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May 26, 2020

CAFE Insider 5/26: Meet the Fokker Case

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In this episode of CAFE Insider, “Meet the Fokker Case,” Preet and Anne break down the politically-charged legal news making the headlines, including:

— President Trump’s tweets promoting a conspiracy theory tying former Congressman and current media personality Joe Scarborough to the tragic death of his 28-year-old congressional staffer in 2001. 

— The President’s attacks on the integrity of absentee voting, falsely accusing election officials in Michigan and Nevada of breaking the law and threatening to withhold federal grants to those states.

— The latest developments in the highly unusual Michael Flynn case, including the DC Circuit Court of Appeals ordering District Judge Emmet Sullivan to explain his decision to appoint an amicus curiae to argue against the DOJ’s motion to dismiss the case and the FBI Director Chris Wray’s announcement that the bureau is opening an internal review of the investigation. 

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

 

REFERENCES & SUPPLEMENTAL MATERIALS

SCARBOROUGH 

President Trump’s latest tweet promoting conspiracy theory involving Joe Scarborough, 5/26/20

Letter from the husband of the late Lori Klausutis asking Twitter’s CEO to remove Trump’s tweets from the platform, 5/26/20

VOTE BY MAIL 

Trump’s tweet falsely alleging voter fraud in Michigan, 5/20/20

Trump’s tweet falsely alleging voter fraud in Nevada, 5/20/20

Michigan Secretary of State Jocelyn Benson’s tweet responding to Trump’s tweet, 5/20/20

Republican West Virginia Secretary of State Mac Warner calling access to absentee voting a matter of “fundamental fairness,” USA Today, 5/21/20

The “CARES Act,” which appropriated $400m for states to “prevent, prepare for, and respond to…coronavirus”

18 U.S. Code § 598, Coercion by means of relief appropriations

CLIP: Professor Pam Karlan testifies during the House Impeachment hearings, presenting a hypothetical similar to Trump’s threat to withhold funds from states, 12/4/19

Conservative legal scholar Jonathan Turley’s blog post arguing that Trump did not commit a crime by threatening to withhold funds from Michigan and Nevada, 5/21/20

“Jonathan Turley wanted for vicious murder of nonsensical straw arguments of his own making,” Joe Patrice, Above the Law, 5/21/20

CLIP: Scene from The Big Lebowski in which The Dude tells Walter “This is not a first amendment thing, man”

FLYNN CASE

Flynn’s petition for a Writ of Mandamus, 5/19/20

Definition of Mandamus, DOJ’s Justice Manual

DC Circuit’s order forcing Judge Sullivan to respond to the petition for Writ of Mandamus, 5/21/20

Rule 48 (Dismissal) of the Federal Rules of Criminal Procedure 

United States v. Fokker Services B.V., the 2016 DC Circuit Court decision that Flynn’s lawyers argue is binding precedent 

Meet the Fockers, the 2004 film 

“U.S. Court of Appeals removes federal judge from two cases, including Paul Bergrin’s trial,” The Star-Ledger, 6/16/12

“The Appalling Damage of Dropping the Flynn Case,” Neal Katyal and Joshua Geltzer, New York Times, 5/8/20

“Federal Judge Hires High-Powered D.C. Attorney to Defend His Actions in Flynn Case,” Washington Post, 5/23/20

“FBI Director Chris Wray orders internal review of Flynn case,” Washington Post, 5/22/20

AHMAUD ARBERY CASE 

“Georgia Authorities Arrest Third Man in Ahmaud Arbery Killing,” NPR, 5/21/20

THE WRAP

“Five year old stopped on U.S. highway wanted to buy Lamborghini, police say,” Reuters, 5/5/20

Preet Bharara:

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

Anne Milgram:

I’m Anne Milgram.

Preet Bharara:

How are you Anne? How was your Memorial Day?

Anne Milgram:

Oh, it was lovely. How was yours?

Preet Bharara:

It was good. We had good weather. We did some grilling.

Anne Milgram:

Oh, fantastic.

Preet Bharara:

Yeah, as people do.

Anne Milgram:

It’s such a strange world. My reaction on Memorial Day was almost like; I couldn’t believe it was here, first of all, and then it felt a little surreal, right? It feels different than obviously, it usually does. But we had a really nice day, just hanging around as a family but yeah.

Preet Bharara:

It’s a solemn holiday which some people forget, and obviously much more solemn now as we approach almost 100,000 deaths. We have a lot of things to talk about. But one thing that I wanted to start with, and we’ve been talking over the last few days about this. There are a lot of things to be upset at the President of the United States about, and some things are worse than other things. For example, how he’s handled the pandemic, but something that’s made me more mad than almost anything else, even though it’s not the worst thing he’s ever done, but something about it violates every principle that you and I hold dear in the criminal justice system, and especially given that he chafes to people doing this thing to him, engaging in conspiracy theories and accusing him, he says falsely.

Preet Bharara:

He has repeatedly accused with the biggest megaphone in the world, as I often say, MSNBC host Joe Scarborough of killing a former staffer or essentially saying that it should be investigated, with no basis, with no facts, with no evidence whatsoever. He tweeted a few days ago, “When will they open a cold case on the psycho Joe Scarborough matter in Florida? Did he get away with murder? Some people think so. Why did he leave Congress so quietly and quickly? Isn’t it obvious?” He’s done it up until this morning.

Preet Bharara:

We’re taping on Tuesday morning, the day after Memorial Day, bringing all sorts of attention not just to Joe Scarborough, who’s a public figure without any basis, but also to the family of the young staffer who died, I think something 20 years ago. I’m speaking about it calmly right now, but it makes my blood boil. That you have the sitting President of the United States engaging in this, by the way, not even against somebody he’s running against, but somebody who criticizes him on television.

Anne Milgram:

Right. Remember, they used to be close and then they had a falling out. It’s been this ongoing war with the president attacking both Joe Scarborough and his now wife, Mika, who’s his co-host on MSNBC. The thing I would say to that is that, one of the things that infuriates me is that it is pure conspiracy theory. It’s not just that there’s no evidence, there’s evidence to the contrary. You go back and you look at it, which it’s absurd that we have to do this, but basically, it’s a tragic death of a 28 year old woman who had an unknown heart issue, underlying heart condition that was unknown.

Anne Milgram:

Scarborough wasn’t even in his Florida office at the time. He was in DC. She was in Florida. It was a great tragedy and a deep sadness. But the medical examiner looked at it and basically they found that she had this underlying condition that no one knew about. It’s like the evidence is actually to the contrary. What Trump is doing is what he always does, where he says “Some people say,” right, like he is saying, “Well, it’s not … I’m not the one starting the [crosstalk 00:03:22].”

Preet Bharara:

That means nobody.

Anne Milgram:

Exactly, exactly. That means nobody else thinks it, but it’s a way for him to throw out a conspiracy without personally saying, “Well, I think,” which would sound crazy. It’s like, “Oh, there’s all these other people who think this.” Then he keeps tweeting about it and he’s doing it to create this idea that there’s something there that then needs to be investigated and to … Again, it’s like he wants to investigate Joe Biden, he wants to investigate Joe Scarborough, he wants to investigate anyone who doesn’t fall in line and agree with him and it is sickening.

Preet Bharara:

For anything … I mean Look, this just … By the way people should just understand that this is not just about Joe Scarborough and this young woman and her family. It means that the President of the United States can take any rumor, gossip, innuendo, or just make something out of whole cloth-

Anne Milgram:

Or any tragedy, yeah.

