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May 13, 2019

CAFE Insider 5/13: Indicting a POTUS

  • Show Notes
  • Transcript


We hope you’re enjoying CAFE Insider. Email us at [email protected] with your suggestions and questions for Preet and Anne. Thank you for being a part of the CAFE Insider community.


  • “Suspects in Colorado school shooting make first court appearances,” CNN, 5/9/19


  • “Leaked Letters Reveal Details of NRA Chief’s Alleged Spending,” Wall Street Journal, 5/11/19
  • “Report: Leadership feud roils the NRA,” Politico, 4/26/19




  • “Rudy Giuliani Plans Ukraine Trip to Push for Inquiries That Could Help Trump,” New York Times, 5/9/19
  • “Giuliani cancels Ukraine trip, says he’d be ‘walking into a group of people that are enemies of the US’,” Fox News, 5/11/19


  • “White House Asked McGahn to Declare Trump Never Obstructed Justice,” New York Times, 5/10/19
  • “White House Tells Don McGahn to Rebuff Subpoena Documents Related to Mueller,” Wall Street Journal, 5/7/19
  • Trump’s tweet about McGahn
  • “Trump Ordered Mueller Fired, but Backed Off When White House Counsel Threatened to Quit,” New York Times, 1/25/18
  • Bill Barr’s letter to the President requesting he invoke executive privilege
  • “Trump’s legal case for executive privilege is strained at best,” Washington Post, 5/8/19


  • “Scoop: Senate Intel subpoenas Trump Jr. over Russia matters,” Axios, 5/8/19
  • “The hard lesson of the Donald Trump Jr. subpoena for the GOP,” Washington Post, 5/9/19


  • “U.S. Takes Control Of North Korean ‘Sanctions-Busting’ Ship,” National Public Radio, 5/9/19
  • “New North Korea Concerns Flare as Trump’s Signature Diplomacy Wilts,” New York Times, 5/9/19


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

Anne Milgram:             I’m Anne Milgram.

Preet Bharara:              Happy Mother’s Day.

Anne Milgram:             Thank you.

Preet Bharara:              How was it?

Anne Milgram:             It was a great day, I got woken up with a chocolate croissant, which was lovely.

Preet Bharara:              Really?

Anne Milgram:             Yeah, and then we went out to see my mom in the evening, which was great.

Preet Bharara:              In the great state of New Jersey?

Anne Milgram:             In the great state of New Jersey.

Preet Bharara:              We did the same.

Anne Milgram:             You did?

Preet Bharara:              In the evening, we saw my mother in the great state of New Jersey, also.

Anne Milgram:             You had a good day?

Preet Bharara:              Yes.

Anne Milgram:             I mean, it’s not really your day.

Preet Bharara:              Not really.

Anne Milgram:             As I said that, I’m like, “Wait.”

Preet Bharara:              It has nothing to do with me.

Anne Milgram:             It’s a different question, did you celebrate your wife and mom and all moms in the world?

Preet Bharara:              Yes.

Anne Milgram:             Wow.

Preet Bharara:              Yes, we did. It was a very nice day, and then I get my day.

Anne Milgram:             Father’s day.

Preet Bharara:              In a few weeks.

Anne Milgram:             Yeah. What do you ask for?

Preet Bharara:              I don’t know. I think I need some more ties that say “Number One Dad”.

Anne Milgram:             What about a Snoopy T-shirt?

Preet Bharara:              Actually, I don’t have any those ties.

Anne Milgram:             I feel like that’s on a Snoopy T-shirt.

Preet Bharara:              All right. We have a lot to talk about, as usual. You said on a recent show, sadly, we probably would be back on the program in the not too distant future tragically talking about another shooting. We both hope we never have to talk about those shootings, but there was yet another one last week.

Anne Milgram:             Yeah. It’s astonishing, the facts are really simple, there have been 15 school shootings in the United States just 19 weeks into the year 2019. It’s all different levels of schools, this one was in Colorado, just down the road from Columbine at the STEM School Highlands Ranch. You’ve got an 18 year old who’s about to graduate who’s killed trying to protect his classmates and eight other students who are shot but survived. It’s as if we didn’t already know that this was an epidemic and a true public health crisis for our kids and just an absolute atrocity. There’s evidence every single week of that.

Anne Milgram:             When you think about the 2020 election, even think about 2018, there was a lot of talk about healthcare, we just don’t see the conversations around guns. Does this move the needle?

Preet Bharara:              I don’t know. I think these things are cumulative, and I take a lot of hope and inspiration from a former guest of Stay Tuned, Shannon Watts, who, by the way, has a new book either about to be out or is out, that there’s a grassroots movement on the part of, I think, smart, thoughtful citizens, not just moms but lots of Americans who have realized that a lot of the fight takes place in state houses. While everyone bemoans the lack of willpower on the part of Congress to do various things on the part of the executive branch to do various things, there’s lots and lots of victories happening all across the country, whether you’re talking about red flag laws or other things in state houses around the country, and that’s where a lot of power can be exerted.

Preet Bharara:              She always says, and I take some solace in this, that there have been all sorts of ways that progress has been made. You also see, by the way, the corollary to this, gives you some hope, is the NRA in a little bit of disarray.

Anne Milgram:             Yeah, no doubt. We just saw the NRA really, in public, have this whole thing where Oliver North stepped down as the president of the board, allegations of mismanagement, using funds for inappropriate things, basically moving money back and forth. I don’t know if there’s been an investigation that’s been open to it, but really raising huge questions about, sorry.

Preet Bharara:              The govern [inaudible 00:03:09].

Anne Milgram:             About how the NRA is run. There was something I read the other day where someone was talking about their daughter just turned 18 and the first thing she said is, “I want to register to vote.” What do you want to do on your 18th birthday? I want to register to vote, and so I think you’re right to be optimistic about what a grassroots movement can be, particularly now that it’s being joined by all these young adults who are voters.

Preet Bharara:              Interesting spectacle to see a fight between Oliver North and Wayne Lapierre. What of rooting do you do?

Anne Milgram:             It is a race to the bottom on that one. What was fascinating is that there’s all kinds of these internessing connections that Oliver North is making money from the company that gets paid to make the NRA videos. You have to read it carefully to see that they’re all connected, there’s a lot of money flowing through, and real questions about where that money is going. Yeah, I mean, North stepped out, he was forced out as a result of that, and he had pushed Wayne Lapierre to basically say, “You’re going to be taken down if you don’t resign.”

Preet Bharara:              Quite the shopper, Wayne Lapierre. I don’t have the figures in front of me.

Anne Milgram:             Yeah, the clothes budget?

Preet Bharara:              He has a lot of nice stuff, that’s why he looks so handsome all the time.

Anne Milgram:             It reminded me a little bit of the Paul Manafort reports of how much money he was spending.

Preet Bharara:              What was that thing that Paul Manafort had? Didn’t he have a particular item of clothing that was the most-

Anne Milgram:             In the ostrich jacket.

Preet Bharara:              He had an ostrich jacket.

Anne Milgram:             That was a fortune.

Preet Bharara:              I think I now know what I want for father’s day.

