• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce break down the news that DOJ prosecutors investigating leaks during the Trump administration subpoenaed Apple for data from Democratic Congressmen Adam Schiff and Eric Swalwell. They also discuss former White House counsel Don McGahn’s testimony before the House Judiciary Committee, and DOJ’s new strategy to protect the right to vote.

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; Sam Ozer-Staton & Jake Kaplan – Editorial Producers

REFERENCES & SUPPLEMENTAL MATERIALS

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

#INDIANFOODSUMMIT

Donate to Preet Bharara’s Indiaspora Fundraiser

DOJ SUBPOENAS

First Amendment to the U.S. Constitution

“Statement from Attorney General Merrick B. Garland,” DOJ press release, 6/14/21

“House Judiciary Committee Announces Investigation Into Targeting of Members of Congress, Journalists,” Rep. Nadler press release, 6/14/21

“DOJ OIG Initiates a Review of the Department of Justice’s Use of Subpoenas and Other Legal Authorities to Obtain Communication Records of Members of Congress and Affiliated Persons, and the News Media,” DOJ OIG press release, 6/11/21

“Did DOJ target Trump enemies using improper subpoenas? We need to find out,” MSNBC, 6/14/21

“Apple Is Said to Have Turned Over Data on Trump’s White House Counsel in 2018,” NYT, 6/13/21

“Hunting Leaks, Trump Officials Focused on Democrats in Congress,” NYT, 6/10/21

Manu Raju tweet, 6/12/21

DON MCGAHN

U.S. House Judiciary Committee Interview of Don McGahn, transcript, 6/4/21

“House Judiciary Committee Releases Transcript of Interview with Former White House Counsel Don McGahn,” Judiciary Committee press release, 6/9/21

“Ex-White House Counsel Describes Pressure He Felt From Trump During The Russia Probe,” NPR, 6/9/21

“Why the McGahn Agreement Is a Devastating Loss for Congress,” Lawfare, 5/19/21

VOTING RIGHTS

“Attorney General Merrick B. Garland Delivered a Policy Address Regarding Voting Rights,” DOJ, 6/11/21

“The DOJ has a plan to protect voting rights. It might not be enough.” Vox, 6/13/21

“Garland announces expansion of Justice Department’s voting rights unit, vowing to scrutinize GOP-backed voting restrictions and ballot reviews,” WaPo, 6/11/21

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. How are you Preet?

Preet Bharara:

I’m still full from the Indian meal I had last Thursday at what I have called #IndianFoodSummit with Tom Nichols, who goes by RadioFreeTom on the Twitter. Folks who may not be familiar, Tom Nichols famously said about a year and a half ago something obnoxious and dumb which was, “Indian food is terrible. And we all pretend it’s not,” which led to a huge reckoning for him on Twitter. And I offered him a chance to change his views and his mind if he ever came to New York. So as we got vaccinated and the city started opening up, I invited him down. And I think we ordered enough food for seven people.

Joyce Vance:

It looked really amazing. I was super jealous of the meal. I was happy to see that there was fundraising going on to help India through the COVID epidemic, which has been so horrible to watch there. But that has to have been sort of a tense meal, right? If the premise was he hated Indian food-

Preet Bharara:

No, I got him liquored up. I got him liquored up pretty well. He was drinking old fashions. We had some wine. And by the way, we raised on the strength of some tweets and people following the story, $132,000 so far and counting.

Joyce Vance:

That’s really amazing.

Preet Bharara:

So people can still donate, but that was fun.

Joyce Vance:

I just have to ask, did you serve him really spicy food? Or did you tone it down?

Preet Bharara:

No. So, I had a strategy. Because lots of people suggested, “Give him vindaloo. Give him the spiciest stuff that’s available.” My idea was not to kill him, although some people wanted me to do that. The idea was to gently persuade him that it’s a very broad based cuisine and there are lots of things. There are dishes that I don’t like in Indian food, and in Italian food. Some things I like, some things I don’t. And that’s going to be true of any cuisine and any palate pretty much. So I didn’t want to overwhelm him. I think he has a problem with spice. People do. As I’ve gotten older, I have less taste for spice than I used to have. His favorite was the rice dish, the lamb biryani, which went over very well. He tried a curry, but wasn’t into it, which is fine. And he liked a bunch of stuff. I’m going to write about it next week for the insiders, I think, and give people the blow by blow.