Preet Bharara:

… about any private citizen in the country and say, “Hey, maybe you killed somebody.” By the way, this morning, was disclosed a heartbreaking letter by the husband of the young woman who died, who basically wrote to Twitter, to Jack Dorsey, the head of Twitter, asking him to delete these tweets. He says a lot of moving things in the letter about how much pain this has caused him and his family.

Preet Bharara:

But one thing he said in particular, in the close of the letter is this quote, “I’m asking you to intervene in this instance, because the President of the United States has taken something that does not belong to him, the memory of my dead wife and perverted it for perceived political gain,” end quote.

Anne Milgram:

Yeah, I couldn’t say it better than that.

Preet Bharara:

Maybe we can talk in future episodes about the nature of what recourse a family has, or recourse that Joe Scarborough has.

Anne Milgram:

And Twitter, frankly.

Preet Bharara:

Yeah, what Twitter should do. What the responsibility is.

Anne Milgram:

It’s worth a conversation.

Preet Bharara:

You and I were discussing before we turned the record button on, if you and I were alleging that someone had committed a homicide, and they should be investigated repeatedly over and over again without any basis, I wonder how Twitter would treat us.

Anne Milgram:

Yeah, not well, not well. Look, this is worth a longer conversation. But it’s the … They have made a decision to allow the president because he is the President of United States to have this microphone, largely unchecked. I think, and we’ve even talked about this in the context of the president’s pandemic briefings, which frankly, a number of the cable networks stopped showing because it was really, there were a lot of falsehoods, it was spreading misinformation, and it felt like a reelection campaign stump rally versus an actual pandemic briefing with information that’s important for Americans.

Anne Milgram:

I do think we have not scrutinized carefully enough, and this historically will be a big issue, the role of the media in giving this bullhorn to the president to spread falsehoods, and obviously the president, you’re right has the biggest bullhorn in the country. But there’s a line that gets crossed when it’s misinformation, and it’s falsehood and it’s dealing in conspiracy theories that frankly have repercussions for people and their families and are dangerous. Look, by the way, this is straight out of the textbook of authoritarian regimes too. It’s not like … We can say, we haven’t seen it here, but it’s not like the world hasn’t seen this kind of conduct.

Anne Milgram:

How we respond to it, I think is a really important question and what processes are in place. This is just one example.

Preet Bharara:

I’m going to use your phrase. I always refer to the megaphone that Trump has, but bullhorn is much more appropriate, emphasis on bull. Should we go on to what I think is-

Anne Milgram:

Let’s, yeah …

Preet Bharara:

… other than the pandemic and it’s obviously related to the pandemic? The most important story in the country and that is how this election is going to unfold.

Anne Milgram:

Yes.

Preet Bharara:

Will people be able to vote in a way that keeps them safe and that maximizes participation? There are a lot of states we’re seeing activity in, and we’ll discuss Michigan and Nevada in a second. But, boy, I worry a little bit that some of this information and some of this news is not getting as much attention as it might, because rightly, people are worried about the actual pandemic. If we’re going to make sure that voting happens in a good way and in an open way, with everyone being able to vote safely, you can’t wait till October to think about it. You can’t wait till October to fight about it in court.

Preet Bharara:

It’s got to happen now. I think right after we taped I talked about this a little bit, maybe on Stay Tuned, but right after we taped last week, Trump started doing this crazy tweeting, we’re talking about Twitter again, this time not about Joe Scarborough but about Michigan and then Nevada he tweeted, “Michigan sends absentee ballots to 7.7 million people ahead of primaries in the general election. This was done illegally and without authorization by a rogue Secretary of State. I will ask to hold up funding to Michigan if they want to go down this voter fraud path.” Multiple things wrong with that tweet.

Preet Bharara:

He later actually had to amend that tweet, because ballots weren’t sent, applications for ballots were sent. But he stood by everything else he said, including that this was done illegally and without authorization by rogue Secretary of State. Totally false.

Anne Milgram:

Totally false, totally false. Actually, who authorized money to go out for this? Basically, the United States Congress, the Cares Act, the first stimulus bill basically.

Preet Bharara:

Yeah, money for election purposes, right?

Anne Milgram:

Exactly. In some ways, the president authorized it, at least Congress authorized it and the president signed the law. One thing I think is really worth noting is that, this is a fight about access to voting for all Americans, Democrat, Republican, and the idea that in a pandemic, secretaries of state are working now to make sure that people have the ability to vote if it’s not safe to go in person. Look, we saw Wisconsin, we all read articles about how there were Coronavirus cases that were traced back to that election, where people were outside for the primary, and you saw those long lines, people close together.

Anne Milgram:

Basically, I think you will have huge voter suppression from the pandemic, if you do not allow people to vote by mail. What the states, both Democratic and Republican are doing and so, in Nevada, there’s a Republican Secretary of State, declared the primary and nearly all mail election and has sent ballots to all registered voters. This is what people are doing just to basically be able to say like, “You don’t have to go in person if you have concerns about your health.” The president, making false statements and railing against it says to me …

Anne Milgram:

By the way, we should also talk for a minute about which states he’s picking, which seemed to me to be battleground states or states in which I think he’s concerned about the election for himself personally, as opposed to just any state. It really raises this huge issue of access to voting. I don’t know, I don’t know … There’s a lot of speculation Preet, and we should talk about this a little bit, but there’s a lot of speculation about what comes next and the president, the president coming out so early and so strong against, even telling people that they’re absentee ballots, it just worries me.

Preet Bharara:

I think there’s a couple of things going on here, and I want to go back to Michigan again for a second, just to make the point, that this is what people want of both parties. Part of the reason that the Secretary of State of Michigan was authorized to do this is that, there was a vote in 2018 by the people of Michigan to do what? To amend their constitution to allow no excuse voting by mail and it was an overwhelming landslide. According to the New York Times, 66.8% of people voted for mail balloting versus 33.2%, who are opposed. The effect that it’s had on voting again, according to the New York Times, is to use your word extraordinary.

Preet Bharara:

They had local elections on May 5th, 99% of voters used absentee ballots, which is not surprising given the pandemic. That increased turnout to 25% from an average of 12% in the last nine May local elections. You have a pandemic, people are not allowed to gather, people are scared, they have to wear masks and they actually doubled the participation in that local election. People want it and they should get it.

Anne Milgram:

Yeah. What’s interesting is they are doubling participation in part also, because we’ve talked about this before. Elections can be hard for people to get to the polling place to vote, right? There are tons of reasons why people often struggle to get there, particularly if it’s one single day of voting. I think this is what the president is afraid of, which is that more people vote. He’s afraid that in some swing states, that means that he will not be reelected. But again, to your point, this is Democrat and Republican. They are all Americans who have obviously have valid health care concerns right now.

Anne Milgram:

But particularly, it’s just too hard to know, you can’t leave this to the last minute. It’s not one of those things where you could tell and I worked in state government for four years, you cannot tell … I remember I oversaw the division of elections for a period of time, and then we moved it out to the Secretary of State’s office, because I felt that it was better there. But I can tell you from having overseen the division of elections for a period of time, there are not a ton of people there. You cannot pivot last minute to get … If there are more than 9 million people in the state of New Jersey; think about even smaller states, it’s just impossible to get this kind of scale if people need absentee ballots last minute.

Anne Milgram:

It’s May, the end of May about to be June. Now is the time for folks to be doing it. Frankly, now’s the time … It reminded me that I need to apply for an absentee ballot in New York State.

