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March 24, 2020

CAFE Insider 3/24: Pandemic Ethics & Glimmers of Hope

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In this special episode of CAFE Insider, “Pandemic Ethics & Glimmers of Hope,” Preet and Anne are joined by Juliette Kayyem.

Kayyem served as President Obama’s Assistant Secretary for Intergovernmental Affairs at the Department of Homeland Security. Drawing on her experience managing crises — including the H1N1 pandemic and the BP oil spill — she helps Preet and Anne break down all of the latest coronavirus developments and issues, including:

— The Trump administration’s delayed deployment of the Defense Production Act of 1950, what the action allows the government to do, and why it took so long.

— The ethics around the government’s response to the pandemic, the adverse effects that social distancing will have on the economy, and the President’s apparent inclination to “re-open” the economy before the conclusion of the quarantine period recommended by public health experts.

— The controversy surrounding the decisions of several United States Senators, most notably Senators Richard Burr and Kelly Loeffler, to sell significant amounts of stock around the time of a classified Senate briefing warning about the impact of coronavirus — well before the government’s public position reflected those private warnings.

— The threat the pandemic poses to jails and prisons, and the steps states like New Jersey are taking to address the challenges to the criminal justice system.

— How long we can expect to remain in quarantine, and what the process looks like to get back to “normal.”

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

REFERENCES & SUPPLEMENTAL MATERIALS

JULIETTE’S CRISIS MANAGEMENT EXPERIENCE

  • Juliette Kayyem’s biography
  • “US Reaction to Swine Flu: Apt and Lucky,” New York Times, 1/1/10
  • “BP Moves to Fix a Leak as Obama Warns of Damage,” New York Times, 5/2/10
  • “New York’s Virus Count is Doubling Every Three Days,” New York Times, 3/24/20

DEFENSE PRODUCTION ACT 

  • Congressional Research Service Report on the Defense Production Act, 3/2/20
  • “What’s in Trump’s Executive Order on the Defense Production Act?” Lawfare, 3/20/20
  • “Trump’s excuses for not using the Defense Production Act are wrong — and dangerous,” Vox, 3/23/20
  • “Trump will use Defense Production Act to secure thousands of test kits,” Politico, 3/24/20

ETHICS

  • Trump tweet about allowing people to return to work, 3/24/20
  • “A Plan to Get America Back to Work,” Thomas Friedman Op-Ed, New York Times, 3/22/20
  • Clip: “Boris Johnson orders UK into lockdown to fight coronavirus pandemic,” CNN, 3/23/20
  • “Trump says coronavirus cure ‘cannot be worse than the problem itself,’” New York Times, 3/23/20
  • “DeWine: ‘We Save our Economy First by Saving Lives,” ABC Cincinnati, 3/24/20
  • “Rand Paul Worked in the Senate for Days after COVID-19 Test,” Time Magazine, 3/23/20

BAILOUT

  • “Trump on GOP’s $500 billion slush fund: ‘I’ll be the oversight,’” New York Magazine, 3/23/20
  • “Top Senate Democrat and Treasury Secretary say they are near a stimulus deal,” New York Times, 3/24/20

INSIDER TRADING

  • STOCK Act Summary, GovTrack, 4/4/12
  • Sen. Burr’s 2012 radio interview on his opposition to the STOCK Act, 2/2/12
  • “Burr and Loeffler selling stocks as the market tanks is the reason some people think Senators shouldn’t own stock,” Vox, 3/20/20
  • “Sen. Richard Burr, who sold stock before pandemic, voted in 2012 against banning insider trading for Congress, Washington Post, 2/20/20
  • “Trump deflects questions about profiting from the presidency by reverting to his businessman mythology,” Washington Post, 3/23/20

CRIMINAL JUSTICE 

  • “New Jersey will release low level offenders from jail to prevent coronavirus spread,” CNN, 2/23/20
  • “‘Trapped on Rikers’: Jails and prisons face coronavirus catastrophe as officials slowly authorize releases,” Washington Post, 3/23/20
  • “DOJ seeks new emergency powers amid coronavirus pandemic,” Politico, 3/21/20

THE PROCESS BACK TO NORMALCY

  • “The Crisis Could Last 18 Months. Be Prepared,” Juliette Kayyem Op-ed, The Atlantic, 3/21/20
  • “When will the coronavirus pandemic end? What scientists can say about life returning to normal,” Boston Globe, 3/21/20

OLYMPICS

  • “I.O.C and Japan Agree to Postpone Tokyo Olympics,” New York Times, 3/24/20

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

Anne Milgram:             And I’m Anne Milgram.

Preet Bharara:              Hey Anne, how are you?

Anne Milgram:             Hey Preet, how’s it going?

Preet Bharara:              Are you still sheltering in an undisclosed location?

Anne Milgram:             Yes. And if you hear a noise in the background, it’s my five-year-old doing movement class on Zoom. They’ve a lot of singing.

Preet Bharara:              Yeah, maybe we should broadcast that.

Juliette Kayyem:           Yeah, this is much better. I have to say, that’s much better than-

Preet Bharara:              Wait, who’s that?

Juliette Kayyem:           I know.

Preet Bharara:              That’s a voice.

Juliette Kayyem:           I know.

Preet Bharara:              Oh, so the one we explain-

Juliette Kayyem:           Sorry, I jumped the gun. Yoga in a five-year-old is good news.

Preet Bharara:              This is an urgent time.

Anne Milgram:             We’re so happy to have you.

Preet Bharara:              So last week, we had our friend and colleague Lisa Monaco on, who’s very expert in a lot of things, and we thought that was very edifying and informative. So this week, we have another fabulous, amazing, smart, informative person; my former college classmate and friend, Juliette Kayyem. Welcome, Juliette.

Juliette Kayyem:           I’m so glad to be here. Thank you for having me.

Preet Bharara:              I could go on and on about your background in biography. You were among other things, Assistant Secretary for Intergovernmental Affairs at the Department of Homeland Security under President Obama. You were a Homeland Security Advisor to Governor Deval Patrick in Massachusetts. And you have been doing a great service on television and in writing explaining all these things to us, and so we’re going to call on your services again for this hour. So thanks for being with us.

Juliette Kayyem:           Thank you for having me.

Preet Bharara:              Hey, can I ask you, Juliette, before we get to some of the breaking news that occurred this morning, how different is this from anything you had dealt with before?

Juliette Kayyem:           It has attributes of two other key disasters that I worked. I’m always very clear what I am and what I’m not. I’m not a first responder, I’m not a doctor, I manage public safety teams and serve as a incident commander for crisises, I’m a civilian, but it does have attributes of two big disasters that I had worked. The first is the H1N1, which was in the first days of the Obama administration, and I had been on transition for Homeland Security, you know we’re briefed on every scary thing; this terrorist, that cyber attack, this global warming or climate change issue.

Juliette Kayyem:           And then of course the first thing we ever dealt with, the first real disaster crisis we ever dealt with was H1N1, had the same questions that are raised now. It wasn’t a global pandemic, which is how much do you focus on border controls versus mitigation? Just getting a community prepared. How much can you control? How many resources do you need to surge? And people forget there’s a lot of focus on what went wrong in H1N1, which I’m willing to admit, I live in a world in which you’re starting with, everything is bad and if it could be less bad, then it’s a good day.

