• Show Notes
  • Transcript

In this episode of CAFE Insider, “IGs, Unmaskings & Insider Trading” Preet and Anne break down the politically-charged legal news making the headlines, including:

  • President Trump’s firing of State Department Inspector General Steve Linick amid a reported investigation into Secretary of State Mike Pompeo.
  • The appointment of former federal judge and prosecutor John Gleeson to argue against the DOJ’s motion to dismiss the Michael Flynn case and explore the possibility of holding Flynn in criminal contempt for perjury. 
  • Trump’s recent accusations that Obama administration officials improperly revealed Flynn’s identity in classified intelligence reports during the presidential transition.
  • The FBI’s insider trading investigation into Senator Richard Burr whose phone was seized pursuant to a warrant.  

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

References and Supplemental materials below. 

REFERENCES & SUPPLEMENTAL MATERIALS

WEBBY’S

Preet’s tweet announcing that Stay Tuned won a People’s Voice Webby, 5/19/20

TIMOTHY SHEA

“Trump to nominate the new top prosecutor for Washington, DC,” CNN, 5/18/20

INSPECTOR GENERAL FIRING 

CLIP: President Trump explains why he fired IG Linick, 5/18/20

President Trump’s letter to Speaker Pelosi informing her that he plans to remove Linick, 5/15/20

Walter Schaub tweet on Linick firing, 5/18/20

5a U.S. Code § 3., the law requiring that 30 days pass before the removal of an Inspector General following the president’s notice to Congress 

“State Department Investigator Fired By Trump Had Examined Weapons Sales to Saudies and Emiratis,” New York Times, 5/18/20

“Ousted State Department inspector general was investigating if Pompeo made staffer walk his dog and run other personal errands,” CNN, 5/18/20

“Firing State Department Inspector General May Be a Crime,” Elie Honig, CNN, 5/17/20

18 U.S. Code § 1505. the obstruction statute

FLYNN CASE 

The Department of Justice’s Motion to Dismiss the case against Michael Flynn, 5/7/20

Judge Sullivan’s order appointing Gleeson Amicus Curiae, 5/13/20

“The Flynn case isn’t over until the judge says it’s over,” John Gleeson, David O’Neill, Marshall Miller, Washington Post, 5/11/20

John Gleeson bio

42 U.S. Code § 1995, Criminal contempt proceedings; penalties; trial by jury

“OBAMAGATE” 

CLIP: Trump dodges question on “Obamagate,” 5/18/20

Trump tweet calling on Obama to testify, 5/14/20

“Barr says U.S. Attorney’s Probe Likely Won’t Lead to Investigation of Obama, Biden,” Wall Street Journal, 5/18/20

“What is unmasking?” Washington Post, 5/14/20

BURR/INSIDER TRADING 

“FBI serves search warrant on senator in investigation of stock sales linked to coronavirus,” LA Times, 5/13/20

“Marco Rubio named acting Intelligence chairman after Burr steps down amid investigation,” CNN, 5/18/20

The STOCK Act, the 2012 law which prohibited members of congress from using non-public information derived from their official positions for personal benefit

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

How are you doing Anne?

Anne Milgram:

I’m good.

Preet Bharara:

Week 39 or 57 or whatever week it is.

Anne Milgram:

I thought you were keeping track of days for us because I’ve lost track.

Preet Bharara:

I think it’s 65 no, 67 days in lockdown for me.

Anne Milgram:

  1. You and I have the same number I think. So thank you.

Preet Bharara:

67 days or maybe 68.

Anne Milgram:

That’s a long time.

Preet Bharara:

Might be 68. I don’t know. I got to do the math again. I do have some exciting news to report.

Anne Milgram:

Yes. What’s happening?

Preet Bharara:

With respect to the other podcast, Stay Tuned With Preet this morning won the Webby People’s Voice Award for best news and politics podcast.

Anne Milgram:

Congratulations. Well deserved.

Preet Bharara:

Congratulations to the whole team. Everyone did a great job.

Anne Milgram:

Yeah, it’s an amazing team. And of course you as well. Congrats. That’s fantastic news.

Preet Bharara:

Maybe next year the Insider can win something. Who knows?

Anne Milgram:

Who knows?

Preet Bharara:

I said we’re going to need to up our game.

Anne Milgram:

We can always dream.

Preet Bharara:

We can always dream. So there’s a bunch of things we should talk about. One quick news item that not a lot of people have seen that I’ll just mention. The United States attorney who is the interim Tim Shea in Washington DC is being removed and replaced. So remember Tim Shea is the guy we’ll talk about in a few minutes probably who had that whole kerfuffle with the Roger Stone sentencing and also is the one who signed the government’s motion.

Anne Milgram:

The only one.

Preet Bharara:

The only one who signed the government’s motion to dismiss the Flynn case, former close aid to Bill Barr. Clearly they don’t love him. But one of the things that people may not appreciate is as the interim US attorney, you’re only allowed to serve in that position without confirmation for 120 days by law. And at that point, if you’re not confirmed, then the chief judge in the district, the judge, not the Department of Justice gets to either extend your term or appoint some other person. And CNN, Evan Perez, our colleague reported yesterday that there was a phone call between the chief judge and Tim Shea in which the judge apparently made it clear that she was unlikely to reappoint Tim Shea. So I’m guessing that the Department of Justice, Bill Barr did not want to have a judge appointed US attorney in the district of Columbia, given all the sensitive stuff going on. And so he’s out.

Anne Milgram:

Yup. They want their pick.

Preet Bharara:

He’s going to lead the DEA. And-

Anne Milgram:

Can we pause there on the DEA just for a second and look, Shea spent four or five years as an assistant US attorney in Virginia. He went on to have a number of political jobs including as really a right hand person for Bill Barr. What’s interesting about the DEA, and I just want to point this out, it’s not that Shea isn’t qualified. His time as an AUSA is a short time as an acting US attorney. It is that he’s being put in as a loyalist, as a head of one of the nation’s most important federal law enforcement agencies. Right? You have the FBI, you have DEA, ATF, immigration, customs enforcement and of course secret service. But it is one of the important ones there. It has a number of folks who do critical work across the country.

Anne Milgram:

And so it just, it’s worth noting that I think as we are about to talk about the president’s efforts to control things including law enforcement, it’s just worth noting that we should keep in mind that it’s Shea is qualified. In some ways, he’s also a presidential loyalist who’s now going to run a law enforcement agency. So it doesn’t mean he’s not entitled or qualified to have the job. It just means that the president is going out of his way to put loyalists in to the senior law enforcement positions.

Preet Bharara:

Yeah, and so we’ll see how the whole Flynn thing plays out, which we’re going to spend some time on, significant time on today. But the incoming US attorney that the president and the White House said they’re going to nominate is the sitting US attorney in Cleveland who I don’t know much about, but we’ll bring you more information about that as it becomes available as they say. The first thing maybe we should talk about is this business of inspectors general. So just public service announcement as I tweeted yesterday, not to be too much of a stickler, but the plural of inspector general is inspectors general-

Anne Milgram:

Not inspector generi?