Preet Bharara:

Get that going.

Anne Milgram:

I have done that.

Preet Bharara:

It makes me wonder if something different is going on. I wrote about this last week. It’s not just that he wants to prevent absentee balloting because it’s not clear to me that that favors Democrats or Republicans at all. Republicans don’t think that that’s the case. But the other thing he’s doing is laying the foundation to claim that any loss is a legitimate because it must be fake.

Anne Milgram:

I think that’s number one of what’s happening here, because I agree with you. I don’t …

Preet Bharara:

The West Virginia Secretary of State Republican, also sent applications to all 1.2 million registered voters in his state.

Anne Milgram:

So did Iowa, Georgia, Nebraska, all Republican.

Preet Bharara:

Right. The West Virginia Secretary of State said, “Look, it’s a matter of what, ‘fundamental fairness.'” I don’t know what the evidence is that this helps Democrats, although Trump seems to take that as an article of faith.

Anne Milgram:

Yeah, I actually don’t think that that’s the case. I think, again, I’m not sure why he thinks that, but I think that there are plenty of Republican voters who, and Democratic voters who basically would prefer to vote by mail, and so I don’t … I think your second point is probably the more important one, which what this does is give the president the ability to basically say, “The election was not legitimate, and I’m not going to listen to the outcome if he loses.” We talked about this sometimes and it really is the worst case scenario, but I think it’s so important to call it what it is because I think you’re right, that the idea is to delegitimize the election, that there’s fraud, that there’s cheating going on so if he loses, he can say, “Well, people have cheated. I’m going to sue.

Anne Milgram:

I’m going to go to the Supreme Court and ask the Supreme Court to invalidate the election.” I definitely think you’re right, because I agree the evidence is not so clear. Also, let’s just talk about the CARES Act for a minute. The money went out for this specific purpose. It didn’t specify mail-in ballots. It basically specified that the money could go out. The money is basically intended to help states prepare for an election, where Coronavirus might otherwise discourage many voters from casting a ballot.

Anne Milgram:

The idea is to respond to the unique circumstances right now. The president talked a lot also in these tweets about trying to get the money back, or basically trying to stop the money from flowing. First of all, the money has already largely gone out to all the states. Second of all, the states are using it exactly for the purposes for which it’s intended. It’s all sort of bravado in some ways. I don’t think the president has legal basis to stand on. I don’t think he is going to make any actions to take money back. There’ll be no legal basis for it.

Anne Milgram:

But it’s again, like him throwing his weight around to say something corrupt is happening, look at these places. It is really troubling. This is I think, just the beginning of how much we’re going to see the president tweeting about elections.

Preet Bharara:

Yeah, so we should talk about the threat and this little debate that’s going on, where he said … He likes to do this, he likes to do it with Ukraine. He likes to do it with other folks and he’s doing it here with Michigan and potentially other states. He’s walked it back a little bit, saying, “Look, I’m going to see,” but he loves to make the threat and so people have discussed whether or not that’s a violation of the Constitution. Professor Vladeck, who’s been on the Stay Tuned podcast, suggested it’s a violation of the spending clause, because the federal government cannot coerce states through threats related to spending.

Preet Bharara:

There has been this discussion of a statute that I was not familiar with, maybe you were 18 USC Section 598, which says, “Whoever uses any part of any appropriation made by Congress for the purpose of interfering with restraining or coercing any individual in the exercise of his right to vote at any election, shall be fined under this title or imprisonment more than one year or both.” I don’t know if this, if he carry through on the threat if that qualifies. [inaudible 00:16:18] identified the statute and some other people have been talking about it.

Preet Bharara:

I think once again, this conversation, just like during the case of impeachment, when we’re talking about whether or not there’s a technical violation of a particular statute, that’s an important question, but I think it misses the point.

Anne Milgram:

Yeah, I agree. I don’t think that’s [crosstalk 00:16:35].

Preet Bharara:

It’s an abuse of power.

Anne Milgram:

Yeah, exactly.

Preet Bharara:

The question is, is it abuse of power?

Anne Milgram:

Yeah, yes, exactly.

Preet Bharara:

Is it a disgusting abuse of power?

Anne Milgram:

What the president-

Preet Bharara:

And it is.

Anne Milgram:

The president is, what he’s going to do is threaten it and then not do it, but he’s threatening it in a way to try to get people to change their … He’s one putting a stake in the ground, so he can say it’s not a legitimate election and two, bullies do this all the time. They say something and they’re putting others on notice. Republican secretaries of state who are about to send out applications or absentee ballots may think twice about it, because they’re going to go crosswise to the president. He’s doing what he wants to do without actually getting to the point, where I think he would commit that crime.

Anne Milgram:

Look, if he did withhold the funds, there are tons of legal challenges. I think the president would lose. I don’t have any question on that legal ground. But I don’t think he’s going to actually withhold it. It’s the threat that he wants to have out there because the threat accomplishes his multiple goals. Now, one thing to say also is that, and I do think you’re right to bring up the parallels to Ukraine and the way that the president behaves because also at play here, Steve Vladeck, and others, who’s a University of Texas law professor and others have talked about the Impoundment Control Act, which we’ll remember, Congress had authorized money to go to Ukraine for their protection.

Anne Milgram:

Then the president had put a hold on it and then you have the Government Accountability Office, a bipartisan government agency had said that the president violated the Impoundment Control Act by withholding the funds for Ukraine, because Congress had legitimately authorized them. Here, you would have the exact same situation, Congress puts money out under the CARES Act, it’s for the exact purpose to basically help states adapt their elections during a global pandemic, which threatens people’s health and safety. It’s just there is just a constant theme here of the president, basically abusing his power.

Anne Milgram:

Again, I think you and I are going to talk about elections a lot between now and November, because every week … We should just be really focused on making sure people see what is happening, because some of it, there is so much happening. It feels like when I first read the Michigan and Nevada tweets, I was like, “It’s just the normal bluster, threatening, bullying behavior.” The more I thought about it, the more I think that this is one of the core things we have to be on the lookout for. Frankly, it’s hard to push back on in the midst of a global pandemic, where the president is, he’s out trying to control and define the narrative and part of that is-

Preet Bharara:

He’s gotten away with it.

Anne Milgram:

… about election fraud. Yes, exactly.

Preet Bharara:

He’s gotten away with it. Other people have pointed out some testimony during the impeachment case, including from Professor Pam Carlin, who essentially said, this is a direct quote, which is not quite on point. But it’s not far off, “What would you think if when your governor asked the federal government for the disaster assistance that Congress has provided, the president responded, I would like you to do us a favor? I’ll send the disaster relief, once you brand my opponent a criminal.” She warned about this kind of conduct and this kind of behavior, which is analogous to what happened in Ukraine.

Preet Bharara:

The president thinks it’s totally fine. Maybe he won’t ultimately do it but he’ll threaten it and it’s fine. By the way, you have defenders of the president, including another professor, John Turley, who sometimes critical of the president, but does an interesting job defending the president by making straw man arguments, suggesting that everyone attacked Trump’s tweet as being a criminal act and nobody did that. We don’t have to bore people with these Twitter threads that you and I read and maybe obsess over.

Preet Bharara:

But the argument that people are making is not that the tweet itself that the president sent is evidence of a crime. It is a contemplation of an abuse of power at a minimum, and possibly depending on what circumstances are present and the way in which he does it and what proof could be developed might be a crime.

