• Show Notes
  • Transcript

In this episode of the CAFE Insider podcast, Preet and Joyce break down the news that the DOJ under Attorney General Merrick Garland is maintaining its position that it should defend Donald Trump against a defamation suit brought by E. Jean Carroll, a writer who has accused Trump of raping her in the 1990s. They also discuss newly-released emails that show Mark Meadows, former White House chief of staff, pressuring the DOJ to investigate election fraud conspiracy theories, and the new developments in the criminal investigations into Trump and Matt Gaetz. 

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 – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

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

CARROLL V. TRUMP

MARK MEADOWS 

  • Katie Benner, “Meadows Pressed Justice Dept. to Investigate Election Fraud Claims,” New York Times, 6/5/2021
  • Full transcript and audio of the call between Trump and Raffensperger, Washington Post, 1/5/2021

TRUMP INVESTIGATION

  • Aaron Katersky and John Santucci, “Manhattan DA brought Trump Organization controller to testify before special grand jury: Sources,” ABC, 6/4/2021
  • Shayna Jacobs, “Prosecutor in Trump criminal probe convenes grand jury to hear evidence, weigh potential charges,” WaPo, 5/25/21

MATT GAETZ

LAUGHING CHALLENGE

  • David Mack, “11 Things That Lasted Longer Than Trump’s Blog,” Buzzfeed, 6/2/2021

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 well, Preet, how are you doing?

Preet Bharara:

I’m good. Do you think that some people mistakenly believe that we are part of Fox with an F instead of Vox with a V? We’ve gotten some mail [crosstalk 00:00:23] on the point, and I want to assure people it is Vox as in voice.

Joyce Vance:

Yeah. It’s a little bit of a stretch to think that Fox would put us on the air, I guess.

Preet Bharara:

It would be. So, with that clarification, did you have a good week? We have a lot to talk about just some breaking news as well.

Joyce Vance:

I have a lot to talk about it. It’s been a big legal nerdy Newsweek.

Preet Bharara:

It has been. Let’s start unless you have chicken news.

Joyce Vance:

No, let’s jump right in chickens will Wait.

Preet Bharara:

But before we do that, I should mention that the second, the second episode of our new history podcasts, Now and Then has dropped. Heather Cox Richardson and Joanne Freeman spent some time talking about both the plans for a January 6th commission, which looks like it’s not getting off the ground just yet, but through the lens of history, talking about other prior commissions throughout American history that have worked or not worked, what they find, what they don’t find. I think you’ll find it fascinating. You can listen to now and then wherever you get your podcasts, it’s a great podcast.

Joyce Vance:

It really is. I feel a lot smarter because I get to listen to it and putting things into historical context really helps you understand what’s working well and what isn’t. And since we’re all focusing increasingly on this question of institutionalism, that slice of history is really invaluable.

Preet Bharara:

Yes, it is. All right. So people have been following this bit of news involving the former president Donald Trump, and a woman named E. Jean Carroll. And just to remind folks E. Jean Carroll is a writer who has claimed that she was raped and assaulted by Donald Trump many years ago, long before he was president. When Donald Trump was in fact, the president, he made a bunch of disparaging remarks and comments about the veracity of that claim and about E. Jean Carroll, generally, she then sued him for defamation, which in the legal system is called a tort. And there has been a raging battle about whether, or not, put aside for a moment, whether or not it is in fact, a tort. And it is in fact actionable, but whether or not the sitting president could be sued in those circumstances.

Joyce Vance:

This case is in the Second Circuit on appeal. And what’s happened now is that the government has filed its brief. This is the first brief that’s been filed since Merrick Garland took over the Justice Department in the Biden administration. A lot of people were expecting a change of course, because what’s going on here is a question about whether or not DOJ should represent the former president. Many people expected that the new DOJ would say they were no longer going to represent Trump. The position that the earlier DOJ had maintained, but that’s not what happened here. In fact, DOJ continues to maintain that it should and is entitled to represent President Trump. And so what we’ve got right now is DOJ’s brief in this case, what we’re waiting on is the response from E. Jean Carroll. But even with that, I think we have enough of the argument here, Preet, to figure out what’s up.

