• Show Notes
  • Transcript

In this episode of CAFE Insider, “Pardon Me?” Preet and Anne break down President Trump’s decision to commute the sentence of his friend and advisor Roger Stone, the unusual circumstances under which Trump’s former personal attorney Michael Cohen is returning to federal prison, the pair of long-anticipated Supreme Court decisions concerning Trump’s personal financial records, and the congressional testimony of former U.S. Attorney for SDNY Geoff Berman. 

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

References and Supplemental materials below. 

REFERENCES & SUPPLEMENTAL MATERIALS

DURIAN 

Smithsonian Magazine explanation of the durian fruit

ROGER STONE CLEMENCY 

CLIP: Barr tells ABC news the Stone prosecution was “righteous,” 7/9/20

CLIP: Trump defends decision to pardon Stone, 7/11/20

White House’s statement regarding Stone’s clemency, 7/10/20

DOJ’s explainer of the difference between a pardon and a commutation

Lawfare’s explainer of why the president cannot pardon himself, 6/20/18

Bill Barr’s 2018 memo to Rod Rosenstein outlining his theory of “obstruction,” 6/8/18

“Roger Stone remains a convicted felon, and rightly so,” Robert Mueller, Washington Post, 7/11/20

“Graham to call Mueller to testify before Senate Judiciary Committee,” New York Times, 7/12/20

MICHAEL FLYNN

Judge Emmet Sullivan’s petition to DC Circuit Court of Appeals for rehearing Flynn decision “en banc,” 7/9/20

MICHAEL COHEN

Document (Federal Location Monitoring Program Participant Agreement) the U.S. Marshals Service sought to have Cohen sign, 7/9/20

“Top experts: DOJ’s blocking Cohen’s book violates First Amendment,” Just Security, 7/11/20

Buffalo Springfield performing “For What It’s Worth” in 1967 

SCOTUS 

Trump v. Mazars, the case dealing with Congress’s subpoena of Trump’s financial documents

Trump v. Vance, the case dealing with Manhattan DA Cy Vance’s subpoena of Trump’s financial documents 

Nixon v. Fitzgerald (1982), the case Anne references that deals with presidential immunity 

GEOFF BERMAN TESTIMONY 

Geoff Berman’s opening statement submitted to House Judiciary Committee, 7/9/20

Transcript of Berman’s full testimony before House Judiciary Committee, 7/9/20

Dan Goldman’s tweet regarding Berman firing, 7/9/20

Preet Bharara:

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

Anne Milgram:

I’m Anne Milgram.

Preet Bharara:

How you doing, Anne?

Anne Milgram:

Hey, Preet. How are you?

Preet Bharara:

It’s day 4621.

Anne Milgram:

Basically, yes. I lost… I can’t count anymore.

Preet Bharara:

I want you to know I was keeping track. I used to know how many weeks it was and I began home confinement on a Thursday, and then I stopped being able to multiply by seven.

Anne Milgram:

Me too. Yeah. I also-

Preet Bharara:

It’s been a long time.

Anne Milgram:

I’ve been sort of keeping it in my mind as like before the fall sort of with this goal of getting to it, all of us being at a different point in the fall potentially going back to schools and stuff. It obviously looks like that’s all changing or potentially changing. So, all my sort of measures are disappearing. Now, I feel like it’s just one long stretch into eternity which obviously, look, well, there’ll be a day when this is past us or it’s dramatically different than it is today, but it is a long road.

Preet Bharara:

Well, our area is doing pretty well. Hopefully, that keeps up. The New York metropolitan area began as one of the worst places in the country, but steep fall-off has continued. Hopefully, it’ll remain. Shall we begin? Before we get into all… We have a lot of substance to cover today. Should we start on a lighter note?

Anne Milgram:

Yes. Definitely.

Preet Bharara:

So last week we ended the show with the discussion of the durian fruit and an incident where someone thought there was a terrorist attack happening. It turned out it was just fruit and the durian fruit which I’m-

Anne Milgram:

In a post office [crosstalk 00:01:30]

Preet Bharara:

In a post office… Yeah. I’m not that familiar. It sounds like you were more familiar with that fruit. I’ve never had it. People say delectable but smells something awful. We got a lot of response. We’ve gotten more responses to the discussion of the durian fruit than Supreme Court cases.

Anne Milgram:

Well, so I will tell you, I’m-

Preet Bharara:

Shows you what matters to people.

Anne Milgram:

I’m also surprised by how many people are familiar with it or have tried it. I think both of us just love getting everyone’s responses and emails. I love them particularly. Some people love the durian. Some people did not love the durian.

Anne Milgram:

I think one of our favorites came from a listener in Las Vegas who was talking about a friend who had an engagement party for her sister and her sister owns a Chinese bakery and made the cake for the party and basically she said the food was wonderful then came the cake. I was served a slice of this beautiful cake but it was the corner. It was really good. The listener asked for another slice and she couldn’t understand why everyone was staring at her when she was eating it.

Anne Milgram:

Then, by the time she understood, it was too late. The second slice had an enormous filling of durian fruit. She didn’t smell it until she had a large bite in her mouth and it was too late. “My head was flung back and tears were rolling down.” Then, she basically said, “It has an intense smell of skunk or the smell from a gas stove but a hundred times worse.”

Preet Bharara:

She goes on to say, to state her bona fides with respect to smells. I have worked with bad smells. I’m a retired ER nurse. Many years of smelly patients. [crosstalk 00:03:07]

Anne Milgram:

Then, she said, “I was durianed.” Now, there were also people who sent us quotes from Alfred Russel Wallace, a 19th Century English naturalist. He’s the one that named the durian the king of the fruits. It’s a beautiful quote at really just talking about how much love he has for the fruit. The thing I learned from that quote is that the durian he named the king of the fruits and did you see what the queen of the fruits is?

Anne Milgram:

The orange. He named the orange as the queen of the fruit. Now, it’s the king and queen-

Preet Bharara:

Much less exotic.