Preet Bharara:

Not inspector general. General Loram. It’s inspectors general.

Anne Milgram:

It’s like attorney general is attorneys general, not attorney generals.

Preet Bharara:

Attorneys general. Runs batted in, brothers-in-law. That’s-

Anne Milgram:

You’re like the grammar police here Preet.

Preet Bharara:

A little bit, a little bit.

Anne Milgram:

I love it. Yeah, bring it.

Preet Bharara:

So Steve Linick, who is still the State Department inspector general is in the process of being fired. This is very important. Our friend on Twitter, former ethics official in the government, Walter Shaub keeps admonishing everyone correctly not to report that Steve Linick has been fired. He has not been fired. The president announced his intent to fire him. And by operation of law, a law that was changed in 2008 in order to fire a sitting Senate confirmed inspector general, the president has to give 30 days notice during which time we can talk about what ruckus Congress and others can throw up, but he’s not fired. He’s in the process of being fired. And then one more sort of observation and then interested to hear what you think about it and what the background is. Steve Linick will be the third inspector general who’s firing has been announced on a Friday night after 8:00 or 10:00 PM.

Anne Milgram:

And what about the fourth, which is the … because the president has now fired four in the last since April 3rd.

Preet Bharara:

So Glen Fine was not on a Friday.

Anne Milgram:

He was daylight.

Preet Bharara:

But Steve Linick, Friday 10:00 PM, Kristie Grim, HHS inspector general Friday after 8:00 PM and Michael Atkinson intelligence community inspector general, Friday after 10:00 PM. With COVID-19-

Anne Milgram:

Now we know something about this, a little also from our days working on the hill, which is that it’s conventional wisdom and I think that wisdom has changed a little bit now that news cycle is really 24/7, but it’s only [crosstalk 00:06:00].

Preet Bharara:

And now that there are no days.

Anne Milgram:

Exactly. Friday could be a Monday or a Tuesday, who knows. But it is true that like conventionally people always thought if you want to get the least amount of media attention and have a story passed the most quickly, you do it on a Friday night. Typically people engage more on news Monday through Friday, read the daily paper. On weekends, people are out doing other things. So the idea was always bury it Friday afternoon, Friday night, put it out there, the news moves quickly, it gets a lot less play and then by Monday the world is onto new stories. And so they’re definitely, they’re playing that playbook. Again, it’s hard to know at this moment in time whether it really works, but with COVID anyway, with all the news being dominated by health, it’s yet another way in which I think the president is trying to just sort of push through things and hope that people aren’t paying attention.

Preet Bharara:

Yeah. If you kind of have the confidence of the act you’re engaging in, then I don’t know why I need to do it on a Friday night.

Anne Milgram:

One thing about the 2008 law that I think is just worth mentioning is that it is explicitly done and it is intended to give the inspectors general more independence, meaning that the president can’t just willy nilly say, “Okay, you’re out.” It means that they’re building a process in and ostensibly putting Congress in charge of saying, hey, maybe something’s not right and asking questions. And so it’s imperfect, but it still is meant to be a buffer to ensure the independence of these individuals who we haven’t talked a lot about it, but IGs are really important. When you think about health and human services or you think about the State Department or the Department of Justice, these are massive federal agencies. And the idea is that it’s tough to police yourself and that there needs to be someone internally in these offices that are, 20, 30,000 people in some instances or more. How are you going to do that? And so the idea is to have somebody who plays that role. So I think you and I both appreciate how important that role is, but it’s worth just reminding folks.

Preet Bharara:

Yeah. So before we get into why it’s controversial, we should just say that it appears at the inspector general Steve Linick was fired by the president at the request of the secretary of state, Mike Pompeo. Trump was asked about this in the last day or two and he basically said …

Audio:

I don’t know him at all. I never even heard of him, but I was asked to by the State Department by Mike, so I don’t know him. Never heard of him, but they asked me to terminate him. I have the absolute right as president to terminate. I’ve said who appointed him and they said President Obama. I said, “Look, I’ll terminate him.”

Preet Bharara:

And then Trump also said essentially that he believes he should fire every Obama appointed inspector general. Now why is it controversial? Maybe we should talk a little bit about what kinds of things it appears that inspector general Linick was looking at.

Anne Milgram:

Before we even get there, can we just stop for one moment on the fact that Trump has said exactly what you said. Yes. Pompeo told me to do it. I did it. Pompeo has said publicly that he asked Trump to fire Linick because he was “undermining the State Department.” Meaning in my view, the guy was doing his job, right? I mean the job is to investigate and Linick is a former assistant US attorney. He was 12 years as an AUSA in California and in Virginia. He was the executive director of the National Procurement Fraud task force, a deputy chief of the fraud section at DOJ. I mean, he is a really serious … He was a prosecutor for more than 15 years when you put it all together.

Preet Bharara:

Maybe he should be the head of DEA.

Anne Milgram:

He is a very accomplished fraud prosecutor and basically and we should also just note that he has been very … he was very critical of Hillary Clinton. He is the one that put out the inspector general State Department report in 2016 related to her use of an email server basically saying she didn’t follow the right processes and that there was a risk to the security of the information. I mean, he didn’t find that anything was compromised, but he basically said there are rules that should be followed and she didn’t follow them. So he is not someone who [crosstalk 00:09:49].

Preet Bharara:

He was tough on the prior administration. Look, people should appreciate, inspectors general are very rarely beloved by the agency and the agency head. They’re kind of like-

Anne Milgram:

They’re not supposed to be. Yeah.

Preet Bharara:

Yeah. They’re kind of like internal affairs at a police department, right? They’re the ones that are looking to see what misbehavior has taken place, what misconduct has taken place. And I guess in a manner of speaking, they’re going to be at odds with the agency often. But for purposes of the longterm good health and integrity of the agency, they sometimes point out things that may be the agency wants to sweep under. The whole point of the inspector general is to make sure that the place is being run on the up and up and that laws and regulations are being upheld.

Anne Milgram:

Exactly. And when something isn’t, to issue a public report that allows for scrutiny of things that are happening. And so that’s the context and background in which we now see Trump having fired three inspector generals, moving to fire the force in Linick. And really and we should talk about the specifics of this one, but really working to undercut any independent investigation or analysis into the actions of his administration. And there’s just no question that they don’t want dissent, they don’t want to be questioned or to be investigated and it goes completely against good government. Right. The whole point of good government is to say like we’re going to hold ourselves accountable. We’re going to be transparent where we can be and that this is exactly the opposite of that in my view.

Preet Bharara:

Yeah. So one of the reasons that’s controversial is that it seems that the inspector general was looking at some things that maybe Mike Pompeo didn’t love. And the initial reporting was that the inspector general was looking at things like Mike Pompeo using staff at the State Department to do personal errands for him, like dry cleaning, walking the dog, stuff like that.

Anne Milgram:

Picking up take out.