Juliette Kayyem:           But a lot went right. We had a focus on vaccination, we had a distribution of the vaccination in the fastest time ever for a national distribution of a vaccination. We had high politics, low politics, we had border issues with Mexico, and we were able to maintain some stability for at least the border states during that period. And I think that taught me the need to communicate what the path forward is, the need to communicate about the sacrifices that community members will need to make. People forget that we had closed, a number of school districts in Texas closed down for periods of time.

Juliette Kayyem:           So the tools are familiar for what a pandemic or what a public health crisis looks like. This is bigger. The other, and I just was reminded of it yesterday, is when the president set up the National Incident Command for the BP oil spill, he brought in a team of people that the White House knew, that Thad Allen as the head to deal with it. It was ugly. And all I say is no one talks about the BP oil spill anymore, so that means it was a success. During it, it never looks like a success. The fact that it’s not viewed as Obama’s legacy to me means that we served him well.

Juliette Kayyem:           And I was brought in as a civilian deputy essentially managing… And I was reminded yesterday because the military deputy, we had two deputies to the national incident commander taught my virtual class because I teach still, and we were just talking about the length of that. It was over 100 days that that oil was spilling. It did not look like there was a clear path forward. It only impacted five States, but it felt like it was a national crisis. And just how do you stabilize yourself and stabilize a community for that period of time? So it has familiar attributes, but nothing like this. This is a slow-roll crisis. It was coming for several weeks or months before it hit.

Juliette Kayyem:           We lost that time and now we’re sort of in catch up mode or catching up mode, I should say, to try to stabilize our capacity so that then we can go from the tidal wave that we anticipate in places I think like New York where the tidal wave has hit or is beginning to hit, and begin to get to what I call the whack-a-mole stage of our response, which is… This doesn’t get totally cured until the vaccine. We could talk about how this unfolds.

Anne Milgram:             Juliette, can I ask a question? Why is New York such a hot spot? I read yesterday, I think it’s about to be, or maybe it already is, the sixth largest density of cases in the world right now after countries. And so is there a particular reason? Is it the fact that the city has millions of people in such a small space? Or is this just something that could happen in any place, it just happened to have happened in New York first?

Juliette Kayyem:           I think a couple of things. So New York just obviously given its density and the capacity to have transmission relatively quickly in urban streets, airports and elsewhere is just… So the fact it’s in a city is not surprising, and we’ve seen that elsewhere. The fact it was New York City is I think a combination of its global nexus with the fact that the other countries and their citizens that were bringing it over were also late in detecting this. So you guys in New York City just got hit with everyone being about three weeks too late and not controlling borders or controlling airport flights. I am a fan of controlling borders and airport flights at the right time, and that would’ve been in January, but no one was in the Headspace to do that then.

Preet Bharara:              There are a lot of tools that the administration has to use. One, that a lot of people are learning about in detail for the first time is the Defense Production Act. And I’ve seen you talk about it and I want to get into that in some detail. So the president invoked it but didn’t actually implement it. There’s some confusion about whether he wanted to or didn’t want to yesterday at a press conference. The president basically said, “Yeah, I don’t really want to use it because I don’t want to nationalize business.”

Preet Bharara:              And literally just as we were beginning to tape this morning, I thought we were going to have a long discussion about how the president was just not going to implement versus just invoking, but not implement the Defense Production Act. And then we get news that Peter Gaynor, the head of FEMA, has said that the administration is going to use the Defense Production Act to do, among other things cause 500 million masks to be made and 60,000 test kits. Why is the Defense Production Act important? How does it work? And what do you make of this news?/

Juliette Kayyem:           So this is surprising news, it’s good news obviously for several… And it’s too late. I mean in other words, the production should have shifted two months ago when we saw what was happening and we knew that we would have deficiencies. So I’m glad that the president invoked it. It was obvious that he would have to invoke it, and we need lots of stuff.

Preet Bharara:              But can we just pause there for a second so people understand. When he invokes it, that’s not actually doing anything, that’s just merely saying that we stand ready to use it. One of our other colleagues, Ellie Hoenig said, I thought in a telling way on Twitter, to invoke the Defense Production Act is like if there’s a fire in your kitchen, you say, “I invoke a fire extinguisher.” It doesn’t actually put out the fire.

Juliette Kayyem:           Yeah, exactly. So basically, the Defense Production Act has two pieces to it. So the first is the invoking by the president, so I describe that as your plugging in the microwave. The second is you press start, and the president never pressed start until this morning. I will wait to determine whether these numbers are satisfactory, but that people like me who knew the tools that a president has had been talking about the Defense Production Act for over a month now because manufacturing does not shift easily, and because we have in the first time in American history, a 50-state disaster, get your head around it. We’ve had crisises that impact everyone, like 9/11 in particular, but we’ve never had 50 States trying to manage and utilize their public health and public safety apparatus simultaneously against the same threat.

Juliette Kayyem:           I think there’s lots of reasons why people are doing… I mean, we’ve read articles that the Chamber Of Commerce was pushing against it, that they didn’t want to be commanded in that way. The president mentioned he didn’t want it to be like Venezuela. He didn’t want us to be like Venezuela, suggesting that this was a takeover of the private sector. All this is, all the Defense Production Act is, is it creates a market for the private sector and commands them to prioritize what they’re going to make and guarantees a purchaser.

Anne Milgram:             Right. The United States government is basically saying-

Juliette Kayyem:           Exactly. Please do it. And instead of it being about charity-

Anne Milgram:             A voluntary… right.

Juliette Kayyem:           It was like, “Oh, thank you 3M for making 50,000 masks.” I’m not criticizing 3M, I think it’s great. Who needs it? Where does it go? How is it getting into the supply chain? How are we prioritizing so that Cuomo isn’t fighting with a governor in California? This is logistics. This is what makes or breaks a mission, but it’s also not new. It’s not like we’re trying to make a vaccine.

Anne Milgram:             Well, I was thinking a little bit about the origins of it in the Korean war and going back to separate legislation that had gone into effect in World War II and it’s not the first time we’ve seen mass scale production of needed goods. It’s just generally been in the context of military goods. Although, I was also thinking a little bit about like the Works Progress Administration, there have been other ways in which using industry has both benefited people’s lives and jobs and also the government’s needs in times of war. And obviously, this is a different type of war, but it feels to me very much akin to warfare in that there’s certain things you just need and there’s no other way to get it.

Juliette Kayyem:           And it’s not like this was inconceivable. I’m sure you all felt it during other parts of the Trump administration when it came to legal issues, but the idea that they come to the podium and they say, “Oh my God, no one could have imagined this,” or, “This is really hard.” Actually, lots of people imagined it as Lisa Monaco said last week on your show. And it’s basic logistics. It’s actually, “Of all the things that we have to do, this is the part that we have been good at if we could just commandeer or get a president to focus.” And one final thing on the Production Act, it was envisioned just for this purpose.

Juliette Kayyem:           So I hear people say, Oh, it’s a Korean statute and that’s for war and this is different. Actually, it’s been amended to cover DHS and Homeland Security needs. We envisioned the very scenario in which production would need to be prioritized by the Federal government for a Homeland Security threat. So I don’t want to hear that this is unimaginable, it totally was imaginable that we would at least-

Preet Bharara:              Well, not only that, I think we should remind folks that there has been reporting over the last three or four days that not only was it imaginable from the perspective of a pandemic being always a global potential threat, but with respect to this particular pandemic, intelligence agencies were briefing the White House and letting members in the administration know that this was going to be a big problem, very specifically about this.

