attorney general of the State of New Jersey, Ms. Milgram, and it came to your attention that someone, not to mention the proud son of the state, Bruce Springsteen, was at one-quarter of the legal limit, would you authorize that arrest on those charges, DWI?

Anne Milgram:

Preet, let me start by talking about Sandy Hook just for a minute because we went sometimes as a kid. We actually took our son there last summer for the first time.

Preet Bharara:

Did you bring tequila?

Anne Milgram:

We did not bring tequila. You used to be able to drink there until a couple years ago, it was-

Preet Bharara:

Until 2019.

Anne Milgram:

It was the only public beach in New Jersey where you could have alcohol. Did you know what Sandy Hook is also known for and why it often appears in federal court in the State of New Jersey?

Preet Bharara:

What?

Anne Milgram:

For having the only nude beach in the state.

Preet Bharara:

I’m going to pretend I didn’t know that.

Anne Milgram:

I can tell you there are a lot of cases, I won’t say more, but there are a lot of cases that come out of that, but I will tell you that driving by with our six-year-old and my husband, I was like, “Oh, there’s like a big sign, right? Let’s not go there.” That’s the one place because it’s a big sprawling place. and there’s lots of different parking areas and lots of places to stop. It’s really a beautiful spot. It overlooks New York City. You can see the skyline, but one wrong turn and you could have a real problem. The thing that’s interesting about this, there’s two things.

Anne Milgram:

The first is that 0.02 is really below the legal limit and the officer had said in the in the write up, had basically said that, “He smelled ‘strongly’ of alcohol,” and “was visibly swaying back and forth.” The part that I am-

Preet Bharara:

Come on.

Anne Milgram:

Exactly, at 0.02, the idea of visibly swaying back and forth seems deeply, deeply unlikely, right? In some ways, I’m surprised that the US Attorney’s Office didn’t just dismiss the case outright.

Preet Bharara:

He must have had Bruce confused with Mary’s dress.

Anne Milgram:

I will say …

Preet Bharara:

That is an inside Thunder Road show joke for people.

Anne Milgram:

… no one is above the law. No one is above the law, right? Look, if there was a legitimate case here, the case should be brought, even though you and I love Bruce Springsteen, but again, it really doesn’t appear like it was a viable case.

Preet Bharara:

Well, not a DWI but Bruce did plead guilty to drinking in an enclosed area.

Anne Milgram:

Right. That’s a violation of the law completely. I was more referring to the DWI.

Preet Bharara:

Of course, but he did. He took responsibility. He owned up to it at the proceeding. He paid, I think, $540 fine. Do you think he had any trouble paying that?

Anne Milgram:

I don’t. You know what I thought was the best though, have you followed the producers of the podcast “New Jersey Is The World”?

Preet Bharara:

They released a special episode. They’re like, “Do what we do,” I guess when it pertains to things in New Jersey. As we will sometimes do a special episode when there’s a sudden impeachment …

Anne Milgram:

Emergency.

Preet Bharara:

… proceeding, emergency episode, they did one because of the case against Bruce Springsteen. They said, “What was the ultimate indignation was arresting the boss on his home turf?” “You don’t arrest the pope at the Vatican and you don’t arrest the boss at New Jersey Shore,” which I don’t know if that’s a good legal take or not, but I appreciate the sentiment.

Anne Milgram:

I don’t think that’s my legal take, but I found it very, very, very human.

Preet Bharara:

Also, just the final epilogue on this, the Bruce Springsteen ad, which not everyone loved, but I did, that he did for Jeep that aired during the Super Bowl was on pause after news of the DWI charge came to light. That Jeep ad has been un-paused. Quite the arc of discussion today, Anne.

Anne Milgram:

I know. We’ve gotten through a lot of New York and now we’ve come back to both of our home state, the great State of New Jersey.

Preet Bharara:

Springsteen referred in New York as a suburb of New Jersey which was at a concert in New Jersey, so it was very crowd pleasing.

Anne Milgram:

That’s great.

Preet Bharara:

All right, Anne, we’ll be monitoring all the developments with respect to the Manhattan DA, the controversy around the governor. If there are any other aftershocks from the massive Bruce Springsteen criminal case, I’ll see you next weekend.

Anne Milgram:

I’ll talk to you soon. Take care.

Preet Bharara:

Send us your questions to [email protected]

Anne Milgram:

And we’ll try 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 and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Geoff 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.