Preet Bharara:

Picking up take out. You saw that Donald Trump address that yesterday and said, “I don’t know why that’s such a big deal. Mike Pompeo has a big job. He’s talking to world leaders. He might be talking to Kim Jong Un and maybe his wife is not around to do dishes. If you have someone to do dishes, I’d rather them being able to talk to these world leaders.” I don’t know what the exact regulations are on having political staff do that kind of work.

Anne Milgram:

Yeah, I mean we should talk about that just for one second because this is not the first round of allegations and there were prior allegations against Pompeo that he was using his diplomatic security officers, the people who were supposed to be protecting him to do essentially the same thing, right? Dry cleaning, errands with his dog or pick up food and the latest round of allegations relate to a staffer. So it appears that he moved from using his security agents to do it to like a personal assistant who’s a political appointment in his office. Now, this gums up a lot of officials. I mean it’s, you and I have joked about this before, but the reason I got a speeding ticket when I was AG is that I had to like do, I had to go to a tailor to get some suits hemmed or something and I drove myself before work. Right?

Anne Milgram:

I wouldn’t use my security detail that I had when I was AG to do personal things. Now it’s really like the general rules are that you should use people for business purposes, not for personal purposes when you work in the government. And obviously, there’s an extent to which there can be some blurring of lines, but the allegations against Pompeo fall way outside of what people would consider acceptable in my experience. And frankly, many people have had to resign over things like this. And so it’s just worth, I’m not saying it’s a crime, although obviously it’s an abuse of federal government resources and taxpayer dollars, but it is a big deal and it is a violation of the public trust. That’s important for people to understand.

Preet Bharara:

There is a range of conduct. I’m not sure where this falls on the spectrum. I feel we talked about this case, we talked about this issue with respect to bridge gate where the Supreme Court held that certain kinds of things like a government official, getting employees of the government to come paint your house, that’s a much more obvious transgression and probably rises to the level of a criminal act. I don’t know if this does, but there’s a second thing that’s maybe a little more serious that is suggested to be part of the reason why they wanted to get rid of Linick.

Preet Bharara:

Congressman Engel has said that at his request, there was supposedly an investigation by the inspector general looking into the president’s efforts to declare an emergency so he could sell weapons to Saudi Arabia. And the suggestion is maybe they didn’t like that investigation. But in any event, as a result of that, Senator Menendez and representative Engel have jointly sent a letter and said they’re opening up an investigation. I don’t know how much investigating Bob Menendez can do because he’s in the minority in the Senate, but Engel is the chair and the Democrats are in the majority. So maybe they can have some effectiveness there.

Anne Milgram:

Look, we don’t know what Linick was investigating. We should find out, and Congress should be asking the questions of why are you firing somebody who’s obviously a very, very extremely well qualified person. And so yeah, I mean there’s questions about did it relate to an enormous sale of arms to Saudi Arabia? Did it relate to the abuse of his office? I mean, which we should say I mean we’re talking about like there’s a range of things but I’m sure it is in violation of State Department guidelines. I don’t really have a question. If you have either your diplomatic security or somebody who works for the State Department, if you have them running your personal errands, I’m sure that’s not allowed.

Anne Milgram:

And so it could be a whole host of things we don’t know for sure. What is a problem though is that you actually have on record the head of the agency and the president of the United States basically saying, “We don’t like him because we don’t want to be looked at, right? He’s undermining our authority and our ability to do things because he’s asking questions and he’s conducting investigations.” And look again, we don’t know the whole story, but my view is Congress needs to hold hearings. There needs to be a full vetting. And Luke Grassley, he needs to do this. I mean he’s … this needs to happen.

Preet Bharara:

So his statement is not super strong.

Anne Milgram:

It was not.

Preet Bharara:

And Grassley as you and I know from the Senate, our time in the Senate and otherwise, he has presented himself as a champion of whistle blowers. That’s one of his signature issues. But I guess part of the big problem is this law that Walter Shaub reminds us of that requires a president to give 30 days notice, it doesn’t necessarily give a lot of power to Congress. It just calls for a delay so that Congress can raise a ruckus if it wants. But if it doesn’t, and this played out with Atkinson, right? Michael Atkinson was announced to be leaving, letters were sent, those letters were ignored and then Atkinson is gone and I fear the same kind of thing will happen here.

Preet Bharara:

There’s a limit to how much protection you can give an inspector general if you see to the view, which I think most people have to, that the president can fire folks in the executive branch. Like the inspector general. You can require an explanation by law, but if President Trump thinks it suffices to say I’ve lost confidence, which Grassley and others say is not a sufficient explanation, but if that’s all the president wants to give, there’s not a whole hell of a lot-

Anne Milgram:

And they accept it.

Preet Bharara:

There’s not a whole hell of a lot you can do except shine a light and the people don’t care and it happens at 10:00 PM on a Friday and everyone’s caught up rightly in COVID-19, it’s like it doesn’t have much of an effect.

Anne Milgram:

What do you think about Elie Honig’s argument in I think the brief he did for, I don’t know if it was on Twitter in the brief he does for CAFE, where he basically said, “Look, this should be looked at as potential obstruction of justice under 18 United States code 1505.” If there’s an existing internal proceeding, that counts for purposes of the statute, and then you have to ask whether someone with a corrupt purpose was essentially trying to stop an investigation. And so what do you make of that? I mean obviously there is a lot we don’t know.

Preet Bharara:

Yeah, yeah. I mean, you’d have to know a lot more facts. You’d have to be able to tie the action very directly to an intent to impede the investigation. There may be other reasons why they wanted to fire him. I think it’s a tough and aggressive case to make.

Anne Milgram:

And I don’t think anybody in the administration is looking to make it right. So again, we know that Bill Barr’s running DOJ, right? Chris Ray’s running FBI.

Preet Bharara:

Look, I predict that we will be here in future weeks talking about other inspectors general being fired.

Anne Milgram:

Oh yeah. I mean, if you’re an inspector general, don’t you get your resume ready now?

Preet Bharara:

Yes.

Anne Milgram:

I mean, it’s a terrible thing to say, but the writing’s on the wall for sure.

Preet Bharara:

Look, which is not to say, just to be clear, not every inspector general walks on water and has a halo. They’re just people like everyone else. And you can have someone who’s, you can have a bad AG, you can have a bad deputy attorney general. You could have a bad inspector general, you can have a bad US attorney. These things happen. There’s no evidence that that’s what’s going on in these instances. And I think most troubling is that the president of United States indicates his antipathy, not for particular inspectors general so much, but for the whole concept.

Anne Milgram:

Yeah, I think that’s the biggest issue. Yeah.

Preet Bharara:

Yeah. He hates oversight by Congress. He hates accountability from the Department of Justice. He hates the idea that there are inspectors general who can undermine what he thinks is the pure prerogative of the heads of the agencies that he appoints. He just hates that stuff. He hates it. He hates it like with a hot passion. And that’s what’s dangerous. And that’s what gives you concern that these things are not being done in good faith. These firings are not being done in good faith. Unless Congress does something about it and people care about it, it’s going to continue. And that’s bad for everybody. So guess what, Michael Flynn continues to be in the news and is going to continue to be in the news for quite some time because of what Judge Emmet Sullivan has been doing in that case. So people will recall that Michael Flynn, former National Security Advisor to the president was charged with lying to the FBI, pled guilty, reaffirmed his plea of guilty, changed his lawyers.

