• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce break down former President Donald Trump’s ongoing legal battles, including Manhattan District Attorney Cy Vance’s decision to convene a special grand jury to consider evidence of potential wrongdoing by Trump and his associates, and Trump’s motion to dismiss a lawsuit that seeks to hold him responsible for inciting the Capitol insurrection. They also discuss DOJ’s efforts to keep secret a 2019 memo that former Attorney General Bill Barr used to justify his decision to absolve Trump of obstruction of justice.

We hope you’re finding CAFE Insider informative. Email us at letters@cafe.com with your suggestions and questions for Preet and Joyce. 

This podcast is brought to you by CAFE Studios and Vox Media Podcast Network. 

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

Subscribe to Now & Then, hosted by historians Heather Cox Richardson and Joanne Freeman: Apple Podcasts, Spotify

Now & Then, “Entangling Alliances,” 6/1/21

Note from Joyce, “On Prison Reform,” 6/1/21

Committee on the Judiciary Nomination Hearing, Anne Milgram, 5/26/21

TRUMP LEGAL BATTLES

First Amendment to the U.S. Constitution

18 U.S. Code §1962 – Prohibited activities

28 U.S. Code §2679 – Exclusiveness of remedy

NY Penal Law §460.20 – Enterprise corruption

Eric Swalwell v. Donald Trump, U.S. District Court District of Columbia, memorandum in support of Trump’s motion to dismiss, 5/24/21

U.S. v. Joel Greenberg, U.S. District Court Middle District of Florida, plea agreement, 5/14/21

“Manhattan DA could pursue racketeering charge in Trump Org probe, experts say,” Politico, 5/27/21

“Prosecutor in Trump criminal probe convenes grand jury to hear evidence, weigh potential charges,” WaPo, 5/25/21

BARR MEMO

Citizens for Responsibility and Ethics in Washington v. DOJ, U.S. District Court District of Columbia, opinion, 5/3/21

Citizens for Responsibility and Ethics in Washington v. DOJ, U.S. District Court District of Columbia, motion for partial stay pending appeal, 5/24/21

“Review of the Special Counsel’s Report,” DOJ memo, 3/24/19

“Justice Dept. releases part of internal memo on not charging Trump in Russia probe,” WaPo, 5/25/21

NORTH KOREA

“North Korea Bans Mullets And Skinny Jeans,” Folkspaper, 5/25/21

Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to CAFE Insider. I’m Preet Bharara.

Joyce Vance:

And I’m Joyce Vance.

Preet Bharara:

How are you, Joyce?

Joyce Vance:

I’m good.

Preet Bharara:

So you know, there’s a lot of talk about history these days.

Joyce Vance:

There is.

Preet Bharara:

And a lot of remembrance of the Tulsa Massacre. And perhaps apropos of the new emphasis on history and remembering our history, the good and the bad and the ugly, I guess. CAFE and the Vox Media Podcast Network, as I’ve mentioned before, has a new podcast. The history podcast called Now & Then. And the first episode has come out already, so it’s available wherever you listen to your podcast. Search on Now & Then, use the ampersand, and it stars two brilliant historians, Heather Cox Richardson and Joanne Freeman. And you can listen to it now. It’s pretty exciting.

Joyce Vance:

It’s a great podcast.

Preet Bharara:

Joyce, you wrote this week.

Joyce Vance:

I did.

Preet Bharara:

What’d you write about?

Joyce Vance:

I wrote this week about the need for prison reform. You know, I’ve been pieced-

Preet Bharara:

Wait a minute, wait a minute. You think the prisons aren’t fine?

Joyce Vance:

You and I have something in common here. I know you had to deal with Rikers Island. I had to deal with the entire Alabama prison system. So for us, these issues are always going to be front and center. I worry that one of the negative side effects of the focus that we’ve had on policing reform in this country, which is great, which absolutely must happen, is that other issues involving the criminal justice system have dropped off the radar screen a little bit. So I wrote about prisons and about how they need to reform, a little bit through the lens of Alabama’s really horrible prison system.

Preet Bharara:

That’s good. It’s important. Have you written about private prisons?

Joyce Vance:

So I didn’t in this piece, although Alabama has a troubled history with private prisons. And one of the ironies of the current lawsuit that DOJ has brought, in a case that I started but that was filed by my Trump successor, so you know it’s a righteous case when it spans that divide. And one of the problems down here is that Alabama would like to return to private prisons as a way out of the mess it’s in. And of course that’s just the road to perdition.

Preet Bharara:

The road to perdition indeed. We should also mention, our friend, your predecessor in that seat, Anne Milgram, she had her Senate confirmation hearing last week. It went great.

Anne Milgram:

As I sit here today, I cannot help but think about my grandfather and my great-grandfather, both police officers who rose to become the chief of police in South Amboy, New Jersey. I know that they would be incredibly proud to see their granddaughter nominated to lead the dedicated, passionate, and tenacious professionals at the Drug Enforcement Administration.