Juliette Kayyem:           Yeah. When the book is written, and there will be a book written, that’s my hopeful side. There will be a book written and someone will write this book. The beginning will begin in China, but part two will be called Squander Time. And I don’t mean it in the sense that… One is, I mean in the sense like we could’ve prepared with test kits and moving resources and preparing our first responders, which is in my world, key. The fact that some of the first people who got infected in the United States were first responders just means your basic thinking about protecting your first responders wasn’t animating anyone in the White House.

Juliette Kayyem:           It’s the first thing you do; if they go, we all go. So these, the firefighters and doctors who got exposed. But I also think, with a different communication strategy maybe and obviously a different president and people want Fauci, Dr. Fauci out in front. I think part of the shock of what all of us are going through, even though I was trying to warn people, “You all know what the plan is. The plan is we’re home.” But I think the shock for all of us was this failure to begin to grease the runways.

Juliette Kayyem:           Nothing could prepare us for what happened last week. I don’t think any communication strategy, I think it was just shocking and we should just accept that it’s shocking and try to brace ourselves in terms of the social isolation and our being apart from each other. But that a president affirmatively was saying the opposite, that’s the crazy that this in fact was not a threat. That to me is the devilish side of this. In other words, this is not… 9/11, or even ISIS and Obama, you can blame a president for not taking threats seriously, you can’t forgive a president four telling the American public the opposite of the threat. That to me is the legacy of where we are now.

Preet Bharara:              Right. Can I ask a question about what needs to be done and talk about scale? Because I’ve heard you mention this. And so I have no idea, I’m not a doctor, and you see people get on television and the president and the people behind the podium who are not socially distancing, and it always freaks me out a little bit. And they’re talking about a million masks here and the governor’s talking about 500,000 masks in New York. We see from the announcement this morning, a discussion of 500 million masks. How many do we need? What kind of scale are we talking about?

Juliette Kayyem:           So 500 million masks will get us 10 urban cities. And that’s not bad, it’s not a surge capacity. So we overbuy masks. You want redundancies. For a supply chain, you want redundancies on the other end. We’ll figure out what to do with them, hospitals will take them afterwards and stuff. But the idea that we’re matching supply to need rather than increasing supply for need, we don’t know how long this is going to take, we don’t know where it’s going to hit over time, is ridiculous. This is the thing that’s… We have the tool, over order. I’m Lebanese, this is what we do, you over order because God forbid you under order, the Lebanese food, so you have leftovers, no big deal.

Juliette Kayyem:           So we know how to do this. And so I just don’t get this sense. Yeah, I think it’s consistent with a belief by the president that this is limited and time and in convenience. And I’m here to tell you, I don’t know when it ends and it’s going to be really, really inconvenient. And that’s the plan.

Anne Milgram:             Juliette, what’s a number you would do? Like if we were thinking about this, you’re sitting in the White House, 500 million, 10 cities, obviously not enough. What sort of order of magnitude do you think they should be thinking beyond the 500?

Juliette Kayyem:           I would multiply by three. So if I’m thinking, and this is what logistics people do, so if I’m thinking 50 million surgical masks for one urban city over the course of however long this is taking, I have say at least one urban city in each state, so then I’d times 50. I can’t do this in my head. This is how you do it though. Or maybe I have two, think of California, I have three. And I’m basing in on population, so basically-

Anne Milgram:             It’s basically math.

Juliette Kayyem:           It’s math. It’s math. So if one urban city in America is saying, “We believe we need 50 million.” You’re now supplying only for 10 urban cities, at least getting the supply chain. Now, you can increase that order. I don’t understand the not over order. I think the more objectionable number we’re seeing come out of this is of course the 60,000-

Anne Milgram:             Testing kits.

Juliette Kayyem:           Testing kits. How do you think this ends? This ends with millions of testing kits available so that we can test and trace who has it.

Preet Bharara:              I thought we already had… Pence said two weeks ago that a million were going out, a million and a half. What happened to… ? We’re going to put 60,000 on top of those.

Juliette Kayyem:           Yeah, we’re going to put 60,000 over a million.

Preet Bharara:              To be fair, the news just broke, I don’t know the details about these tests. Maybe it’s a faster kind of testing kit. I know they’ve been developing other kinds of tests, so I don’t know. And by the time folks listen to this, maybe we’ll have more information. Maybe the DPA will not only invoked but implemented for other goods as well, but it does seem mighty strange.

Juliette Kayyem:           Yeah. And then just how long it is. This ends, we’re talking at a time when we went through that 24-hour discussion led by Tom Friedman and others who think it’s really interesting to be thinking outside the box and close, contrarian. I’m talking specifically about this idea that we open up from social distancing and take a hit, let vulnerable populations possibly be harmed greater than they would be because we can’t live like this.

Preet Bharara:              You mean die?

Juliette Kayyem:           Yes. They won’t say it. And what they also won’t say in their sort of, let me just be controversial or whatever, think outside the box, is what does it mean to have a society thats health system is on its knees and where businesses have no clarity about whether they’ll be open or not because of you have a plague running rampant. And I guess the third thing is, you tell me who the vulnerable population is. And you can’t get a doctor to agree on it. Three days ago, the White House task force was saying, “Kids, you can get sick too.” And then today they’re saying they’re hinting, “Oh, we’re only looking at vulnerable populations. So you have to fight this thing as if every person was a potential victim, and that means every person has to be in this fight against it.

Juliette Kayyem:           It’s just there’s no other way. I think I’m viewed as calm because this is the plan, the plan was never meant to be, as I say, convenient. It was never meant to be economically helpful. If you can get through this period and get to the other side, as everyone knows, you flatten the curve, you get to the other side of the curve, then this begins to look more like whack-a-mole. It begins to look like you’ll have areas that open up other areas that don’t open up. There’s no light switch, but you are balancing different needs.

Anne Milgram:             So I heard you talk about the whack-a-mole a little. Let’s talk about that for a minute and then we can go back to the bigger ethics conversation that I think the president is also a part of. But the whack-a-mole I found really interesting, which is this idea that, and my timeline may be wrong, so please correct me, but this idea that there’s six to eight more weeks at least of really strenuous social distancing. And then if there are enough tests that you ease back on the throttle, it doesn’t mean you totally… you’re not 100% going back to normal, but you start to ease off, but then you have to have the ability if somebody gets it to test and to notify the circle of the two or three or however many other people they’ve been in contact with, and the that’s how you contain it. Can you talk about that a little because I found that fascinating?

Juliette Kayyem:           Yeah. And remember I’m very careful to say this, the bad news is we have a novel virus, the good news is it is actually what’s happening is following tried and true crisis management, how a crisis unfolds and how you get to the other side, you always want to be looking two or four weeks ahead. So I think about, “Okay, where do I want to be so that things can start to get back to normal?” It’s not like people like me who are urging social distancing don’t get the economic impact, we totally get the economic impact, basically, just think about two surges simultaneously to flatten the curve. Everyone knows we’re trying to flatten it and extend it so that we don’t overburden our health system.

Juliette Kayyem:           So one surge is the surge of testing kits. And the reason why is because to get to recovery, where you’re minimizing the risks, you’re not eliminating the risk, you’re just minimizing it, you have to have a way to be able to test and track those who might be sick. And then that way, you can have much more targeted isolation, quarantine, you get to their families, you test them. The reason why we’re doing social distancing is because community spread just happened so fast, we weren’t able to do that targeting. So you have one supply chain going to the front end, meaning I want fewer people in the pool.