Anne Milgram:

Yeah. But very interesting. But anyway, a fantastic group of emails and comments we got. Thank you. Thank you, everyone. I learned a lot about durians.

Preet Bharara:

Do you know what the archduke of fruit is? It’s the grape.

Anne Milgram:

What is it?

Preet Bharara:

It’s the grape. I don’t know. I just made that up. I don’t know a lot about royalty and it shows.

Anne Milgram:

The royalty and fruit.

Preet Bharara:

So keep the letters coming and be in a lookout for our spinoff podcast Durian Insider. Coming soon to your eardrums. All right. So, should we start with what was kind of expected but still upsetting for people who still care about non-selective application of the law? That is the commutation of Roger Stone.

Preet Bharara:

People should recall Roger Stone, close associate of the president, but was charged by a grand jury employed by the Special Counsel’s Office, Robert Miller’s office. Convicted at trial of seven counts including obstruction to Congress, making false statements to Congress and witness tampering in a very serious way. You’ll remember that Bill Barr got involved in the sentencing recommendation. The line prosecutors in the case stepped down from the case. It’s been controversial for a while.

Preet Bharara:

Roger stone has been hinting to the president that he would… more than hinting I guess. He would really like to be saved. Trump dangling the possibility of clemency for a long time. He was set to report to prison today actually.

Anne Milgram:

Yes.

Preet Bharara:

Last Friday-

Anne Milgram:

For a 40-month sentence.

Preet Bharara:

For 40 months, which by the way Bill Barr said, and we’ll get to this in more detail, when asked about it last week.

Bill Barr:

I think the prosecution was righteous and I think the sentence that the judge ultimately gave was fair.

Preet Bharara:

That’s an attorney general who in other cases has pressed the department to dismiss something against an associate of the president. Like in the case of Michael Flynn-

Anne Milgram:

And related to the Russia investigation. So, right. I think that’s important that the Stone piece relates completely to the Russian investigation. It goes back to you’ll remember the WikiLeaks getting access to the DNC server, releasing Hillary Clinton’s emails and there were questions about Stone had tweeted out, had made public statements about that there were a lot of things coming.

Anne Milgram:

He’d also as we now know had a lot of conversations back and forth with people like Steve Bannon and the President of the United States about what was happening and what emails were going to potentially be released. It really does fall within the heartland of the Russia investigation. That’s a very interesting and I think important point.

Preet Bharara:

The first question that some people have is when the president decided on Friday evening to put out a statement that he was commuting the sentence. People wondered, “Well, why a commutation versus a pardon?” I guess the first question is what is the difference? A pardon basically expunges the conviction. It doesn’t take away the guilt, but it basically takes away the consequences of a conviction and the slate is kind of wiped clean.

Preet Bharara:

It’s an official act of forgiveness whereas a commutation is something different. It’s merely the wiping away of a certain portion of the sentence, a reduction in the sentence.

Anne Milgram:

Right. Somebody, you could have your sentence commuted and we see it a lot when people who have been incarcerated for a period of time where the president or a governor of a state will commute their sentence. Then, basically say, “You can be released now.” They may have served 5 years or 10 years, and then the rest of the sentence gets commuted.

Anne Milgram:

It’s worth thinking about as sort of it relates to the punishment not to the conviction piece of what’s happening, whereas the pardon, again, you’re right in saying with a pardon it’s an acknowledgement of guilt in some ways, right? There’s nothing about a pardon that says the person is not guilty. It’s actually sort of to the contrary which is I think why Roger Stone didn’t want that. He wants the ability to continue to litigate whether or not he was fairly convicted by a jury.

Anne Milgram:

He didn’t want the president say, “I pardon you.” Which then would have basically been, “You’ve done something wrong, I’m pardoning you for that wrong.” Right? Absolving you of sort of anything that goes with it. What’s important the distinction also just for a moment between the pardon and the commutation is like with a pardon everything that goes along with a criminal conviction gets washed away.

Anne Milgram:

So, restrictions on voting get washed away. Fines get washed away. With a commutation, the president for Stone, he waived any sort of supervision. He waived fines. He waived the criminal sentence. He didn’t touch the criminal conviction. The criminal conviction still carries with it things like restrictions on voting for felony convictions so it is different-

Preet Bharara:

Carrying a firearm.

Anne Milgram:

Carrying a firearm. Exactly. It’s different but here I think it was very political.

Preet Bharara:

We should discuss for a second why it is that he did the one rather than the other. One reason is that Roger Stone told a reporter that that’s what he wanted. You alluded to it a second ago. What do you make of that?

Anne Milgram:

Yeah. I think he definitely wanted it. Remember the pardon… I think it was of one of the sheriff’s that Trump had pardoned him, and then on national-

Preet Bharara:

Joe Arpaio.

Anne Milgram:

Exactly. Joe Arpaio. On national TV someone basically said, “You’re admitting you did something wrong, right? When you accept the pardon from the president, you’re acknowledging like I did something wrong and the president is forgiving you. Basically saying, “This is the power of the executive is to basically say like, ‘I’m going to absolve you of this.'” But it doesn’t take away the guilt essentially.

Anne Milgram:

Arpaio basically has this look on his face. He’s being asked like, “What?” It’s clear that Stone was thinking, “If I take the pardon then I’m essentially leaning into, I did the conduct, I’m just asking for forgiveness and to have this this sort of swept off my record.” He wants to litigate in court. He’s already litigated this a lot, but he wants to litigate whether he was lawfully convicted.

Preet Bharara:

There are two things he wants. He wants to get out of the jail sentence. He wants to get a jail free card from Trump, and then he wants-

Anne Milgram:

Which was done.

Preet Bharara:

Yeah. Then, he wants vindication from the courts and he thinks that puts him in a better position later to say, “There was nothing going on here.” But it’s interesting he sort of ordered up what he wanted.