Preet Bharara:

Yeah, we should just be clear that what is surprising to a lot of people and the reason that we have gotten a lot of questions on this is there’s been some assumption that the new Justice Department with new personnel and new leadership would take a different position. Now they take a different tone. And I think that’s very important in this brief. It’s not as argumentative. It’s not as crazy. It’s not as absolutest as some of the briefs that Donald Trump’s lawyers and Justice Department filed in court on this case and in a bunch of other cases, but they continue to take the position, not withstanding the departure of Trump, that the president can’t be sued under the Federal Tort Claims Act and something known as the Westfall Act that the president not only cannot be sued, but that the United States should be substituted in as the defendant in the case, which would, as many people have pointed out, cause the claim to fail because defamation is not something that you can sue the United States for.

 

When I say that the tone is different. The government in its brief, the new brief under the Biden administration does something that we’ve not seen a lot of recently. And that is, it concedes something. It concedes, as you have suggested it should, that the comments made by Donald Trump were inappropriate, unnecessary, in poor taste. I forget what the words are that they use, but say that that’s not the question before us. It’s a legal question under the FTCA, but they, I think, gain credibility by suggesting that some of the things that the former president said were inappropriate. We should actually remind folks of some of the things that the president said among other things after E. Jean Carroll brought her suit, Donald Trump told The Hill, it’s a periodical in DC, quote, “I’ll say with great respect, number one, she’s not my type number two, it never happened.” And then he also told the press pool…

Donald Trump:

It’s a totally false accusation. I have absolutely no idea who she is.

Joyce Vance:

And it’s fascinating. He told that same press pool. People have to be careful because they’re playing with dangerous territory. So yeah, that sounds like the president’s official scope.

Preet Bharara:

But, what’s interesting here, Joyce, and you and I were discussing this before we started taping the original legal position taken by the Trump defenders was what?

Joyce Vance:

Well, they argued that the president had official immunity, absolute immunity for conduct that he committed within the scope of his employment. And this was certified actually by a Trump official as being conduct that fell within the scope. And the judge slapped that argument down. Trump lost. It was only after they lost the official immunity argument that they shifted over and began this what I’ll call Westfall immunity argument. This notion that the president can’t be sued under the Federal Tort Claims Act. And it’s not, I guess, unusual for the government to not assert Westfall immunity until later on in a case. But in this situation, the entire process smacks of a process that was designed to bend over backwards, to protect the president, to ensure that the public would fund his defense. And ultimately, as you point out, that sovereign immunity would prevent these claims from going anywhere.

Preet Bharara:

Yeah, and it was a tactic of delay. It took months and months as our colleague and friend Barbara McQuade wrote a few months ago, it seems like they didn’t take immediate action because they wanted to run out the clock.

Joyce Vance:

They filed the Westfall claim on the very last day that they could have.

Preet Bharara:

Right. Which I think would be unusual in a case involving the person who’s at the head of our government. So the arguments we should touch upon for a moment and then discuss what all this means and where it’s going. But the government’s brief in this case, as I’ve said, it’s not crazy. I agree with you on balance. I agree with the district court judge that Donald Trump’s conduct on the best reading of the law and the facts does not fall within the scope of his employment. I remember at the time sort of doing a gut check and talking to some one or more stars from my civil division who are now in private practice and ask them what they thought and how it would come out. And they were of the view that Judge Kaplan would not find that these remarks by the former president were within the scope of his employment.

Preet Bharara:

And they turned out to be right with respect to Judge Kaplan. But I don’t think the government’s brief filed this week is crazy. We have this conversation all the time. There can be a strong argument and a weak argument. Often it has been the case that the Trump folks make crazy arguments and utterly meritless arguments. This is a real argument. I think it shouldn’t win the day, but it’s a real argument to the extent that they cite a lot of cases where things that are said by public officials are deemed to be within the scope of their employment and they make an argument, I think, ultimately it’s not as powerful as it could be, but they make the argument, and I wonder what you think of it, that a president of the United States in the context of answering questions from the press, even if it’s about personal matters is acting within the scope of his duty.