Joyce Vance:

This shows why you’re a deeply strategic thinker and very successful, because you always have a plan.

Preet Bharara:

And a pig. Because I ate a lot. I ate a lot. I ate a lot.

Joyce Vance:

Well, I’m still jealous.

Preet Bharara:

By the way, before we start Joyce, I should also say the next episode, the third episode of our new podcast Now & Then with Heather Cox Richardson and Joanne Freeman is available now. You can find it wherever you listen to your podcasts. Now & Then.

Preet Bharara:

So there are a lot of things to talk about. And I will confess, I’ve been waiting all week Joyce to have this discussion with you. Because I’m confused about a lot of things. And one of the big issues that’s come up in the last week are these revelations that the department of justice under Donald Trump, under Jeff Sessions and Bill Barr was seeking the metadata on the devices, the telephonic devices of among other people, representatives on the intelligence committee on the democratic side. Representative Swalwell, Representative Schiff, the chairman now, and other staffers. And even it’s reported family members of staffers. And there’s been kind of an uproar. The Inspector General has announced that he will undertake an investigation. Jerry Nadler of the House Judiciary Committee announced he will undertake an investigation. And there’s all sorts of hollering and yelling about it, and against this backdrop. And then I’m going to turn it over to you to explain it to me, Joyce. Even though these were high level people whose data was being requested, multiple people including former Attorney General Bill Barr, former Attorney General Jeff Sessions, and former Deputy Attorney General Rod Rosenstein have made clear either officially on the record or through people who have said this to the press that they had no idea. They had no idea about Swalwell, no idea about Schiff. Can you figure this out for me?

Joyce Vance:

So this has been confusing. For starters, because metadata isn’t something that we’re commonly using. And we need to understand what it means in this context. I think what we know so far raises more questions than it answers. But essentially what DOJ was obtaining here from Apple, so not from an email provider or a phone company. The fact that it went to Apple signals to me that this is about iMessage. And Preet, you can weigh in on whether I’m right about that or not. But it’s essentially information about who was chatting with who and when. It wasn’t the contents of conversations. Something like that would have required a more detailed court order. This is sort of the equivalent of subscriber information if you were looking at telephone accounts. Who did the accounts belong to and what activity was going on, on them? Does that make sense for starters?

Preet Bharara:

Yeah, it does. And we should remind folks that the context of this reportedly is an investigation into leaks. There was information. Some of the classified, but we’ll talk about other reporting that talks about non-classified information that may have also been the subject of leak investigations, and that’s even more confusing. But Trump and other folks were upset that among other things, communications between Trump and Russians was making its way into the press. And he was very vocal about it and very angry about it. And whether or not he directed these investigations or people just understood that the president didn’t like it and undertook these investigations, that’s the backdrop.

Preet Bharara:

The one thing that people should understand, and I don’t know how much experience you’ve had with this or if you agree with this Joyce. Leak investigations are very complicated things, and they’re very fraught things. And even though at this moment, we’re talking about the controversy over the request for metadata on members of Congress, most of the time, and this is also the case in this matter, most of the time the controversy erupts because members of the press feel that if an investigation seeks information from members of the press, that’s an impingement on their First Amendment rights. And by definition, in almost every case, in fact I can’t think of any case where it wouldn’t be true. The thing that’s causing the investigation is a leak of classified or sensitive information to a media outlet that then gets reported. And which happens to be in many cases a violation of the statute. And with respect to other kinds of crimes like robberies or drug distribution conspiracies, you subpoena the people who have information about who the bad guy was. Who distributed the drugs or who invaded the home. Here in leak investigation where there’s a violation of law, naturally the people who are in possession of information about who broke that law by engaging in the leak as a member of the press.

Preet Bharara:

But that becomes very complicated and difficult in a First Amendment country where members of the press themselves can’t be prosecuted for publishing what they found. Recently, and I should note historically that it was the 50th anniversary of the release of the Pentagon Papers. The people who get prosecuted and who get targeted are the ones who gave out the classified information in violation of statute, not members of the press.

Preet Bharara:

But there is a conundrum, and not everyone likes to acknowledge that there’s a conundrum in leak investigations where if you are taking the view that you respect the press’ rights and you don’t invade them, and that’s what Joe Biden has said. He’s pulled back on the authority that he thinks the Department of Justice should have to subpoena communications between sources and members of the press. Then you’ve tied one hand behind your back. So people just realize that that’s basically a concession that we can’t really conduct those investigations. So leak investigations are difficult. Leak investigations impinge on what the press thinks is a First Amendment right. And by the way, they often don’t lead to anything. The success rate in leak investigations is not high.