Anne Milgram:

He did. He totally basically, and we should talk about this just for a second because what we see happening here with Stone and with Trump is like, we’ve talked about them as like grifters, right? As legal grifters. They’ll do anything that they can do to basically get an advantage to commit any crime they want to commit, to lie, cheat and steal. What’s fascinating about it is that there have always been some checks, some accountability on people like the president from doing something like this. From essentially commuting the sentence of someone who was going to potentially testify against him who chose not to testify against him but who was complicit in what looked like it was a conspiracy upfront potentially.

Anne Milgram:

What’s fascinating is you take away all that accountability and it’s like they’re just free to do whatever they want. It’s like the equivalent of Stone walking into a deli and being like, “I’ll have a turkey and cheese on rye. Hold the mayo.” He’s ordering exactly what he wants. The president is giving it to him. This lack of accountability, it’s like… I can’t even begin to say. It’s like basically saying like, “I’d like extortion with a side of lying to Congress.” But I’d like to get away with it if you don’t mind.

Anne Milgram:

They’re getting it. There’s no check and balance here. I think the biggest question I have for you on this is like, “What does this mean for democracy, the rule of law?” It feels to me, not only did Stone ask for it. The president tweeted out that he was proud of him.” Remember this was going on at the same time as Michael Cohen where Michael Cohen flipped and cooperated against the president.

Anne Milgram:

Stone didn’t. The president was tweeting out nasty things about Michael Cohen and good things about initially, Paul Manafort, who wasn’t cooperating at the beginning initially, Roger stone who refused to cooperate. Then, what’s the prize for basically refusing to turn against the president, refusing to cooperate.

Preet Bharara:

No jail. No jail.

Anne Milgram:

Exactly. Yes.

Preet Bharara:

There’s a few things to make clear. Number one, the pardon power is pretty much absolute. President of the United States and we’ve talked about this before and the Constitution has basically unfettered authority to issue clemency to people for good reasons, bad reasons, no reason at all. There is a Pardon Attorney Office and they’re supposed to be a process to insulate the president and make sure that it looks like it’s fair, not required to follow those recommendations, not required to go through that process at all. There’s really nothing anybody can do about it.

Preet Bharara:

I even think this legislation that Nancy Pelosi is suggesting, I haven’t looked at it closely. I don’t see how its constitutional.

Anne Milgram:

I agree.

Preet Bharara:

I think short of a constitutional amendment there’s nothing you can do about the pardon.

Anne Milgram:

The president has the power.

Preet Bharara:

The one thing that I think most legal scholars will agree he cannot do and he disputes it is can he pardoned himself. We may see him do that on the way out of office. So, people complaining about the use of the pardon power very difficult. We’ll get to the potential of a crime in a minute. But the other thing is the reason why this is [crosstalk 00:12:21]

Anne Milgram:

By the way, just stop on that for one second though because I think you make a good point. People agree. I agree with this that the president can’t pardon themselves. It’s seen as like the ultimate sort of like self-dealing. What some people are arguing is that pardoning Stone is basically the same as pardoning himself. Because Stone could have cooperated against the president, provide information, and instead of doing that, Stone gets his deal.

Anne Milgram:

I don’t think that’s going to be found to be the case. I think the Constitution says the implication is that the president can’t pardon himself. It doesn’t extend to not being able to pardon other people who may have criminal evidence against the president.

Preet Bharara:

It may. I mean the argument that you put forward the way would play out is as follows, right? There’s a [inaudible 00:12:59] opinion that I think comes from the Nixon era that doesn’t have a lot of legal analysis or constitutional analysis, but says, “A president cannot pardoned himself based on the age-old premise that no man can be a judge in his own case.”

Preet Bharara:

So, if you understand that sort of principle of jurisprudence in this country and in England, then you cannot pardon yourself. I guess the argument would be, well, to the extent that Roger Stone was doing something in connection with a case involving the president, to pardon that person would be being a judge in your own case. I don’t know if that’s far-fetched or not, but I guess that would be the argument. But I agree with you. It probably doesn’t fly.

Anne Milgram:

Yeah.

Preet Bharara:

The reasons why the pardon is bad, even though it’s constitutional and legal and why it’s distinguished from other bad pardons and there have been bad pardons before, is that not only is he engaging in the pardon for close associate, confidant, a person who has been an adviser to him. But he’s doing as we’ve mentioned, he’s doing it with someone who committed the crime to protect the president, lied to protect the president and the reputation of the president.

Preet Bharara:

It’s done in a case where there are many, many, many other more deserving people in the country who might merit a pardon or clemency of some sort. But time and time again, it’s not just the president, it’s also the Attorney General, reach their hands in and get past the professionals and provide selective justice for people who are close to the president. If you’re Roger Stone, you get a benefit. If you’re Michael Flynn, you get a benefit.

Preet Bharara:

By the way, if you’re Michael Cohen and you used to be close to the president but you betrayed him, you get a punishment.

Anne Milgram:

Yeah. We should talk about this whole thing. It’s horrifying. I mean I don’t think there’s any other way to say it. In my view, it’s not what the pardon powers is intended to be. What you see is basically the president thinking that he is above the law, right? Basically feeling he gets to decide. We should talk about the White House statement that was issued, which was literally if they’d like cut out the letters-

Preet Bharara:

[crosstalk 00:14:53]

Anne Milgram:

… from [inaudible 00:14:53]. If they could have the letters from newspapers and magazines and put it on like, it’s like a crazy ransom demand from cartoons. It’s like you can’t even believe it’s true. I read it and I was like, “Did you actually put that on official White House stationery because it seems so…”

Preet Bharara:

Well, it’s dictated. It seems like it’s dictated by the… It literally reminds me of-

Anne Milgram:

No doubt.

Preet Bharara:

… sometimes people have this in their iPhone, dictated but not read exact.

Anne Milgram:

Exactly. Yeah.

Preet Bharara:

Complete with exclamation mark at the end and the word hoax is in there. He attacks the jury. He attacks Muller. He attacks all of his nemesis. It’s a political statement.