Preet Bharara:

And then the Department of Justice astonishingly in recent weeks moved to dismiss its own case against Michael Flynn. And I guess that could’ve just been the end of it, but Judge Sullivan has done a couple of things. One of the things that you and I talked about was the low quality of the motion to dismiss the brief filed by the government saying that they weren’t confident they could prove beyond reasonable doubt that Michael Flynn was guilty and that there was no materiality of the lies, et cetera, et cetera. And we said it would be useful to have a brief on the other side by somebody who’s in tune with the facts and understands the law. So you could look at the one brief and look at the adversarial brief on the other side and make a decision or draw a conclusion as to who has the better argument.

Preet Bharara:

And we kind of lamented the fact that there wasn’t going to be such a thing, but we spoke too soon. We spoke too soon because Judge Sullivan has done what? He’s decided to receive friend of the court briefs and in particular he’s done something that I’ve not really seen. I think it’s a very, very unusual thing, particularly in a context like this. He’s appointed former Eastern district of New York, highly respected, very smart Judge John Gleeson to basically be, he’s not calling him a special master, but basically someone to file a friend of the court brief, an Amicus brief in opposition to the government’s motion to dismiss. What do you make of that?

Anne Milgram:

And really, he’s really asking Gleeson to answer the question whether or not Flynn committed perjury. And we should break this down a little bit, but you have Flynn pleading guilty twice on the record, swearing under oath in writing that he had lied and saying that he had lied about his conversations with Kislyak, the Russian ambassador in those calls in December of 2016. Also saying he had lied about his work for the Turkish government. And so you then have him in January of this year, 2020 saying under oath that he didn’t lie. Then you have DOJ coming in and saying essentially that there’s no basis to be prosecuting Flynn in the first place. And it really raises a huge number of questions and the judge is basically saying, “Look, is Flynn now committing perjury and can you argue the other side of the validity of the government’s case?”

Anne Milgram:

Because it is highly unusual what DOJ has done. And again, you and I have said this repeatedly, their motion just doesn’t carry water. It doesn’t make sense. It doesn’t hold up under existing court precedent. But again, it’s DOJ and they generally have the power to bring cases or dismiss cases. And so what the judge has done is a very interesting thing to basically do what you and I talked about last time. And you had said, “Look, nobody’s going to argue the other side of this, and the problem is that it’s going to be DOJ just sort of writing the history.” And now we have Judge Gleeson coming in and he’s a retired judge. He works at a law firm. I think he’s at Debevoise in New York.

Anne Milgram:

And I should just add to this Preet that when I was in law school, this is many, many years ago, I took a course offered by Judge Gleeson and Jamie Orenstein, who of course now is a federal judge in Brooklyn as well that was basically complex federal investigations and it was all about Judge Gleeson’s prosecution of the John Gotti mob case. And it’s a fascinating story. They went to trial three times. They ultimately disqualified the Attorney Bruce Cutler, but it is a great story of a really successful complex prosecution and I’ve known Judge Gleeson since then, really and he’s even taught my classes in recent years. He’s a huge advocate for sentencing reform. And so he’s someone who I, and I think you as well, I greatly admire, I respect. He’s a fantastic lawyer, smart as can be, hardworking and goes out of his way to be fair. So I think it’s a really interesting thing.

Preet Bharara:

Yeah, no, I agree with all of that. I know John, I know if you operate in circles in New York in federal court, you know John Gleeson. You know his reputation. He’s a very independent guy. The one unfortunate fact though, I don’t know if you think it’s unfortunate with respect to his appointment is a day or two I think before Judge Sullivan appointed John Gleeson to this role, he and a couple of other people published an op-ed in which they addressed the issue of what Judge Sullivan should do in the wake of the motion by the government. And made the case essentially that, look, Judge Sullivan shouldn’t just close the books on this and just acquiesce on what the government was arguing. So he did take a position publicly on all this, which some people suggest well, maybe it’s unfortunate that he wrote an op-ed sort of signaling that he has a view shorty before his being asked.

Anne Milgram:

I think it’s odd. Yeah. When I think you had told me that Judge Gleeson, I still call him judge even though he’s a former judge. So I should just note that. But when I think you had told me that he was being appointed, my first reaction is that’s impossible because he just did an op-ed. Right? Because it looks right. I was like, “But it can’t be right.”

Preet Bharara:

Maybe that’s how he got appointed.

Anne Milgram:

Well that’s the question, right? I mean and that’s-

Preet Bharara:

Well, it’s sort of a weird thing. So you’re Judge Sullivan and we haven’t talked about this and it’s just occurring to me now. What is the process by which you decide who to appoint? Because obviously he probably wants to appoint someone who is comfortable and in good faith can take the opposing position to the government’s motion to dismiss because he wants an adversarial brief. But how do you know if someone has that view? Judge Sullivan calling up like 10 people who he knows and says, “Hey, what do you think about this?” I don’t know if there’s some informal process. Well, one way you know is if somebody just wrote an op-ed and otherwise has a fairly impeccable reputation. So I don’t know how that worked.

Anne Milgram:

Yeah. And we should note that the op-ed really was saying, the op-ed didn’t say you should turn down the motion. The op-ed basically said there are a lot of questions that the court needs to be asking here and it shouldn’t just be that you accept the government’s motion to dismiss at face value and you just grant it. And so just to be fair to Judge Gleeson, his opinion was very strongly there needs to be a process and the judge shouldn’t just accept this, but it wasn’t what the outcome should be. Even still, I was surprised because usually the person who writes the op-ed saying, hey, you should do it differently, is not the person who gets picked to do it differently. It’s like it’s a little unusual.

Preet Bharara:

Or maybe it’s a perfect marriage. Maybe it’s a perfect marriage. But do you agree that at the end of the day-

Anne Milgram:

But I put that aside for one reason. I actually think, and again it’s harder publicly because I think people probably don’t know Judge Gleeson in the way that I think probably you and I do. He’s going to do what he thinks is right, period. The guy, when you think about can’t be bought or bullied, he’s exhibit A. And so I have full confidence that he will be fair.

Preet Bharara:

Right. But you don’t write an op-ed like that unless you were troubled by the government’s motion. You just don’t.

Anne Milgram:

Agreed. Agreed. Agreed.

Preet Bharara:

I hate to be the sort of unaggressive prosecutor guy in this conversation multiple times, but do you agree that at the end of the day, the likelihood that Judge Sullivan will not accept the motion and will deny the motion and proceed to sentencing is very low? And then the second question is, I think even the lower probability that in some way he will exercise his inherent power of contempt to find that Michael Flynn perjured himself. I think both of those are very low.