Anne Milgram:             Oh, don’t do it. No, don’t do it.

Preet Bharara:              That’s another joke. Every once in a while I make a joke and sometimes a listener will be effected.

Anne Milgram:             What if your wife listens?

Preet Bharara:              I don’t think I’m getting an ostrich jacket from her. Shall we go on?

Anne Milgram:             Yes.

Preet Bharara:              I think now is the time to have a little bit of an in-depth discussion on this thing that everyone has been talking about for a long time and a lot of knowledge has been assumed, either can a president be indicted? We refer to the OLC opinions, Office of Legal Counsel, and people on television just talk about it, but I think it’s worth, given all the questions we’ve gotten and the issues of what the statute of limitations are, why it is that people take the legal position, that a sitting president can’t be indicted, what the implications of that are, what can happen after he leaves office. First, the Office of Legal Counsel. What is that?

Anne Milgram:             Yeah, that’s a great place to start because I feel like we talk about it a lot. You hear it talked about a lot publicly without explanation. In the Department of Justice, there’s this office, the Office of Legal Counsel, and their job is to, essentially, almost interpret the laws and explain what the laws are, what’s lawful and what isn’t lawful for the executive branch of government, meaning not just for the Department of Justice but also for other executive branch agencies. It could be the treasury department, it could be transportation, they’re basically saying, “Here’s what you can do and here’s what you can’t do.” What’s really interesting about it is that, obviously, courts are the ones that get to say how to interpret the laws.

Anne Milgram:             Congress passes laws, courts are the ones who are officially in charge of it, but the courts don’t answer every legal question and you’re not going to go to a court on every question, and so you’ve got this office.

Preet Bharara:              The government is supposed to comply with the law, and in particular, comply with the constitution. On a regular basis, the government says, “We want to do X,” and the Executive Branch says, “We want to do Y,” and where do they go to look for guidance on whether or not that will ultimately be found to be lawful and constitutional, if there was a challenge? Not just to anticipate a challenge, but also because you want to be doing things the right way. There have been some famously bad OLC opinions that have been very controversial that have been released over time, including the famous torture memos that basically authorized the use of, they would say, enhanced interrogation techniques, others would say torture. In the aftermath of 9/11, those will come under a lot of scrutiny, and one or more of them have been withdrawn, but that’s the kind of thing that the Office of Legal Counsel is supposed to do.

Preet Bharara:              It’s not infallible. There have been a lot of mistakes, and I think you and I are of the opinion that some of these interpretations of the constitution, with respect to indicting a president, may also be flawed.

Anne Milgram:             As a rule, OLC, the Office of Legal Counsel, the head of that office is appointed by the attorney general.

Preet Bharara:              Like other divisions within the justice Department, the criminal division, the civil division, the Office of Legal Affairs, they’re all headed up by an assistant attorney general.

Anne Milgram:             Who is senate confirmed.

Preet Bharara:              All of whom presidentially appointed and senate confirmed.

Anne Milgram:             What I’ve been thinking about is, I reread these memos and you raising the torture memo, I think, spotlights it, which is how political do you think OLC is or can be?

Preet Bharara:              I think it depends on who the personnel are. Look, and I think it has a good and vaunted reputation for having, among the smartest people, legal minds, among the smartest legal minds in the Justice Department. Basically like the solicitor general’s office.

Anne Milgram:             Or so they tell you.

Preet Bharara:              Well, they never would’ve accepted me, so they must be pretty smart. It depends. Look, sometimes you have situations where the OLC will look like it’s bending to the will of the Executive Branch instead of trying to figure out what the right thing to do is, the excuses justifies that which the Executive Branch wants to do. Now, in this case, with respect to the indicting of a president, these legal opinions, there are two of them that are operative, one that was written in 1973 and the other that was written in 2000, you can’t blame these on the current administration. These predate the Trump era, they predate Trump running for office altogether, so he has the benefit of these opinions, even though, unlike in other circumstances with Bill Barr, he did not cause these opinions to come about.

Anne Milgram:             When you talked about the torture memos, I raise those as a question because one of the things that kept going through my mind as I was rereading, the head of OLC is appointed by the president, confirmed by the Senate, should be independent and should be someone who decides what they think the law is, but the torture memos was an example where it did not feel independent to me, it felt very much controlled by the presidency and the goals of the administration. The law, it’s almost backed into the legal argument in favor of what the administration wants to do versus being a real completely neutral view of what the law is and should be. I wonder just about that influence.

Preet Bharara:              By the way, as Anne and I continue to talk about the 2000 opinion, you should know that you can read both the 1973 and the 2000 opinion on the Justice Department website, that’s and we’ll also be posting them with our show notes.

Anne Milgram:             Going back just thinking about the OLC opinion and particularly this opinion saying that a sitting president cannot be indicted, one of the things that really jumped out at me is that no court has spoken on this issue.

Preet Bharara:              Doesn’t come up so much.

Anne Milgram:             It doesn’t come up. We know the constitution doesn’t give immunity to the president, no court has spoken on the question of whether a sitting president can be indicted, and so OLC walks into this open space because there is no law that specifically addresses this question.

Preet Bharara:              Right. The bottom line conclusion, we should just state it then answer it and then discuss what we think about it, is the 2000 opinion reaffirmed the 1973 opinion, that a sitting president was immune from indictment because the prosecution, quote, “would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.” I guess if you say constitutionally a lot in a sentence-

Anne Milgram:             It makes it more-

Preet Bharara:              By the way, among the things that are okay to do, and the Mueller report, actually, volume two makes this clear, is you can indict a president once he or she is no longer in office.

Anne Milgram:             You can indict a vice president at any point in time or any other member of an administration.

Preet Bharara:              You can investigate the hell out of a president, to the extent that part of the issue is ongoing interference within distraction for the sitting president, an ongoing investigation does that also.

Anne Milgram:             You know what else do that?

Preet Bharara:              That’s not precluded.

Anne Milgram:             No, you know what else does that that is also not precluded? Impeachment.

Preet Bharara:              Impeachment also.

Anne Milgram:             Which is a mini trial.

Preet Bharara:              That’s in the constitution.

Anne Milgram:             Yes, it is in the constitution. One of the problems I have with the OLC opinion is they make a big deal about how terrible it is for the president to have to sit through a trial, to have to be part of this process, even if they’re not sitting there, how difficult it would be because the president is the sole head of the executive branch. You think about impeachment, which is, essentially, the president sitting through a trial and going through this and is still the head of the executive branch, but to argue that in one area that the exact same process is too onerous in one space in the criminal courts but it’s not too onerous in another space in the Congress, it strikes me as completely inconsistent.

Preet Bharara:              The legal question that keeps coming up, putting impeachment to the side for a moment, is this nasty little thing called the statute of limitations. The statute of limitations varies from offense to offense. For a lot of the things that we’re talking about with respect to this president, it’s a five-year statute of limitations, and it’s meant to be there so that there’s some form of repose. That’s a good word.

Anne Milgram:             That’s a very good word.