Anne Milgram:

Yeah. I want to talk about the jury just for a second because one of the things I think is really important here and it’s different than Michael Flynn. Michael Flynn pled guilty. He pleaded guilty multiple times, et cetera, but Roger Stone fought the case. He’d asked the judge to dismiss. Up front the judge said no.

Anne Milgram:

It went to a trial. There was a jury that was selected. He had very able defense counsel with him. He was convicted. He then asked the judge to dismiss the case, again, the judge said no. This is the way the criminal justice system works. You’re charged with something. The government has to prove that you’ve done it beyond a reasonable doubt.

Anne Milgram:

Then, if you’re convicted as a rule, you’re held accountable. There is something that’s really that is so problematic about this instance of the president using the pardon power. Again, look, there have been other examples of presidents using the pardon power in bad ways, right? Bill Clinton with his brother, Roger Clinton. It’s different than here a little but-

Preet Bharara:

There’s more than that. We should go through some of them because I get asked the question and people say, “Well, why are you all freaking out now? There been other bad pardons, why didn’t you say anything then?” Well, first of all for some of these, I was pretty young. Not in the position to comment. But Bill Clinton probably was the worst user of clemency in recent history.

Preet Bharara:

He pardoned his half-brother, Roger Clinton, which I don’t think he should be pardoning family members. He pardoned Mark Rich who-

Anne Milgram:

The financier.

Preet Bharara:

The financier who was being prosecuted by the Southern District of New York, my old office. I make this point frequently I want to make it again with respect to independence of prosecutors’ offices. That was at the end of his term. He prosecuted Mark Rich who was a fugitive from justice, didn’t go through the proper process with the Pardon Attorney. I don’t believe consulted with the US Attorney at the time, Mary Jo White, who upon the pardon did what? Opened up an investigation of the president who appointed her.

Preet Bharara:

He also pardoned Susan McDougal, who was in a position-

Anne Milgram:

Was involved in Whitewater, which is also, by the way, it goes to the same thing of like people who were close to the president were investigated. They were investigated to dealings that touched on the presidency, right? That touched on Bill Clinton when he was governor of Arkansas.

Anne Milgram:

Then, to give that pardon basically makes it seem like the president is above the law. The president’s allies have special protection. They’re able to commit crimes and engage in activity that the rest of Americans aren’t. Those were bad. We were too young, but I like to think we would have criticized them if we weren’t.

Preet Bharara:

Yeah. Well, I was part of the institution that was very critical [inaudible 00:17:53] as a young prosecutor at the time, that office took issue with the Mark Rich pardon. Then, you have the first Bush pardoning Caspar Weinberger so there had been… Then, you have the pardon or the clemency that was given to Scooter Libby. There have been examples of this before, but I don’t think anybody has been so cynical in the use of clemency and pardons for people close to them or in a position to protect them as Donald Trump. That’s what makes it different.

Anne Milgram:

Also, we’re still sort of litigating in real time during the past now three years the president’s involvement in Russia’s interference in the 2016 election.

Donald Trump:

Roger Stone was treated very unfairly. Roger Stone was brought into this witch hunt, this whole political witch hunt and the Muller scam. It’s a scam because it’s been proven false. He was treated very unfairly.

Anne Milgram:

There’s something that feels very pertinent to this moment as we approach the next election. We’re watching the president do it. It’s sort of like, I don’t know if you feel this way. I knew it was going to happen, but I still sort of felt I was watching it in slow motion a little bit as it happened on Friday night.

Anne Milgram:

One of the lessons to me is the president really is unchecked. He wrote that White House statement where he talks about the left and liberal hoaxes and basically his feeling that he has no… There should be nothing related to the Russia investigation because it’s all farce. There’s something about it that feels like you just think someone’s going to be able to stop it and [crosstalk 00:19:21]

Preet Bharara:

Oh, like Bill Barr?

Anne Milgram:

Yeah. Like Bill Barr or anyone.

Preet Bharara:

Let’s talk about Bill Barr for a second who made no secret of his disdain for the sentencing recommendation that the prosecutors first advise the court of here… I’m kind of like my response is based on reporting that he was opposed to it and some other White House officials were opposed to the commutation. I’m like whatever. I’m a little bit cynical about [crosstalk 00:19:45]-

Anne Milgram:

Yeah. I don’t buy that. Right. Yeah.

Preet Bharara:

I mean buy that maybe he was against it. I also believe there’s been a selective leak so he can sort of-

Anne Milgram:

Agreed.

Preet Bharara:

… protect his reputation a little bit.

Anne Milgram:

Agreed. Because this basically, and remember he wrote that 2018 memo before he became AG where Barr basically says in his memo that if the president were trying to conceal evidence, it would be obstruction of justice. There were other times that Barr has basically said the president can’t do things like that without violating the law.

Anne Milgram:

He may theoretically believe the president shouldn’t have done this, but where he ultimately went back to last week and I do think it was self-serving as you say. He ultimately went back to like, “Look, the president has the pardon power.” I unfortunately think as you said up front, that’s true.

Anne Milgram:

I mean a lot of people have said, “Look, isn’t this extortion because the president…” Isn’t it some form of the president being involved in this criminal conspiracy because he’s removing any incentive for someone to cooperate against him? But, again, the pardon power being absolute, it would be really hard to prove-

Preet Bharara:

Yeah. If you have a recorded conversation from some time ago between Roger Stone and President Trump in which they explicitly agree and Stone says, “Mr. President, if I don’t turn on you, will you pardon me?” The president says yes or will you commute my sentence, the president says yes.

Anne Milgram:

Then, you can prosecute that.

Preet Bharara:

Then, you actually have a crime. But short of that and I understand people are speculating about a potential criminal case and was it bribery, was it extortion? I think that’s very hard. It’s hard to make out. This might disappoint some people, but I just don’t see that happening. I understand the effort to make the point, much more importantly it goes to why this commutation is so much worse than the other ones we talked about historically, not only is it someone who is lying on behalf of the president to protect the president, but the surrounding circumstances look like it was a wink-wink quid pro quo. Whether or not you can prove that in a court of law or not, and by the way, the other interesting thing about Roger Stone saying there’s a lot of pressure to turn on the president implies that there was something to tell.