Anne Milgram:

Yeah. Let’s talk through the contempt just for a second so people understand it, which is that if Flynn did commit perjury in his courtroom under oath, meaning Flynn stood up, said, “I’m guilty, I lied.” And now he’s saying, “I didn’t lie,” because let’s all be clear that Flynn is about to go and say publicly, “I didn’t lie and this was all a politically motivated prosecution against me.” So if Flynn is going to say in court like he did in January of this year, “I didn’t lie,” then what the judge is basically able to do is say, “I’m going to hold you in contempt of court.” What the judge has to do, there’s a whole process. The judge has to warn Flynn that I’m going to hold you in contempt of court if you continue to do this. Then there’s a process by which the judge would appoint a special prosecutor, a special master essentially to review that.

Anne Milgram:

Or you would ask the DOJ to do that, but obviously DOJ would be compromised I think in this scenario and then you could have a sort of contempt charge. I don’t think that’s likely to happen. I do think though that what the judge is looking for here, and I actually agree with this, I do not think that you should let it stand as is with what appears to be a highly political decision to dismiss this case. And so I think that the judge has an absolute right to frankly even call Flynn into court to basically have a hearing, to have some process. He could call the former prosecutors who would not sign off on the brief. He could require, I don’t think he will, but he could require that additional information be disclosed. I mean, Judge Gleeson made the point in the op-ed like we’ve never seen the transcript of Flynn’s conversation with Kislyak. We’ve seen a lot, but we haven’t seen that.

Anne Milgram:

So there’s a lot of process I think that the judge could do to really vet this publicly in a way that I think, what I think it will uncover is that what Barr and the Department of Justice has done is wrong, but at least there’s transparency to that and it’s not just this whitewash. And so do I think you’re right? Yes. I think ultimately the judge is going to allow DOJ to dismiss the case. The one question in my mind for you is would he convert this? The department asked to dismiss it with prejudice, meaning the government can’t bring the case back again. Would he convert that to without prejudice so that Flynn could be, charges could be brought again? Is that possible?

Preet Bharara:

I don’t know. I haven’t thought of that. I mean I guess it’s possible. I still think that the highest likelihood is that he draws some blood, gets some accountability in terms of transparency, finds out what’s going on, makes a record, has the adversarial brief filed, finds out what went on behind the scenes and then reluctantly agrees to dismiss the case probably with prejudice. And it’s just, this is not a legal analysis that I’m about to give. It is an odd thing and it’s sort of an odd look to find somebody has perjured himself on the issue of whether or not they’re guilty of a crime and I know technically you can do it. Look, the guy is on the record saying two contradictory things and so logically I guess you could say he’s operationally guilty right now, right? He said, “I lied,” under oath and then he said in truth, “I did not lie,” and that was pursuant to a declaration under oath as well. [crosstalk 00:29:31] perjury.

Anne Milgram:

Right. And the crime is lying, which makes this unusual, right? It’s 1,001 charge.

Preet Bharara:

Which makes it kind of meta, right?

Anne Milgram:

Yes.

Preet Bharara:

But he’s on record saying X and he’s on record saying not X. Now in different circumstances when you have a witness testifying at a trial about something important and they tank a case for it. This is sort of a maybe a classic version of how the contempt power might be used, and tanks a case because they lie on the stand and let a guilty person go free, that doesn’t have to do with the guilt or innocence of the person who made the lie on the stand. And often in that case, this happened to me in my experience, the judge will make a referral to the US attorney’s office and send the transcript to the US attorney and say, “Look, I’m thinking about exercising my criminal contempt power, but I’m going to forward this to you in case you want to prosecute based on your power.”

Anne Milgram:

Right. That’s the normal way. Although I think here the judge wouldn’t do it because DOJ obviously is heavily invested in a certain posture on this case.

Preet Bharara:

It’s just odd to find someone perjure himself in connection with a proclamation of guilt followed by a proclamation of innocence.

Anne Milgram:

Well, here’s what’s interesting about this and let’s break it into a couple different parts. The first is that the Department of Justice’s motion, they sort of imply that Flynn didn’t lie, but they more or less say the call was appropriate. But the crux of the argument is that it’s not material. And so that even if Flynn did lie, they couldn’t use that as the basis for 1,001. So really whether or not Flynn lied, and again, they dance around it and they try to sort of like push out the call was appropriate and all this-

Preet Bharara:

Yeah, but they do say that they’re not sure they can prove beyond a reasonable doubt that he lied and they point to some of the notes of the agents and some of the things that the agents said. Well, they weren’t immediately positive that Flynn had lied.

Anne Milgram:

It’s completely true. But the crux of the argument really is because that’s debatable, right? That’s something that can be a jury question is like did Flynn lie or did he not lie? And the grand jury obviously charged Flynn with that and so on. But what’s what the department’s trying to do is even further like go back a step even to this question of materiality, did the FBI have the right to be asking these questions? Was it material to a decision they were going to make? They’re saying no. So whether or not Flynn lied or not is not really relevant to the crux of the DOJ argument. But again, you have him in Sullivan’s courtroom and Sullivan is basically saying like, “Look, you came in and said one thing. Now you’re saying another.” What I think is both interesting and complicated about that is, and we have a great listener question on this, which is from Jonathan Glide #AskPree how is Flynn’s assertion that he did not lie, even though he pled different from any other defendant who asks to vacate their plea?

Anne Milgram:

It’s true. Defendants plead guilty frequently and then come back later and say, “I want to vacate my plea either because it’s I didn’t do it or because the government did something wrong.” It’s not unheard of that a defendant would come back in after having pled guilty and saying, “I did it,” in front of a federal judge coming back later and saying, “Actually, I’d like to take that play away.” So there is some way in which what Flynn’s doing, it’s not something we’ve never seen before. It’s just a little bit different here because of the way that this has been so politicized and how the Department of Justice has literally taken all these repeated instances in which people have signed off on the case. The grand jury has indicted and charged. Flynn has personally himself acknowledged his guilt multiple times and that he lied and then sort of one day woken up and said, “No thanks. We don’t want to take this case.”

Preet Bharara:

Yeah. Look, people have been referring to this decision by Judge Sullivan to ask for a brief and to appoint John Gleeson as highly unusual, even bizarre. And yeah, that might even be right. But you have to view it in the context of what went before. The government’s motion to dismiss its own case after a guilty plea and a reaffirmation of the guilty plea, that’s a bizarre. And so lots of people are reacting to things that this administration does that they rightly say are kind of unprecedented, but they’re in reaction to things that are themselves unprecedented and I think they need to be viewed and judged in that light.

Anne Milgram:

Well also, remember that Judge Sullivan presided over the Ted Stevens case. Remember Ted Stevens was a Republican Senator from Alaska who was prosecuted by the Department of Justice for political corruption. Sullivan, he did something that is also unusual in that case, which is that after that case, Sullivan appointed a special prosecutor to look at misconduct by the Department of Justice lawyers. And we’ve talked about this before, Brady violations. And Sullivan was very, very tough on the United States Department of Justice and on the lawyers who had done that case. Sullivan has been really aggressive in not accepting at face value certain things that the Department of Justice has done. And so in many ways, it is unusual what he’s done with Gleeson, but it’s not unprecedented and it’s definitely not unprecedented for him.