Juliette Kayyem:           The other supply chain is, “Okay, now I have, but before that, I’m really nervous about who’s going to fall into the pool, so I need to just surge a lot of resources to our health community and our health network so that they have the gloves and the masks and the respirators and everything else.” So just think about it like two supply chains, just rushing towards that curve. If we do this right, we then lower the curve, we extend it so that things can get stabilized. And then what happens on the other side? This is the thing I’ve been trying to get people to understand, recovery does not look like this… So we all felt like a light switch went off and we’re all inside and we’re like, “What was that about?”

Juliette Kayyem:           So recovery is going to look very different, it’s going to be various metrics that tell different communities that they can advance forward or not. And those metrics are things like the availability of ICU units, the availability of test kits, the extent of communities spread or not. There are things like the intangibles, like your capacity to actually keep people inside without using public safety. There’s going to be different metrics that are used and different communities or states are going to assess those metrics in real time and decide, “Okay well this area can open up and this can’t.” And the good news is, this is what we saw in China that some places opened up, Wuhan for all of the horror, just to give people some solace, Wuhan is now scheduling its first flight.

Juliette Kayyem:           So you think, “Okay, January to mid to late March, that’s a time period I can deal with in the worst possible settings.”

Preet Bharara:              But it seems like there’s going to be a lot of pressure from a variety of places with respect to the economy and depending on geographical locations and what the impacts are in certain places that are not as severe as New York, at least in the short term, and we should talk about what the president has now been saying, essentially quote.

Donald Trump:              We cannot let the cure be worse than the problem itself. We’re not going to let the cure be worse than the problem.

Preet Bharara:              By itself without context, is not an unfair statement, it’s a logical statement, that’s true, whatever you’re treating. You mentioned Wuhan and my worry is hearing that the lockdown in Wuhan is going to end I think on April 8th, is that the president is going to get very frustrated, he’s seeing the economy tanks, some people, cynical or not, I think there’s something to be said about this. Six of his seven most popular and profitable properties have been shut down by this, he’s in the accommodations business and that business is going to zero. If this doesn’t end soon, how do you think that is going to play out, especially given the fact that these measures that are being taken, they’re not been ordered by the president in New York, for example.

Preet Bharara:              All these policies about us staying at home and businesses closing, that’s within the authority of the governors. So when the president says, “We want to open up,” even if he decided to do that, is he actually able to do that?

Juliette Kayyem:           under some crazy highly litigated and I defer to both of you theory of presidential powers, he could definitely use national defense authorities I think to be much more heavy handed, but we don’t need to be there because what I think, let me just tell you where his authorities reside, and this is the challenge of Homeland Security. I often say the security is the easy part, it’s the Homeland that’s the hard part because under the 10th amendment, most public safety and public health laws are owned by governors and then delegated to cities or counties depending on the state constitution. So you don’t have a capability to say that there’s like one stop shopping for a nation, but where a president does have authority is in a couple areas that the president is not using adequately.

Juliette Kayyem:           One is, if there is any president that could convince Yahoo red state governors to get their act together, it is clearly this president. And he has shown that, he got an entire network that had been ignoring this to switch on a dime. So in other words, he has the capacity to have aligned all the governors to say, “This is serious and here’s what each governor is going to do.” And maybe at different times depending… But this idea that he doesn’t have the authority of creating a national policy is ridiculous. And in this president in particular, I think president Obama had tried to get some of these red states to move on, he would’ve never, this president actually could do it.

Juliette Kayyem:           And then you have more rational governors in blue states or swing states who already are there, they’re way ahead. Look into [Tijuan 00:26:35], look at California, look at New York, they don’t need to be convinced. The second is of course is in our border controls and in stopping people from moving, the president has incredible authority in terms of who comes in and out of the country, how we move around in the country, he can stop various types of travel within the country and he should have shut that all down immediately. In other words, one way to tell people to stay put is, “I’m closing down interstate highways.” I know that sounds dramatic, but you could do that, or you say, “I am not allowing domestic travel.”

Preet Bharara:              I’m talking a little bit about the opposite. If the president wants commerce to flow freely and he wants people to go out and about and go to parks-

Anne Milgram:             To open everything up.

Preet Bharara:              Yeah. Can he countermand a governor who said, “Stay at home,” and say, “No, I’m telling you the opposite”?

Juliette Kayyem:           Unless our federal parks, he could not. And in fact, I think your question is where we’re heading, which is what if the president is more permissive on a national threat than the governors?

Preet Bharara:              And I think that’s what he wants to be because he’s… Look, let me just say something that and I’m curious what you think, all these things are important, it is not a crazy question to ask, especially for non-experts like myself, what is the ultimate cost to achieve a certain kind of outcome? There are normal rational people who are full on freaking out, not just because of the disease, but because of what they see as not just a recession, but a depression with 30 to 35% unemployment, with GDP dropping, crazy, shocking amount in the second quarter, which to some ears, I hear people saying, loves talking about the companies in your talk.

Preet Bharara:              No, those are real workers, people who have been gainfully employed, who don’t have savings, who will be demolished financially, and that also has health consequences for people who don’t have healthcare in this country because we’ve screwed that up and they won’t be able to get care. There’ll be lots and lots of deaths or there’ll be harder to quantify if the economy ends up completely closing down as it might, so I don’t think it’s crazy to ask these questions.

Anne Milgram:             But it’s a different conversation that I think the president is having a little, and again, I think framing matters so much here. If we’re having this conversation about, there’s a certain amount of harm that society has to take because our healthcare system is simply not prepared. And if you think about, if you look at the China research numbers, I can’t remember if it’s 18% or roughly 18, 20% of people over the age of 80 are dying, but that means 80% of the people over the age of 80 are living with the correct treatments, access to ventilators, access to hospitalization. And right now in New York, 54% of all the people who are ill or who have contracted the disease and are hospitalized are between the ages of 19 and 54.

Anne Milgram:             So we really have to understand that the ability to have a functioning healthcare system literally will be the difference in saving lives and making a difference. So that’s the first part of the frame. The second part of the frame is that I don’t hear Juliette saying it’s 18 months of nobody goes to work.

Juliette Kayyem:           Oh God, no.

Anne Milgram:             But this is what’s really important because the way the president is almost framing it is like, “Well, we can’t wait 18 months for people to go back to work.” But we’re not talking about that, we’re talking about the difference between two weeks and maybe six weeks. And again, I just think it’s important because I agree with you, the economics matter, but the human lives have to be first. And the second piece is that there has to be, and maybe Juliette you can speak to this, but it feels to me like one of the things that’s complicated and the president and the framing that the president’s using is like the light switch, like as Juliette said, like the light switch goes off and now you want to turn it back on, but it’s more a thermostat than it is a light switch to go back on.

Juliette Kayyem:           That’s a great, I’ve been looking for that, I’d say whack-a-mole, it sounds a little bit odd in the context, but I do think that’s And I think that’s what gets me frustrated about this new, think outside the box theory by no one who’s ever been in crisis management, medicine or for that matter, run a company, real companies, want certainty at the end of this. So worst thing would be, you don’t have certainty now and you don’t have certainty later. I have a theory of why the president is focused on this is because I think most of the business community that he knows are heavily in debt and are worried that they’re going to default. Those people are worried about immediate cashflow, but if you look at all of the business trajectories, most of these businesses would rather have eight weeks of pain with an end game than a year and a half of, oh my God, a global pandemic.