Anne Milgram:

Yeah, I think, Turley, I don’t know what’s going on with him. But I would say that his legal arguments are not strong in any way. I didn’t follow him closely enough, but I did follow this debate fairly closely. He makes this, he writes, “Once again, the statement meaning the president statement could be entirely legal if the funds were discretionary or Trump asked for the restrictions from Congress. Such things appear to matter little. Simply declaring a tweet a crime is instantly accepted and repeated networks like CNN and MSNBC.” He’s basically arguing people are quick to basically say the president’s tweet is a crime.

Anne Milgram:

What he’s missing is that he’s missing so many points there. But basically, nobody’s saying it’s a crime. People are saying if the president were to follow through on it, it’s potentially a crime, which is how all crimes are uncovered, which is, someone says or does something, you don’t have all the elements of the crime. You don’t need all the elements of a crime to move forward, you just need to begin an investigation. If you took Turley’s argument to the logical extreme, it basically means the president can tweet anything, even if it’s criminal, because there are pieces that are missing to prove the elements of those crimes in some ways.

Preet Bharara:

Yeah. You got to be able to criticize it when it’s happening. You don’t wait. It seems by Turley’s logic, look, he sends a tweet. Everyone should applaud it or roll their eyes or ignore it. Then when he follows through, then later, people can have something to say about it. But it might be nice to discourage the president from committing a bad act, which by the way sometimes happens, because there’s an uproar and he walks his suggestion back, which is exactly the purpose of discussion.

Anne Milgram:

Yes. The whole purpose of the president’s tweets … I don’t want to attribute why he’s doing it exactly. But they can feel very threatening in nature. Those, if I’m the Secretary of State of Michigan or Nevada, I read that and I think the president is going to try to claw back millions of dollars or hundreds of thousands of dollars we just got in federal aid under the CARES Act. That’s the intention. The words do matter and it’s worth scrutinizing. It’s really important to basically say, “Look, if he does this, that’s a violation of the Impoundment Control Act.” It might be suppression of voter rights.

Anne Milgram:

There might be litigation, and that’s part of what … The president doesn’t have to tweet about these things. But when he walks into the arena, those kinds of responses are appropriate. By the way, can I tell you my favorite response to Jonathan Turley’s argument, came from Joe Patrice in Above the Law, which is a blog. He goes through … I have to be honest, he goes through in a lot of very strong analysis, how it would work. But my favorite quote, “As the dude informs Walter Sobchack, this isn’t a First Amendment thing, man.” Then Patrice goes on to say, “No one, absolutely no one suggested that Trump’s tweets were crimes.

Anne Milgram:

They explained that the policy Trump described would be either unauthorized or an illegal act. Turley should be ashamed of himself for trying to jam this square peg in that round hole.” It’s a great reference to the Big Lebowski movie, and also a good reminder that you can’t just scream First Amendment, First Amendment and … First Amendment gives you the right to say things, it doesn’t give you the right to avoid scrutiny for saying them.

Preet Bharara:

You can scream that in a crowded theater though, right? You can scream First Amendment in a crowded theater? I think.

Anne Milgram:

Right.

Preet Bharara:

I remember that from law school.

Anne Milgram:

You can’t scream fire in a crowded theater.

Preet Bharara:

Yes, I know.

Anne Milgram:

But you could scream things about Donald Trump. First of all, no one’s going to a crowded theater.

Preet Bharara:

That’s true.

Anne Milgram:

There’s a long time before that.

Preet Bharara:

Although drive-throughs. The drive-throughs are coming back. I can’t wait.

Anne Milgram:

Yeah, I love them. The last time I saw drive-through movie was in upstate New York many, many years ago, The Karate Kid.

Preet Bharara:

I think I saw-

Anne Milgram:

I know, right?

Preet Bharara:

… one of the Jaws movies.

Anne Milgram:

That’s kind of a non sequitur, but yeah.

Preet Bharara:

There was a huge drive in movie theater a mile from where I lived in Eatontown, New Jersey right next to the Monmouth Mall.

Anne Milgram:

I know it well.

Preet Bharara:

Which is where I learned about life I guess.

Anne Milgram:

I know. People who’d understand it, but like I grew up right near the East Brunswick Mall, so like …

Preet Bharara:

We were mall kids.

Anne Milgram:

Yeah, people joke about what exit on the turnpike or Parkway, but really, it’s like, what was your mall is the right question?

Preet Bharara:

I was exit 105. Should we move on to a story that we thought would be long gone from the headlines?

Anne Milgram:

Yes.

Preet Bharara:

The continuing saga of former National Security Adviser Michael Flynn. I don’t know how much people appreciate who are non lawyers, how utterly bonkers this case has become whatever side you’re on, whatever you think …

Anne Milgram:

That’s the right … Yeah.

Preet Bharara:

Yeah, whatever you think about his guilt or innocence or what the FBI did, just for lawyers who have practiced criminal law procedurally, the back and forth that’s happened is just out of control crazy bonkers.

Anne Milgram:

Yeah, it’s unprecedented. I’ve never seen anything like it.

Preet Bharara:

Each thing that we examine, and other people have said this, each new twist and turn, you can say, “Well, that’s crazy. How is that allowed to happen?” No one’s ever seen that before. It’s in the context of the three prior things in the case, also being crazy and unprecedented and you’ve never seen before. Can I just recount them and then we’ll go through them?

Anne Milgram:

Please.

Preet Bharara:

It’s bonkers that you have a national security adviser who lied to the Vice President and lied to the FBI. It’s then bonkers but not as much that someone like that was charged, then the guy pleads. It’s then truly bonkers as we’ve been discussing, that the government after a guilty plea and an affirmation of the guilty plea moves to dismiss its own case when it’s already won its case. That’s bonkers. Then it’s kind of out, not out of control. But then it’s unprecedented for the judge, in this case, Judge Emmett Sullivan, not to grant the motion to dismiss right away, but to ask for an amicus brief, and to appoint a retired judge to look into the issue.

Preet Bharara:

Then it’s crazy bonkers and this we’ll talk about, what happened last week that the defendant, that the defendants lawyers, Michael Flynn’s lawyers, before waiting for the district judge to make up his mind, goes to the appellate court and seeks what’s called a mandamus. We’ll explain what that is to force the judge to give them what they want, and then for the appeals court to entertain that, and ask basically the judge to show cause why he shouldn’t. Then for the Judge Emmett Sullivan to hire his own lawyer, that’s Wilkinson, a series of crazy things happening in this case.

Anne Milgram:

I was trying to think what you could call this pot. It’s like there’s something, it’s like a bonkers, I don’t know, a bonkersarama. There’s like, it is beyond …

Preet Bharara:

We could call it extraordinary.

Anne Milgram:

It is. It is and actually we’re going to get to use extraordinary in a legal sentence in a minute when we talk about the mandamus, because by definition, a mandamus is an extraordinary remedy.

Preet Bharara:

I tick through a lot of different things. When last we joined you guys or when I guess when you guys joined us, the district court had gone through the trouble of appointing former Judge John Gleeson, to write a brief for the court to take the opposite side of what the government said in the motion to dismiss, and to consider the question of whether or not Michael Flynn can be held in contempt. Since then, the next thing that happened is the defense has gone to the DC Circuit Court of Appeals, not even waiting for a decision.