Joyce Vance:

It is low. The cases are complicated. And of course, early in our tenure as U.S. Attorneys, Eric Holder faced this issue and put in place some really detailed guidelines for one thing you can’t resort to seeking information regarding the press, unless it’s the last resort. And there are other complicated restrictions and a requirement that the Attorney General be notified and sign off in advance. Which means that the focus should be only on really significant leaks that have a serious impact on national security. If we’re going to bend the balance a little bit on the First Amendment, we need to make sure that it’s an issue that fully warrants it. And people can and do continue to debate that. Joe Biden has weighed in.

Joyce Vance:

But Preet, I’ve got sort of a foundational question here. We’re looking at a situation where we know Apple turned over information on congresspeople, and their families, and their staff. And my question is this. Was it a direct subpoena that targeted them directly? Or was this incidental collection? Were there other subpoenas where DOJ was looking at folks that they had identified as potential leakers, and in looking at their communications, the names of congresspeople suddenly popped up? I think that there are still issues either way. And I’ll just say that had I had a situation like that where I saw a congressperson’s name popping up, I would have given the Attorney General of the United States a phone call and said, “Hey not for nothing, but we have incidentally collected some information on Adam Schiff in the course of an otherwise legitimate information.” Because ultimately, that sort of collection is disclosed, right? DOJ-

Preet Bharara:

And you know it is. That’s how we’re finding out about it now.

Joyce Vance:

You know, right? But DOJ delays it here. But even at the time that those names first popped up, prosecutors knew that this day would come. And the first phone call that I would have made would have been to the Attorney General. Because as a prosecutor, I don’t want to be holding the bag for that when it comes out. I want to make sure everybody in my chain of command understands what’s happening. I think it’s really strange that this didn’t happen here.

Preet Bharara:

So it depends on what you believe. If you take the position that Rosenstein, and Sessions, and Barr are telling the truth and they didn’t know about the involvement of Swalwell and Schiff records, then I think it’s the second of the two possibilities that you mentioned. That it wasn’t direct collection from Swalwell, and Schiff, and others, but it was incidental. Meaning hypothetically, let’s say there was a person under suspicion who’s a mid-level staffer on the intelligence committee. And other people have mentioned this hypothetical. So you request information relating to that staffer. And you find out what communications that staffer had with other people. And then you get 100 phone numbers, or 200 phone numbers, or 200 iMessage accounts, whatever the case may be. And among those are communications with Schiff and Swalwell, and perhaps even other members of the committee.

Preet Bharara:

But at the time you get the listing of those contacts, maybe you don’t know, depending on how you’ve sought the information, you don’t know who that contact information belongs to. And then you seek information about that contact. And then you find out it’s Eric Swalwell, or Adam Schiff, or whoever. At which point, it doesn’t look like it went any further. And at which point as you say, regardless of where you’re going from there, you would probably let the Attorney General know.

Preet Bharara:

So I don’t have full confidence that they’re telling the truth either, because there’s discrepancies in the reporting between … there’s discrepancy between what the press reports Bill Barr did and insisted on with respect to persisting in the leak investigation, even though nothing good was coming up, and what Bill Barr himself says. So I think both possibilities are there.

Joyce Vance:

Exactly. And that’s what I find to be difficult to reconcile here. This investigation starts in 2017 under Jeff Sessions. Look, I’m just going to say, I don’t have any difficulty believing that Sessions could have been briefed on this and not fully understood the implications of it. Did I really just say that? Okay. Well, I did.

Preet Bharara:

You can. You’re from Alabama.

Joyce Vance:

Here’s the problem. It lingers for three years. It doesn’t look like it’s a productive investigation. Nobody gets indicted. And they’re still imposing what the press has called a gag order. I’d call it a nondisclosure order. And then Bill Barr brings in a prosecutor from New Jersey who has no experience doing leak investigations. Brings him down to Washington and lets him take another look at this, as though he doesn’t have any bigger fish to fry in the Justice Department than a three-year-old leak investigation that’s been unproductive, but that seems to be something that would tickle the president to learn that it’s being continued.