Juliette Kayyem:           And that’s what’s so frustrating is like, it’s just this assumption that people who are pushing for strong social distancing now are somehow not thinking of the people who have lost their jobs or the businesses that are going down or entire industries that are now on hold. That’s what Congress is for, you help those people, let the operations move forward. This is the other thing, there’s pieces of good news, it looks like Italy, Italy that look like, “Oh my God, it looks like Italy, if we just can get two more days of data, it looks like Italy is coming over the peak.” In other words, they have no new net cases. In other words, they’re not increasing, so now we’ve stabilized, we’re at the top of the peak.

Juliette Kayyem:           If we can get a few more days and start to see a decline, I’ve got a good news story for you, it hurts, it’s painful, lots of harm is done, but I’m beginning to see the other side. And so no one in my space is standard is, can we eliminate the risk and cause no harm? No. The standard is, can we minimize the risk on the other side, so that’s thermostat. How do I just get society moving but also protect as many people as possible knowing that the measure success will be at the end of this, a million people didn’t die, which were some of the trajectories, but only 250,000. That’s not good news, that’s not a head good news headline, but if you tell me 250,000 people would die from this, I would say privately, something went right because the trajectories as we’ve seen from some of the reports, were really bad numbers.

Preet Bharara:              You realize this is not privately run.

Juliette Kayyem:           I know. It’s like the measures-

Preet Bharara:              I know we load you into sharing confidences.

Juliette Kayyem:           No, I know. I would say that now, but it’s just like numbers mean nothing, for example, this is perfect with the Defense Production Act. So it sounds really impressive that 500 million mass are being made until I tell you that one urban city needs 50 million mass, and then all of a sudden you start to do the math and you’re like, “Wait, we’re only covering 10 cities?”

Preet Bharara:              There’s a lot of math. There’s a lot of math. That’s the biggest problem, there’s a lot of math going on.

Juliette Kayyem:           I know. And you guys are lawyers, but this is just math, it’s this is just math.

Anne Milgram:             Can I ask one other question Juliette? Because the thing I keep thinking about, this ethics debate of, it’s almost this sort of the herd immunity idea, “Just let everybody get infected, let everything… It’ll happen quicker, stop distancing.” But the problem then is that the healthcare system crashes. And so my view of the president’s idea of like, “Let’s pull up the curtains 15 days from when we pulled them down,” is that ultimately will because as great an economic harm if not more, if the entire healthcare system collapses. So I think you’ll both see not only more deaths, but you’ll also see businesses won’t be able to… Like I don’t see how that’s actually not-

Juliette Kayyem:           And this is the unstated by these people who are like, “Let’s just open up… ” What does society look like with literally a plague? There’s no other way to put it, unchecked throughout society. And they convince themselves that they can isolate it amongst vulnerable populations. So that’s why they keep talking about vulnerable populations. Everyone is vulnerable to this. And then they do not discuss, can you function in a society in which the healthcare system cannot handle the stress of this new virus? And they won’t discuss that. And I think what’s interesting, if you look at Tom Friedman’s show, The New York Times columnist, and I’m particularly picking him because the same day yesterday the Tom Friedman gives this sort of, “Oh, it doesn’t have to be that bad, we’re also being inconvenienced, let’s open up,” The New York Times did a stunning, stunning section on, “How does this end?”

Juliette Kayyem:           And as I said, nothing’s new, we’re all saying the same thing, four to six weeks of pain of this aggressive social isolation, lots of surging of resources and then you begin to open up, and then final resolution is a vaccine. There’s convergence amongst almost every discipline that that’s the path forward.

Preet Bharara:              Well, except that there’s another side to that, so that’s on the medical front, but for that to be tolerable, the government, and it’s trying to do it in the way that sausage gets made in the Congress, is to make the economic impact less severe and distress as few people as possible. And I don’t know that that’s getting done in a proper way, they passed some hardship relief. There’s a lot of stuff they haven’t done, most troubling to me, and I think people are rightly worried about this. On the economic side, is this idea of a $500 billion fund to be administered, at least proposed by Senate Republicans, to be administered by one man, Steve Mnuchin, without transparency into who is getting what money, why, and to what degree for I think six months is in the proposal.

Preet Bharara:              And then here are the most frightening words among the most frightening words I’ve heard, when the president was asked, “Well, who’s going to do oversight? Who’s going to do oversight?” The president looks into the camera and he says, “I’ll do the oversight. I’m going to do the oversight.”

Juliette Kayyem:           You started, thought like, “This can’t actually be true.” Like, “I’ll do the oversight.” You’re like, “Okay, no, that’s not going to work.” And then obviously, who it’s going to needs to be focused and we need to have something that protects individual workers and not go to these big companies that can definitely survive this.” And that’s not my area of expertise, but that’s obviously a piece of this. And then the quid pro quo for all this pain is, well, I guess the other side of it is that the government, the Federal Government does its duty to begin to minimize the potential harm of Coronavirus itself. So there’s a quid pro quo, and we’re just starting to see the logistics move a little bit, but we need them to move much faster.

Anne Milgram:             One of the things that really surprised me about the congressional piece, and I know they’re still debating this, not just, it’s outrageous, the $500 billion slush fund, the fact that the money, there’s separate lines for airlines and cargos, there really is not sufficient job protection. So there’s countless ways in which I think the legislation is terrible. What’s also just stunning to me is that McConnell was really trying to do it without going through Pelosi. And so just to take a step back for a minute of what is truly an epic national crisis that impacts all 50 states, all Americans, to be partisan in any way on this and to think that because it’s such a traumatic time that they could get anything passed, it’s a little bit stunning to me.

Anne Milgram:             And Preet and I both worked on the hill, and we’ve seen a lot of the sausage and it’s all about power and who holds the power, but I want to give a lot of credit to the people on the hill who are fighting to help people who are losing jobs, who are losing, it is more than just the big businesses and the airlines who need help. And so to me, people should understand that bill needs to be passed, but the bill needs to be right, and that the worst thing would be to pass a $2 trillion bill that basically helps big business and hurts literally on the backs of Americans, of all Americans.

Juliette Kayyem:           Right. Exactly. I think that’s exactly right. And I think people like me who think about response or plan responses tend to think in bulk, 50 million this, 500 million that, but it’s also essential that levers of our government also think in terms of retail and the communities that are impacted. And I think both of those things, if we do them right, will get us within four to six weeks to being able to manage a global pandemic here in the United States. That seems like the right path, and that’s maybe what makes me hopeful. I also, I’m hopeful because we’ve seen so much leadership from governors and some governors and some mayors, I worked in state government before I went to Federal Government, and I always say, “You’ll never doubt the ingenuity or grit of state government, they can get things done.”

Juliette Kayyem:           So I think that there’s glimmers of hope, it’s just whether the president can stick to the plan. That’s it, because it requires patience, it’s not happening tomorrow.

Anne Milgram:             Yeah. I would predict he can.

Juliette Kayyem:           I think that’s right.

Anne Milgram:             If history is any guide, I would predict that it’s a seesaw and it’s really bad for the public because I think if the president would say what you’re saying, Juliette, and basically just sketch out the plan and this is how it works and there may be some variances or setbacks, but here’s the basic parameters of what we’re going to do, how we’re going to do it, and Congress acts, you really can see a path forward. I think the problem is the president is going to be in this constant war with his advisors and the doctors around him. And so we’re going to see things like we’re seeing, which is the cure shouldn’t be worse than the underlying pandemics.