Preet Bharara:

She was great. She was on the panel with a number of other people, which, as you and I know, dilutes the sort of fire that’s—

Joyce Vance:

That’s a good thing.

Preet Bharara:

Upon any individual person, including Anne. I don’t think there’s a vote scheduled yet, but I think all the signs are great for our dear friend Anne to be confirmed in the relatively near future, which would make her the first Senate-confirmed DEA administrator in a number of years. So good luck, Anne.

Joyce Vance:

Anne will do a great job at DEA, and it’s an agency that has some shifting needs and priorities. So I think that really is something to look forward to.

Preet Bharara:

Here we are, several months into the Biden administration, and we’re still talking about the former guy, Donald Trump.

Joyce Vance:

You know, I really hoped he would just go away. But obviously that was naïve.

Preet Bharara:

Well, his misdeeds precede him. And so, they have to be dealt with. And there are a couple things. I guess first we could talk about the Manhattan DA’s office’s investigation. And then also there’s this lawsuit brought by representative Eric Swalwell in the House. And we could talk about that too, because the defense team for Donald Trump filed a brief, and I know that you and I both have thoughts about that. But let’s talk about the Manhattan DA’s office first.

Preet Bharara:

So after we taped last Tuesday, there was a report, pretty extensive and pretty detailed, in the Washington Post outlining the fact that the Manhattan DA had convened a special grand jury. Now the fact of a grand jury, to look at the Donald Trump organization and other things. You and I know that the mere fact of the invocation of a grand jury, whether for the purpose of issuance of subpoenas or maybe putting a witness or two into the grand jury to lock them in, is not unusual. Doesn’t necessarily portend anything dramatic. People do that all the time. Presumably they’ve been issuing grand jury subpoenas all along. Just something people miss.

Preet Bharara:

That doesn’t necessarily require the convening of a grand jury or a vote by a grand jury or even the sign-off of a particular grand jury member, though they are called grand jury subpoenas. And some of those documents are returned to the grand jury and are looked at by the grand jury. If you chose grand jury to be your drinking game, you’re going to be in a lot of trouble. This episode, I’m warning you now. But this is different. Not out of the ordinary, but it is consistent with the timing and phase of an investigation where you’re thinking about presenting real evidence, locking in more people, and perhaps presenting the grand jury with charges. They’re going to meet three times a week according to the reports. It lasts for six months, but that can be extended if they get a court order. Big deal or not, Joyce?

Joyce Vance:

So I think it sort of is, and we should start out by saying that New York State grand jury practice is a little bit different than federal grand jury practice, and we can flag that along the way. But this is a special grand jury. It’s a grand jury that will stick around for longer than a normal grand jury. And among the reasons that that’s important, and I always think sometimes it’s the most basic things that we know about how prosecutors work that’s the most interesting to listeners. When you’re presenting a case to the grand jury, it’s really important to have the grand jury hear all of the evidence. The grand jury that votes on an indictment has to hear everything. And if for some reason the grand jury runs out of time and you go to a new one, you have to go through this somewhat cumbersome process of repeating all of the evidence.

Joyce Vance:

And that’s more difficult in a case in New York State, because unlike the federal system, where we can present hearsay testimony, just have an agent take the witness stand as a summary witness, no hearsay in New York grand jury. So that makes things a little bit more difficult. Cy Vance has had Trump’s tax returns since late February. The fact that he summoned a special grand jury signifies to me that they are planning at some point on presenting indictments. We don’t know against who or whom yet. But I think this is a big deal.

Preet Bharara:

And I guess the question is, against whom are charges going to be presented? Will they be against Allen Weisselberg, who is the CFO of the Trump organization, or against Trump himself? Or does the DA’s office even know? Hard to say. But I think it would be unusual to take all these steps if they didn’t have, and I’ve said this a couple of times already, if they didn’t have a pretty good sense that they would at least be presenting an indictment against someone high up in the organization. Do you agree with that?

Joyce Vance:

I do. And I think this goes back to a point that you made last week, which is that the prosecutors, nobody prejudges the case. It may be that they get to the point where they’re deciding if Weisselberg wants to be a friend or an enemy. Does he want to be a witness or a defendant? And that decision, which they may not know the answer to right now, may determine who else gets prosecuted. It may be that they’re looking at some of Trump’s children or other people who were involved in executive decision-making. And if those people ultimately testify against Trump or others, then that will drive final decisions about who gets indicted.

Preet Bharara:

And as we’ve also otherwise said, there’s some people, and I write about this in the book that runs the gamut, there are some people who flip and cooperate the moment that they are approached by an FBI agent or a police officer. There are some who never do and go to trial and get convicted and go to prison for a long period of time. And there’s a wide range in between. But a very significant inflection point in the psychological decision to cooperate or not, and to cooperate against somebody who you’ve been close to for a long time. That inflection point is the bringing of charges.