Preet Bharara:

And in particular, they point to some surrounding facts, including that he used the press office. There were other aides to the president and the white house who were enlisted in the duty of putting out statements, et cetera, and that he was responding to questions from the press on one or two of those occasions in the midst of talking about other things that are more obviously within the scope of presidential duty, like domestic policy and such, but they make an argument. That would seem to mean that basically a president can say anything that they, that he wants, or she wants just by virtue of being the president United States. It’s not really a scope of employment argument. It’s almost definitional the way this brief reads, right?

Joyce Vance:

It does. And so I think something that’s important just to say is that Merrick Garland took this job likely knowing that within six months he would be the most hated man in America, right? He was going to have to make some tough calls. There’s no way that you can please people all the time, nor is the job of an attorney general to please people. And so I approached this brief from that point of view, although it’s difficult, I’ll just confess, it’s difficult not to be emotional on this topic. I think it’s tough to look at this situation and to say, there’s no remedy for a private citizen who’s been called a liar by the president. Who’s used horrible language about her using the bully pulpit of the presidency, sort of like a megaphone to advance his views. And then she’s just supposed to sit aside. There’s something about that that just doesn’t sit well. And I think that that’s actually tied up in the legal analysis.

Preet Bharara:

Joyce, you and I are assuming that the attorney general himself Merrick Garland weighed in on this, that’s absolutely certain in your mind, right?

Joyce Vance:

I think that’s a good assumption here.

Preet Bharara:

Because of the sensitivity of it?

Joyce Vance:

Because of the sensitivity. And also because some of the tone of the brief, and maybe this is me over reading it, but it really sounds like the way an appellate judge, a judge on the DC circuit might react to a district judge’s opinion that he thinks is wrong. There’s just a certain force in describing the district court’s opinion as reversible that really reads like Merrick Garland may have had his fingers on this brief a bit.

Preet Bharara:

And the other thing that’s interesting is, and maybe the reason why people are taken aback, that there’s probably some psychological logic in the back of people’s minds saying Trump is gone. Trump is terrible. Biden is in. Biden, as people must know, Trump is terrible, and was terrible on this issue as well. And they must be wanting to withdraw all those defenses and let fate address Donald Trump in the courts, the way that it should happen. But even though it’s the case that Merrick Garland in all likelihood weighed in on the brief and maybe had a hand in some of the language or the tone, the white house did not. That’s been sort of the position of Joe Biden about interfering with the Justice Department. They have, I think, made a statement saying they had nothing to do with this. So it was in the institutional interest of the Justice Department going forward to make this broad claim on behalf of not just Donald Trump, but essentially it’s something that benefits all presidents institutionally. How do you think about that institutional argument?

Joyce Vance:

I think this is the difficulty that this Justice Department is going to face. Institutionalism is rapidly becoming a bad word in this country. The notion being that you can protect the institutions so hard that you fail to protect the democracy itself, but I don’t think it’s that simple. I think DOJ will have to work really hard, decide each of these cases on its specific merits to make sure that they don’t let the excesses of the Trump administration take down the institutions. And there are some reasons, and some cases where they will do things that will appear to be protecting the former president.

Joyce Vance:

And in reality, as you say, they will be protecting future presidents. That’s going to be a tough sell to many people in this country who don’t have a legal background. And even to people that we do, but I think it’s why it’s very important for us to have a slow burn here before we overreact to look at these decisions on the merits. And then as you and I both have here to decide that DOJ is wrong. They’re not going to always be wrong when they take an institutionalist position in these cases though, it’s hard, but it’s not necessarily wrong.

Preet Bharara:

What’s also interesting to me in reading the brief and then thinking about how the appeals court judges will think about it. There’s a certain amount of credibility that comes from the following Justice Department, reducing the level of animosity in its tone, in defense of the former president, but still taking a position that a lot of people would assume they might not take for political reasons. And so the combination of the identity of the signatories to this where Merrick Garland is the attorney general and Joe Biden is the president combined with some concessions about the inappropriateness of the words spoken by Donald Trump gives the brief, this is not a legal point, but I think these things are important when human beings are deciding and adjudicating issues. Those things matter. It gives them a little bit of, I think, additional credibility in the eyes of the court, or is that a silly thing to say?