Anne Milgram:

Preet, we had a listener question from Gail from Chicago. She’s a civil litigator and attorney and she’s fascinated by the Flynn case. She basically was asking about this exact thing, which is Flynn makes this filing and asks the appellate court to intervene in hopes of stopping Judge Sullivan, from holding these hearings, having the amicus briefs come in, and Judge Gleeson be involved. Basically, she wants to understand, how does the appellate court have jurisdiction to do this? How do they have the authority? It’s worth just talking about; there are a couple decision points here.

Anne Milgram:

One and you and I have talked a lot about Judge Sullivan. There was an interesting discussion that came out last week and it was basically saying, “Judge Sullivan should have just denied Michael Flynn’s motion.” Basically arguing, instead of doing this whole circus and all these hearings, he basically should have just said no, because under the Federal Rules of Criminal Procedure, the judge has a role that’s written into those rules, which is to basically make decisions in the public interest and they know which is correct, I think a lot of people may not understand this, but it’s important to know, judges can even turn down guilty pleas.

Anne Milgram:

Someone can come into court, the prosecutor and the defense lawyer can say, “We want this person to plead guilty,” and the judge can say no, and there are lots of reasons why the judge can say no. Their argument was, Sullivan should have just cut it off and said, “No.” He didn’t as you and I both know. He’s created this process. He’s allowing folks to write briefs to explain-

Preet Bharara:

Can I just interject for one second, because I don’t know that I buy the argument and I have … Although I don’t have sympathy for Michael Flynn in this case. I don’t have sympathy for the government’s position in this case. I do have sympathy for the general principle and legal rule that a judge has very, very, very limited ability to second guess and we’ll talk about this case in a minute, to second guess the executive branch’s decision to prosecute or not prosecute somebody. It’s true that there’s a rule and it exists, and there’s some role and it can be an inquiry.

Preet Bharara:

But it might surprise some people, I’m very sympathetic to the idea that, maybe given my past, that judges should not be stepping into the shoes of prosecutors and saying, “You know what, sorry, you should be prosecuting this person. I’m going to go out of my way to make sure that you do, even if you have reason to believe that it’s no longer in the interest of justice.” Now here, this is one of those examples of a thing where the government does something terrible-

Anne Milgram:

But it’s not absolute. It’s not absolutely and I just want to stop you there because-

Preet Bharara:

Of course it’s not absolute. I want to make it clear that it’s very, very limited, to the extent people are saying like very casually, “Oh, yeah, of course, the judge can just deny the motion.” That is not a small thing to do, even in this case.

Anne Milgram:

No, it is not a small thing to do and the judge would have to have a basis, an articulable basis in the public interest to be able to do it. Here, I actually think he would have to make the record. This why I think he gets to the hearing, he needs to basically be able to make the record that something wrong is happening, that the government’s interest in dismissing it is actually not valid and is based on politics or something else. I fundamentally think that ultimately, the government has the first right to decide what cases are and or not in the public interest.

Anne Milgram:

But it is really important to remember the judge is a check on that, and the first draft of the rules related to the judge’s role, did not include that judicial check. The second and final draft that the Supreme Court put out did include that and so-

Preet Bharara:

Obviously, the rule has to have some purpose.

Anne Milgram:

… it’s really important. Yes, exactly.

Preet Bharara:

But on either side. Let me just say this. For people to say very casually-

Anne Milgram:

It’s a debatable issue in my mind.

Preet Bharara:

Yeah. But if people on the one hand who say, “It’s very easy and casual.” Who say, “Yeah, just deny the motion. If you don’t like it, Judge, you can force the case to go to sentencing.” I don’t love that view. I also don’t love the view in the other direction, which is the judge has no role at all to play and shouldn’t be doing anything and shouldn’t be asking any questions, because what would be the reason for that rule that says you need the court’s permission to dismiss a case. But going back to the listener’s question, what jurisdiction does the appellate court have? Generally speaking, the circuit court does not have jurisdiction.

Preet Bharara:

There’s not been a decision yet to appeal from, so some of the lay reporting that you see is getting it wrong. It’s not an appeal, they’re seeking something that’s called a writ for mandamus, which is, again, exceedingly rare, extremely uncommon, very infrequently granted, where you’re essentially calling on the power of a circuit court to intervene at some juncture to prevent a District Court from doing something that is terrible, and [inaudible 00:31:48]. My only experience with it, we’ve discussed this over the week was when I was in the US Attorney’s office as a young prosecutor.

Preet Bharara:

There was a judge in our district, who said that he was going to tell the jury about the mandatory minimum sentence in a child pornography case. Generally speaking, the rules are that juries don’t-

Anne Milgram:

You cannot tell a jury about sentencing.

Preet Bharara:

Yeah, jurors are not supposed to concern themselves with sentencing, just guilt or not guilt, that you have two choices. We sought mandamus. There’s no appeal. We went to the Second Circuit and said, “You need to direct, you need to mandate the District Judge to do X or Y.” And they did.

Anne Milgram:

Just to be really clear on that. If a judge instructed the jury, the likelihood of that being overturned on appeal in my view is 100%, because it’s a very long standing rule or let’s say 99%.

Preet Bharara:

Yeah If there’s an acquittal, there’s no appeal.

Anne Milgram:

Exactly, which is why you have to go up.

Preet Bharara:

That’s why we had to go out.

Anne Milgram:

Exactly.

Preet Bharara:

Because we had to [crosstalk 00:32:39].

Anne Milgram:

I just want people to understand that it’s not just something that could be fought out on appeal, but here, you’re right. You got an acquittal. You have a problem and you can’t … Obviously, the government cannot appeal an acquittal and so this becomes a critical issue. The only time I’ve ever seen mandamus done, and so people should understand you and I have practiced for a long time and you’ve seen it once. I was not involved in it, but I saw it happen in New Jersey in the federal prosecution of a lawyer named Paul Bergrin who was ultimately convicted of murder. He was representing clients, witnesses were killed, he was prosecuted …

Anne Milgram:

He was charged and prosecuted for the murder of a number of individuals. The trial judge, Judge Martini in Newaek basically … I can’t remember exactly what he was doing with the evidence. But he made a decision that the US Attorney’s Office, the government felt very strongly was the wrong decision and would have completely changed the outcome of their case. Like the situation you just addressed, if there was an acquittal, there could be no appeal. They felt so strongly they went to the Third Circuit on it. The Third Circuit reversed the trial judge and the case went back to go to trial.

Anne Milgram:

These are really, really rare and so I’ve never done one. I’ve only seen one in my whole career. The other point that I think is worth making here is when you and I are talking about the use of mandamus, we’re talking about it in situations where but for this happening, but for the sort of mandamus being brought, there’s going to be an outcome where you’re not going to get a second bite of the apple. There’s a real possibility there’s no other chance to litigate an issue. Here, I don’t see that. Michael Flynn has pled guilty. The judge would be basically holding these hearings, then making a sentencing decision that could be appealed.

Preet Bharara:

Right, exactly. Probably he would get bail pending appeal to.

Anne Milgram:

Right. I found it really interesting that the circuit court, basically is entertaining this motion. It may be that they want to just have it briefed both sides are submitting briefs, so they have the full arguments from both sides. But it is to me, this is the thing … What I would have expected a circuit court to have done is to basically say, “Mandamus is an extraordinary remedy. It’s used only in emergency circumstances. Here, there can be a process. We should let the normal court process play out. There’ll be hearings. There’ll be …”

Preet Bharara:

Right. That’s not what happened here.