Preet Bharara:

I’ve used this point before. If someone said on television, “Look, there’s a lot of pressure for me to turn on him, Anne Milgram to turn on Preet Bharara.” I’ll be like, “Fine.”

Anne Milgram:

Yeah. Why?

Preet Bharara:

Go ahead.

Anne Milgram:

What is it? Right. Exactly.

Preet Bharara:

What are you going to say?

Anne Milgram:

Yeah. No. I don’t have any question about that, right? I mean it’s sort of the way even that Stone articulated it was like they wanted me to testify against him and I wasn’t going to do it. It makes it seem like there’s no reason. Also, remember there’s a reason he lied.

Anne Milgram:

I mean you and I talked about this a lot up front, but there was a concerted campaign of lies including before Congress that he engaged and he witnessed tampered. He was threatening Randy Credico, another witness to basically tell the same exact lie that Stone had told so that Stone wouldn’t get caught. There’s really I think very, very strong justification to believe that Roger Stone has evidence against the president. That he could incriminate the president and there’s also pieces of the Muller report remember that now have been unredacted and there’s other sort of evidence that’s come out that basically makes it pretty clear, at least, in my mind that Stone was having conversations with Trump about the WikiLeaks and was basically that there was a back and forth between them.

Anne Milgram:

Exactly what that was, Stone’s testimony would be invaluable to shedding light on. But there’s still a fair amount of I think surrounding evidence that something was going back and forth between them. Again, that’s not enough to charge someone with a crime based on that alone, but there is a lot here. I think to your bigger point, it’s a really bad day for the rule of law when the president can do something like this and it’s broad daylight.

Anne Milgram:

I mean we should all be very clear about the lack of accountability and the extent of the corruption here is he did it in broad daylight. I mean granted it was a Friday night, so they were trying to cover it a little bit.

Preet Bharara:

That’s what’s always funny, right? Friday night, I think I tweeted on Friday. I used to like Friday.

Anne Milgram:

Yeah. I know. I know.

Preet Bharara:

There’s someone else who is objected to the commutation or at least made a defense of the Stone prosecution who we don’t hear from very often, Robert Muller himself.

Anne Milgram:

I know. I was surprised.

Preet Bharara:

[crosstalk 00:23:41] an op-ed in the Washington Post. I was too. Yeah. The reporting is that he’s been unhappy for a while and has been thinking about defending the work of his office whose case is one by one are being undone-

Anne Milgram:

Are being dismantled completely.

Preet Bharara:

… by the administration. Again, I don’t mean to be overly critical of the Special Counsel’s Office, but I understood the reasons why he wanted to finish his work and disband the office quickly and far in advance of the election, but the consequence of that is that all the protections you had of the Special Counsel’s Office are gone. These things could not have been undone.

Preet Bharara:

What’s happening in the Flynn case could not have happened to the Stone case if you were sitting there because the regulations in place to make sure that there was going to be some kind of disclosure if the recommendations of the special counsel were going to be ignored by the Attorney General or the Deputy Attorney General. Because these cases were then absorbed by local US Attorney’s Offices, Barr can ride roughshod over them and that’s what’s happened. What do you make of the op-ed?

Anne Milgram:

Yeah. Just one point on what you just said. I couldn’t agree more. I think Muller was basically assuming that the institutions would protect the cases, when in reality they needed the institution of the special prosecutor to protect the cases. I think it’s like a note to self for anyone, and I personally believe the special prosecutor process should be reformed, but any way you look at it, I think if Muller had stayed in office and basically stayed as the special prosecutor this would not have been possible.

Anne Milgram:

His op-ed is basically like, “Look, this was a legitimate case.” He points out all the ways in which Roger Stone engaged in federal crimes. He still is convicted of federal crimes and that the legitimate, that the investigation was a legitimate inquiry into the two ways in which Russia interfered with the election.

Anne Milgram:

He sort of stated the obvious. in some ways, it’s nice to have somebody with that level of stature who actually ran the office saying it. In another way, I don’t think it’s… I think the battle lines have been drawn. I don’t know how much it really pushed the needle. I think it was just probably Muller felt like he needed to go on record defending the people in the cases that were brought by the Special Counsel’s Office. But I don’t know. Do you think it’s influential?

Preet Bharara:

I don’t think. I think the other problem is it will make it more difficult for him to decline the invitation from Lindsey Graham to come testify in front of the Senate. I don’t think he wants to testify. I think he wanted to defend his team. But it might have that consequence.

Preet Bharara:

I think overall, what does this mean for the future? What does this do for future presidents who want exercise their pardon power? My sense is that the aggregation of these bad pardons, of these questionable and dubious partners that border on abuse of power, I think this is an abuse of power. Like all things that Trump does when he tramples norms, it just makes it easier for the next president or the president after whether they’re a Democrat or Republican or an independent, they can say, “Look, a prior president did these things. I can do them now also.”

Preet Bharara:

It’s just sort of bad for the rule of law. It’s bad for people’s faith and whether or not their people get special treatment or not because they’re close to the president. This is not that different from other stuff.

Anne Milgram:

Yeah. Just on that point, I mean I sort of noticed that of the 36 pardons that the president has done, 31 of those were just ones that he did completely on his own and going around the Pardon Attorney at the Department of Justice. So, only five went through the normal course, which is like there’s a period of time people have to wait to get there, to basically apply to the Pardon Attorney.