Preet Bharara:

So there are some other issues that relate to Michael Flynn that are in the news. Most notably some things that arise from the president of United States who has sort of giggly coined a new term Obamagate.

Anne Milgram:

What is Obamagate? I asked you first.

Preet Bharara:

I tweeted over the weekend. Someone put up on social media that former President Obama was giving that graduation speech and it was going to be carried live on CBS, NBC, ABC, CNN, Fox, et cetera. And I’m like, “Oh, so is this Obamagate? Maybe that’s Obamagate.”

Anne Milgram:

Well, I still don’t know. Yeah, yeah. It’s sort of a lesson in how to manufacture a conspiracy or an attempt to manufacture a conspiracy for the press. But we should go through it in a lot more detail.

Preet Bharara:

Well, the president was asked. The president was asked the question because he’s basically saying that President Obama committed crimes. Phil Rucker of The Washington Post asked, “What crime exactly are you accusing President Obama of committing and do you believe that the justice department should prosecute him?” And then Trump says, “Oh, Obamagate.” He says, “Obamagate,” which I don’t believe is in a statute. Rucker follows up, “What is the crime exactly?” And Trump says …

Audio:

You know what the crime is. The crime is very obvious to everybody. All you have to do is read the newspapers except yours.

Anne Milgram:

I still don’t know. I still don’t know what it is. And-

Preet Bharara:

Did you often get up in court in the summation and in the rebuttal and your jury, what is the crime? You know what the crime is.

Anne Milgram:

You don’t need me.

Preet Bharara:

The crime is very obvious to everybody.

Anne Milgram:

You know it’s almost-

Preet Bharara:

Did you sometimes like in the indictment, at the end of setting out the factual allegations and you need to put in the statute, people appreciate that every crime has to be based on a statute. You sometimes just put in parentheses, the crime is very obvious to everybody.

Anne Milgram:

I never did, did you?

Preet Bharara:

No, I wish I had known that that was allowable.

Anne Milgram:

It is a pretty extraordinary thing to have the president of United States being like, “Oh yeah, this is a crime. You know what the crime is.” And to-

Preet Bharara:

It is very obvious to everybody. That’s my favorite part of it.

Anne Milgram:

So it almost feels like a branding exercise. I know how weird that sounds, but it’s like the president is saying, “I’m going to say there’s an Obamagate. I’m going to run on it. I’m going to make this a sort of thing against …” And we should be clear, it’s meant to be against President Obama, but really the reason why it’s directed at President Obama is that his vice president was Joe Biden who is the president’s opponent in my view in the 2020 election. And so this is a fascinating thing and we should talk today. I want to say this, like we should talk about the underlying reason that the Flynn unmasking and all the conversations that are being had.

Anne Milgram:

And we should address the substance once, because I think it’s important for people to understand what is legitimate and what isn’t. But then I think we should be really careful at not allowing the false manufacturing of narratives and this false equivalency of like, well they’ve done something terrible. The media should cover it equally. That’s where I think the media has failed frankly in the past and so I think we should do it today and we should be transparent about why we’re doing it because I think it’s important for people to understand, but then I think we should never speak of it again, if that’s possible. Yeah.

Preet Bharara:

We’ll see if it gets thrown out. But one more point on this Obamagate, you know Bill Barr, who we have both said tends to just do the president’s bidding every once in a while, throws cold water on stuff-

Anne Milgram:

Even he has lines.

Preet Bharara:

And on one of those things, I have two points about this. One of the things he did say in the last few days, “I don’t expect Mr. Durham’s work,” he’s the US attorney in Connecticut who’s taking a look at the Russian investigation, but he says, “I don’t expect Mr. Durham’s work will lead to a criminal investigation of either man.” Then he says sort of ominously, “Our concern over potential criminality is focused on others.” The other thing that by the way that President Trump said is that, if he were a member of Congress, the first person that he would call to come testify would be Barack Obama.

Preet Bharara:

And the irony in that and the irony in all of this, whatever particulars are saying constitute Obamagate, these are the guys who are arguing everywhere they can through lawyers, through the White House, through the press office, through the president’s own Twitter feed that a president can do to whatever the hell he wants. The president can pardon himself. The president can direct investigations, the president can fire anybody.

Anne Milgram:

Does not have to answer.

Preet Bharara:

The president who has absolute authority over intelligence matters can declassify anything. So the idea that he has been asserting and his minions have all been asserting throughout that President Trump can basic, as the president, not because he’s Donald Trump, but because he occupies the office of the presidency, has massive power that can be unquestioned to do anything he wants basically in the sphere of law enforcement or intelligence or otherwise. Now claiming there’s such a thing as Obamagate because the former president did some things that President Trump thinks he himself has the authority to do is the height of irony, isn’t it?

Anne Milgram:

Yes. Hypocrisy.

Preet Bharara:

Hypocrisy. Better word.

Anne Milgram:

Hypocrisy. So yes, and I think that argument is 100% right. I want to be honest on my first reaction when I heard this and Senator Graham has already said he’s not calling Obama. But my first reaction was, please call Barack Obama. Let him literally tear these arguments apart because he would do an excellent job. And again, he shouldn’t have to answer for this. He shouldn’t be called. But there’s a part of me that thinks they don’t actually really want Obama to sit there because he would shred each and every single one of these arguments. What they want is to be able to say Obama did something wrong and you’re completely right that they want absolute power, but they want to deny any authority to prior presidents to have engaged in any legitimate or illegitimate actions. Right.

Anne Milgram:

I mean there’s, and we’ll talk about the specifics of this, but it’s a really, really troubling thing. It’s also troubling and I want to just note this, that there’s a lot of information that is being selectively, I would call it leaking. I mean, I know when the administration decides to do it and they’re doing it clearly here and they’re acknowledging they’re doing it and they’re even a little bit defensive on it because in some of the statements they’re explaining why they are releasing otherwise information from the NSA, the National Security Agency that never gets seen by the public. They’re explaining it and they understand that they are selectively using government information from the prior administration to try to essentially argue their case of why something wrong happened and they’re abusing this in my view.

Anne Milgram:

I mean it comes back, it’s very similar to what we saw in the Flynn case where they took the internal FBI notes and memos that never get released. I mean, again, it’s a legitimate conversation. People could say, “Well, they should be released in cases.” Okay. That’s a separate conversation. But as a rule, they’re not made public. This information is not made public. And so they’re using their power and authority as the president, the chief executive of the country to selectively put out generally sensitive information that never sees the light of day. And we should just all be really aware of that happening here.