Anne Milgram:

Look here’s the other thing. Here’s the crazy thing, I still think what you think Preet that the judge was going to extract some pain, but ultimately was going to allow the government to basically withdraw the case. Now, there’s a separate question as to Flynn and perjury, but I think the judge ultimately was probably going to go in Flynns favor. I think this is-

Preet Bharara:

Yeah, I think it …

Anne Milgram:

… a very risky move.

Preet Bharara:

As I’ve been saying, it’s maybe not a bad outcome in this case to deny the motion to dismiss, but I think it’s a bad result for law enforcement generally. There are other, you can change the facts of the case and you could have a rogue judge in other circumstances. Basically, denying government’s motions to dismiss that are actually done in good faith that. It really is up to the government to decide these things. Can we talk about something I’ve been dying to discuss since I read about the case?

Anne Milgram:

Yes, always

Preet Bharara:

That Flynn’s lawyers rely on heavily to make their point that, you really can’t second guess what the government is doing here. The reason I want to discuss the case is not just because of the holding, but I giggled like a little boy when I saw the name of the case. It’s United States …

Anne Milgram:

Me too.

Preet Bharara:

It’s United States v. Fokker Services.

Anne Milgram:

Isn’t their movie Meet the Fockers?

Preet Bharara:

I looked it up to see … This is the United States v. Fokker Services, F-O-K-K-E-R, Meet the Fockers is different. It’s F-O-C-K-E-R.

Anne Milgram:

Okay.

Preet Bharara:

But I was anticipating with great delight and childhood idiocy discussing with you Anne, US v. Focker Services.

Anne Milgram:

Preet, this is a podcast where we’ve already talked about The Big Lebowski. Now we’ve talked about Meet the Fockers. It’s like movie trivia night-

Preet Bharara:

It is.

Anne Milgram:

… at the legal podcast.

Preet Bharara:

First, let me be serious for a moment about the case. I don’t know if I mentioned the name. It’s United States v. Fokker Services. It stands for the proposition. It stands for various propositions. The sentence that probably Flynn’s lawyers like the most is, or the couple sentences is the following, “The Constitution allocates primacy in criminal charging decisions to the executive branch. The executive’s charging authority embraces decisions about whether to initiate charges, whom to prosecute, which charges to bring and whether to dismiss charges once brought.

Preet Bharara:

It has long been settled that the judiciary generally lacks authority to second guess those executive discriminations, much less to impose its own charging preferences.” That’s a broad statement that is consistent with what we’ve been talking about here, that as a general matter, and in almost all cases, the prosecutors decide when to bring a case and they also decide when not to bring a case and whether to dismiss a case in the interest of justice. Usually that’s done in good faith.

Preet Bharara:

The problem here, and what’s making it difficult here is there’s a lot to suggest it’s not being done in good faith, and it’s special treatment for someone who’s associated with the president, and career prosecutors have been overruled in a way that stinks to high heaven. But the general principle here that they are relying upon is that, you don’t second guess the government. In US v. Fokker Services, that was a case in which the government had a prosecution of a company, and rather than doing a full bore prosecution, decided to engage in a deferred prosecution agreement, which means if the company behaves for a period of time, then the charges go away.

Preet Bharara:

In order for that to work, they needed the judge to impose an order excluding time from a speedy trial clock. In other words, the government wouldn’t have to go immediately to trial but the entry of …

Anne Milgram:

They wanted to hit pause, yeah.

Preet Bharara:

Yeah, to hit pause with the DPA, the Deferred Prosecution Agreement. The judge didn’t like the charging decision. The judge thought the government was being too lenient, and that individuals were not being prosecuted so the judge denied the pause. That was the issue being appealed in United States v. Fokker and the court said, “Really, that’s not a good basis on which to do that. You can’t second guess the government.” That’s what was going on in that case that the Flynn lawyers rely on very, very heavily in their brief.

Anne Milgram:

Right, and a lot of legal scholars have pointed out and I think it’s really persuasive to me personally, that one of the differences with Fokker and the current situation is that, in that prior case, it related to something … There had been no conviction. It was what we would call in the pre-trial stages. It was before the case had gone to trial. The idea was, let’s defer any prosecution. The government is basically saying let’s hit pause, and the defense agrees, and it’s likely that the charges may be dismissed if deferred prosecution agreement, if the terms of that agreement are successfully completed.

Anne Milgram:

But that’s at the beginning of this process that people go through in the criminal justice system versus here, when Flynn has pled guilty. I would usually say pleaded but for you Preet, I’m going to say pled.

Preet Bharara:

Pled.

Anne Milgram:

He’s pled guilty, it’s moved on and now it’s a sentencing point. It is different in my view, and I think it’s going to be interesting to see what the circuit does on this. But this is not apples to apples. This is a little apples to oranges, because this is at a different point in time.

Preet Bharara:

I think it’s apples a cantaloupes.

Anne Milgram:

Yeah, I love cantaloupe. I like apples too. But the thing here is … There is a big difference between these cases and people should understand who aren’t lawyers, this is exactly what courts do where they say, “Okay, we have this one rule here, but it’s a different circumstance. Should that rule apply here in this other circumstance?” To me, I keep going back to the circuit court asked the parties to brief what role Fokkers should play in this, the case, that case. Is it controlling? Does that mean that the government gets full say?

Anne Milgram:

But the other thing they asked them to brief was Federal Rules of Criminal Procedure 48A, which is the rule, as we know, that says, “For dismissals subpart A is by the government, the government may with leave of court dismiss an indictment information or complaint.” It also says the government may not dismiss the prosecution during trial without the defendants consent. Basically, the question really then comes to and they’re going to brief this, what is leaving the court mean? What’s the standard?

Anne Milgram:

There is precedent saying if the judge has a role to play and whether or not the dismissal is in the public interest, and for me, ultimately, just to point this out, and I would love your thoughts on this, forget the Flynn case for a second. I know this case is so strange, you could argue that it’s a one off and that any precedent by the DC Circuit is in controlling in other cases because this is so unusual. But I personally say like, forget Flynn for a second. You have a situation where a judge is about to hold, has basically not said yes or no to a motion, the motion is pending.

Anne Milgram:

They’re about to hold hearings to decide whether it is in the public interest, and whether, basically and asked for a full vetting of the issues from both sides, since the government has changed its position, the judge is saying, “I want to hear the contrary argument to that.” It is unusual and we’ve talked about this, like Judge Sullivan has … He definitely, I don’t know if I want to call him a maverick. But he definitely has beat to his own drummer in some of the ways he’s made decisions. But do you as a circuit court, does that circuit court want to say, “Oh, no, we’re literally going to … we’re going to just require that the judge accept this motion.”

Anne Milgram:

That to me feels like you’re writing out of that federal rule of Criminal Procedure with leave of court. You’re basically saying there is no process. I don’t know.

Preet Bharara:

You pointed out a number of differences between the Fokker case and the Flynn case. First that one was pre-conviction, the other is post-conviction. Then you’re referring to rule 48. In the Fokker case, there’s no rule 48 invoked whatsoever. It wasn’t even at play in that case. Then to me, the most important distinction perhaps, is that in the Fokker case, there was a decision that was then appealed. Here Judge Sullivan hasn’t entered a decision yet as we have been saying. Our prediction was, at the end of the day, after making some factual record, he probably still would grant the motion.

Preet Bharara:

What they’re trying to do here is an end run around the district court, that maybe at the end of the day …

Anne Milgram:

We should talk about why they want that.