Anne Milgram:

I mean there’s a whole process and I think a lot of people are particularly critical of having that process within the Department of Justice because the Department of Justice are obviously the people who prosecute the cases. There’s been a lot of back-and-forth of like, “How should that process look?” But most presidents have agreed to this sort of taking some of their power. Basically saying, “I’m going to take away some of my power so it’s not so arbitrary who I pardon and who I don’t, and then we’re going to create a process that everybody goes through”

Anne Milgram:

Trump has literally 31 out of 36 times just done whatever he wants to do. That whole process in my mind is gutted, right? The Pardon Attorney in my view should resign. It’s like why are you even sitting there at this point. This is exactly what we’ve seen with Trump so many times, even the norms that other presidents have followed or the constraints that they themselves have placed on their power, Trump will not adhere to. There is no norm.

Preet Bharara:

The irony a little bit is some of these norms and some of these constraints are not only to have a check on the president, but to protect the president from an appearance of conflict, right? For things to look like they’re aboveboard and they’re based on the facts and the law and to give the president arm’s length distance from some decisions.

Preet Bharara:

That’s why you have a staff to make recommendations. That’s why you had staff and career people and you’re Attorney General. When I was a United States Attorney, and those constraints work if the leader of the office, the principal cares about the appearance. This president doesn’t care.

Preet Bharara:

Part of the reason for the Pardon Attorney is so when all these influential people come to the president of the United States presumably, and say, “Hey, can you pardon my son? Hey, can you pardon this person and that person?” The president has the ability to say, “Hey, you know what? There’s a process. Go to the Pardon Attorney and I want to see what they recommend. At the end of the day do what I want.”

Preet Bharara:

That’s not just to be a check on the president. That’s for the protection of the president. The reputation of the president, and the independence legitimacy of the process. This president doesn’t give a damn about any of those things. He doesn’t care how it looks. It wouldn’t have mattered what happened in the Pardon Attorney’s Office because if you believe the reporting, his own White House staff, his own Attorney General who out ranked the Pardon Attorney also said, “Don’t do it.”

Preet Bharara:

He wanted to do it because this was a friend. He didn’t turn on him. There’s really no checking him and there’s really no making him look good because he doesn’t care how he looks.

Anne Milgram:

Yeah. It is an abuse of power and it’s corruption. I am with you on that. Look, do you think there’ll be any more pardons or commutations before the election? I was trying to think if there was anyone left?

Preet Bharara:

I think we’ll see Michael Flynn. It depends on what happens with… He may not have to pardon Michael Flynn. He probably will not have to pardon Michael Flynn, but we’ll see what goes on. In the continuing saga of the Michael Flynn case, you’ll remember that he pled guilty, then he pled guilty again, then he was supposed to be sentenced and that was put off.

Preet Bharara:

Then, the Department of Justice moved to dismiss the indictment and the judge in the case wanted to make an inquiry about that. Then, the lawyers for Michael Flynn went above the judge’s head to the DC Circuit Court of Appeals and by a two-to-one vote on the panel said, “Yeah. You got to dismiss the case.” That didn’t end the story because what just happened last week since the last time we all were talking to you is that the judge in the case as was his right because he was made a party in the case.

Preet Bharara:

Asked the DC Circuit Court of Appeals to sit en banc which means he’s asked all 11 judges to consider the issue, the motion to dismiss. If six judges vote to hear the case, then the entire court will hear the case.

Anne Milgram:

That’s right. It was slow in coming. I mean I sort of feel like this is the tortoise and the hare. Judge Sullivan was the tortoise. He was moving very slowly to ask for the en banc. All I could-

Preet Bharara:

Slow and steady wins the race.

Anne Milgram:

Yeah. All I can think is that he was doing some sort of calculation about whether he had the votes or trying to figure it out. But I predict that they vote to hear it en banc. We don’t know. I mean, obviously, it’s hard to make predictions, but my sense is it was slow and coming. But that the court will vote to hear it en banc. His point in his paper is really, “Look, this isn’t the right use of mandamus. This sets a terrible precedent.”

Anne Milgram:

The opinion is not correct. Flynn still would have had the opportunity to appeal after my ruling. So, I have a feeling that institution, that there are institutional concerns that would lead the DC circuit en banc to take it. But we will see what happens and so many things move quickly. This is one where I think you and I both expect it right away. It took a long time, but it’s here.

Anne Milgram:

Now, they’re briefing it. Obviously, Judge Sullivan filed his papers now. Michael Flynn has an opportunity to file his papers, and so this we’ll continue to follow this one.

Preet Bharara:

It will be with us for a number of weeks more at least. Then, there’s the other case we have mentioned in passing in the last few minutes. Michael Cohen, I’m kind of scratching my head on that one. [crosstalk 00:31:41]

Anne Milgram:

Yeah. This is such a strange thing.

Preet Bharara:

Do you want to update people on what happened?

Anne Milgram:

Right. Michael Cohen, obviously, he pled guilty in the Southern District of New York. He was sentenced to federal prison. He was then after COVID hit, he was given medical release. He was basically allowed to serve out a medical furlough from prison. Then, he was going to be allowed to serve out the rest of his sentence on sort of home surveillance, home monitoring.

Anne Milgram:

He’s out. He’s then asked and there was also a picture which I’ll note of him in a restaurant in New York City last week, which by the way, my first thought was not, “Why is Michael Cohen in a restaurant?” It was, “Why is anyone in a restaurant?” To be honest, it freaked me out a little.

Preet Bharara:

I’m in a restaurant.

Anne Milgram:

Yeah. It freaks me out a little to see people in restaurants. But anyway, so I think a lot of people thought, “Well, maybe that was a violation of the terms of his release that he was in a restaurant, and so he was put back in to federal prison.” But it turned out that he went in to meet with the Probation Department and they asked him to sign a document basically saying that he would not do any media interviews, which by the way, he’s been doing from federal prison.

Anne Milgram:

They wanted him to say that he wouldn’t do any media interviews. He wouldn’t do social media. He wouldn’t release his book. He has a book that he’s sort of like teased is coming out before the November election. He wouldn’t sign that document. He said, “Look, I’ve been doing these interviews.” He was with his lawyer. They went back and forth. They were sort of expecting to come to an agreement, when all of a sudden, he was taken in.