Preet Bharara:

Yeah. But the weird thing is if you believe Barr and others that they didn’t know about this information being sought, what kind of briefing if any, were they giving the president on this? Other than to say, “We’re continuing with the leak investigation, Mr. President. Don’t worry about it.” I mean, they seem to be disclaiming a lot of things here.

Joyce Vance:

Yeah. I mean, that seems to be a theme here, right? Always the audience of one pacifying Trump, the kind of behavior that no Attorney General should ever engage in. Because what it points to is the conclusion that no matter whether these were direct or indirect subpoenas, how the details play out, that this points to the politicization of DOJ. And also a willingness to violate separation of powers, that reserved line between the executive branch and Congress in order to keep Trump happy.

Preet Bharara:

Yeah. It’s hard. This is one of those situations where lots of people are asking questions. You and I go on television to answer some of these questions. We do this podcast. There’s just a lot we don’t know. And we speculate about it, and maybe there’s something that we’re missing here. But I think what’s really important, and I’m not criticizing the department yet. But I will say that in the context of the information being sought, the significance of the people from whom it was sought, lots of questions about what the guidelines are, what the boundaries are. Lots of confusion. I think the department has to figure out a way that’s appropriate and consistent with grand jury secrecy and everything else to explain. Because it’s very confusing.

Preet Bharara:

Now, one thing that we mentioned that has happened is that I think it was our friend Lisa Monaco who’s the Deputy Attorney General has asked for an IG, Inspector General investigation of all of this. And I think the Inspector General has agreed to do so. That’s great. We talked about IG reports here on the show all the time, over the years. But that takes a long time. It’s a very laborious process. That’s months, and months, and months away from our seeing anything. Right?

Preet Bharara:

And then the question is, is there some other thing even before Jerry Nadler and his committee got to work that Merrick Garland or some other official from DOJ can explain? I think they have to say something. Don’t you?

Joyce Vance:

I really do. And I’ve actually spent the weekend writing a piece on this that I’m still working on. But increasingly, I’ve come to the view that Merrick Garland has an opportunity here. He has got to make a lot of difficult decisions while he’s Attorney General. More so I think than the usual Attorney General, because of the situations that he has inherited. And this was his opportunity to become a trusted voice in American society. There’s been a lot of criticism of him over the last couple of weeks. First, it was the failure to disclose an unredacted version of the Barr memo, which you and I discussed. More recently, it’s been his decision to continue to try and defend Trump in the E. Jean Carroll case. He surely has strong institutional reasons for making those decisions, whether you agree with them or not. But instead of coming out and explaining why DOJ is taking those positions, he’s just let it go out into the ether and really suffered unnecessary criticism.

Joyce Vance:

So here, he could engage in transparency with the public. As you say, DOJ can’t talk about the details of ongoing investigations for a lot of really good reasons. But he can explain process. He can talk about what they’re doing to get their arms around whatever it is that’s buried inside of the portfolio that they inherited from Bill Barr. In fact, I saw yesterday a statement where he referenced the fact that he had asked Lisa Monaco to engage in a top to bottom review of the cases at DOJ to surface any problem cases. That’s an important thing for people to know. He can share details regarding these subpoenas. I’m not sure that there’s any reason in this situation with a closed case to be so hesitant to come forward with more facts, unless maybe there’s some sort of crazy ongoing leak investigation here that we don’t know anything about on other people.

Joyce Vance:

There is a lot of good that comes from telling the truth. There’s a lot of hesitation at DOJ to over engage with the public. To share details in a way that might compromise cases. And of course, there’s the recent example of Jim Comey that still hangs over everybody’s head. But now is the time to go ahead and do something different and bold.

Preet Bharara:

Yeah, I think everything you said is correct. And one of the things that I think DOJ can answer is the question you pose at the beginning. Which is was this a direct targeting of members of Congress for their information? Or was it incidental? I don’t know that you violate anything by making a general statement about the fact that there were particular people whose information was targeted. And then as happens in investigations, leak investigations and other kinds of investigations, that there was incidental collection. And we’re going to engage in this review, etc.

Preet Bharara:

Now, what’s interesting about the Attorney General statement that you referred to is he repeats again that he directed that the Inspector General conducted investigation. As I said, that’s going to take a long time. And then as you also pointed out, he’s directed Lisa Monaco, who he says, “Is already working on surfacing potentially problematic matters deserving high-level review, to evaluate and strengthen the department’s existing policies and procedures for obtaining records of the legislative branch.” But there was no commitment there that they will come forward and explain everything.