Preet Bharara:              Repose. You don’t hear that so often. It’s not as good as internessing, but it’s a good word. The people who may be accused of crimes understand that they have a right to a certain kind of fairness because, based on the seriousness of the offense, witnesses vanish and memories are not quite what they should be. There should be a period after which, based on congress’s determinations, that you can no longer be prosecuted for crimes. Or for obstruction of justice under the federal system, it’s five years, so the OLC opinions allow a former president to be indicted, but not a sitting president.

Preet Bharara:              If the president gets reelected, the five years could elapse. If you can’t be indicted while you’re a sitting president, and by the way, we should mention this, the OLC, one or both of the opinions mentioned that it’s not sufficient under their analysis, which I think is even more flawed, to indict a president under seal, meaning have an indictment prepared-

Anne Milgram:             Keep it secret.

Preet Bharara:              Keep it secret, because usually, in criminal matters, that actually stops the clock of the statute of limitations. We used to do that all the time. There’s somebody who’s a fugative and you can’t find out where they are, so you don’t let the five years elapse, you bring an indictment under seal, no one knows about it, and then when that person is found, they don’t have an argument that the statute of limitations elapsed because you brought the indictment under seal within the five years.

Anne Milgram:             Right, and it’s important to note that for the statute of limitations, it’s just the indictment, that you have to have the charging instrument that’s brought within that five-year period. Most federal crimes are five-year statutes, there are some that are longer. For example, bank fraud, 10 year statute of limitations, but the majority are five, and so you have to of been charged within that period of time. A couple of quick points, one is just going high level back to the OLC opinion, I actually have a lot of issues with it and I don’t think I agree either with the conclusion or even probably, more importantly, the way that they’ve done the analysis.

Anne Milgram:             I could argue the contrary in many of the arguments they make, I think someone could argue that at least as effectively. Putting that aside, I think you and I both agree that the OLC opinion has the force of law, essentially. It’s not a law, but within the department of justice, it does have the force of law. I read that and I’m curious if you do, I read that to say no sealed indictments, and so that, to me, basically means you can’t charge the president under seal or not.

Preet Bharara:              I also have a lot of disagreements with the analysis. I also agree that they stand for the proposition that you can indict a sitting president under seal or not. That puts us back in the dilemma of what happens if there’s a basis to believe that the president committed a crime? For his being the president, he would be charged with that crime, just he get off Scott free if he gets reelected?

Preet Bharara:              Now, there are a few arguments. There’s this doctrine, very legally-

Anne Milgram:             Well, let’s just point out for one second that because the president’s conduct, with the timing of it, if it is for obstruction or justice or campaign finance, both of which have five year statutes, if the president’s reelected in 2020, those statutes will have run.

Preet Bharara:              Correct.

Anne Milgram:             Of limitations will have run, and that means the president could not be charged with those offenses.

Preet Bharara:              Right, because year five will happen sometime during the second term, so you can indict under seal, you can indict openly while he’s in office. Let’s say there’s no impeachment, so now you have the hypothetical situation. Some people think it’s not so hypothetical that the president has committed a crime, we say in this country that no man is above the law, and yet he would be by virtue of getting reelected and by virtue of the statute of limitations only being five years. Now, there’s this doctrine, we’re getting very, very legal easy here, but a lot of people have been asking the question so I think it’s worth taking some time, called equitable tolling.

Preet Bharara:              In certain circumstances, the justice is done and that you don’t have a miscarriage of justice, there are situations in which a court might say, “You know what? Because of this, that, or the other, we will consider the clock to have been stopped for a period of time to allow an action to be brought.” Now, almost all those cases involve civil matters, not criminal matters. You would think, without doing any research, well, that seems to apply here. It seems to be very perverse and unjust to have a situation where somebody commits a crime, and by virtue of being the highest office holder in the land and getting reelected, that they get off with immunity.

Anne Milgram:             Yeah. The OLC opinion talks about temporary immunity for the president and makes this argument, the president isn’t immune forever, just while they’re in office. While the president is in office, the OLC argues it can be impeachment. After office, a criminal prosecution could be brought. The challenge, I think, that we’re dealing with here, when it comes to equitable tolling, is that think about an example in the civil context where a plaintiff is actually incarcerated and so wouldn’t be able to meet the statute of limitations, courts have found. Okay, we’ll extend that period of time.

Anne Milgram:             Here, isn’t the huge difference that this is the Department of Justice saying to themselves, “We’re not going to do it”?

Preet Bharara:              Right.

Anne Milgram:             It’s the prosecutors making a choice not to bring the case. It’s not as in the other circumstances that I think you and I have seen with equitable tolling where it’s out of the prosecutor’s control. That feels really different to me.

Preet Bharara:              Right, because in this instance, the president’s lawyers could argue, well, the statute of limitations has run, there shouldn’t be equitable tolling because I didn’t do anything or cause anything to happen that prevented my indictment. There’s this opinion about which lots and lots of people, like Anne Milgram and Preet Bharara have disagreements and lots of folks have been arguing the public square that it doesn’t, necessarily, need to be followed because it doesn’t have the force of law, it’s just guidance and so I should’ve been owed repose like everyone else. If the department really thought that there was a basis to bring the case, not withstanding the OLC opinion, it gets weak a little bit but the argument would go, if the department really thought it was important enough to have the case brought without the statute of limitations elapsing, then they would’ve sought the indictment and then have the argument and have the discussion. Either pursued it with vigor or tried to get a resolution on this equitable tolling point by getting the matter in front of a court

Anne Milgram:             Yeah. It’s not a terrible argument, particularly given the fact that the statute is a certain amount of time. Equitable tolling also, remember, it’s about the interest of justice. The problem with that is once you get to a court, it’s really that judge’s view of the interest of justice. There’s not case law that you and I could sit here and basically say, “Well, there have been 10 cases and so we have reason to believe, in this circumstance, this is what the courts would identify as something being within the interest of justice.”

Anne Milgram:             It does feel, to me, problematic. The thing that feels most problematic to me, though, is, essentially, as it’s currently constituted with the OLC opinion coupled with a five-year federal statute of limitations that would apply to the president or any other person in the United States of America, it’s not temporary immunity, it’s, essentially, permanent immunity. That cannot be right. If the framers of the constitution wanted the president to have complete immunity, they would’ve said in the United States Constitution, “The president is immune from criminal prosecution for wrongdoing.” They just don’t say that here.

Preet Bharara:              Just to explain again for the non-lawyers who are listening, who wonder, well, why can’t it just be X? What is the law? There are lots and lots of open questions, even though we’ve been around, as a country, for hundreds of years and of hundreds of years of court opinions, there’s some things that have, as you say, never been decided. Smart lawyers can sit around and argue about them and make predictions about what a court might do, but you can’t really know because there’s no president for it. It doesn’t come up so often where you have the situation of a criminal president that gets tested in court in part because you have this opinion, and in part because most presidents don’t get caught committing serious federal crimes.

Anne Milgram:             Where’s the line at which Congress, which the Senate is republican-controlled, and they, of course, an impeachment, the House votes articles of impeachment but then the Senate, essentially, holds the trial and would need to convict in order for a president to be impeached. There’s been a lot of jokes about where’s the line, when will the president have crossed that such that the Republican Senate will push back at the president of the United States? Well, it’s really more of a question, could you imagine a circumstance where the president commits a horrific crime like murder?