Preet Bharara:

Yeah. The reporting is his lawyer has said, Lanny Davis, that he was cuffed, and then after he was cuffed, the reporting suggests he relented, and said, “Okay. I’ll sign.” But then one of the officials said, “No. It’s out of my hands.” What I don’t get is why there has not been some better explanation given the controversy from the Bureau of Prisons. Just explain what’s going on here.

Preet Bharara:

I would hope that it’s being done in good faith. It’s a terrible look to see in the same week, and I know it’s a different process and it’s different people involved, but it does not look great that Roger Stone is treated in a particular way and Michael Cohen is treated in a different way. It doesn’t provide a lot of confidence. I think the overwhelming view of First Amendment experts is that the prohibition on being able to write a book, putting aside whether or not he can profit from the book, but just being able to put out a book seems to violate his First Amendment rights. I’m not quite sure I understand it.

Anne Milgram:

Yeah. I would be surprised if this didn’t violate First Amendment rights. This idea that you can’t engage in social media, you can’t speak to members of the press, you can’t write a book. They’re all restraints on political speech, right?

Preet Bharara:

Some of that makes some sense. Maybe this is what’s going on. I don’t know. I’m speculating. Maybe I’m just totally wrong. When you’re in custody, if you’re at Leavenworth or even if you’re at Otisville. There are all sorts of appropriate restrictions being placed on. You can’t do a television interview. No. BOP has to give permission to do any of those things in my understanding, and maybe they’re taking the view that he’s not really on probation.

Preet Bharara:

He’s not really out. He’s still supposed to be serving a custodial sentence, but because of COVID and extraordinary circumstances, he gets to do that in his home and they want to apply the same restrictions they would have if you were in a BOP facility. That doesn’t make a whole hell of a lot of sense, but do you think that’s maybe what they’re thinking?

Anne Milgram:

Very possibly it is. I think they’re still wrong. I mean I think the idea that he couldn’t write a book and release a book just feels to me like there’s a step beyond, there’s a suppression of speech, right? Basically, you’re a critic of the president so we don’t want you to speak. It’s never been shown to me that those rules apply to everyone when they’re on home confinement or release. We certainly have a lot of people in America on home confinement and release.

Anne Milgram:

I think to your point BOP has some serious explaining to do. I would expect that letter to be challenged on First Amendment grounds. I actually think it should be challenged. I think there are reasonable restrictions on people’s rights, but this feels to me just over broad and really restrictive and just an attempt to control specific speech, not to sort of there’s no argument, it’s safeguarding other inmates. There’s no argument that it’s a necessary restraint. You’re convicted of a crime, you don’t lose your ability to speak.

Anne Milgram:

I agree. You could lose your ability to profit from it, to profit from crime. That’s different. But the ability to be able to engage in a discourse, as you point out, I mean there’s just a huge optics piece of this that he’s a critic of the president and it looks like the president is trying to silence him. I feel very much like this is… We’ve seen this with the president. He goes after opponents. He tries to silence them.

Anne Milgram:

What I think is interesting will be to see who made that decision in probation? Who made that decision at BOP? Of course, the Bureau of Prisons is controlled by Bill Barr, the Attorney General of the United States. It feels really bad. Look, I think it’s a reasonable question as to like should Michael Cohen have been released in the first place. I would want to understand that the same process was applied to him that’s applied to everyone, right? Just to make sure it’s fair to all people that he’s not being favored or harmed in any way.

Anne Milgram:

But once you get beyond that, they make the decision to release. This feels to me just really bizarre. It feels like there’s something happening here that’s incorrect.

Preet Bharara:

What it is ain’t exactly clear.

Anne Milgram:

Nicely said. Nicely said, Preet. Nicely said.

Preet Bharara:

Some of the younger people won’t know what I’m referring to but-

Anne Milgram:

Yeah.

Preet Bharara:

… whenever anyone says that first line I have to say the second line. Shall we move on?

Anne Milgram:

Yes.

Preet Bharara:

Shall we move on to the Supreme Court cases which were a very big deal less than a week ago? It seems like it was about four years ago.

Anne Milgram:

They’re still a big deal. Long term they’re probably a bigger deal than all these others.

Preet Bharara:

So, I [crosstalk 00:37:18] and even in this… Yes. That’s true and even the short term. There were two cases that we’ve been waiting for, two Supreme Court cases that we were waiting for decisions on both relating to financial records of the President of the United States. One involved requests by three House committees to get financial information from the president. That’s a case called Mazars, Trump versus Mazars. In the second case involved the Manhattan District Attorney trying to get financial records from the president.

Preet Bharara:

By the way, in both case they’re not trying to get them directly from the president but from a third party, his accountants, and other folks, and the banks. That case is Trump v Vance, and in both of them, the Chief Justice of the United States John Roberts wrote the opinion for the court, decently written opinions, not overly long, which is something that we appreciate if you have to read the opinions.

Preet Bharara:

In 7-2 decisions, basically said that the president doesn’t have absolute immunity from providing these documents. I guess maybe it makes sense to take them quickly one at a time. The more controversial one and the one that I think the people were not sure how it was going to work out was the Mazars case with the three House committees asking for information and the court basically said, “We’ve never had to decide this before. We’ve never actually had to, at the end of the day, rule on the validity of a subpoena for presidential records from Congress.”

Preet Bharara:

The court said in the 7-2 majority, essentially Congress does have the right, does have subpoena power and it’s not an illegitimate use if certain circumstances are met, if certain factors are considered, and what I found, I know what you found striking about the opinion, but I found repeatedly that Justice Roberts would say, “It’s been two centuries and we’ve never had to deal with this before over and over and over again. I think almost half a dozen times he makes it the point which kind of seems to be a lecture to the administration and also a little bit to Congress to say in other circumstances there have been subpoenas issued, and through a process of negotiation and accommodation, some compromise is reached and some material is given and some material is withheld. Going back to the time of Thomas Jefferson, and he kind of seems annoyed-

Anne Milgram:

He’s totally annoyed.