Preet Bharara:

Maybe at the end of the day, they could appeal and get what they want. But the idea that this gambit would work would mean kind of that in every circumstance, where a judge under Rule 48A is just making some inquiry and asking some questions can be short circuited in what is demanded and required under Rule 48A, otherwise, what’s the point of it?

Anne Milgram:

Yeah. How does the judge figure out good faith completely?

Preet Bharara:

Yeah. It’s at a different stage, it’s after you have the conviction and nothing has happened yet that you can complain about, other than they want to avoid the embarrassment of having the judge make a factual inquiry and have some friends of the court briefs, that show that the motion to dismiss the Flynn case, is grounded in special treatment and politics and has no good basis. They don’t want that. They want to avoid that. They accuse the judge of wanting to revel in the limelight. By the way, the other thing they’re doing is asking for the disqualification of the judge.

Preet Bharara:

That’s one of the other things being sought in the circuit court, which is dangerous, because if the judge is not disqualified, he’s going to be that much more pissed, as they say.

Anne Milgram:

Yeah, yeah. Look, usually the judges are not, at least in the Judge Martini case with Paul Bergrin he was not removed. They tried the case in front of him and the case just went forward. I hate to be cynical, but I feel very strongly that this is an attempt to do exactly what you just said, which is to cut off that hearing, and to cut off the public embarrassment. Also, it seems clear to me that there’s a narrative that’s moving in the president’s re-election, which is, “Flynn is innocent. He was framed, this was all partisan the entire Russia 2016 thing.” It’s rewriting history right? A hearing held by Judge Sullivan would question their ability, I think very strongly to rewrite history, or at least it would make a record.

Anne Milgram:

Right now, the record is the DOJ record and that’s what they want it to be. I think that the circuit court has to be really careful here. You and I have talked just a little bit amongst ourselves that three circuit court judges are Karen Henderson, she was a George Herbert Walker Bush appointment, Robert Wilkins, he was a Barrack Obama appointment and then Neomi Rao, she was a Donald Trump appointment. She’s by far I think the most … I don’t know if I want to say political but she feels the most … She’s very loyal to Trump. I think she’s very likely to, she will be extreme.

Preet Bharara:

There’s a lot of controversy about her nomination-

Anne Milgram:

Yes, yes.

Preet Bharara:

… and a lot of Democratic opposition to her nomination. The other weird thing here, or maybe it’s just weird for people like us who are lawyers and follow these things. It is weird, I’m not saying good or bad, but it is weird that when the circuit court says to the Judge Emmet Sullivan, “You got to show us why what you’re doing is okay.” He’s not doing it with his own pen. He himself, the court itself hired a lawyer, very prominent, distinguished excellent lawyer Beth Wilkinson, who among other things, prosecuted Oklahoma City bomber Timothy McVeigh, represented Brett Justice Cavanaugh amid the allegation relating to Christine Blasey Ford.

Preet Bharara:

She’s represented Hillary Clinton staffers, so she’s represented people on both sides of the aisle in very prominent cases in DC for many years. A little odd right for the court to hire its own lawyer?

Anne Milgram:

Okay, so yes and no. You said it up front that everything about this case is bonkers, and so I agree with that. This is also a little bonkers, but I will say this, in New Jersey, when I was AG, there were times where we appointed lawyers for the Supreme Court. It wasn’t in this circumstance where a judge is being asked by another court to explain their reasoning. But it’s not unprecedent for judges and courts to have lawyers. I just want to say that, first of all, the immediate reaction here was, “Oh, that never happens.” It does happen. It often happens to basically have a voice for whether it’s a court or a judge.

Anne Milgram:

But basically, it’s not never. I just want to be clear that I think that the sort of … If you read legal Twitter, you’d think that this never happens. In my experience, I definitely have signed off on maybe not more than 10, but maybe five or 10. That’s one thing to note. The second thing is, this is all weird. I went back and forth on this. My first reaction was, Judge Sullivan should write it himself. But my second reaction is that, this is a huge institutional issue. If the court basically grants mandamus on this and forces the judge to accept Flynn’s motion, it’s almost like the court basically eviscerating itself and really taking away its authority in sentencing matters and in plea matters.

Anne Milgram:

There’s a value in an institutional check and balance and not just having Judge Sullivan, who’s obviously hugely invested. He made a decision about the right thing to do. Him having some a really high level, top notch lawyer to go back and forth with, I do see that there’s value and there’s an institutional reason for the court to want to litigate this to the best of its ability. Is it weird? Yes.

Preet Bharara:

It’s not cool the way it’s proceeding here. Just use the example of the case that I mentioned earlier, the child pornography case that involved Judge Lynch. Judge Lynch didn’t tell the jury about the mandatory minimum sentence, and then caused the prosecutors to jump up scream and then appeal. He understood that it was a potentially controversial thing to which the government might object. My recollection is he told the parties in advance, he said, “Look, my intention is to tell the jury, now I want to know what you think about that.” Having been given notice, the US Attorney’s Office for the Southern District of New York went to the Court of Appeals and sought a mandamus.

Preet Bharara:

Here, it’s possible that you could have a mandamus situation that is more appropriate, if after engaging in a factual inquiry, Judge Sullivan said, “You know what, having heard everything, it is my intention …” I’m just saying this is one possibility. “It is my intention to deny the motion to dismiss. I don’t think you’ve laid it out. What do you want to do about that?” Then I guess maybe you could have a mandamus there, or you could let them do it and then appeal, because as you say, there’s really no difference in that circumstance, because there’s not the same kind of irreparable harm.

Preet Bharara:

In the jury situation from my old office, you have a sitting jury, you can’t pause everything for a month to figure out whether or not the judge is going to be able to do this thing or that thing, et cetera.

Anne Milgram:

Yeah. I guess my point and I think, what you just said is making me think even more this way, which is that, I think that there’s a strong enough institutional reason to be pushing back on this, that it is possible that the federal court, the federal bench in DC that is pushing to have outside counsel as much as it is Judge Sullivan, I think obviously they couldn’t do it without Judge Sullivan’s agreement. But I think that there’s a very strong institutional issue at play here. Look, I’m concerned to what the outcome will be. Again, I would have expected them to have denied the mandamus at this point not to have ordered a briefing.

Anne Milgram:

If they grant the mandamus, I think it’s possible we’ll see a request to have a [inaudible 00:49:25] review to have the entire DC Circuit. Hear it, it just … It’s a really strange place to be. Look, Beth Wilkinson is a great lawyer. I do not know her well, I think I met her once. But she’s very, very well regarded, as one of the Oklahoma City bombing prosecutors, but also just as somebody who’s … She’s done plaintiff side work, defense side work, and so the judge has already come to a position and you’re sort of having an outside check on that position, and thinking about the best way to argue the institutional requirements of where this is.

Preet Bharara:

Last point on Flynn is I don’t know what to make of this. I don’t know if I find it disturbing or maybe people are making too much of it. Finally, last week, the FBI director Chris Wray announced that the FBI would conduct an internal review of the investigation into Mr. Flynn. As we have been discussing for some time, the Attorney General appointed a US attorney from another jurisdiction, Jeff Jensen to do all this. That’s why you had the recommendation to dismiss the case against Flynn. That’s why we’re having all this discussion in the first place. Presumably the FBI was cooperating with that investigation, so I don’t know what to make of this announcement. I don’t know if this is to placate the president, or what Chris Wray looks like he’s been-

Anne Milgram:

I find it troubling.