Preet Bharara:

And one possibility is, I don’t know what you think of this. Is that through no fault of their own, they were caught a little flat-footed by this. I mean, some people have raised the question why is it that we’re finding out about the seeking of this sensitive information from Apple as the gag orders with the non-disclosure orders are expiring, rather than from the department itself who should have been ahead of it?

Preet Bharara:

And it’s not clear to me how much information since they’ve been there a short while they have in their possession. Are they getting ahead of the fact that we might be finding out in the coming weeks, and some of these officials have been saying this on social media, that many other people probably had their information sought. And that their non-disclosure orders with respect to that information as well. Do you think that they didn’t really know the full scope of this, and part of the reason why they’re not coming forward and explaining is they’re trying to get a handle on it?

Joyce Vance:

I’ve been really curious about that. And the question was did Merrick Garland learn about this of on the front page of the New York Times like the rest of the country? The reporting that I’ve heard on that, and I don’t know obviously what the source is, was Rachel Maddow when she broke the story, discussed it Thursday night on her show. And she indicated that Garland had found out about it with the rest of the country.

Joyce Vance:

I’d like to know more about that. Because as these gag orders expire typically as a prosecutor, you’re aware that that’s going to happen. I mean, maybe you have a lot going on and you don’t notice, but there were congresspeople involved here.

Preet Bharara:

You got to put it in your calendar.

Joyce Vance:

I mean, wouldn’t you think somebody would have given the brand new Attorney General a heads up? So that raises all kinds of questions, right? Was it just inadvertent, or was there an ongoing deliberate effort to conceal these cases? That seems a little bit farfetched, but we just don’t know.

Preet Bharara:

Thinking about my own question for another minute and looking back at the statement that I read from the Attorney General, I do get the sense that there’s a hint that they don’t know what other time bombs are lurking in the department. Right? Because he doesn’t just say that the Deputy Attorney General Lisa Monaco is conducting a review of this issue relating to the obtaining of information from members of Congress. But I’ll say it again, “Lisa Monica, who is already working on surfacing potentially problematic matters deserving high-level review,” suggests they don’t know what’s below the surface. And they don’t know what other kinds of things were put in place or that were operational before they took over. And we do know that the transition process was not wonderful and smooth, and there was a fight about the election up until the last day. So the kind of briefing about sensitive matters and ongoing matters that normally takes place maybe didn’t.

Preet Bharara:

Now the counter to that, and I’m curious what you think about this. The reporting is that there are multiple officials, including the former and outgoing chief of the National Security Division John Demers had information about this, knew about the leak investigation, and should have and would have been in a position to brief the new leadership. And people are asking the question, should they be removed from office?

Joyce Vance:

That seems to me to be a situation where the devil is in the details, right? We just don’t know exactly what happened, whether there were briefings or not. I think it’s important obviously for Merrick Garland to figure that out.

Joyce Vance:

But beyond just this subpoena matter and without thinking very hard, there are a number of situations that if you’re coming in to DOJ and taking over the portfolio, that you need to know about. There’s the investigation that our former colleague John Huber out in Utah was conducting the hangover of the Hillary Clinton investigation. There was the Durham investigation going on in Connecticut. And then you think about cases like the Mike Flynn case, where ultimately there was a pardon so none of it mattered. But that, Roger Stone, other cases where the attorney weighed in on the balance in a criminal case in inappropriate ways, and there were protests by career prosecutors. Well, what else is out there like that? Are there cases that for instance could have been squelched? We kept hearing so much about Rudy Giuliani having access to FBI leaks in the run-up to the 2016 election. Saw some indication that there was an investigation up there, and nothing ever came of that in the Southern district of New York.

Joyce Vance:

Trump was identified as individual number one in the successful prosecution of Michael Cohen. What’s going on with that case? As you say, there are lands mines every place. And part of the challenge that this new team faces at DOJ is to hope that they figure them all out before they blow up on the front page of the times.

Preet Bharara:

I agree with that.

Joyce Vance:

I’m really glad we’re here and they’re there.