Preet Bharara:

In the unrelated case and investigation of Matt Gaetz, you had his associate, that county tax collector Joel Greenberg. He could’ve cooperated anywhere along the line. He didn’t until he was charged, until he had superseding charges brought against him and he was on the very eve of trial. That’s when he and his lawyers decided okay, we better button this up, cooperate, plead guilty to a number of the charges, and agree to testify against other people. Presumably one of those people would be Matt Gaetz. You could have the same lengthy process with Weisselberg or never succeed with him.

Joyce Vance:

And that’s the interesting question. He’s been there for so long. He was with Trump’s dad before he was with Trump. But does he really want to spend the rest of his life in prison or a big chunk of it, in service to that family? That’s a tough decision for someone to make. Well actually, it’s an easy decision. But for whatever reason, when it comes to Weisselberg, he seems to be struggling with it.

Preet Bharara:

Yeah. I mean, the other question is, what will the prosecutors require in terms of candor and extensiveness of testimony? We always use the example of Michael Cohen, the President’s former lawyer. And my suspicion has always been that he would come selectively clean on various things. Now Michael Cohen has also been reported to have met with the DA’s office in this investigation a number of times. So part of this will depend on how satisfied they are with the information they’re getting and how selective the information is and how true the information is.

Joyce Vance:

It’s interesting because many of these witnesses are people that you don’t want to put on the witness stand unless they’re fully corroborated by the documents. Right? Because documents don’t lie. This is a document case, which is good for prosecutors. But when you have witnesses who have lied in the past or who have some sketchy histories, it’s a good thing for the jury to be able to hear what was happening from the mouth of more than one witness. And even when you’ve got a couple of difficult witnesses on the stand, when they corroborate each other, the jury is much more likely to buy that ultimate pitch you have to make as a prosecutor. That you didn’t pick the witnesses. The defendant picked them. They’re not your choice.

Preet Bharara:

So we should maybe talk for a second about what the potential charges are, although we’re getting a little bit ahead of ourselves. So what potential charges there are against Trump, Weisselberg, the organization itself. We’ve talked about the potential for tax charges. We talked about the potential for bank fraud, maybe insurance fraud. It’s hard to know. But there has been some chatter about a statute that some people find sexy and powerful, and other people who have more experience with it sometimes find it cumbersome and complicated. And that’s RICO. So there’s the federal RICO statute, with which you and I have a lot of familiarity, which is an acronym for the Racketeer Influenced and Corrupt Organizations Act.

Preet Bharara:

Which was passed about 50 years ago, and its original intent was to be used to combat the Cosa Nostra, organized crime, the traditional Italian Mafia. Its use has been expanded to other things, but obviously Cy Vance and his office can’t use that. There’s a statute in the state of New York, New York Penal Law 460.20, which gets at enterprise corruption. And RICO is about a corrupt enterprise. Some people call the statute Little RICO.

Joyce Vance:

I always think of it as being more RICO-ish. Right? I mean it’s not exactly RICO, but it’s close.

Preet Bharara:

RICO Suave.

Joyce Vance:

Yeah. Exactly.

Preet Bharara:

I had to make that joke. I had to do that. I had to. I apologize to everyone.

Joyce Vance:

As well you should.

Preet Bharara:

For now. There’s RICO, and then there’s RICO Suave in the state. I don’t know if you could ask this question, but I’ve over the years been asked a lot, and I see people speculate on social media. That what about RICO? What about RICO? Because it’s something about RICO, and I don’t know if it’s because of the movies or because racketeering sounds like a big deal. There is this attraction to RICO without a full understanding that it’s very complicated. Yeah, it brings substantial penalties, but so do some of the predicate acts or predicate crimes that would go into a RICO charge anyway.

Preet Bharara:

I mean in New York, the law here, about which I’m not an expert, for the purposes of this section, a person that participates in a pattern of criminal activity with intent to participate in or advance the affairs of the criminal enterprise. You have to figure out what a criminal enterprise is, and that can be complicated. He engages in conduct constituting or is criminally liable for at least three of the criminal acts included in the pattern. Two of his acts have to be felonies other than conspiracy. Two of his acts, one of which is a felony, occurred within five years of the commencement of the criminal action. Each of his acts occurred within three years of a prior act.

Preet Bharara:

So there’s a number of acts you got to bring to bear. You have to prove that there was an enterprise. You have to prove who was a member of the enterprise. And then you have to prove the predicate crimes, as well. Does it make sense to lunge for the RICO? Or to just charge the basic tax fraud, bank fraud, insurance fraud, et cetera?