Joyce Vance:

No, I think it’s absolutely right. Appellate judges, and I’ll, I’ll put on my former appellate chief hat here for a minute because my last job in my office before I was us attorney was to run our appellate division and appellate judges love it in oral argument when the government’s lawyer starts off by conceding what they have to, or by acknowledging bad facts and explaining why they should still win. It gives your argument that extra level of credibility. I think this was the only way DOJ could have approached this case. They had to make this concession, but we haven’t seen DOJ doing a lot of that over the last four years during the Trump administration. And it’s a little bit refreshing and disarming here, right?

Preet Bharara:

It makes no sense and I’ve had this conversation on this podcast and the other podcast for a long time, the power of conceding things, not conceding the whole argument, but conceding weaknesses in your case, on the whole, improves the quality of your argument improves your likelihood of success. And maybe this was a feature of the overriding stubborn personality of President Trump, that in both impeachments and on a whole range of issues in fighting subpoenas from the house in all sorts of courts and appellate courts, they take the most extreme position. I mean, look, Justice Roberts commented on that in one of his decisions about the compulsory process of trying to obtain documents from the administration by Congress, they just take the extreme, absolutist position. It doesn’t help them at all. Not only is it sort of bad faith, but it’s bad lawyering and it didn’t help Trump out a lot, I think as a legal matter, other than to cause delay.

Joyce Vance:

But isn’t that the central dilemma that this DOJ faces Trump did take those extremists ludicrous positions that everybody knew was wrong. And somehow it worked out for him. I mean, whether [crosstalk 00:15:53] it was just delay, right, he never faced any consequences. So that’s the challenge that this DOJ has to indicate that the legal system still works, that there can be accountability even when you’re supporting the institution as they do here. And I think we should say that when we’re talking about institutionalism, we’re talking about looking at these policies and figuring out how does this play longterm?

Joyce Vance:

Do you sacrifice Trump here and let him face a lawsuit and then have an array of bad consequences down the road where you can’t protect employees of the federal government who were acting within the scope of their duties, who may have committed an intentional tort, but for whom it’s still important to have this immunity like the postal driver, right? This was the case that we always saw. It’s the postal truck driver who gets involved in an accident, get sued in his or her personal capacity. And then the government steps in and says, “Sorry, we want to be substituted as the defendant here.” That’s what the Heartland for this is.

Preet Bharara:

Yeah. I mean, the other example that we would encounter all the time and then you and I, as US attorneys would have to file a certification that the person was acting in their official capacity, VA hospital doctors, [crosstalk 00:17:06] …a claim of medical malpractice, because it was a federal hospital, even if it was in fact a tort, even if it was in fact malpractice, the question of whether or not they could be sued in their personal capacity or the US government could be substituted was an important one. It’s an important rule that allows people to do their jobs, but also allows fair recompense and recovery for people who have been harmed.

Joyce Vance:

So, can we just go full circle on that for a second and say that that Westfall certification, that sort of immunity is the only protection that these other government employees have. The president, unlike them, also has this possibility of being protected by the formal immunity that cloaks president’s activities within the scope of their duties. I had started out thinking that the first argument that the government makes this notion that the president is not an employee, or rather that he is an employee and that he gets full coverage under Westfall.

Joyce Vance:

I sort of thought that that one was a no brainer for the government and that E. Jean Carroll would lose that argument. But the more that I look at that I think the government may have mis-characterized the position that Carol takes in her opening brief. And that the argument that she will make here is that it’s only the president who’s excluded because he does have this other type of immunity available to him. Congress could have explicitly brought him within Westfall immunity and they haven’t done that. So that argument might have a little bit more vitality than I originally thought.

Preet Bharara:

You made a comment before we started taping about the signature block on the brief filed by the Department of Justice. Do you want to repeat that?