Preet Bharara:

So am I. It seems that at a minimum, there should be, and hopefully this is something that’s being worked on. To figure out all the ways in which Bill Barr tried to interfere with career prosecutors’ decisions and investigations. We know about some of those things you mentioned them, catalog them a second ago. But there may be others. There’s no reason to think that there were not other occasions where he reached far down the chain to try to use his influence to protect the president and do the other kinds of things that he’s been accused of doing. And I agree with the folks who say that he, and Sessions, and others should be called to testify. Do you think that’ll happen?

Joyce Vance:

Well, that’s an interesting question. They need to testify under oath, right? They’ve made this statement that they didn’t know. And these are people who on occasion have been the contours of the truth. So it would be important to have them repeat that under oath. But Congress is going to have to get serious about asserting its oversight function-

Preet Bharara:

We’ve been saying that for a few years.

Joyce Vance:

Well, we have.

Preet Bharara:

They’re going have to get serious.

Joyce Vance:

We’re at a point where either in this case, they subpoena these people, they make sure that they appear promptly. There’s none of this negotiation, like what happened with Don McGahn. I’ll get a little bit ahead of us and just say none of this negotiation where you essentially let the person who’s testifying set the parameters for his testimony. This is a moment where something that even Richard Nixon stopped short of doing has happened. There is an indication that the executive branch was investigating the legislative branch. And to find out what happened here means that Congress needs to be a full partner in the governance of this country. And they have ceded way too much of their authority to the executive branch over the years. It’s now or never.

Preet Bharara:

You mentioned Don McGahn. We should also refer to the fact that in addition to Swalwell and Schiff, it appears that the White House’s own counsel, Don McGahn when he was in office, that his information was sought by the Department of Justice as well. That’s not necessarily a political adversary. We know that Donald Trump in that timeframe was angry with McGahn. And that was the subject of his testimony that we’ll talk about in a moment.

Preet Bharara:

But this is another whole Pandora’s box with lots of questions that I don’t really have the answers to. Why was his information being sought? Was it part of a leak investigation? Was it part of that same leak investigation? Was it the work of Bob Mueller? The reporting is that the subpoenas emanated from a Eastern district of Virginia grand jury. But it’s odd.

Joyce Vance:

It’s really strange. I mean, the same question as on the congressional subpoenas. Was McGahn directly the target of these subpoenas, or was it incidental collection? Because there’s so much going on. And really on this same timeline, news is leaking out that McGahn is cooperating with the Mueller investigation. I think now we know that it wasn’t leaking out. McGahn was actually sharing it with the press. So Trump would have had plenty of reasons to be unhappy with McGahn. The question in my mind is did his anger somehow translate into action by the Justice Department? Or were these subpoenas just something that would have happened anyhow unrelated to Trump’s concern that McGahn had shared the story about Trump trying to fire Mueller and then refused to cover it up?

Preet Bharara:

So sticking with Don McGahn a little bit longer, as we mentioned and we’ve talked about on the show many times, there’s been a multi-year dispute in litigation over whether or not he would come testify. And at the start, the Trump administration was very absolutist about whether or not even a former member of his staff, White House counsel could be compelled to testify. And as these things are often resolved, they’re resolved by negotiation with parameters, and a deal, and guidelines for what the person can be compelled to testify about and not.

Preet Bharara:

So finally years later with a new president in place, Don McGahn behind closed doors testified with his lawyer Bill Burke, who I should disclose is an old and good friend of mine. Is that important at all?

Joyce Vance:

McGahn’s testimony comes two years too late, but I think it’s still important. For one thing, it’s a little bit of Congress planting the flag and saying, “We are ultimately going to get this kind of testimony.” There is legislation in the works that would impose rules that would make it possible for them to get it more quickly and more efficiently. And I think that they should proceed full speed ahead with that sort of legislation.

Joyce Vance:

I think it’s disappointing to me personally that McGahn didn’t testify in public. But it does speak to this notion that these are matters for accommodation to be worked out between the executive branch and the legislative branch. The appellate lawyer in me is a little bit disappointed that these long running issues didn’t get resolved in court, that we don’t have clear legal guidelines and standards that would advise how these proceedings should work going forward. But despite that disappointment, I’m not sure at the end of the day that it’s bad for there to be accommodation. But I got to ask you a question about the substance of McGahn’s testimony, and whether you were troubled by the same thing that jumped out at me.