Joyce Vance:

So I am a fan of RICO in the right case. I suspect that this is not the right case. Prosecutors should certainly consider the RICO statute and see if it gives them something that they don’t have otherwise. I think this is why people who maybe have never indicted cases like the RICO statute. It’s because it’s emotionally satisfying. The notion that you can plant the label criminal enterprise on the Trump family would be satisfactory to many people who’ve watched his conduct over not just his president, but his business conduct and would like to see that happen emotionally. But as a prosecutor, I think it exposes you to some risk.

Joyce Vance:

As you say, you’ve got to decide what the criminal enterprise is. There are some timing issues. One reason to use the RICO statue is because it lets you present evidence to the jury that might not otherwise be admissible. You can go through a long, tangled history of conduct, some of it well out of the statute of limitation, and let the jury hear all of it. But frankly in this situation and especially given the available sentences, I think prosecutors do just as well by bringing fraud charges if the evidence points to them. And I’m a huge fan when I indict a case and certainly when I’m trying a case to a jury, of the KISS rule. Keep it simple, stupid. That way, you don’t run the risk of confusing the jury or creating issues on appeal, and you get a cleaner conviction.

Preet Bharara:

Yeah, I agree with all that. I don’t think in a case like this, you’re going to see it. You may. You may. And we don’t know what kinds of evidence that office may want to put before a potential jury that would otherwise be precluded. That’s part of the analysis, to see what story you can tell. And often you can’t tell the full story if you just bring the substantive charges. But I think in a case like this, if they’re ever going to charge Weisselberg and certainly if they’re going to charge the former President, the application of the KISS rule, as you stated, I’ve never heard it put that way, I don’t think. But I like it. It’s essential to be as clear and crisp as possible.

Joyce Vance:

The big turning point here in all white-collar cases, right? You got to be able to prove intent. It’s not that this happened accidentally or that people were unknowing. They intended to defraud whoever the victim is. You can’t indict this case if the evidence isn’t clear. You don’t just throw the spaghetti on the wall, as we’ve said in the past, and hope that the jury will think it’s sticking. So to have evidence with that necessary level of precision means that you want the focus there on those facts, and anything that you do that muddies your case up just opens up all sort of jury risk.

Joyce Vance:

So let’s talk about the next case on the docket for today. California Congressman Eric Swalwell filed a civil case, not a criminal case, naming Trump and others, Donald Trump Jr., Rudy Giuliani, Alabama Congressman Mo Brooks, as defendants. Arguing that what he characterizes as the incitement to insurrection on January 6 violates certain of his rights and that he’s entitled to civil recompense. It’s not a criminal case. No one’s going to jail at the end of it. But the Trump organization and actually Trump and Donald Trump Jr. have now filed a motion to dismiss Swalwell’s case. Who do you think is right? Swalwell or the Trumps?

Preet Bharara:

So that’s a good question. I’d like to see the Swalwell responsive brief when that’s filed, see what arguments they make. My view of the motion to dismiss by Trump and his lawyers is that a lot of it is vintage Trump. There’s a lot of whataboutism, which you don’t tend to see in briefs. There’s attacks on his political adversaries and comparing what he did to what they did, saying that they had all sorts of involvement in incitement on other occasions. They attacked Maxine Waters among other people, and that’s nonsense. And you can strip that away. But look, the Trump folks, and I’m very curious to know. I’ve been waiting all week to hear what you have to say about this.

Preet Bharara:

They make two basic claims in their defense. One is the President has a First Amendment protected right to speech, and in particular, among the most protected forms of speech is political speech. And they claim that’s what he was doing, talking about an election, talking about his own candidacy, talking about the certification of votes. That’s political speech, and they say that’s protected by the First Amendment. And they cite to a case we’ve mentioned here before, Brandenburg. And they make a second argument. They always make their arguments, they make them a little bit more extreme than they need to be.

Preet Bharara:

But that the President of the United States was acting in his official capacity, within his duties as President, talking about these things. And so, actions that you undertake in the performance of your presidential duties or any other federal official’s duties are immune from suit. And you can’t be punished for things that you do that are within the scope of your responsibilities. My reaction to both of those is different from what it often is. Because I think they’re often making preposterous and stupid, silly arguments. Most notably Sidney Powell and her Kraken. These are not unreasonable defenses. And I think that Eric Swalwell’s lawsuit is interesting, but no slam dunk at all.

Preet Bharara:

I don’t think people have thought it’s a slam dunk. It’s a creative application of what he understands the law to be. I think there’s an interesting question about whether or not this was speech. I mean, the whole case, really the ultimate question is, was it political speech or was it incitement? And that’s the issue to be decided. I think it may be hard to get all of this dismissed at this stage, because as people may understand, to succeed in the motion to dismiss, you have to take all the allegations in the complaint, in the lawsuit. You have to take them to be true. The judge has to assume them to be true. And even if you assume all the allegations to be true, is there still a cause of action stated?

Preet Bharara:

And it may be that some of these things are questions of fact. What is it that the President said? What was his intent when he said them? What was happening behind the scenes? And it may be that a judge decides, well we need to take a little bit of discovery before I can decide as a matter of law. Was this something that can be punished or not, even civilly? Am I totally off-base?