Anne Milgram:             So I feel like we just have to brace ourselves a little bit for what’s going to be a very… It’s going to be a roller coaster when it doesn’t… It is a roller coaster anyway, but it doesn’t need to be quite as extreme as I think the president is going to make it.

Juliette Kayyem:           And it’s not ideology, yesterday, Boris Johnson, the prime minister of England, who would’ve thought? Gives a four-minute speech, that is literally the speech that we need.

Boris Johnson:              Good evening. The Coronavirus is the biggest threat this country has faced for decades, and this country is not alone, all over the world we’re seeing the devastating impact of this invisible killer. Without a huge national effort to halt the growth of this virus, there will come a moment where no health service in the world could possibly cope because there won’t be enough ventilators, enough intensive care beds, enough doctors and nurses. And as we’ve seen elsewhere, in other countries that also have fantastic health care systems, that is the moment of real danger.

Juliette Kayyem:           It is direct, it is no BS. It is, “This is what’s going to happen because this has to happen and here’s what happens on the other side.” And he’s sticking to the plan, he’s not doing any of this wavering that we saw from president Trump last night. So it’s not like, there’s this theory like democracies don’t do this. Well, you know what? Actually maybe we’re about to see a bunch of democracies do it much better than us.

Preet Bharara:              Can I vent for a moment?

Juliette Kayyem:           Yeah.

Anne Milgram:             … through the lens of I think what some of the debate is going to be about, and it’s not the most important thing and it’s not about the response, and it’s not about the epidemiology, but it’s the way in which some of our elected leaders have been acting through all this, Rand Paul for example, as we now know, tested positive, and while he was awaiting the test results, managed to go to the Senate gym, which for some reason was still open in recent days, swim in the Senate gym, also have lunch with the Republican senators, I think a large group of Republican senators, many of whom are in the vulnerable category, demographic category.

Anne Milgram:             I don’t even think he told his staff that he had a concern, he got tested, raises a lot of questions, among them, why was he able to get a test when he actually didn’t have symptoms and we keep getting told by the president and others that you don’t get a test if you don’t have symptoms? He’s somebody who’s been minimizing this, gets a test, doesn’t tell anyone, potentially infect all sorts of other senators, and he’s pretty blasé about it. I think there’s going to be this question about who got tests and why, if you’re an NBA basketball player or you’re a Senator, you were able to get a test and if you weren’t, you didn’t.

Anne Milgram:             And then we don’t have a ton of time to go into this, and I don’t think there was actually, based on what I’ve seen so far, criminal conduct, and this news has evaporated because we’re talking about know shutting down entire cities, but you have a number of senators who traded in stock at a time when the market was high and they were receiving confidential information about how bad the virus was going to be. There was a briefing that was attended by none other than the great and wonderful Dr. Fauci, back on January 24th. And you have people who have gone through the trading records and I think the most noteworthy one is Richard Burr, who’s the chair of the Senate Intel Committee, who engaged in a series of traits of a significant amount, including hundreds of thousands of dollars in hotel stock, basically at the height of the market.

Anne Milgram:             Now, that in itself, forget about the legality for a moment, that in itself is not necessarily terrible, but it is terrible if at the same time that you’re doing that, you are saying things privately to donors and others as he did about how bad the virus and the pandemic is going to be, but publicly, minimizing what the results are going to be, what the consequences are going to be. So on the one hand, he’s taken care of his own wallet and bank account, on the other hand, he’s telling people privately, this is going to be bad, but he’s telling people publicly, it won’t be so bad. Now, the why there may not be a crime there is unless it’s the case that he was given particular information, nonpublic information about a specific stock, it’s hard to say that information he got about a generalizable pandemic or national crisis is something that was material in a way that would violate the law, I don’t think it flies,

Juliette Kayyem:           I agree that it’s a tough case to prosecute, but I might take that case pretty like-

Preet Bharara:              No, we did some of them.

Juliette Kayyem:           I know, I know that because I haven’t heard you guys, I guess, like would this be a case? I am a lawyer by training as Preet knows, I married a law professor and now a judge, so it’s not like I’m immune to this, but this is one of the gaps between the lay person saying, “That’s so obvious,” and lawyers saying, “These are really hard cases.” To me it’s like, oh my God, of course they left that meeting and said [crosstalk 00:45:27].

Anne Milgram:             Yeah, I agree. And I think you take that to a jury and as a rule, the jury would see exactly what every other person in the United States of America sees, which is they got inside information and they went out and they saved themselves millions of dollars based on it. By the way, can I just read this to us because like I cannot get over this, this is Richard Burr explaining. He’s one of the three senators who voted against the Stock Act, which basically says members of… It basically makes clear that members of Congress can’t trade on inside information. So he votes against it, he’s one of the three senators who votes against it, and he says, “It’s ludicrous, that’s why we voted against it. We should be focused on jobs, the economy. we should be taking up real legislation.”

Anne Milgram:             It’s like me saying to you, “Jerry, before you come to work this morning,” and you’re going to drive your car, “I’m going to pass a law that says you have to have a driver’s license.” It’s insane. First of all, there are laws that say you have to have a driver’s license.

Preet Bharara:              There are?

Anne Milgram:             Yes, number one. And number two-

Juliette Kayyem:           Bad example.

Anne Milgram:             … is like the argument there should be no criminal laws because the Bible says, “Thou shall not steal.” It’s unbelievable. It’s basically him saying, “I want to be able to engage in insider trading.” And look, there are other examples, it’s not just him, it’s also Kelly Loeffler, but it really is. Any sense that people are doing the right thing for the American public and their constituents and not putting themselves first is just belied by this insider trading. It’s just like the cherry on the ice cream sundae to me.

Preet Bharara:              We should mention in fairness that there are a number of senators who appear to have engaged in trading in this January, February.

Anne Milgram:             Including democrats.

Preet Bharara:              Yeah. Senator Feinstein, a couple of other Republicans like Senator Inhofe. The crux of the matter is, whether or not there’s criminal conduct or whether or not, I think you can claim hypocrisy of some sort, is was there intent and knowledge on the part of the senator to engage in these stock trades? Now, Senator Feinstein has said, and I believe it to be true, but it should be looked into if there’s a chance it’s not true, that she has for years had her money in a blind trust, so she doesn’t have any control over that whatsoever. Kelly Loeffler has not taken the position that she has a blind trust, but has said, it seems like as a matter of prudence, she is not consulted about stock trades.

Preet Bharara:              She happens to be married to the head of the New York Stock Exchange as well. If that’s true, then I guess no liability on her part, you’d have to find out whether or not informally, like it happens from time to time, it happened with Martha Stewart, very famously. She had a side conversation, said, “You’re not going to believe how bad this stuff is, can you get me out of these bad stocks?” That remains to be determined, but to the extent senators have not personally directed the trading, I suppose they get an out, but it leads to another fundamental question that we could talk about more in the future.

Preet Bharara:              I tweeted once and I’ve always believed that members of Congress should not own and certainly at a minimum, not trade in individual stocks. I was a Senate staffer and I felt uncomfortable owning individual stocks because how are you going to show that you were an influence in some way, you own a bank stock and from time to time, there’s legislation relating to banks? It just it creates an appearance of impropriety and it’s just silly. You can participate in the market just like anyone else through mutual funds or other holdings, you shouldn’t be having individual stocks, so this even becomes a question.