Preet Bharara:              Yeah, we’ve talked about this on the other show, I think some months ago, I’ve mentioned it otherwise because obviously there has to be some limitation to this OLC opinion. For something like a campaign finance violation and maybe even obstruction of justice, I think most reasonable prosecutors, within the department where there’s special counsel or a U.S. attorney would abide by the rule that you can indict a sitting president. Part of the reason for that is you want public faith. The case was brought based on the majority few and the OLC opinion, although people disagree with it, is the prevailing guidance and rule in the justice department.

Preet Bharara:              If, on the other hand, you had incontrovertible videotaped evidence with witnesses of a sitting president committing a homicide, I think notwithstanding the legal opinion, you have prosecutors say, “Well, that’s just guidance and we’re going to go forward.” On the other hand, you can’t imagine a situation where you have that kind of incontrovertible evidence where the Congress wouldn’t take immediate action.

Anne Milgram:             Right, or it wouldn’t be impeachment.

Preet Bharara:              Or the president wouldn’t resign. Here you have none of those other things going on, so it makes it a little bit more murky. In light of the fact that you have all these things that are at odds with each other, the five-year statute of limitations, possible reelection, the OLC opinion, and then also the courts, the Supreme Court, saying, “No man is above the law,” those things are intention, and this weird hypothetical law exam situation that we have that happens not to be hypothetical-

Anne Milgram:             Which I think is also the ending of the Mueller report, right?

Preet Bharara:              Yes. We should get to that in a second. Some members of congress have introduced a bill to fix the problem.

Anne Milgram:             Yes, it would extend the statute of limitations for the president of the United States and it would do what we’re talking about here, which is it would stop there from being a loophole whereby being elected president of the United States, someone could avoid criminal liability on a five-year statute of limitations. Essentially, it would toll the statute during the time that the person was president, so for those four years, that would not count for the statute.

Preet Bharara:              We should point out that that bill was introduced last Friday. House democrats, Representative Eric Swalwell, who I think is one of the 40,000 people running for president of the United States, it has a negative effect on him, so if he gets elected, he better not commit a crime.

Anne Milgram:             Right, good point, or before.

Preet Bharara:              Because the statute will be tolled. Judiciary Chairman Jerry Nadler, and you have the bill in front of you.

Anne Milgram:             It’s called the No President is Above the Law Act.

Preet Bharara:              That’s a very clever name. Could you say that again because we both worked in Congress, in the Senate.

Anne Milgram:             We did. We both worked in the United States Senate.

Preet Bharara:              Every once in a while-

Anne Milgram:             That’s how we became friends.

Preet Bharara:              That is how we became friends. Once in a while, I don’t know if I should reveal this, the staff would have a bill-naming contest. They clearly didn’t have the bill-naming contest with this one.

Anne Milgram:             No, no. Some of the names are terrific. I really enjoy some of the acronyms where they have a 10-word title so that they can have a great acronym.

Preet Bharara:              Can you say the title again, though, because I enjoyed your reading of that?

Anne Milgram:             Yes. I can’t look at you.

Preet Bharara:              We have this now every episode, we have a feature where, is there something that Anne Milgram can’t read without falling into peals of laughter?

Anne Milgram:             This one isn’t as funny as some of the other things we have coming. This is the No President is Above the Law Act.

Preet Bharara:              Nice.

Anne Milgram:             I like that title. Offenses committed by the president during or prior to tenure in office in the case of any person serving as president of the United States, the duration of that person’s tenure in office shall not be considered for purposes of any statute of limitations applicable to any federal criminal offense committed by that person.

Preet Bharara:              Damn.

Anne Milgram:             Yeah. It’s really short, six, seven lines long, and it’s really to the point of taking away this immunity question. Do you think there’s any chance, Preet, that it will pass?

Preet Bharara:              No. There’s zero chance it will pass, but before we even get to that, because my legal muscles are a little bit atrophied, when I first saw the bill, I thought, “Well, doesn’t this create what’s called an ex post facto problem?” People are really earning their continuing legal education credit on this episode.

Anne Milgram:             Me as well.

Preet Bharara:              That’s a constitutional principle under which, and you can see why this is true, Congress can’t change the rules of the game in certain regards after you’ve committed the conduct. You engage in some kind of conduct, your conduct is over, and then Congress can’t pass a law saying that conduct, which was legal a year ago is no longer lawful because it’s creating a crime after the fact. I thought, well, maybe this has that problem too, but much smarter people than I took a look at it over the weekend, our great CAFE team, and it seems clear that on certain kinds of procedural matters, so long as the statute has not yet run, meaning the time hasn’t elapsed, the courts have said you can elongate the statute of limitations because you’re not really changing-

Anne Milgram:             You’re not changing what you’re holding someone culpable of, you’re just changing how long-

Preet Bharara:              Right, the crime is the crime, correct.

Anne Milgram:             How long the government has to charge you.

Preet Bharara:              These wise Congress people understood that. On the odds of it getting passed, could pass the House.

Anne Milgram:             Yeah, it will probably pass the House, I agree with that.

Preet Bharara:              There’s this other body.

Anne Milgram:             The Senate, and then who would have to sign the bill or veto it?

Preet Bharara:              Oh, the president.

Anne Milgram:             Yes.

Preet Bharara:              To whom it applies.

Anne Milgram:             Yes.

Preet Bharara:              That wouldn’t happen.

Anne Milgram:             Do you think he would? Yeah, I don’t think it would happen. My money is against him signing.

Preet Bharara:              Maybe Swalwell gets elected president.

Anne Milgram:             Then he would sign it, yeah.

Preet Bharara:              We might enact this. I think it’s an important point to make and a marker to lay down.

Anne Milgram:             I agree. Yeah. Look, people should be asking the presidential candidates whether they would support legislation like this because every presidential candidate, democrat and republican, should agree that the president isn’t above the law and isn’t immune from criminal prosecution. If by virtue of an existing OLC opinion and the statute of limitations, when those two things combine together, a president gets full immunity for potential criminal conduct, that can’t be right.

Preet Bharara:              Do you think since the other question we have put aside for the purpose of this interesting legal discussion class, is impeachment, is this an argument in favor of it because but for impeachment, it may be the case that Donald Trump can’t be held accountable because of these overlapping vagaries of the statute of limitations, the OLC opinion and reelection?

Anne Milgram:             Yeah, and is the argument, I guess, that the house is voting the articles and the Senate is hearing the case and has to vote to actually impeach the president? It’s a political process of which I don’t think that the Congress, this Congress, will undertake. Can I ask you what I think is a bigger question?

Preet Bharara:              I like bigger questions.

Anne Milgram:             If you were the attorney general of the United States, would you keep the existing OLC opinion?

Preet Bharara:              I don’t know. I’d like to have a larger discussion of it. We’ve read it a few times and had conversations about it and read analysis of it, I think if I were the attorney general, I would want to review it in light of recent events. Look, there was an opinion in 1973 and then there was another revisiting of it in 2000, it’s now 19 years later, we’ve now seen all sorts of other kinds of problems, we pointed out one perversion, given the statute of limitations and reelection, so I think it’s worth a review.