Joyce Vance:

So it’s really interesting. I think that Trump’s defense is a really great defense if you believe that violently overturning an election is part of a President’s core duties while he’s in office. I have a very different reaction to this immunity claim that he makes. I know other people think that it may be difficult. But in my view, this is such a singular type of activity by a president that I think Swalwell’s lawyers can make this argument that he is clearly out of bounds of any kind of appropriate conduct. And so he gets no sort of protection whatsoever. Maybe that’s a little bit too optimistic on my part.

Joyce Vance:

But I think the procedure point you make is a really good one. This is a motion to dismiss. The court’s only job here is to decide if everything is the way the plaintiff says it is. Does he have a legal claim that he can proceed on? Or is he just so off-base that there’s no possible legal claim here? In which case, the case gets dismissed. Assuming that some or all of the claims here survive that motion to dismiss, then we’re into discovery. I think that’s what this lawsuit is all about. Swalwell would like to take the former President’s deposition, for one thing. And that could be very telling.

Preet Bharara:

Yeah. And people around the President. I mean, look. I think in connection with the second impeachment trial and that investigation proceeding, some of the most interesting information that you wanted to know about was what was the President doing behind the scenes? And we’ve been through this discussion a few months ago, to understand what the President was doing when he was saying the things he was saying. Was it political speech or was it incitement, which can be unlawful? Part of that turns on how he felt about the reaction to his speech.

Preet Bharara:

And there’s all sorts of evidence to suggest that he was happy about them, the insurrectionists. He supported them. He said, “We love you.” And that plays into the Swalwell argument that this was not just regular speech, but as you put it, completely out of bounds. We also know in a completely different context, but also involving Donald Trump, that he has made this argument before. There’s a lawsuit brought by E. Jean Carroll, who’s a writer who has alleged sexual assault by Donald Trump some years ago. While he was President, he called her a liar and said this didn’t happen. She has filed a defamation suit, and his lawyers made the same argument.

Preet Bharara:

When I was speaking about the case, I was acting within my duties as President of the United States, because that’s what presidents do. They talk. I’m simplifying it somewhat. And that has not yet been resolved. There’s a judge who says, “Now that conduct, that wasn’t part of your presidential duties.” And so you can be sued upon that, and that can proceed. That’s essentially the same issue we have here, except different conduct.

Joyce Vance:

It is. That’s Westfall Act immunity, the immunity that cloaks officials’ employees. We used to have this situation with our employees when we were U.S. attorneys every once in a while, hopefully not too often. And there’s something interesting going on here, which is that DOJ has not hurried to repudiate the position that it formerly took, that it would step in and represent the President here. I guess that all gets worked out in court. But I am a little bit surprised that DOJ hasn’t aggressively reversed course on its own here.

Preet Bharara:

We’re going to get to another example of that in a moment, as well.

Joyce Vance:

Yeah.

Preet Bharara:

So I guess we’ll wait and see what happens with this lawsuit. And I take all of your points. I just think it’s a closer question than many, many other legal arguments that the President and his folks have made, including with respect to overturning the election.

Joyce Vance:

You know, I agree. I’ll spot you that one. And it is a pure legal argument. So it’s the kind of thing that the court could consider at a motion to dismiss stage. I bet some of these claims survive, and there is at least some discovery in this case. The question is how extensive will it be, and what will it do to add to the narrative of what we know about January 6, especially since it looks like we won’t get the commission that everybody was so hot to get last week.

Preet Bharara:

Yeah. I mean, and people keep talking about accountability with respect to the insurrection. And there have been multiple attempts that aren’t getting us anywhere. The impeachment, the interest in forming a 1/6 commission, which seems to be dead at least as of now. You have the D.C. Attorney General, who reportedly has at some point been looking at the insurrection and people who made comments, including the President. You have the question of what DOJ will do, and then you have these lawsuits. And it’s a sort of disorganized, multi-pronged attempt with different people using different kinds of legal tools to try to get some transparency and accountability for what happened on January 6, at least on the part of the highest-up people, including the former president. Not quite there yet.

Joyce Vance:

One thing we should flag, though, before we leave that, is that our former colleague, Channing Phillips, who’s now the acting U.S. attorney in the District of Columbia, is very quietly proceeding with his criminal prosecutions last week. There was a superseding indictment in a case that charges some members of the Oath Keepers with criminal conspiracy for planning January 6. And there were some interesting new facts in this superseding indictment, including the fact that planning commenced just days after the election was over and that they used language like insurrection and civil war in talking about where they were headed.

Joyce Vance:

Maybe an inside baseball point, but if there are convictions in these cases, at sentencing, the government is entitled to talk about relevant conduct and ask the judge to sentence on that basis. My money is on Channing Phillips to put out as much of the narrative and share with Americans as much of the truth about what happened on January 6 as any of these other processes that are in play.