Joyce Vance:

Well, this is on the category of your question or your comment earlier about optics, right? And how appellate courts perceive issues. There are four men, fine lawyers, who sign off on this brief, and maybe that just wasn’t intentional at all. And that’s the folks who were assigned to the case, but it is an interesting choice, right? If you’re trying a case like this, you’re always going to put a woman at the table just to make sure that that point of view has been considered.

Preet Bharara:

Yeah. Do you think there’s a lot of argument about this within the department? It’s hard to know, and I don’t have any personal knowledge, but is this the kind of thing you think that they sat around a table and, and discussed and went back and forth and came to a conclusion that was close or everyone was like, “Look, we put politics aside. And this is clearly the position of the department because this is what the institution needs, and we’re going to take this position and we don’t care what anybody says.”

Joyce Vance:

So obviously I have no insight into that, but if I’m just speculating, I think it’s the latter. I think many of these folks, for instance, the acting assistant attorney general in this case is an OLC alumna and an alumna of the Office of Legal counsel, which is of course the home of institutionalism at DOJ. So I suspect that they headed this direction. I’m sure that they looked at it from all sides and that they confirmed their belief, that this was the right way to go.

Preet Bharara:

There’s one implication here potentially for a different case in a different context, but where some of the same legal issues apply. And that is Eric Swalwell’s sells lawsuit against Donald Trump and a number of others in connection with their responsibility for the January 6th insurrection. One of the arguments that Trump lawyers are making in that case is the same as in this case, that the president was acting within the scope of his duties as president, by engaging in political speech on January 6th, and so cannot be sued. Now, in that case, I don’t think there has been a move yet to get the president representation by the federal government, has there?

Joyce Vance:

I don’t think so either. And I suspect they’re using the same strategy that they used earlier on in this Carroll case, exhausting their earliest dispositive motions, hoping that one of those will work motions to dismiss on legal grounds and that sort of thing before they fall back into the immunity position.

Preet Bharara:

Yeah. If you’re talking about whether or not speech falls within the scope of presidential responsibilities, if the department of justice had to take the position based on what they’ve done in the E. Jean Carroll case, if they’re they thought the alleged defamatory statements by the president were within the scope of his duties, don’t you think the alum would certainly say the same about the statements you made on January 6th or was that so extreme it really falls into incitement.

Joyce Vance:

Well that case is an easier case for immunity than E. Jean Carroll, because you can make a much better argument that it’s within scope because of the timeliness of events. Ultimately someone is going to have to confront the issue of whether these sorts of immunities can cloak criminal conduct. And it’s a little bit of a chicken and an egg question because nobody’s determined that anything that Trump or others did the morning of January 6th, crossed the line into criminality. There are no charges that have been brought, but ultimately that’s where that argument is heading. Can you cloak incitement inside of privilege? And that’s going to be interesting when we get to that point.

Preet Bharara:

So, we should talk about a few other issues in the news, Joyce, that happened this week. Maybe spend a few minutes on each. We were speaking earlier about crazy arguments, and nonsensical arguments. Well, that’s a good segue to this news story that to me, it’s bonkers and absolutely insidious, awful conduct, no one will be held accountable for it, but Mark Meadows, when he was in the white house, when he was chief of staff to the president of the United States, Donald Trump, we now know was sending email after email to the then acting attorney general, Jeffrey Rosen, specifically pressing him to investigate false and baseless charges of election fraud. And sometimes at the end of the show, we read something and see if we can get through it without laughing. This is going to be hard to do. And we’re not even at the end of the show. One of the things that the New York times reports that Mr. Meadows was asking the acting attorney general to investigate was a particular election fraud in New Mexico that included on this quote directly from New York Times.

Preet Bharara:

Quote, “That included a fantastical theory that people in Italy had used military technology and satellites to remotely tamper with voting machines in the United States and switch votes for Mr. Trump to votes for Joseph R. Biden Jr.” End quote. This is the kind of thing that the chief of staff in the white house was doing directly with the acting attorney general of the United States in contravention of ethics in contravention of conflicts rules in contravention of actual regulation and policy that remained operative in the white house about conversations between political officials and Department of Justice officials on enforcement matters crazy. Right?