Anne Milgram:             Or even consider allowing indictments under seal?

Preet Bharara:              Yeah. All these sorts of things deserve review from time to time. It’s not a Supreme Court president, and even Supreme Court presidents can be undone by the sitting Supreme Court, so a future OLC assistant attorney general can obviously revisit. The likelihood of William Barr causing such a review to happen while he’s currently in office and while all the questions relate to the specific president who is now sitting to whom Bill Barr seems to owe undo loyalty, I don’t see a chance of that happening. Look, lots and lots of things need to be reviewed with respect to this president and his conduct, including nepotism laws, release of tax returns, pardon power, and I would add this to the list.

Anne Milgram:             One thing that’s interesting about both in 1973 and the 2000 Office of Legal Counsel Opinions is that they are in reaction to special counsel’s investigations. They’re really in the heat of those moments that they’re generating.

Preet Bharara:              Yeah, ’73 and 2000, and I think especially if Donald Trump does not get reelected, there will be a reevaluation of this in 2021.

Anne Milgram:             I think on the legal questions, there should be.

Preet Bharara:              Before we leave this point, you pointed out something very important. The ending of the Mueller report, do you have it in front of you?

Anne Milgram:             Literally the last words of Robert Mueller’s report on his investigation are, “And the protection of the criminal justice system from corrupt acts, by any person, including the president accords with the fundamental principle of our government that no person in this country is so high that he is above the law.” Then it quotes to United States vs. Lee, Clinton vs. Jones, and United States vs. Nixon.

Preet Bharara:              Whoa.

Anne Milgram:             That’s the end.

Preet Bharara:              That’s some deep signaling going on. Here’s my reaction to that, it’s good for you to point it out and it seems intentional, but it also seems like subtext.

Anne Milgram:             Yeah, I don’t think we can take more from it, other than the fact that it’s a critically important part of our government and the rule of law that no man or woman is above the rule of law.

Preet Bharara:              Or can be a judge in his own case. I guess my point is it’s another, in the theme of this criticism of the Mueller report and largely not critical, but we had this revelation a few weeks ago, at least I did in speaking with you, about why should be engaging in guess work as to what Mueller meant? We’re reading this seemingly significant concluding sentence of the Mueller report to say, “Well, look, look what Mueller said, no man is above the law, and therefore the prosecutor must be able to indict,” and it looks like it was indictable offense, but he didn’t say that. He ends dramatically on the flourish.

Anne Milgram:             Yeah, and we’re left reading tealeaves a little bit about what it means.

Preet Bharara:              All right. I apologize that we now must talk about Rudy Giuliani.

Anne Milgram:             Yes, again.

Preet Bharara:              Who likes to travel the world and announced last week, I’m going to make you read this, too, as part of our continuing feature.

Anne Milgram:             This one may be harder for me, yeah.

Preet Bharara:              Can you get through this with a straight face? Giuliani, I guess it was being reported and he decided to reveal that he was traveling to Kiev, Ukraine to meet with government officials there about a couple of things. First, to shed some light on, in his mind, the origins of the special counsel’s investigation into interference with the 2016 election, and then also-

Anne Milgram:             Shouldn’t he go to London for that? Where George Papadopoulos was having drinks with the Australian State Department.

Preet Bharara:              I think so, or go to certain [crosstalk 00:29:15]. Two, more nefariously, to push on an investigation of former Vice President Joe Biden’s son and his involvement in a gas company owned by a Ukrainian oligarch because he thought that would undermine the campaign of Joe Biden who’s running to become president in 2020. You have now another circumstance in which the personal lawyer to the president is saying brazenly, “I’m going to seek aid of a foreign power in connection with an election.”

Anne Milgram:             I’d essentially say I would be happy to accept anything of value, contrary to the United States law.

Preet Bharara:              Can you read this May 9th New York Times article?

Anne Milgram:             Oh, God, do I have to?

Preet Bharara:              Yes, you do.

Anne Milgram:             The Rudy quote?

Preet Bharara:              Rudy was pressed on this and he says the following, what does he say, Anne, to explain?

Anne Milgram:             Quote, “We’re not meddling in an election, we’re meddling in an investigation which we have a right to do. There’s nothing illegal about it. Somebody could say it’s improper, and this isn’t foreign policy. I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop, and I’m going to give them reasons why they shouldn’t stop it because that information will be very, very helpful to my client.”

Preet Bharara:              Individual one.

Anne Milgram:             Individual one. “Freedom for the president of the United States,” freedom almost threw it, “and may turn out to be helpful to my government.” Wow.

Preet Bharara:              Okay, so there’s nothing illegal about it.

Anne Milgram:             I don’t even know what that says.

Preet Bharara:              Somebody could say it’s improper.

Anne Milgram:             I love that.

Preet Bharara:              Who’s somebody?

Anne Milgram:             Somebody.

Preet Bharara:              I think it’s Anne Milgram.

Anne Milgram:             You and me? Yeah, I think you and me.

Preet Bharara:              Somebody. Could you say it’s improper?

Anne Milgram:             It is improper. Would you say it’s improper?

Preet Bharara:              We’re not meddling in an election.

Anne Milgram:             They are meddling. The whole purpose is to go to get stuff on Joe Biden’s son. You know what? They’re not meddling it, they’re trying to meddle.

Anne Milgram:             Here’s what’s astonishing to me, Preet, it’s like corruption in plain view, and this is true of the last two years of the presidency where Robert Mueller was investigating and Donald Trump was out trying to get McGahn to lie and trying to get Katy McFarland to write fake notes. It really is in plain view. Here, Giuliani is saying, “Oh, yeah, in plain view, I’m going to be”-

Preet Bharara:              Damn right.

Anne Milgram:             Damn straight, I’m going to go and try to influence an election by getting a foreign government to conduct an investigation or find dirt for me that I can use for my client, not just to be the client but the president of the United States of America.

Preet Bharara:              Do you think that if Giuliani had started A Few Good Men, the movie would be five minutes because he would’ve just said from the outset, “You’re damn right I ordered the code red”?

Speaker 3:                    You don’t have to answer that question.

Speaker 4:                    I’ll answer the question. You want answers? I think I’m entitled. You want answers.

Speaker 5:                    I want the truth!

Speaker 4:                    You can’t handle the truth!

Preet Bharara:              Right?

Anne Milgram:             Yeah.

Preet Bharara:              He wouldn’t of had to elicit it in dramatic fashion during cross-examination.

Anne Milgram:             He’s cross-examining himself almost as he talks through this. I really don’t know what’s happening here.

Preet Bharara:              Look, somebody could say it’s improper, Anne.

Anne Milgram:             I would say it’s improper.

Preet Bharara:              Right. How did that trip turn out for him?

Anne Milgram:             He canceled it.

Preet Bharara:              He canceled the trip?

Anne Milgram:             He canceled it because-

Preet Bharara:              Is that because you said it’s improper?