Preet Bharara:

I agree with that. But I will draw a distinction between incidental narrative that you put in a charging document like an indictment, a speaking indictment, versus what you could’ve gotten or what you could still get if minds change with respect to a 1/6 commission. Prosecutors don’t write reports. They write indictments. And most of what goes into indictment has to be in good faith, relevant to the charges and in support of the charges. And obviously some of that narrative in the background is appropriate, but it’s never going to be as full and as thorough as what a commission could do.

Preet Bharara:

And I was on CNN this week and following a Republican congressmen who said, “This is a criminal matter. We don’t need to have a commission.” To which my response was, you can have both. They serve different purposes. Sure, criminal indictments can hold people accountable and can tell some part of the story. They don’t really do a full 360 degree review of everything that happened, including security failures of the Capitol and who called which authorities when and whether or not there are other people on all sides who need to shore up the security forces at the Capitol. Prosecutors don’t make recommendations for reforms in the future, like the 9/11 commission did and like a 1/6 commission presumably would.

Preet Bharara:

So all these things could happen in tandem with different interests being vindicated by different bodies taking up things that are within their responsibility. And so that’s not really a good excuse for the really unfortunate failure of the Republicans to join in enough numbers with Democrats to pass the bill to create that commission.

Joyce Vance:

The only reason you don’t vote for the Jan. 6 commission is because you don’t want the truth to come out. There’s no other reason.

Preet Bharara:

You’re not getting an argument from me.

Joyce Vance:

Yeah.

Preet Bharara:

And politics. So, you kind of foreshadowed something that we were going to talk about. And that is the positions that the Department of Justice takes. There are a lot of folks that probably want Merrick Garland to reverse lots and lots of decisions and positions the Justice Department has taken before, especially when it comes to revealing information about things that the Bill Barr Justice Department did and said and thought and decided or didn’t decide. And it’s been kind of interesting to me, because this is kind of an inside baseball issue. But I’ve gotten a lot of questions about it. I know you’ve gotten a lot of questions about it.

Preet Bharara:

There’s the issue of this memo at the center of the legal controversy. And it’s a memo written by a couple of folks at the Justice Department high up, one in OLC and one in the DAG’s office, that Bill Barr has stated through court papers he relied on to make the decision not to commence criminal charges against Donald Trump, based on Volume II of the Mueller Report. Which, as you may remember, dealt with obstruction of justice on the part of the former President. And it’s getting a lot of attention, because Judge Amy Berman Jackson, in response to the prior administration’s efforts to keep this documentation, this memo, secret, has been kind of annoyed and has used fairly strong language to say much of this memo needs to be un-redacted, if not all of it. Because it is not deliberative in nature. It is not pre-decisional in nature. There was no decision to be made.

Preet Bharara:

Bob Mueller already took the issue of charging the President off the table based on the OLC memo. And there’s a back-and-forth, and I think a lot of people have been waiting for Merrick Garland and his department to take the opposite position and release the memo on which Bill Barr says he relied, so we can see what kind of PR shenanigans were going on. But they have not completely reversed position, and that surprises some people. Are you surprised?

Joyce Vance:

I’m not surprised. Like you, I’ve been in the middle of a lot of conversations about, do you focus on what you want to do in an individual case? Or do you focus on institutional priorities at DOJ? And a lot of the time, those institutional priorities win out. That might be the case here. But I’m wondering what you think, Preet. I’ve had folks ask me, “Do you think that DOJ is not releasing the memo because they would prefer to have the judge do it, because then it looks less political when it happens? Or do you think that’s just not the case here?”

Preet Bharara:

I don’t know. I don’t think so. I mean, I’d like to think that the department, generally speaking, takes the position that they think is best. And they don’t try to over-game it.

Joyce Vance:

Yep. I mean, I really tend to think people look at cases based on their individual merits and don’t engage in strategy. And it’s interesting here, because that’s exactly what Judge Jackson objects to. She says that instead of doing its job and working the case, working the Mueller Report, Barr was actually engaging in strategy not on behalf of DOJ, but on behalf of the President. This is really this core argument that Barr had become the President’s lawyer, not the people’s lawyer. And that’s what might be a little bit different in this situation from the normal assessment of institutional priorities. That knee-jerk reaction to protect deliberative privilege. Here we’ve got an attorney general who had just gone off the rails.

Preet Bharara:

I mean, what’s interesting here is the current department. This is why, to further your prior question, I really don’t think that speculation on the part of some people is correct. Because it looks like the current department has taken great care to make a nuanced argument about why some parts of this memo shouldn’t be released. Remember, part of what’s at issue here is, is the document pre-decisional? Meaning, is it a document that was relied upon in some way to make a decision that had not yet been made? And I guess it’s a little bit of a philosophical question.