Joyce Vance:

McGahn so concerned about appearances, and he doesn’t want to be the guy who triggers another Saturday night massacre by conveying the order to Rod Rosenstein that it’s time for Mueller to be fired. But I don’t see McGahn really expressing any concern that the president of the United States wanted to obstruct justice. I mean, that’s just not what McGahn is here for. He’s here to talk about what he did, and how he wanted to avoid being prosecuted. And I don’t hear him condemning the president. He says, “Well, it was a little bit troubling for me.” Well, it should have been enormously troubling to Don McGahn. And I just don’t hear that outrage from him.

Preet Bharara:

He testified behind closed doors. But the transcript has been released, or most of the transcript has been released. You can’t get tone from a cold transcript. So here’s what he said when asked the question, “How did you feel? How did you react after Trump was asking you to figure out a way to dismiss Special Counsel Robert Mueller?” And he says, “After I got off the phone with the president, how did I feel? Frustrated, perturb, trapped. Many emotions.”

Preet Bharara:

I don’t think that’s nothing. It sounded like he was having a crisis. Does he say the president obstructed justice? Not in so many words. But I think the implication of his refusing to do certain things indicates that he believed that it could have been obstruction of justice.

Preet Bharara:

Look, I don’t think that Don McGahn is a hero. There are lots of things that he facilitated in this administration, and his reputation was not sterling when he went in. But like lots of people, he agreed to do some things, but he had a line like everyone else. The line was not where maybe I would have wanted it to be, but I’m glad there was some line. Even Bill Barr had a line at some point, even though the president had none.

Joyce Vance:

I think that McGahn made a lot of sacrifices so he could play a heavy role in getting federal judges confirmed to the bench. But I think that there will be a question about whether people made trade-offs because they knew Trump would promote policies that they were in favor of, long-term goals for conservatives in the Republican Party. And they were willing to tolerate behavior that should have never been tolerated to get there. But once you had one foot in those waters, it sort of became difficult to get in. McGahn in that statement says he felt trapped. He could have left the White House at any point in time. He could have made a decision, sort of a John Dean decision to testify about what’s going on. And I think history will judge him unkindly for failing to do that.

Preet Bharara:

Joyce, I’m looking at the transcript again. Going back to the question that you were raising before about what Don McGahn’s reaction was, there are spots where Don McGahn indicates his understanding and the president’s understanding of what kinds of crimes were a possibility. He’s asked the question, “So by February of 2018, the president was very aware that it was a federal crime to lie to the Special Counsel. And you could be indicted for doing so. Correct?” And McGahn answers, “Suppose so, yeah.”

Joyce Vance:

That’s just an incredible exchange. It’s like are we supposed to believe that the president of the United States is such a babe in the woods that there was a point at which he didn’t think that lying in a Special Counsel investigation was a crime that would have serious repercussions? That in fact, if you had something that you had to lie about when you were talking to the Special Counsel, that there were problems there. It just seems like there’s so much tolerance of the pervasive misconduct that Trump engaged in, that somebody should have been the adult in the room and put their foot down much earlier. Ultimately, I think these much vaunted guard rails really didn’t exist.

Preet Bharara:

It’s also just astonishing to me how many people around the president that he put in place, that he hired, that he and his team vetted. Ultimately didn’t do everything that was requested of them, which could have involved obstruction of justice and other kinds of crimes. He then calls them names. And the reporting was, and McGahn was asked about this, how he felt about the report that President Trump called McGahn, his own former White House counsel a, “Lying bastard.” His reaction was, “Disappointing.”

Joyce Vance:

It’s absolutely amazing. Look, I am just a little country lawyer from Birmingham, Alabama. But I know that you speak truth to power. And seriously, I mean as a member of the bar, you have this duty. As a person in government who takes an oath to uphold the constitution and the laws, you have this duty. If you see someone like say the president of the United States engaging in criminal conduct, maybe for starters, you go to that person and you have a forthright conversation about what’s going on and where the lines are. Probably Trump didn’t really engage in that kind of conversation. But at some point, you have a duty to do the right thing and to make sure that the conduct stops. Not just that you personally aren’t participating in it, but there is no more obstruction of justice emanating from the oval office.

Joyce Vance:

And perhaps, it’s the fact that I’m not a Washington or a New York insider that that makes me feel so strongly about that. But looking at the highest levels of government, I don’t want to see anyone tolerating that kind of behavior ever again. And my biggest fear is that what’s happened is that we’ve now become willing to tolerate a certain amount of misconduct by a president. And that that becomes a very slippery slope in the future, particularly if we get a much smarter version of Donald Trump down the road. Because frankly, he was often his own worst enemy. He told on himself on Twitter. We may not be that lucky in the future.