Anne Milgram:             I hadn’t even gotten a chance to say it yet, I think a lot of people got a chance to say it.

Preet Bharara:              You don’t text him and say, “Dude”?

Anne Milgram:             Do you think he would listen to us?

Preet Bharara:              Somebody could say it’s improper.

Anne Milgram:             I would argue it’s improper because, there are a couple reasons why, one is that as we now know from the investigation into Donald Trump, it is a campaign finance law violation to, essentially, solicit, accept the assistance, foreign governments cannot be involved in U.S. elections.

Preet Bharara:              Although he’ll say-

Anne Milgram:             Something of value.

Preet Bharara:              Look, it may be technically correct for him to say that it’s not illegal, although it depends on the circumstances.

Anne Milgram:             We don’t know yet.

Preet Bharara:              That’s what he’s getting in return.

Anne Milgram:             Yes, or asking and offering because he’s also going on behalf of the president of the United States.

Preet Bharara:              Right, but for it to be a campaign finance violation, the campaign has to receive something of value.

Anne Milgram:             Right, and we don’t know yet whether they do.

Preet Bharara:              If Rudy went over there, just to plant the hypothetical a little bit more, and he says, “I come bearing a message from the president, do this investigation, and by the way, as you’re coming up with stuff, with respect to the investigation, if you could give me some tidbits and tell me some stuff that we can use that’ll be helpful to the president and his campaign,” and the investigators say, “Yeah, well, we found out this, that, and the other about Joe Biden and/or his son,” and then Giuliani brings that back to the U.S. and it gets used by the campaign, well, then yeah, then we’re in your hypothetical.

Anne Milgram:             Yeah. There’s also another possible way that this shakes out where the president, through Giuliani, offers to do something for the government of Ukraine in exchange for them manufacturing, creating, providing-

Preet Bharara:              You mean a quid-

Anne Milgram:             Pro-

Preet Bharara:              Quo? That was fun. We didn’t even practice that, that was not even rehearsed.

Anne Milgram:             That’s law humor at its best.

Preet Bharara:              We are very geeking out on the law humor today. Look, the standard is not only unlawful or criminal, we keep saying that but I think it bears repeating every single time. When he says in a joking way, somebody could call it improper, he’s actually saying something that’s true. We should not, in this country, be encouraging people in campaigns to seek aid from foreign powers who have their own agendas to change the outcome of an election. We don’t do that, it’s not American, it’s not patriotic, and democrats and republicans alike should shun that behavior.

Anne Milgram:             I agree. I think you’re so wise to, again, point out that this isn’t whether it’s a crime, the standard is whether it’s the right thing to do and it’s clearly not the right thing to do, which I would argue Rudy Giuliani even knows because he cannot put together a coherent sentence in discussing it.

Preet Bharara:              Then he canceled. Although, he had some excuse.

Anne Milgram:             Then he canceled.

Preet Bharara:              He said, “Well, no, if I went, the people there are enemies of the president, so not going to go.”

Anne Milgram:             Yes, that was the excuse. The excuse was that the newly elected president, who also happens to be a comedian-

Preet Bharara:              when you say also happens, you mean he also happens to be a comedian on top of being president or our president is also a comedian?

Anne Milgram:             I don’t know what I mean by that. What I do mean is that he was recently elected and he is a comedian and political newcomer, and apparently, according to Giuliani, is not favorable. We don’t know, is he not favorable to having the investigation done? Is he not favorable to a request to manufacture evidence for the president of the United States? We don’t know.

Preet Bharara:              Yeah, the election is still more than a year and a half away and there are going to be other occasions where Rudy or others, on behalf of the president, will seek and accept, I think, aid from foreign powers. It would be nice to get a clear statement from Sarah Huckabee Sanders and Kellyanne Conway, more importantly Bill Barr and the president, that they will avoid engaging in that kind of conduct.

Anne Milgram:             Yeah. It’s 17 months out and already we’re seeing this. You raise a good question of what will we see next before the election? It’s bound to get a lot worse, I think, than this. One thing, it’s worth talking about a little, is that before the 2016 election, whatever conversations were happening between the Russians and Trump, he was a presidential candidate, he wanted to be elected, but he wasn’t a president of the United States, and there’s a huge distinction now that Giuliani is representing the president of the United States, and he can say all he wants that he’s the president’s personal lawyer, but he walks in that room, he represents the president of the United States, whether it’s in the personal capacity or the official capacity, to me, how do you separate that and the potential for the U.S. government to be trading influence in those circumstances?

Preet Bharara:              Yeah. It’s confusing to the people in the foreign country who see Giuliani as someone who has the ear of the president and can make representations on behalf of the president, and if they want to curry favor with the leader of the free world, what better way to do it than by giving his lawyer, whether he’s described as personal or not, what he wants?

Anne Milgram:             Yeah. Giuliani will get into every room with every government, not because he’s representing a client but because he’s representing the president.

Preet Bharara:              Right. Related to all of this, that’s equally terrible and the Ukraine example just is an overlap of two terrible things, forget about foreign countries, this idea that a president thinks it’s perfectly okay and legitimate to ask the attorney general to investigate his political rivals, Joe Biden or anyone else, is outrageous. When asked about this, the president said, “No, I didn’t ask the attorney general to investigate Hunter Biden, but it would be perfectly okay for me to do so,” that’s the kind of thing you see in banana republics. Other people have said that, too, and I agree with them.

Anne Milgram:             It’s the kind of thing we’ve been seeing here, remember when the president said, I think it was a Tweet, that the Department of Justice should prosecute Hilary Clinton, and there he went even a step further, so he didn’t say they should investigate, figure out whether or not a crime was committed, he was saying they should investigate and they should conclude that a crime was committed and they should prosecute her for that.

Preet Bharara:              Lock her up, lock her up. Now, just to be clear, this is not to say, we face this sometimes, this is not to say just because you were running for office, you have some kind of immunity from investigation, because it’s going to look like it’s a political investigation. I think prosecutors need to be very careful about that. If a democrat or a republican running for office is committing crimes, well then yeah, it should be up to the FBI and the Department of Justice or local prosecutors, if that’s appropriate, to figure out what it is. The thing that can’t happen is that you have the political leader of the party, in this case it happens also to be the president of the United States, directing that and putting a thumb on the scale and telling them what to do.

Preet Bharara:              If, organically, something comes up, then yeah, that’s fine. All this fuss that people make about the origins of the investigation into Donald Trump, it’s interesting to me. First of all, I haven’t seen any evidence anywhere that Barack Obama was going around saying, “Investigate Donald Trump, investigate Donald Trump.” People can have their different opinions about how rigorous it was done, yet the FBI-

Anne Milgram:             Look, an investigation into Hilary Clinton was started under Barack Obama’s administration. There was an investigation. I should point out, when the president-

Preet Bharara:              He obviously, you can surmise, wanted to succeed him as president.

Anne Milgram:             Yes, and they still did an investigation because the law enforcement folks thought that there was enough there that warranted a full and thorough investigation.