Preet Bharara:

If Bob Mueller had taken the possibility of prosecution off the table, as he did, Judge Jackson’s point of view on this seems to make a good bit of sense. There was no decision to be made, so how can this thing be pre-decisional? Because the decision was not present. It was a foregone conclusion. And there was nothing in this that Bill Barr would’ve been relying upon, which I think is a pretty good argument. What does the current Justice Department say? And some people speculated this as the hand of Merrick Garland, as a former judge for decades on the D.C. Circuit Court of Appeals, the court one up above Judge Amy Berman Jackson, who’s on the District Court in D.C.

Preet Bharara:

And they say in their brief, quote, the process is not dissimilar to that of a judge who reaches a preliminary conclusion about how to rule in a given case. Analogizing Bill Barr to the judge. Who reaches a preliminary conclusion about how to rule in a given case and tasks a law clerk to write an opinion supporting that conclusion. All right. And it goes on to say, quote, the law clerk’s draft remains pre-decisional, because the judge, after reading the analysis, can still be persuaded or dissuaded by the analysis and reach a different conclusion. End quote.

Preet Bharara:

So separate and apart from commenting on the correctness of that analogy in that analysis, it is interesting that they’re making the point. And they’re taking care and effort to try to persuade a judge in language that the judge might understand, in a context that the judge might understand, to continue the policy of withholding portions of that document. Don’t you think that’s significant?

Joyce Vance:

It’s a clever way of making the argument. But look, it’s an important argument. Because you want to preserve the ability of the attorney general to receive candid advice from the people around him. You don’t want them to always be looking over their shoulder, worried that the memo that they write is going to show up in a congressional inquiry two years down the road. So from that point of view, it makes sense. The problem is that the situation here is so unusual. And I appreciate that you shouldn’t use an unusual situation to trash a policy that’s served the executive branch well over the years.

Joyce Vance:

But there is an important need for transparency here, not just for people who want to know what happened at DOJ over the last four years, but as an institutional priority itself. To make sure that DOJ has credibility with Americans going forward, so that when it makes tough calls in hard cases, people will give DOJ the benefit of the doubt and think that they’re fair and think that they’re doing the people’s work. There’s going to have to be some effort to be transparent, to provide an accounting for what happened at the end of the Mueller Report, at the end of the investigation.

Preet Bharara:

You make an important point, and it’s a point that a lot of folk are making. They’re not necessarily saying the arguments put forward by even the Merrick Garland Justice Department are wrong. They’re saying, “We take them at face value, and they’re good-faith arguments, and we understand the institutional concerns.” But just to rephrase what you just said, this is not an ordinary case. And it involves misconduct by the former President of the United States, and there’s a lot of confusion about that conduct. There was a distortion that more than one judge has acknowledged and commented upon, with respect to Bill Barr and how he engaged in a PR campaign about what was in the Mueller Report before it was released and after it was released.

Preet Bharara:

And because it’s that important, because it’s that significant, because it goes to the heart of misconduct, allegedly, on the part of the prior President, the more we get to see, the better. And it doesn’t harm institutional interests going forward, because it’s unlikely to be repeated. This kind of extraordinary circumstance.

Joyce Vance:

Yeah. I think that’s exactly right. And among the interesting questions that are raised in this context is the ultimate decision itself. The decision not to prosecute Trump, which depended, I think, largely on the OLC memo against indicting a sitting president. Although much of this memo is about purported deficiencies in Mueller’s evidence. But this justice department would be free to go ahead right now if it believed there was sufficient evidence and indict Trump, because he is no longer President, for obstruction of justice. There are a number of people out there who are advocating for that. We don’t really get a hint one way or the other from DOJ as to whether that’s a possibility. And actually, that’s as it should be.

Preet Bharara:

Well I have some hint.

Joyce Vance:

Do you have a hint? You think it’s a no, right?

Preet Bharara:

I think it’s a no.

Joyce Vance:

Yeah.

Preet Bharara:

I think it’s a no. And what’s ironic, that we should not lose sight of, is the following dynamic. Joe Biden really has no interest. He’s not going to direct his department. But he’s made clear, whether you like it or not, that he has no interest in making a top priority of his figuring out a way for prosecutors to go after Donald Trump or his family or anyone else. He wants to stay out of it. He wants to move forward. He wants to care about jobs and fixing the coronavirus and getting everyone vaccinated and all sorts of other issues. Inflation now, and gas prices, and everything else. And wants to be forward-looking.

Preet Bharara:

Which you would think that his Republic adversaries would appreciate and give him some credit for. Now imagine the shoe is on the other foot. Donald Trump has already shown himself to be enamored of and focused on putting his political adversaries in prison. I mean, the whole first impeachment proceeding was about Donald Trump trying to get some foreign authorities to be announcing an investigation of Hunter Biden and Joe Biden and proceeding with an investigation. He talks about locking up his adversaries all the time.