Preet Bharara:

Yeah. So we should talk about one of the substantive issues that relate to “Obamagate.” And maybe we can do it with reference to a listener question. This comes from RL Houlihan who asks, “Please clarify what administration officials request the name of someone in the security report, they don’t ask for a person by name. These ‘unmasking requests’ uncovered Flynn’s name. They didn’t request all occurrences of Flynn’s name. Is that correct?”

Anne Milgram:

Can we go back even a step further? Because I think this is for a lot of people, and I even felt this way when it was first going around like this is complicated. Right? And so there’s sort of two pieces here, which is first this argument about unmasking, and we should talk a little bit about what an unmasking is and what the allegation is here. Then there’s this argument about, and sort of the crux of this comes back to, and this is not related to the unmasking, I believe it’s actually separate. But there was information that, remember when The Washington Post wrote in January of 2016, they wrote about Flynn’s conversations with Kislyak, the Russian ambassador. They wrote about those conversations and that was public information. There’s a way in which information related, Flynn’s conversation with Kislyak was obviously not public. It was a private conversation.

Anne Milgram:

It was recorded or transcribed by a law enforcement agency. We’ll talk about that in a minute. It appears to me to have been the FBI, not one of the intelligence agencies, but we can talk about that. But that conversation becomes the fact that Flynn had that conversation, that becomes public. So there’s an argument about, a question about who leaked that? Why did that information ever become public? And that of course unravels the lead to Flynn being fired and prosecuted and so on because of the lie. Put that aside for a minute because the focus here is really the unmasking of Flynn. Meaning the intelligence agencies, including the FBI is something they call minimization. The National Security Agency calls it masking. But basically there are times that American citizens are intercepted on calls and conversations with people who the intelligence agencies monitor.

Anne Milgram:

So take for example Kislyak, he’s a Russian asset. He’s the ambassador. He’s here. They have reason to believe he’s part of the Russian intelligence community. They could be monitoring his calls and they could capture him either talking to an American citizen or talking to someone else about an American citizen. Generally to protect the privacy of those American citizens, those names are not put in the intelligence products, the documents and the transcripts that are given out. They’re-

Preet Bharara:

Right. But the intelligence product, right? So these intelligence products get distributed to the people who deserve to or are entitled to have them, includes intelligence officials, White House officials and others. And just as you say, precisely as you say, there will be a description of things that were learned by the intelligence community and presumably Kislyak’s name would be prominently displayed. But as an initial matter to protect the privacy of Americans, they would just be referred to as US person one and US person two, et cetera. So that’s the masking.

Preet Bharara:

But based on clear and concrete protocols, if a person in the American government who is in receipt of one of those intelligence products believes in good faith that they need to know the identities of some of the other people who are not named and who are masked in order to understand what the intelligence is and understand the context for it and on some occasions, in order to brief the material to someone else, including the president of United States, they go through something that’s like a bureaucratic process to find out the name of those people. And going directly to the question asked by the listener, they’re not asking for all instances of Michael Flynn appearing in intelligence products.

Preet Bharara:

Logically, you understand, and Mike Morrell and other people who had been at the top of the CIA have said this kind of thing, they don’t know who the person is. Right? So it’s not an intentional going at Michael Flynn. If you think about it logically, there’s a reference to a US person. They want to know who the US person is and they’re not necessarily targeting him. The alleged leak is a separate matter. But with respect to the unmasking, as people point out who are much more familiar with this than even you and I are, it happens all the time.

Preet Bharara:

There are thousands and thousands of unmasking requests that are made all the time, and in fact they’re made by the Trump administration. To some of the stats I saw in the last year of the Obama administration, there are like 90,217 such requests. It was about that number in President Trump’s first year. But in 2018 the Trump administration had 16,721, so these are things that happen in the ordinary course. They didn’t know that it was Flynn in the first place when they were asking about it. And as I think you also alluded to, most of these unmasking requests are in a timeframe well before the Kislyak conversation-

Anne Milgram:

Right. That’s important.

Preet Bharara:

So can’t part of all of this anyway, right?

Anne Milgram:

I think that’s almost the more important point here is that it turns out that these unmasking requests are not related to the subject of Russia or the Kislyak conversation, but it’s still worth noting sort of what unmasking is and that it’s actually just a safety valve to sort of protect Americans who may be on calls and it’s just that you have to demonstrate a basis that you need to know that person’s name and that just knowing it’s an American citizen isn’t sufficient. But you’re right, and we should turn to this, which is that, and we should just go through it really specifically. And actually I think we should focus on this for one second, which is that the request to unmask that lead to Flynn’s name, there are a number of them that relate to something earlier in December that predates the Kislyak calls.

Anne Milgram:

We don’t know what it is, but we do know that there were requests to get information that predate these things. And that raises a question to me of what was Flynn doing? What calls was he on that actually led to a heightened level of interest that happens even before the Kislyak conversation. So I think it’s important to understand there’s something going on. We don’t know what it is. I would really be curious to know what it is, but that turns out to really be separate from this Russia piece. Then you have the Flynn conversations and we have information, and remember those conversations were December 29th and December 31st. Those are the Flynn Kislyak conversations. We then have information that the FBI on January 4th knows that Flynn is the person who’s on those conversations with Kislyak. And again, it seems likely that that was an FBI intelligence interception, that it wasn’t the NSA or the CIA, but we can leave that for a second.

Anne Milgram:

But the FBI knows on January 5th President Obama is briefed with Sally Yates, the deputy attorney general, Jim Comey and others are present during that meeting and we sort of go forward from there. And then it’s publicly reported in The Washington Post I think that was, I don’t remember exactly, but I think that was January 12th and I can look that up as we’re still talking, but it was publicly reported fairly soon after that point in time that Michael Flynn had had these conversations and that’s where the leak part of the conversation comes into play. One other point that’s worth making is that when you look at the unmaskings, like there are only eight unmaskings where Flynn is identified that happened after the calls between Flynn and Kislyak. So really push away all the other calls. Although one should wonder what Michael Flynn was doing, that he’s on calls that are raising intelligence questions that’s sufficient to actually ask who the American is.

Anne Milgram:

But of those eight calls, there’s a January 11th unmasking that people believe relates to Mohammed bin Zayed’s secret trip to the US to meet with Flynn and Steve Bannon and Jared Kushner. That’s a separate intercept. So it’s important to note that there are a lot of ways in which Michael Flynn was involved in conversations with other governments. He was involved with the incoming administration. And so not all of it relates to Russia. And so I mean, I think the biggest point I would make is that there’s nothing inherently wrong with unmasking. It’s just, it’s used frequently when there’s a reason to note here. If you have someone on a call with a government that you believe is hacking an election and you have somebody having a conversation about the sanctions, that generally would be seen to be a reason to understand who that person was and whether you had to be concerned that they were potentially an asset for another, a foreign country, or that there was some wrongdoing happening.

Anne Milgram:

So again, I think the goal is to make a lot out of something that there’s no inherent wrongdoing, but again, it raises, it gives Trump a basis to say, “Look, this whole thing was manufactured for political reasons by Obama. This is Obamagate.” And to take what is a fairly routine practice again, where they didn’t know it was Flynn when they were asking for this information and make it look nefarious.