Anne Milgram:             I agree.

Juliette Kayyem:           I agree. It’s interesting, David, my husband will kill me for mentioning this, but I feel like the judiciary is under a harder ban than what I’m hearing Congress is, because I feel like other aspects of government are, we have everything in blind because the idea that he might rule on something that would have a financial impact, let alone my own conflict rules, it’s not just whether you benefited is just the appearance to the public, if you benefit. And that’s why we have conflict rules. And I think all of this gets to a narrative of there’s wedge issues involved with a global pandemic, like this idea of social distancing now being a wedge issue.

Juliette Kayyem:           How is that possible? Because we live in a country in which a president is willing to invoke wedges and to everything, but you’re seeing a pushback. That’s the other thing, you’re seeing large swaths of the American public under no compulsion to do so, and most of this is unenforceable either legally or operationally, it’d be hard to keep an entire population down with the police force or inside, I don’t mean down, inside that they are doing it, that they get the basic math and that there is a plan and that the plan is painful.

Juliette Kayyem:           And on the other side we would have stopped a global pandemic from killing more people than it would have otherwise. That’s our standard. And I do say this publicly and I said it just a minute ago, but numbers mean nothing to me, 50 million, 500 million, a million unless you tell me if the government had not acted, it would have been twice as much. And then it’s good news.

Preet Bharara:              Just to close the loop on the stock issue, the president himself was asked, and I think it’s a legitimate question since he’s shown no transparency into his holdings and his tax returns, “Did you or your family trade in stock?” And he gets very angry and he says something like, “I don’t have stock, I own things.” And yeah, you know one of the things he owns is? Stock.

Anne Milgram:             Yeah. I’m fascinated by this question and I personally just think that there is no way it’s going to turn out, and I shouldn’t be so bullish on this, but I would be surprised if there wasn’t some additional stock sales that relate to the president and his family given the knowledge that they had, and given the fact that, you said his business is hotels, and this is obviously a huge jeopardy to his and his children’s financial interests. And I hope I’m wrong, but I would not be surprised if the other shoe doesn’t drop on that. And again, look, at the end of the day, we’ve talked about this a lot and I think Juliette, you’re in the same boat on this, which is all any of us want is for him to do the right thing by the American people.

Anne Milgram:             And so I find myself cynical about some pieces of it, but at the end of the day, look, I’m rooting for he and the people who are sitting in the Federal Government buildings right now to be successful. And frankly, to be a lot better than they’ve been, but I don’t want to hold that too much hope, but I also want to just be clear that the behavior by the Senate is obviously, Senator Burr and Loeffler in particular, is terrible. I do think that we have to keep focused also on the fact that there’s this bigger job the president has to start doing or will be do

Juliette Kayyem:           In some ways it’s like, I’d like to just make him irrelevant because I do think a lot of things are happening. And if we could just… I don’t watch the daily press conferences because in some ways, I think I’m going to feel better about the common mission if I can just take that noise out. And I think that’s important because I think on a local state, first responder, doctors, and us staying at home, being away from each other, that’s what’s going to get us through this and then just to try to be able to focus on that.

Anne Milgram:             So one of the breaking news stories right now is that the International Olympic Committee has agreed to postpone the Tokyo Olympic games. And Juliette, you’ve been talking about this a lot, I’ve seen you on Twitter.

Juliette Kayyem:           I know.

Anne Milgram:             Well, I’m with you, every day, you’re like-

Juliette Kayyem:           Yeah. I guess like two days ago, I wrote a Tweet that’s like, “Dear International Olympic Committee. Let me do you a favor, you will be postponed. Get out of your misery.”

Anne Milgram:             You know, it’s funny, some decisions seems so hard and others easy. This one seemed to me to be in the easy bucket of where the world was. Obviously, I think you agree that it’s very sad for the athletes of course, but it seems necessary.

Juliette Kayyem:           It seems necessary, but no, it’s not sad for the athletes. This is the way we have to think about it, forget our US Olympic committee, which is just like… And I know this world because I’ve done a lot in sports security and sports security management, the relationship between the USOC and the IOC is interesting, let me just say. This was for the athletes. In other words, to ask them to train and right now we’d be in qualifying rounds during a global pandemic was like anti athletes. So what the IOC should have done is a month ago said, “You guys, don’t worry. You are at the top of your game. Keep yourself healthy. Don’t expose yourself. In three months we will figure out a new date, but you will compete.”

Juliette Kayyem:           Just pull the goddamn Bandaid off already. This piecemeal, like, “Oh, this state’s going to do that and this Olympic committee is going to do that.” If we could just collectively pull the bandaid, the clock will start immediately and then I’m promising you it’s not 18 months, I’m also promising you, it’s not two weeks, but much closer to two weeks, we will be able to stabilize this.

Preet Bharara:              Juliette, this is important. Are my kids going to be back in school in September? Please say the answer is yes.

Juliette Kayyem:           Yes, yes. Okay, let me now, this is security mom. So parents, things will not be “normal” for your kids at the earliest mid-May, so just get your head around it, at the earliest.

Anne Milgram:             So basically, nobody’s going back to school this school year?

Juliette Kayyem:           I don’t think they’re going back to school We’ll end with this, unless of course you are at Liberty University that is decided to reopen next week. And so he’s commandeering or he’s telling all the teachers, Falwell, to come back and the students to come back. Aint that great?

Anne Milgram:             Wow. My niece and nephew are in school in Virginia and they just canceled through the end of the school year. And when I saw that, I thought it’s probably that other States just haven’t said that yet, but that everybody knows we’re not going back till September. But you think we should be optimistic about potentially being back in September?

Juliette Kayyem:           Oh God, yes, yes, yes. Oh, absolutely. Look, as I wrote in that Atlantic piece, the seasickness will be easier if someone would just let us see shore, so I’m letting everyone see shore. And the only reason why I’ve comment is not because I’m a doctor is because I look at evidence in other countries. We can do this, and the worst countries are already opening up, so hope springs eternal for America.

Preet Bharara:              With what this all does, the pandemic and the stress is due to the criminal justice system. And there are two aspects to this, we can just touch on briefly before we go. One is, what do you do about the jails and the prisons where you have very vulnerable populations and whether you should be adding to those populations. There are efforts in many States and localities to stop doing certain kinds of arrests. And on the other side of the coin, cases that are ongoing, what special powers, if any, should the Justice Department try to obtain to make sure that public safety is maintained? What do you want to talk about first, Anne?

Anne Milgram:             I think let’s start with the jails and prisons because I feel like this is, we’ve been talking about what a risk it is. And obviously, look, we saw what happened at the nursing home facility in Seattle where you have a number of people living in one facility being cared for and the disease spreads rapidly and you have a high percentage of vulnerable folks. It’s also true in jails and prisons, you have people who have different underlying, you have people who are older, although obviously it now seems as though the disease is impacting people of all ages.

Preet Bharara:              And you can’t socially distance very easily.

Anne Milgram:             Exactly, exactly. And so when we think about this, I think that there’s just a potential for great devastation. And so probably both of you have seen what New Jersey did yesterday, but the Chief Justice worked with the Attorney General, the public defender. And what they did was basically say, “We’re letting everybody out of jail as quickly as possible who is in on a probation hold or a very low level crime. And then we’re going to presume that everyone else is going to be released next Thursday unless the AG or a County prosecutor comes and makes a compelling case why someone needs to be detained.”