Joyce Vance:

It was his whole campaign slogan.

Preet Bharara:

It was his whole campaign.

Joyce Vance:

Right?

Preet Bharara:

Right.

Joyce Vance:

Lock her up.

Preet Bharara:

And it’s interesting to me that the high-mindedness of Joe Biden on this point, and I know some people don’t like it because they want to see a certain kind of accountability, and they want the President cheerleading for that, I give Joe Biden credit for being above the fray and wanting to avoid the appearance of going after political enemies. Something that should be avoided, but that Trump himself embraces.

Joyce Vance:

Democrats are sometimes accused on bringing a pillow to a knife fight. What I like about Joe Biden on this issue is that he’s vowed to stay out of DOJ’s business. And I think that that should be unexceptional, but it’s not after the four years that we’ve lived through. Here’s the problem that I see, and I’m not a huge fan of prosecuting former presidents or officials. I think that’s banana republic territory. But again, Trump’s conduct is so unique. It’s not about prosecuting someone who could be perceived as your political enemy. It’s about looking at the underlying goals of the criminal justice system and understanding how problematic obstruction of justice is.

Joyce Vance:

Not just in this case. It’s problematic to let Trump get away with it. But what does it say about our system as a whole, where other people are going to be charged with these kind of crimes? If I’m a defense lawyer, I’m telling every jury that the judge will let me get even close to this on, that my client shouldn’t be prosecuted because Trump got away with it.

Preet Bharara:

So Joyce, before we go, one great thing that’s happening in the country, to my mind, is more people are getting vaccinated. Mask mandates are being repealed. You walk around in New York City, at least, and you see a lot of people following the CDC guidance, presumably are vaccinated and are not wearing masks. And then you deal with particular establishments one by one. And there’s controversy about that, by what the government says you need to wear or not need to wear, in connection with public safety. But we are still, notwithstanding that disagreement in America, lucky not to be in another country, where even more fundamental decisions about you can and cannot wear and how you can and cannot present yourself are not choices left to the people. What country am I talking about?

Joyce Vance:

Could it be North Korea?

Preet Bharara:

It is North Korea.

Joyce Vance:

Yay. So as you say, choices about fashion are a little bit more restricted in North Korea than they are in our country and certainly than they are in Manhattan. North Korea is famous for its restriction on fashions and hairstyles. Apparently that doesn’t apply to the leaders, who make some really bad hair choices. But nonetheless, last-

Preet Bharara:

You better not fly over North Korea.

Joyce Vance:

Yeah. Last week, Kim Jong-un tightened his grip even more. He released the country’s latest crackdown on fashion trends in hopes that citizens would steer clear from mimicking what he called “exotic and decadent Western lifestyles.” That actually sounds pretty good to me. I’d like to have an exotic and decadent Western lifestyle.

Preet Bharara:

So Kim, he means business about this. He says, quote, “History teaches us a crucial lesson. That a country can become vulnerable and eventually collapse like a damp wall.” Is that the simile you would’ve used? Collapsed like a damp wall.

Joyce Vance:

Does a damp wall collapse?

Preet Bharara:

I don’t know.

Joyce Vance:

I have plenty of damp walls in my backyard right now and they all look good.

Preet Bharara:

They’re still upright?

Joyce Vance:

Yeah.

Preet Bharara:

“Collapse like a damp wall regardless of its economic and defense power, if we do not hold onto our own lifestyle.” So this is serious stuff. “We must be wary of even the slightest sign of the capitalistic lifestyle and fight to get rid of them.” End quote. And you’re sort of wondering, with bated breath, what are the symbols of capitalistic lifestyle that North Korea has to ban? What are those things?

Joyce Vance:

They have to be really bad, right? I mean, it’s clear that he’s not a fan of K-pop. But here are the horrible things that he signals out that will lead to the demise of life as we know it. Skinny jeans, nose rings, and mullets.

Preet Bharara:

As I might say, the supreme leader is not a fan of the party in the back. I kind of agree on the mullets. I think Kim Jong-un and I, we have found some common ground.

Joyce Vance:

I guess that’s important. I sort of thought mullets went out a long time ago. But bad news for at least one of my children, I hope she’s listening. Nose rings and skinny jeans, no more. They’re verboten.

Preet Bharara:

Well, just a North Korea choice. I think they’re still okay in Alabama.

Joyce Vance:

It’s a good thing for her.

Preet Bharara:

Folks, we’ll be back next week. Send us your questions to letters@cafe.com.

Joyce Vance:

We’ll do our best to answer them.

Preet Bharara:

Have a good week, Joyce.

Joyce Vance:

You too, Preet.

Preet Bharara:

That’s it for this week. CAFE Insider is presented by CAFE Studios and the Vox Media Podcast Network. Your hosts are Preet Bharara and Joyce Vance. The executive producer in Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Weiner, Jake Kaplan, Jennifer Korn, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.