Preet Bharara:

Final issue back in the news again, Senator Richard Burr, who until recently was the chair of the Senate Intelligence Committee, not one of the greatest allies of the president. You may remember that we talked about this issue a few weeks ago. There was some suspicious trading on his part and on the part of some other senators. He basically sold a lot of stock including hotel stock to the tune of hundreds of thousands of dollars-

Anne Milgram:

Potentially over.

Preet Bharara:

In the time period when the stock market … Yeah. Potentially over a million dollars including hotel stock after getting sensitive, classified briefing about COVID-19 and what it might mean for the country. There was a fairly astonishing to my mind development last week where the FBI and the Department of Justice obtained a warrant, a search warrant for his phone to get communications from his phone after having apparently got another evidence that he had communications. And the reason that’s significant is so people understand in order to get such a warrant, you have to go to a judge who has to make a finding that there was probable cause that a crime was committed and further probable cause that the device that is being sought to be searched was used in connection with that crime.

Preet Bharara:

So that’s a fairly significant ratcheting up and means that they must have some significant evidence, doesn’t mean there’ll be a charge and they are lots of issues relating to the speech or debate clause, which we can talk about in the future. So it’s a big deal for that reason. It’s also a big deal because he’s a sitting United States senator and not to say that there’s separate standards of justice, but you don’t undertake something like that lightly because you know there’s reputational harm. And I also think you don’t undertake something like that without going to the attorney general himself and letting that person know in this case Bill Barr that you’re doing this.

Preet Bharara:

But I still think there may be some issues with trying to bring an insider trading case under the stock act against Burr unless you have, the strongest case would be if you have direct evidence that he got inside information about the performance of particular companies within an industry as opposed to just sort of broad statements about what was going to happen to the economy for which he could say, “Look, I was just looking at public reporting and everybody had the same ability to realize that there was going to be damage to the economy.” That’s a little bit belied by some of the things he was saying publicly to minimize the virus. But it raises a question that many people have asked, including a listener, stop hoarding the TP, which is a great public service announcement. Also a good handle. Hi Preet, is there any chance they’re pursuing him, meaning Richard Burr, more vigorously because he didn’t always tow the Trump line? Given what’s happening with Flynn, it’s obvious they don’t always pursue those who are admittedly guilty #AskPreet.

Anne Milgram:

So there are a couple points here. Also, where’s Kelly Loeffler and are they investigating her? We have not seen any evidence that there was a search warrant that was executed on her and yet she-

Preet Bharara:

I think she put out a statement saying there’s been no search just to remind people [crosstalk 00:53:02].

Anne Milgram:

Right. Saying that there’s been no search but she didn’t say whether or not she was questioned by the FBI. Right. So it’s interesting.

Preet Bharara:

Right. She did not say that and just to remind people she’s the senator, appointed senator in Georgia who is married to the head of the New York Stock Exchange and also engaged in a lot of sales and also some purchases including of a company called Citrix that does work from home, telework kind stuff, which obviously is in big demand. The difference, at least according to what she says is Richard Burr does not deny that he directed the trades. Kelly Loeffler says there are third parties without any input from me or my husband who engage in these trades. I don’t know if that’s true or not.

Anne Milgram:

Right. And we don’t know. We don’t know enough. But if that’s true that I still believe as I think you do, that members of Congress should not own stocks and be trading-

Preet Bharara:

Yes. Individual stocks. Right.

Anne Milgram:

Individual stocks because it raises these huge questions and is there a wink, wink, nod, nod with the third party person who manages your stock portfolio saying things look a little dicey. Right?

Preet Bharara:

Yeah. That’s how it sometimes happens.

Anne Milgram:

But it becomes a lot harder to prosecute for sure because there’s some insulation, it’s not her doing the individual trades herself. But it still does, this sort of listener stop hoarding the TPs question really is like, there’s no question in my mind that Bill Barr signed off on this, right? This is a United States senator. The likelihood of it leaking and become public as it did here is very high. And so you have to basically be committed and sort of authorizing your agents and your prosecutors to go forward in this kind of a case. What this raises is, first of all, he has challenged Trump. Remember he said in sort of a bipartisan statement that Russia had hacked the 2016 election. The president doesn’t like that.

Anne Milgram:

And so while he has gone with the president on many things, he has raised issues and questions related to Russia and the election. And so one of the things that makes me the saddest as I’ve been reading through all this stuff is the fact that this question along with the questions about why is Barr prosecuted and not Loeffler show you how much faith and trust we’ve lost in the Department of Justice, that we’re really asking these questions about bias and the extent of the president’s influence and Barr’s willingness to let the president influence. And so it’s sort of-

Preet Bharara:

Ordinarily, you should be able to say, “No way. That’s not how it’s done.” I’m sure the facts are different and maybe they are in the Barr case versus the Loeffler case. But you’re right, it’s subject to some dubiousness. Now the other thing interesting about Barr-

Anne Milgram:

And let me just be clear that it doesn’t undercut the fact that based on what we know, I think that it’s legitimate to be investigating this and to be conducting any investigative steps necessary. Right? So I’m not in any way questioning that this should be happening.

Preet Bharara:

The question being raised is, if all the same, I think that you’re raising is if you had all the same facts, precisely the same facts with respect to a senator who was deeply, deeply loyal to the president of United States, would there have been a different result on the part of Bill Barr? That’s the troubling question that I hope the answer is yes.

Anne Milgram:

Right, because Loeffler has been completely party line and she hasn’t bucked the president on anything. Right. And so again, I’m not saying-

Preet Bharara:

Well, I imagine the Loeffler has been questioned because she’s not precise about her answer.

Anne Milgram:

I think she’s definitely been questioned.

Preet Bharara:

And Diane, Senator Feinstein, who also had some trading in this time period-

Anne Milgram:

Was questioned and did said she was questioned.

Preet Bharara:

Did disclose to the public that she was questioned. I think she and her husband were questioned. So the idea that Loeffler would not have been seems very, very unlikely to me. By the way, the other issue with Richard Burr that may be causing some problems, is that there’s apparently reporting that his brother-in-law engaged in the same kind of pattern of trading in the same time period. And maybe they’re looking at his phone to see about communications between him and his brother-in-law, him and his broker. Maybe there are encrypted apps that were used for such communications to evade detection. It’s all interesting. I think it’s a big deal. He stepped down from the chairmanship of the Intel committee and Justice McConnell just announced-

Anne Milgram:

He’s still senator. Right.

Preet Bharara:

He’s still senator. McConnell announced that the new chair of the Intel committee would be the gentleman from Florida, Marco Rubio. We’ll see how that goes.

Anne Milgram:

Little Marco.

Preet Bharara:

And presumably we’ll have more news about this in the future. All right Anne, until next week.

Anne Milgram:

Talk to you soon Preet.

Preet Bharara:

Stay safe.

Anne Milgram:

You too. Take care. Congratulations again.

Preet Bharara:

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