Anne Milgram:             And what they did in doing that, I think is prioritize public health and basically say, “We can’t keep people safe in the way that we owe them a duty to be kept safe in these facilities, and so we’re going to flip the burden.” Instead of people having to show and individual lawyers having to come in to say, “My client should get out,” what the state did was say, “We’re going to presume people are going to be released, but if there’s a public safety reason… ” And what that assures is that, the prosecutors are not going to come in on everyone. They’re going to have to pick the people who truly are a public safety risk and should stay in, and then they’re going to move forward to ask the courts to keep those folks.

Anne Milgram:             So I really like the thoughtfulness that they’ve done it with. I think a number of other places, we’re watching in New York now, I think de Blasio said they released 50 people from Rikers yesterday. It’s not going to be enough, frankly.

Juliette Kayyem:           You have one and it’s over. Maybe this forces some creativity in the way we think about it, but I love this opt-in option for these AGs. In other words, we’re now going to presume because we’re going to favor public health, that this group of people can actually be released because they’re not an immediate threat, and you have to affirmatively opt in to keep them in jail. I think that’s the right default rule rather than having AGs determine, I think it’s an important leadership role for the Judiciary. And including being creative with oral argument rules.

Juliette Kayyem:           Rules are going to have to change. I got a junior in high school, like, yeah, he’s likely to be applying to colleges when a lot of rules are changed, he’s not going to have grades for his junior year. He’s going to not have potentially SATs. I find all of this just on an emotional level, actually liberating because everyone’s in the same boat, so it’s actually a time to be creative, to think through, “Okay, maybe as a judiciary we can do this. Maybe as a prosecutor’s office we can do this.” Because no one is going to say, “Well, what compelled you to do that?” Everyone knows.

Preet Bharara:              And there are lessons to be drawn. Look, Anne foresaw this earlier than I did when we saw what was coming. We’ve always recorded this podcast, the Insider podcast in the studio, face to face. It’s always good to be with the team. But we started saying, “Well, we might not be able to do that before long.” And the team figured out how we can have a high quality podcast with everyone recording from their homes with their own mics and software, etc. And who knew how much work you can actually do at home, I didn’t know that.

Juliette Kayyem:           Yeah, exactly.

Anne Milgram:             Preet, are you saying you’re not going to want to see me in person when this is over?

Juliette Kayyem:           I know.

Preet Bharara:              I am. I’m dying for that day. I’m waiting for that day to come. I’m just saying, there’s quite a bit that people did not appreciate could be done remotely.

Juliette Kayyem:           Amongst us ladies, I’m getting so creative because I have to go on air still, so creative with like coloring my roots that I’m thinking, “This is all for the creativity that we need. This is the creativity that the virus asked for.”

Preet Bharara:              There’s a great Tweet, someone said, “Basically we’re about three weeks away from learning everyone’s true hair color.”

Juliette Kayyem:           Oh, I know. I am right there. I am right there. I said to my husband, I was like, “Turns out I just spend a lot of extra money than I needed to. I’m surviving fine without… ” But obviously, I want to start spending lots of money too, so I’m looking forward to being on the other side.

Preet Bharara:              Should we just say one word about this Politico article that is styled as DOJ is seeking all sorts of emergency powers to which I think people have had generally a bad reaction.

Anne Milgram:             The right reaction, which is to say no. Yes.

Preet Bharara:              So I’m going to be contrarian for a moment. I don’t know what all the things are that are being requested, obviously some things and because I haven’t seen the draft legislation and I don’t think that this attorney general deserves any benefit of the doubt given all the other things that he’s done. So I think everyone is absolutely 100% right to be skeptical, concerned about power grabs at times of greatest controversy and when people are focusing on other things. But it is true that when you have a breakdown in the normal way of doing things and courts are closed and people can’t come out because they’re quarantined because of the jail they’re in, etc, etc. You do want to make sure that danger… I mean, this is just as a general proposition than the way they’re going about it may be completely awful.

Preet Bharara:              But as a general proposition, putting aside the people who were not dangerous, who were on probation and nonviolent, you do have people who are quite violent and had done very bad things and are serving sentences or are in the process of going to trial for potentially very serious crimes, and you do have to come up with ways to go through the justice process that are also disrupted in the same way the schools are disrupted and businesses are disrupted everything else. So for example, when you see the report that they’re asking for the expansion of the use of video conference hearings, that doesn’t seem to be crazy.

Juliette Kayyem:           Look, that the Department of Justice uses a crisis to try to get tools that they already wanted, or is not just 9/11, it was Oklahoma City when I was there. It was it just has a galvanizing effect. Guys, I know we’re supposed to have CAFE, but I do have to get going.

Anne Milgram:             No, this was great.

Preet Bharara:              Juliette, thank you so much for joining us.

Anne Milgram:             We really appreciate. You’re amazing.

Juliette Kayyem:           Oh my God, I have to leave with my calming zen moment, which is, I do believe this because I’ve been in enough disasters. We will prove ourselves to be more resilient than we imagine ourselves to be today. That’s how I leave you.

Anne Milgram:             Amen.

Juliette Kayyem:           Amen.

Preet Bharara:              That is great to hear. Thanks, Juliette.

Juliette Kayyem:           See you guys soon. I’m looking forward to it.

Anne Milgram:             Thank you so much. Thanks for coming.

Juliette Kayyem:           Bye.

Anne Milgram:             I’m just sitting here thinking, who are we going to have as our guests next week? It’s going to be exciting to figure it out. But I think the way I feel like maybe we should end this is to say, it’s been a very difficult week, but there’s also some good news, which is the beginning of the use of the Defense Production Act, the fact that people have social distanced and are really taking the advice of governors and government seriously and doctors. And so I feel like there’s a lot to cover and the world is changing rapidly, but there are some rays of sunshine that we’re seeing. And I take a lot of solace in that. I was also going to say that I like the Juliette idea of you just multiply everything by three, that’s also how my mom cooks and orders paper goods.

Anne Milgram:             So I’m like, “I’m going to just put this into my translation of everything the president says and does.”

Preet Bharara:              One of the ways that we have been quite alarmed is to look at countries that were a little bit behind like Italy, and you saw how terrible the situation got there and the mounting deaths. And I wrote this in the note last week and you think to yourself, “Well, that’s us in a week.” So that’s terrible and is jarring and it’s disconcerting. But then there are other places that are much further ahead of Italy, like places in China, Wuhan for example, where you can see the light at the end of the tunnel, potentially. So we should be looking at those other examples and learn from their mistakes and learn what they did right, but also at least hope and believe that if we do things right in the near term, things will be much better in the longer term.

Preet Bharara:              I’m looking forward to talking with you again next week, and probably again remotely. But before too long, maybe we’ll be in the same room.

Anne Milgram:             Yeah, I hope so.

Preet Bharara:              Just one other personal note. It has been really helpful to see the kinds of things that you folks are thinking and what you’re going through and sharing your own experiences that you’ve been sending to [email protected] I’ve been reading all of them, and I’ll tell you, sometimes the highlight of my day is reading what you folks are going through and how you’re coping.

Anne Milgram:             It’s really wonderful to get the messages and to hear from everyone, so thank you.

Preet Bharara:              So keep doing that please. And till next week, stay safe.

Anne Milgram:             Talk to you soon. You too. Bye.

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

 

CAFE INSIDER

CAFE Insider 3/24: Pandemic Ethics & Glimmers of Hope

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