Joyce Vance:

Can we just say it’s wrong? There is no doubt. Often [crosstalk 00:24:23] there is an argument about conduct, right? Wrong, crazy. The kind of conduct that should cause administrations to fall.

Preet Bharara:

Yeah, I think that’s right. I mean, to his credit and there are other occasions where we have been critical of those Bill Barr and Jeffrey Rosen, but according to the reporting, he sort of ignored the requests, didn’t make any commitment to do anything. It probably was counting the days till he would be out of office, given the bizarreness of these requests. And somebody put it best, somebody, I forget who it was. But I think someone who said, “This is what we’re dealing with. You have high level officials and also rank and file voters who are willing to believe that there was election fraud via the use of military technology and satellites from Italy.” That they can believe, but they can’t believe that Joe Biden just got more votes.

Joyce Vance:

It’s just insane. Right? I mean, someplace in Italy, there’s a government official saying, “Wow, I really wish we had that much power.” And maybe we would use it for something that would benefit our own country.

Preet Bharara:

But it’s another example even in the waning days of Donald Trump and political officials trying to use the Justice Department as their own personal political outlet.

Joyce Vance:

It’s so telling that even the acting attorney general wouldn’t go back wouldn’t support this and that he pushed back and reiterated the fact that there had been no fraud on a scale that could have led to a different outcome in the election. And that Trump’s response to that was to seriously contemplate replacing an acting attorney general in the last few days of the administration, because he was so desperate to find a way to stay in power.

Preet Bharara:

Yeah. I mean, people will ask the question, well, what’s going to happen. It wasn’t a violation of law. There wasn’t a criminal statute that I’m aware of that Mark Meadows violated. He violated, I think his oath of office and various guidelines, but transparency is good. And I think we’ll keep finding out more things along these lines, but it doesn’t get much worse than that kind of thing. Particularly when, what was at stake here was not just bringing in an inquiry against a political adversary or stopping an inquiry of a political ally. It was about the election itself. It’s the thing that caused us to have the January 6th insurrection.

Joyce Vance:

Because this goes to the heart of the election, I’m curious, and you may actually disagree with me about this, but I wonder if this might not turn up as evidence in the Georgia investigation being run by the Fulton County DA into solicitation of election fraud, because this evidence at a minimum could come in as what in the federal system we’d call 404B, evidence of other bad acts and crimes. But it seems to me that it’s actually part of the entire course of conduct in the Georgia case, where Trump reaches out to Georgia’s secretary of state and begs them to find the additional number of votes that he needs to win. And the Fulton County DA can say, “Look, we’ve got all of this other evidence. We now know…” I count in this recording I think there were five emails and seven sorts of requests that Meadows makes to election officials in different States, but really to the attorney general in this core conduct where he requests help in overturning elections. This has got to fan the flames of that Georgia case, especially if they charge a conspiracy.

Preet Bharara:

No, I don’t disagree with you. I would need to know more facts and details about how it all ties in with the calls that Donald Trump made. But yeah, I can see that coming in as 404B, or something else. So, we should also talk about the development in the Manhattan district attorney’s investigation of the Trump organization and perhaps Donald Trump himself. It has been reported that a witness has gone into testify or was called to testify in the special grand jury that’s been convened reportedly meets three times a week to hear testimony and to get evidence. And that gentleman’s name is Jeff McConney, who is the controller of the Trump organization. And that’s just, to me, that’s just evidence that the reporting about the special grand jury was correct that Cy Vance, district attorney in Manhattan is proceeding a pace.

Preet Bharara:

It also tells me that what may be happening here is that there’s a building of a case against the CFO we’ve been talking about for the last number of weeks, Allen Weisselberg who many people believe would be the key to cooperating against Donald Trump. To our knowledge, he has not yet flipped. He has not yet cooperated. He has not yet pled guilty. He’s not even been charged with anything. So maybe that’s the first step. You bring in the controller that person gives you evidence against Weisselberg maybe other people as well, you build a case against Weisselberg, you flip him and then you pursue other targets up to and including the former president, but that’s all conjecture on my part. Do you have different conjecture?