Preet Bharara:

He’s kind of a clunky guy. And I think those fears are very legitimate. The work is not done. And who knows what will happen in the next four years? Should we close up by going back to Merrick Garland and talking about a good thing that he said in the last week?

Joyce Vance:

Let’s do that.

Preet Bharara:

So as you know, there’s roiling controversy about voting rights. As many people perceive it the most fundamental right that we have, because it’s the right that allows us to protect all our other rights. And there are movements in many, many states in the minds of I think reasonable people that laws suppressing the vote make it more difficult to vote, particularly for people on the Democratic side, are passing in the wake of the loss by the president of the last election. So the Attorney General gave a much anticipated speech last week in which he said probably most notably that he plans to double the size of the Justice Department’s voting rights enforcement staff, to combat efforts to restrict ballot access, and prosecute those who threaten or harm election workers.

Preet Bharara:

So I think that’s not insignificant. The question as many people have put it is is doubling staff and promising to use the tools at your disposal, does that mean much if the tools at your disposal are not necessarily effective? The most important thing that I think in the minds of many that needs to happen and doesn’t look like it’s going to happen is the passage of this bill. It’s H.R. 1, now it’s S. 1 in the Senate, that would help to protect voting rights in the country, and supersede all these local laws that are being passed in states. Merrick Garland has no ability to pass a law. What do you think of the significance of his announcement?

Joyce Vance:

I’m possibly more bullish on what Merrick Garland is doing here to protect voting rights than most people. Look, I think it’s important for us to be aware that there’s this important two-part process going on in Congress. We need to have both H.R. 1, the For the People Act, which does a lot of things to protect voting. It helps with registration and other issues. But also H.R. 4, the John Lewis Voting Rights Act which would restore the section five of the Voting Rights Act, which was gutted by the Supreme Court in the Shelby County case that came out of my district. Although I bear no responsibility for that case and didn’t have the chance to be involved in it.

Joyce Vance:

But what people’s major concern here is that that section five provision was critical to challenging states who did things either intentionally or sometimes maybe not intentionally, that stepped on people’s ability to vote. Without section five there, it’s much more difficult. There’s still a section two provision that can be used at least until the Supreme Court decides a case that we’re all waiting with bated breath to hear the outcome of in this term.

Joyce Vance:

The issue here is this as I see it. Because so many years we had section five to use to combat these sort of state actions, we didn’t fully use other provisions of voting law. Now Merrick Garland has committed to using those provisions.

Joyce Vance:

So let’s just look at one example, because this is complicated. And I don’t want to go on ad nauseum here. But here’s an example of why I’m bullish on this approach. This, I don’t even want to call it an audit that’s going on in Arizona. It’s this absolute insanity that involves cyber ninjas and looking for bamboo fiber in ballots. Well, there are provisions in the ’57 and ’60 Civil Rights Act that actually require that there be a chain of custody on ballots and equipment that’s used in election, precisely so DOJ can come in and engage in oversight. So if Arizona violates those provisions, then DOJ can take action against them. And if they make good in Arizona on their threat to go out and confront people who voted in that election, to knock on their doors and ask them about their votes, which is something that they’ve said that they intend to do. That would violate laws that DOJ can enforce that prohibit voter suppression. They could even run over from the civil to the criminal side of the house.

Joyce Vance:

So if Garland is willing to be aggressive, and I take him at his word here. Under Kristen Clarke’s leadership and Vanita Gupta’s leadership, we could be in for an interesting re-invigoration of DOJ protecting the right to vote, even if we don’t get the laws that we need out of Congress.

Preet Bharara:

I’m still holding out hope that we get those laws.

Joyce Vance:

Me too. And Joe Manchin hasn’t said that he’s a no on the John Lewis Act. So maybe there’s still possibilities out there for compromise.

Preet Bharara:

On that positive note Joyce, I’m going to go finish digesting the Indian meal I had last week.

Joyce Vance:

I wish you good fortune with that Preet. It sounds like it was a good time and a full stomach.

Preet Bharara:

It really was. We’ll be back in a week. Send us your questions to letters@cafe.com.

Joyce Vance:

We look forward to answering them.

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 is 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.