Preet Bharara:              The odd thing is you have, sometimes, allies of the president saying in very vociferous tones how terrible was it that there was, quote, unquote, “spying” on the Trump campaign and there was an effort to investigate Trump? They talk about that as being a defacto coo of some sort. On the other hand, they’re saying they want to do the same thing that they’re deriding that it’s okay for the president to say, “Investigate Joe Biden.” I can guarantee you, if the nominee is not Joe Biden, whoever it is, there’s going to be some basis for some people, based on the president, to say investigate that person, and it won’t be done in a vacuum, it’ll be done because the president has command of it.

Anne Milgram:             There’s something to be said here also that Rudy Giuliani’s talking about going to Ukraine to try to get dirt on a political rival from a foreign country, which is exactly what the president was just investigated for and has repeatedly denied doing, and so we come back a little bit full circle. Should we talk Chris Ray for just one second?

Preet Bharara:              Oh, yeah.

Anne Milgram:             This feels like the perfect point to talk a little bit about Chris Ray, the head of the FBI, who was asked about spying and did not agree with the president’s view that the campaign had been spied upon. What did you make of Ray’s-

Preet Bharara:              Yeah, or also distance himself from the word spying.

Anne Milgram:             From Bill Barr.

Preet Bharara:              That Bill Barr said was a perfectly good English word. Look, it’s hard to tell who will look good or not good when all is said and done along the way. I think we’ve seen a lot of people hurt and ruined their reputations. There are people who argue very intelligently that Trump destroys everyone he touches, and people who try to balance their careers and their reputations against what is helpful to the president, what the president wants to hear, the audience have won, the famous audience have won, it’s a really hard thing to do. You turn yourself into a Rod Rosenstein kind of pretzel.

Preet Bharara:              Bill Barr, I think, has hurt his reputation immeasurably. Rod also, and a bunch of others, but I say that on the way to suggesting that maybe Chris Ray is an example of somebody who has not.

Anne Milgram:             Yeah, and the president has now Tweeted against him criticizing Ray, and so you’re right, there’s an audience won. I also agree with you, I think Ray read the word and reads the word spying and understands what happened, like any normal person would read it, which is that-

Preet Bharara:              Yeah, it’s a negative word when it’s used in that context. He was not, as I think I said in the newsletter last week, does not want to play the game of laundering the toxic rhetoric of Donald Trump through the legitimacy of the FBI or the Justice Department. Donald Trump also Tweeted about someone else negatively. You against the guy and you get Tweeted about, and that’s this other very complicated character named Don McGahn.

Preet Bharara:              It was reported last week at the time that the Mueller report was provided to the White House, but not yet made public, that Donald Trump and his supporters wanted Don McGahn to make a public statement to say he didn’t believe the conversations that Trump had with him, with respect to getting rid of or removing Bob Mueller, that that did not constitute obstruction, and the report was deemed sensational in part because Don McGahn refused to do that.

Anne Milgram:             Don’t you find it interesting that the president’s lawyers get to read the report before it’s publicly released? What do they do immediately?

Preet Bharara:              Damage control.

Anne Milgram:             Yes. Yes, and on a point of which I think a lot of people would argue, including you and I, that there’s a lot of considerable amount of evidence in the Mueller report that points to this incident with McGahn as having met the three elements of obstruction of justice. The first thing they do is reach out to McGahn and say, “Hey, please, please, please say that it’s not obstruction of justice.” McGahn, through his lawyer, refuses, and now it’s publicly reported, of course, and becomes part of our conversation.

Preet Bharara:              This is what Donald Trump Tweeted just in the last couple of days, quote, “I was not going to fire Bob Mueller and did not fire Bob Mueller. In fact, he was allowed to finish his report with unprecedented help from the Trump administration.” Then he says, “Actually, lawyer Don McGahn had a much better chance at being fired than Mueller. Never a big fan!” Exclamation mark.

Preet Bharara:              I don’t know.

Anne Milgram:             I know.

Preet Bharara:              Is that funny? Is it not?

Anne Milgram:             Oh, it’s a little funny. It’s a little funny because he was his White House counsel for, what, almost two years?

Preet Bharara:              As Maggie Haberman had pointed out on the Twitter, this is another example of why the White House has a hard time recruiting talent.

Anne Milgram:             Yes, because the president eats his own. What did you make of this, there’s reporting that says that during the time of the Mueller investigation, the president’s lawyers were asking Don McGahn’s lawyer, basically what did McGahn say? It gets reported he’s there 30 hours, what did he say? His lawyer, Bill Burke, Don McGahn’s lawyer Bill Burke, says essentially what reads to me like don’t worry about it, he didn’t say the president obstructed justice.

Anne Milgram:             The White House and the president’s lawyers take that and try to flip this into, well, we need McGahn to come out and say the president definitely did not obstruct justice.

Preet Bharara:              Right. It’s not a crazy thing. It’s not a crazy thing to ask for, but it looks terrible. We don’t know what the details are, and it looks a bit like putting pressure on a witness and it also comes after they’re having the opportunity to read in the report a precursor to this thing they’re trying to do now, and that is there was this New York Times report that accurately stated that Don McGahn felt that he was being asked to fire Bob Mueller. At that time, as is his want, Donald Trump wanted to get McGahn to refute the New York Times article and he refused to do there also. Also a situation where he’s trying to get someone to say something they’re not comfortable saying, and then literally, he reads that in the report and decides, well, the best thing for me to do is do that again with McGahn.

Anne Milgram:             Yeah, exactly. Yeah, it’s the playbook. The other thing I wondered a little bit was how much McGahn’s lawyer was really saying, “Oh, he told them you didn’t obstruct justice.” He’s not saying the president obstructed justice, but McGahn isn’t the one who gets to decide, Mueller was the one who got to decide.

Preet Bharara:              Yeah, he doesn’t get to make a legal conclusion. Look, Bill Burke, he’s a smart guy I mentioned before, I always want to make clear he’s a personal friend of mine, known him for a long time and an alum of the Seventh District of New York, he’s trying to also, in some ways, thread the needle. On this question of whether Don McGahn is going to testify or not testify or invoke executive privilege on behalf of the president or not, even though it’s disappointing and frustrating to us, he doesn’t want to get in the middle of a fight between Congress and Trump. He’s sitting this one out and figures they’ll accommodate each other or not accommodate each other, and if he’s required to do something, he’ll do what he’s required to do, but until that time, he’s just going to sit tight.

Preet Bharara:              Burke has said, on other occasions, somewhat persuasively, he goes, “Look, Don McGahn,” happens all the time in law practice, you and I have experienced this, a client says some dumb thing to the lawyer and has some crazy idea that’s terrible to the lawyer and the lawyer doesn’t carry it out. In every circumstance, that’s not obstruction.

Anne Milgram:             What do you make of this blanket executive privilege that Barr invoked in order to avoid McGahn?

Preet Bharara:              I think the language of these letters back and forth are very interesting, right? I got asked in an interview last week about this very thing, you have Jerry Nadler on the one hand forcing the issue but laying out a record of trying to be accommodating and saying, “We’re giving you all these opportunities,” on the other hand, you have a letter from Bill Barr to the president saying, “We can search a temporary protective privilege while we work other things.” Everyone’s trying to look like they’re being reasonable because that’s what you’re supposed to do.