Joyce Vance:

I think that that makes sense. There’s maybe one other possibility, but the controller is the guy you always want to talk to in these cases. They handle day to day operations. They know a lot about compliance, which can be interesting in these settings. And they work hand in hand with the CFO. So if you’re building the case against Weisselberg, trying to go up the chain then McConney’s a logical witness. But given what we know about how the Trump organization works, small, closely held at the top, it strikes me that there’s no turnover here. Usually in a case like this, you might have three or four CFOs and a couple of controllers to talk to. These guys have both been around with the organization forever. And so there’s part of me that wonders if McConney could be useful in making a case directly in people who are higher up than Weisselberg in the Trump organization, food chain, we’ll just have to wait and see.

Preet Bharara:

Yeah. I mean, you make a great point that in lots and lots of places, you have a lot of turnover. People come and go. And if you’ve been there for a very long time, you must know a lot. And that phrase that I hate, but that I will use here they know where the bodies are buried, so to speak.

Joyce Vance:

People always say that, though.

Preet Bharara:

But it also means, but the flip side of that is as a general matter, they tend to be people who are trusted and who are loyal and in life, it’s sometimes a bigger deal and a harder thing for someone who’s been part of an organization for decades, as opposed to months, or a few short years to flip. You find that in the mafia, it’s been difficult to flip people who have spent a long time in these families. It happens because people at the end of the day often want to save their own skin, but it’s not an easy ordeal to go through. So we still don’t know what’s going to happen there.

Joyce Vance:

So there’s news regarding Matt Gaetz. It starting to feel like tabloid news more and more, but it’s an update of sorts. Federal prosecutors reportedly have expanded the investigation into Gaetz to include a claim that he obstructed justice. We don’t know the details of this conversation in which the obstruction may or may not have taken place, but it’s very interesting. Supposedly what happened is that Gaetz’s ex-girlfriend was on the phone with another witness. And that Gaetz was conferenced in to the phone call. We don’t know what was said, but the reporting is that there’s an obstruction investigation under foot. And I think it’s incredibly important to note here that the ex-girlfriend wanted to cooperate with prosecutors, but was concerned that she might face obstruction charges and was seeking immunity. So it’s possible that her concern stemmed from this phone call.

Preet Bharara:

Joyce, very succinctly put, I have nothing to add.

Joyce Vance:

Well, let’s just add one thing though. I mean, obstruction of justice can be tricky to prove, and it probably turns here on whether, or not Gaetz tried to corruptly persuade a witness either to avoid testifying or to alter her testimony. So this doesn’t take it to the bank, but it looks like DOJ is really serious, here.

Preet Bharara:

Yeah. I mean, the timing remains to be seen. I am still of the view given how far along they are and given the guilty plea of Joel Greenburg and the ominous statements and taunting of his attorney with respect to Matt Gaetz, that we will see a charge. Sometimes, again, this is more conjecture. That’s the way you tune in for [crosstalk 00:32:51] Joyce’s conjecture. We are wrong. I’ve been wrong on a number of occasions, but I’ve also been right on a number of occasions. Sometimes the delay in bringing a charge against someone is that there’s lots of charges to develop and bring. And depending on the personality of the prosecutors and the nature of the evidence and sexual limitations, concerns, and witnesses and being covert versus overt, et cetera, sometimes you do a piecemeal. You bring someone in on the charges that you can prove at that moment.

Preet Bharara:

Sometimes you do it on a criminal complaint as opposed to an indictment, and then you add charges later or sometimes on an indictment, and then you supersede meaning you bring a new indictment that is updated with respect to more charges, potentially more allegations. Sometimes people want to get everything in order before they bring the charge. They want to have as many substantial, serious charges in place at the time of the arrest. We just don’t know which of those is the case here. But some of that could be at play as well.

Joyce Vance:

An obstruction of justice when you’re bringing a case, like this can be a really helpful charge, not only because it’s significant in and of itself, but because people obstruct justice, when they’ve got something to conceal that would give an indictment if DOJ does ultimately bring it against Gaetz. And I think you’re right. I think that this is headed to charges, having that obstruction charge just really strengthens the case.