Preet Bharara:

He’s looks like he’s been in precarious position. I said, very positive things about Chris Wray last week. I think he’s been keeping his head down and doing a good job. But this is a weird announcement. I’m overusing the word weird.

Anne Milgram:

He is in a precarious position. If he falls out of favor with the president, the president will fire him or try to fire him. I think he probably thinks he is the best person to sit in that job at this point in time. There’s a line that he has to toe. We understand from the president that there’s no question that the president expects a certain level of loyalty even from the FBI director. But if you think about this, this is back to 2016. The FBI should have already conducted a review, if there was one that should have been conducted.

Anne Milgram:

All the evidence that they provided to Jensen, the FBI, obviously, they’re the ones who provided it so they had it. It looks really political in the lead up to an election and it brings the FBI … Look, if you had a situation where Wray was saying, “Look, we should have looked at our internal policies on whether or not we basically confront people with their lies or whatnot.” Again, that should have been done before the lead up to the election. Even if the FBI wants to do it, thinks that there’s something that they missed, there’s a way to do it that doesn’t put them front and center in the 2020 election.

Anne Milgram:

That’s what Chris Wray has done. I looked at this and I was really disheartened to see it, because I think it’s also possible that he’s doing it to get ahead of potential charges that get brought. We’ve talked about this, but Barr has intimated that they may charge people. It just worries me a lot to basically have Wray doing this. I don’t know why, I don’t want to speculate. I’m already speculating too much. But there’s something about it that just is not right. I don’t know why they’re doing it. I think we’re going to find out in the months to come, but it’s not a good thing.

Anne Milgram:

It’s not a good look, even if they’re doing it internally for the right reasons; this is not the time and place to do it.

Preet Bharara:

There’s another case, that’s back in the news that we’ve been talking about that got a lot of attention. That was the killing of Ahmaud Arbrey some time ago, and there was a release of that videotape that showed two white men, a father and a son, basically accosting him and then killing him. Then they were multiple district attorneys as we discussed, who had to recuse themselves and didn’t think there was a case to bring, until finally one district attorney did. The new news is that the person who was driving the car and taking the video that became controversial and sensational, has now also been arrested. What do you make of that?

Anne Milgram:

Right. McMichaels are the father and son, they were charged with murder and aggravated assault in the killing of Ahmaud Arbrey. What we’ve now seen is the guy who took the video was the third man. It was always clear there were three individuals involved. He’d videotaped the actual murder, which again we’ve talked a little bit about. What’s interesting about this individual, William, he goes by Roddy Bryan, is that he’s been charged with felony murder. Essentially, he’s charged with felony murder, meaning that someone is murdered in the course of the commission of a serious crime and that being a felony.

Anne Milgram:

Here he’s also charged with the felony, which is a criminal attempt at false imprisonment, which is basically holding somebody and not letting them go. The allegation is that there was an earlier attempt to detain Arbrey before this moment in time when he’s shot and killed. You and I have seen a lot of felony murder cases. There’s been some questioning of how common is felony murder. It’s actually very common to charge it and it happens a lot. The classic examples in the midst of a robbery, you might have the getaway driver.

Anne Milgram:

Three people agree to do a robbery, two people go into a bank, someone ends up being, they end up shooting and killing one of the bank tellers, and then come out. Even though the getaway driver did not fire the shot, did not even say go in and kill a bank teller, like didn’t have that intent, they intended to do the robbery, they intended to commit that felony, someone is killed in the commission of that crime, all three can be charged with murder or felony murder. The getaway driver is charged with felony murder. We do see it a lot. I think the question always becomes at trial, the strength of the underlying felony charge.

Anne Milgram:

Here, they will litigate, Roddy Bryan will litigate at trial, was he actually falsely imprisoning Arbrey before Arbrey was murdered? But it’s a really important step forward in the case. It’s been very clear there are three men who are involved. Now it’s time for the evidence to come and case obviously moves on to motions and trials, and we’ll keep following it.

Preet Bharara:

I wonder, I don’t know much about with local practices in that state. But I wonder if part of the reason to charge Roddy the videographer, is to put pressure on him to be a witness against the two other men?

Anne Milgram:

Yeah. This is worth talking about for a minute that, when you try a case, you have to understand what happened. There are three people who are involved here and what role each of them played. It’s very important for the jury to understand that when you try a case. It’s been said many times by trial lawyers far more experienced than me, that you have to be able to understand is that person a defendant, a witness, a victim, what place does that individual play? It’s clear to me that the government has looked at this and come to the conclusion that the third individual is actually a defendant and sits in that seat at the table.

Anne Milgram:

You’re right, that it could be to put pressure to ultimately get a cooperation agreement, but it’s also, these are decisions prosecutors have to make because you can’t just have someone like that out there, where you haven’t come to an understanding, is he a witness? Is he somebody who was involved in the crime? Clearly they came to the conclusion that he was involved in the crime. Now they have to prove that in the court. Preet, there’s some other very important news that we haven’t talked about, which is the stop in Utah earlier in May by a Utah Highway Patrol officer of a car. Should we talk about that as well?

Preet Bharara:

Very important stop. Yeah. Run of the mill police work in Utah, I guess the officer thought that there was a driver who might have been intoxicated. There was an SUV weaving in the left lane on Interstate 15, and he wanted to investigate because it’s a good cop. What did the cop find behind the wheel?

Anne Milgram:

Well, he was expecting to find a drunk driver because the car was going slowly, was driving erratically and instead he finds five year old, Adrian who …

Preet Bharara:

A five year old.

Anne Milgram:

A five year old and by the way when we said this-

Preet Bharara:

How tall is that five year old?

Anne Milgram:

When we said this in front of our five year old his eyes went really wide like, “I didn’t know you could do that.” Well, you can’t obviously. But the officer question Adrian, and Adrian explained that he took his mother’s car after getting into a heated argument with her. Adrian asked his mother to buy him a Lamborghini and when she said no, he took off in her car. And he had a plan, he had $3. He was going to California to buy one himself.

Preet Bharara:

By the way, this is in the middle of the pandemic.

Anne Milgram:

Yes, yes.

Preet Bharara:

A Lamborghini costs more or less than three bucks?

Anne Milgram:

More. What’s great is that the officer … He’s got a dash camera, so this is all filmed. Basically, he, obviously the officer doesn’t charge the child. He takes the child back home. Because this went viral on Twitter, an actual Lamborghini owner did take Adrian for a ride so he could ride in a Lamborghini and Adrian offered the driver $3. But he said, “I want …” Then the kid says, and the driver says, “Are you trying to buy this car from me for $3?” Adrian responded, “No, I want to keep my money, but you can give me the Lamborghini.”

Preet Bharara:

That’s an entitled kid.

Anne Milgram:

Yeah.

Preet Bharara:

Maybe he will be so focused on getting a Lamborghini [crosstalk 00:58:10].

Anne Milgram:

With a lot of Moxie as they say.

Preet Bharara:

With a lot of Moxie as they say.

Anne Milgram:

With a lot moxie.

Preet Bharara:

But also you know, not so safe. Lock your cars folks.

Anne Milgram:

Yeah, completely, completely and-

Preet Bharara:

And ave a good week. I will try to figure out some way next week to again talk about the Fokker case.

Anne Milgram:

Or another great movie.

Preet Bharara:

Or another great movie.

Anne Milgram:

Thanks Preet. Talk to you soon.

Preet Bharara:

Take care Anne.

Anne Milgram:

Bye.

Preet Bharara:

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

 

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CAFE Insider 5/26: Meet the Fokker Case

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