Anne Milgram:             Someone isn’t being reasonable, Preet, right?

Preet Bharara:              Yes, no.

Anne Milgram:             Someone must not be being reasonable.

Preet Bharara:              Well, obviously, given all the facts and circumstances, I don’t think that the president’s team is being reasonable. I also think on this issue of waiver, yet another legal concept that we can delve into a little bit, let’s just take the Don McGahn conversations, he was already permitted to, and according to the White House, basically directed to be cooperative with the White House counsel. They waved executive privilege with respect to those conversations. You could still make the argument, I suppose, as we made here before, that they could reserve privilege for some other purpose because it wasn’t going to become public, and then you had, with a lot of fanfare, Bill Barr saying, “We are not asserting the executive privilege with respect to the things in the Mueller report that, again, include conversations between Don McGahn and the president.”

Preet Bharara:              Now they’re public, now everyone knows about them. The argument that now for some third purpose like testimony in front of Congress Don McGahn can be directed not to answer those questions that relate to the very topics that were in his conversations with Mueller and his team, and also in the report seems very silly, but it’s more about the fight than about the ultimate victory, right?

Anne Milgram:             I agree. I think McGahn, he and his lawyer, you’re exactly right, they’re stepping back and saying, “Look, we’ll do what we need to do, but you fight this out,” between the White House and Congress.

Preet Bharara:              We’re running a little bit out of time, but there are a few final things that we should just probably comment on and mention to the audience, one, republicans in the Senate, not democrats, not a democratic chairman, but a Senate panel, the Intelligence Committee led by republican Senator Burr issued a subpoena for Don Jr. How has Senator Burr fared in light of that?

Anne Milgram:             It has not been particularly well received by members of the republican party or the president, but I will say that members of the Intelligence Committee, republican members of the Intelligence Committee, have been supportive. It’s clear, there are a couple pieces, quickly, about it, one is it’s really important that there be oversight, that all oversight not just be done by the apposing political party. There’s something really critical about Senator Burr stepping up here and saying, “Look, we need you to come back.” The second piece is it’s now been reported that there was always a plan to bring Trump Jr. back, that he now, sensibly since the Mueller report came out, has said, “No, I won’t come back.”

Anne Milgram:             Burr’s basically saying, “Look, we had a deal, you got to come back and you got to cover these things.” The one thing that does give me pause is Senate Majority Leader Mitch McConnell’s statement of saying, “This is just a blip, I’m sure it’s all going to be worked out, which basically means McConnell’s already made sure that it will be worked out and that there’ll be no issue.

Preet Bharara:              Yeah. This other bit of news that I thought was interesting out of my old office that has a broad range of things that they do, organize crime, terrorism, everything else, but we also pursue sanctions violations with the great vigor, and I write about some of those issues in the book, which I haven’t mentioned this entire hour but have just now.

Anne Milgram:             It’s been more than an hour.

Preet Bharara:              It’s been more than an hour, but in connection with North Korea, the United States of America seized a cargo vessel, a coal ship, that North Korea was apparently using to evade international sanctions. The United States attorney got to announce the seizure through civil forfeiture of the ship just like we seize other things that were tools of the trade.

Anne Milgram:             Do you think they’re going to sell it like they sell the fancy cars at auction?

Preet Bharara:              Yeah, and the Bernie Madoff stuff. I don’t know. I don’t know how much we could-

Anne Milgram:             One 17,000 ton cargo vessel for sale.

Preet Bharara:              Can we talk about the name of this cargo vessel? I remember reading that it’s, I think, the second largest vessel of its kind that North Korea has, and this vessel’s called Wise Honest, which is what I also call you.

Anne Milgram:             I’ve never been called that before. That’s very sweet.

Preet Bharara:              It’s like wise, not just wise, not just honest.

Anne Milgram:             Wise Honest.

Preet Bharara:              Wise Honest.

Anne Milgram:             This happened, basically, the same day as North Korea launched two short-range ballistic missiles, and seems to me, but I’ll ask you as the former U.S. attorney, seems to me that there’s no way that this was planned to be together.

Preet Bharara:              Yeah. I appreciate that people have reason to be suspicious of coincidences, and some people say there are no coincidences, but there are. I would imagine that, to undertake an action like this required a lot of planning, it’s not clear how much advanced information our government would’ve had about those missile tests, so it’s one of those things, and I’m pretty confident were separate.

Anne Milgram:             This is a fascinating case in some ways because the argument is the sanctions exist, North Korea goes around the sanctions by transporting coal to other places and gets, in exchange, heavy machinery that they can use to continue to violate sanctions.

Preet Bharara:              Yeah. The case of [inaudible 00:51:07] who was this Turkish national that caused a lot of trouble and skirmishes between the Turkish government and the American government, those are sanctions cases. In connection with any kind of case, whether it’s a narcotics case or a terrorism case, you can seize things that were used in connection with a crime, and in this case, it happens to be a huge vessel called Wise Honest.

Anne Milgram:             It’s in New York because of the bank connection, because the money pushed through banks in New York?

Preet Bharara:              Yeah, I presume, but I haven’t looked at what the venue basis is.

Anne Milgram:             Is the southern district usually the district that prosecutes the sanctions cases?

Preet Bharara:              I think we probably do more than other folks. We brought the sanctions case against the largest bank in France, Bank Paribas, to the tune of multiple billions of dollars.

Anne Milgram:             Again, because the money was passing through New York?

Preet Bharara:              Yeah that, and also we’re just pretty aggressive and good.

Anne Milgram:             We have a question. Susan from Heartland, Vermont, can you explain the origin of a term you often use, line prosecutor? What’s the line? I’ve heard you and others on your show talk about when they were on the line. As a former newspaper reporter and editor, we use the term on the desk to mean working an editing shift. Thank you, Susan.

Preet Bharara:              Yeah, I don’t know where the word came from. It means to be on the frontline. When I say line prosecutor, I’m talking about, and I assume Anne, you are also, the prosecutors on the ground who are actually the ones doing the investigation and going to court so they’re the frontline prosecutors who are career and have been hired to do the case. In other words, non-supervisors. Not the [crosstalk 00:52:37] attorney.

Anne Milgram:             Yeah, exactly. They’re the people who do the cases. Exactly.

Preet Bharara:              Yeah. I guess it’d be the equivalent in journalism of the beat reporter.

Anne Milgram:             Yep, exactly. Thank you Susan.

Preet Bharara:              Okay, so we have gone a little long. I think we learned a lot, I learned a lot.

Anne Milgram:             I learned a lot.

Preet Bharara:              For all of you wanting your sealy credit, write to Anne Milgram. That’s all the time we have for today, and we’ll be back next Monday, so send us your questions to [email protected]

Anne Milgram:             We’ll do our best to answer them. Thanks, Preet.

Preet Bharara:              Thanks, Anne.

Anne Milgram:             See you soon.

Preet Bharara:              This is the CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Aaron Dalton, and the CAFE team is Carla Pierini, Julia Doyle, Calvin Lord, Vinay Basti, and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.



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