Preet Bharara:

Yeah. And the important thing to understand, as it’s true for a lot of different alleged crimes, you need not have been successful. I mean, I remember that that has been argued before that was argued with respect to President Trump in connection with the Mueller report. And the idea that to be successful is the only occasion on which you can be charged is nonsensical. Because if you’re successful in the obstruction almost by definition, that makes it unlikely that there will be a charge, right? If you’re successful in causing an investigation to be derailed, then there will not be enough evidence in certain circumstances to show that you obstructed. So you have to be able to punish and hold accountable people who have attempted to obstruct in this method or some other method, not just people who were successful in that endeavor, it’s almost more important to get those people.

Joyce Vance:

The statute is explicit about that and says that you can charge the attempt and it’s for exactly the reason you say otherwise, we would be rewarding the people who were the best at obstruction, that’s not how —

Preet Bharara:

…if you’re going to obstruct, you got to be successful.

Joyce Vance:

Right, yeah.

Preet Bharara:

Exactly.

Joyce Vance:

There’s a great Buzzfeed article from David Mack. And it just, I mean, if this does not make you laugh seriously, you’re taking life a little bit too hard. So Mack writes and says, people may be aware that last month Donald Trump started a blog called From the Desk of Donald J. Trump. I think this his new Twitter feed, and he…

Preet Bharara:

…obviously it was supposed to approximate Twitter. It did not succeed/

Joyce Vance:

It doesn’t work out so well for him. He describes the page as a beacon of freedom. He also described it as a place to speak freely and safely. And this was just the way he was going to make up for not having Twitter and Facebook. So he could go on rambling and making false statements, but in a surprise turn of events on Wednesday, Trump announced that he was shutting down his blog and this was due to lack luster readership. [crosstalk 00:36:13].

Preet Bharara:

I don’t know if he conceded that. I don’t know if he conceded it.

Joyce Vance:

I doubt that he concede it.

Preet Bharara:

He’s a man about ratings.

Joyce Vance:

It was the truth.

Preet Bharara:

It as the truth and David Mack goes on to note that that blog, if that’s what we’re supposed to call it, lasted a mere 29 days. So about the length of a leap year, February.

Joyce Vance:

But Mac had a list, right? He had a list of things [crosstalk 00:36:35].

Preet Bharara:

…lasted longer than Trump’s blog. So we should mentioned some items from that list. I’ll start, the marriage of Kim Kardashian and Chris Humphries, 72 days.

Joyce Vance:

The presidency of William Henry Harrison, which lasted 31 days longer than Trump’s blog.

Preet Bharara:

By two days. New Coke, 77 days.

Joyce Vance:

I’m surprised New Coke, beat the blog, to be honest. And also Megyn Kelly’s show on NBC weighing in at 394 days.

Preet Bharara:

The gap between the… This of course I know by heart.

Joyce Vance:

This is the best one.

Preet Bharara:

The gap between the two albums Taylor Swift made while in quarantine in 2020, Folklore and Evermore 140 days.

Joyce Vance:

And of course, Lori Loughlin’s prison sentence for the college admissions scandal, 56 days.

Preet Bharara:

However, Mack points out there’s one. And I know you guys have been thinking, because this is the first thing I thought of, and I was waiting to see when it would come up on the list. There is one notable thing Trump’s blog outlasted. That is the employment of Anthony Scaramucci as white house communications director, which was about 10 days.

Joyce Vance:

Scaramucci’s are still my favorite unit of time, right? Longer than a Scaramucci.

Preet Bharara:

It used to be the hour. Now it’s a Scaramucci.

Joyce Vance:

Its the Scaramucci. So, for everyone, who’s keeping score at home, that’s almost three whole Scaramucci’s that Trump lasted.

Preet Bharara:

Speaking of which, Joyce, have a good week, I’ll see you here in seven tenths of a Scaramucci.

Joyce Vance:

I’ll see you then. And for our listeners, please send your questions to us at letters@cafe.com, 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, and Nat Wiener, Jake Kaplan, Jennifer Corn, Chris Boylan, and Sean Walsh. Our music is by Andrew Dost. Thank you for being a part of the Cafe Insider community.