Preet Bharara:

… for the first time in the Republic’s history, you’re putting this on the court. It’s really a political argument between the Congress and the presidency. Why are you making us do this do?

Anne Milgram:

Do you know what this is like? This is like the parent who’s mad at both their kids who are fighting. Like, “Cut it out.” Right? Like, “Don’t [crosstalk 00:39:44]-

Preet Bharara:

Yeah. Work it out.

Anne Milgram:

… work it out yourselves.” Right? It’s a little of like you’ve always worked it out before, now you’re coming to me to settle this. There’s a little I think of you’re both wrong. I think the Chief Justice did-

Preet Bharara:

Yeah. Absolutely.

Anne Milgram:

… a pretty strong view of saying, “Look, Congress has the power to legislate. Part of that power is the right to issue subpoenas to get information and that’s essential, but it’s not without limits, Congress.” The sort of litigation from Congress, and remember it was three separate congressional committees, the Financial Services Committee, the Select Committee on Intelligence, the Oversight Committee, and they’re asking for all different things and they have all different reasons for it.

Anne Milgram:

From money laundering to interference in the election and what Roberts is basically saying is like there are limits on what you can get and this is I think we can talk about the lawyer I know in the case in a minute, but I do think this was a mistake from the House. They basically couldn’t articulate any restraints on Congress’s power to issue subpoenas to the president, which Roberts is basically saying, “That can’t be right. You’re co-equal branches. You have to work this out. The president is the president of United States.”

Anne Milgram:

Then, the president is basically saying, “There’s no legitimate legislative purpose. It violates separation of powers. There should be a higher standard that’s done, sort of the balancing test that they use on executive privilege cases in order to figure out when Congress should get evidence.” Roberts is saying to the president, “That’s also not right. You have to answer to Congress.”

Anne Milgram:

He’s trying to basically say to them like, “Go back to where you were for 200 years, work it out. If you can’t work it out, here’s the four-part test that we’re going to look at for whether or not the subpoenas will be upheld going forward. It’s well defined that the separations of power concern has to be a concern for courts to consider and the lower courts didn’t really consider it. But ultimately, I have the same exact reaction of you, Preet, which is to say Roberts is like, “Look, for 200 years you didn’t need the Supreme Court. Please go back and figure it out yourself.”

Preet Bharara:

Yeah. I mean part of what Roberts is saying is you’re exactly right. Both sides positions are unregulated and go too far and the courts below, “did not take adequate account of the significant separation of powers concerns that are implicated end.” Then, he says, “Look, but if you’re going to make us do it, we need to give you a little bit of a road map.”

Preet Bharara:

You talked about a four-part test. It’s very quickly the things that the lower courts need to go back and consider are was the information available elsewhere? Was the request for information sufficiently narrow in scope? Most importantly probably the third factor, does it advance a valid legislative purpose? Is it related to the legislative function?

Preet Bharara:

Then, finally, what is the degree of burden on the president? Then, it concludes with saying this is a non-exhaustive list. My favorite line in the opinion is towards the end where Roberts, again, invokes his kind of annoyance and he hasn’t figure this out. He says, “Other considerations may be pertinent as well.”

Preet Bharara:

One case every two centuries does not afford enough experience for an exhaustive list, which I thought was his way of saying, “Okay. Kids, you’re making me set the rules. I can’t think of all the rules because I don’t have a lot of basis given that I’ve never had to do this ever before in the life of the republic.”

Anne Milgram:

Now, go to your room.

Preet Bharara:

Now, go to your room. The upshot of this, and then we get to the Vance case. The upshot of this is, this is not getting resolved for a long time. It’s going back to the lower court who has to then consider the various positions of the parties based on this framework that is set forth by Justice Roberts. We’re not going to see anything on this before the election.

Anne Milgram:

Right. I think that’s absolutely true. Two other quick points, what is that in that four-part balancing test, one of the things that I think is really important and just worth noting specifically is that Roberts writes that the more detailed and substantial the better. What he’s basically saying to Congress is don’t come in with these broad things saying, “We have an interest in tax reform so we’re going to get the president’s taxes.”

Anne Milgram:

It has to be it both narrowly tailored as you said, but also really, you have to dot your I’s and cross your T’s. What’s important about that, is that gives a path forward for Congress. Ultimately, I think that there’s a balance Roberts is trying to strike between the executive and the Congress. Ultimately, he’s basically saying, “Work it out.”

Anne Milgram:

But at the end of the day, I think it’s very important for Congress given the conversation that’s been happening between President Trump and Congress where President Trump has refused to engage with Congress on almost anything. At the end of the day, there’s not going to be any resolution before the election. But long-term, I think it’s a very, very critically important thing for the Chief Justice to say, “There’s a path for congressional subpoenas and we may litigate them. There’ll be judicial review. Hopefully, you’ll work it out and we won’t have to get there.”

Anne Milgram:

But there’s a hammer that I think Trump was trying to take away that the president would ever be accountable. I feel like Roberts has put that back in balance. I think that’s really important long-term.

Preet Bharara:

Yeah. The other thing to emphasize, which I don’t think we’ve said enough is the relationship to the legislative purpose. We talked about this at the time that some of those committees issued the requests for information. Yeah. They sort of made the point that it’s related to their legislative function to figure out what kind of laws they’re going to pass, but some of them look an awful lot like they’re trying to investigate the president just to investigate the president, and the court sort of is making clear that is not enough. It has to have some…

Preet Bharara:

It’s not clear to me how close their relationship, how important the relationship, but has to have some legitimate relationship to lawmaking authority. The court also makes clear that you’re not allowed to issue subpoenas from Congress for a law enforcement function. That’s within the purview of the executive branch. You need to be able to show that it has some relationship to laws that you may want to pass, and they try to do that a little bit, but it may be the case at the end of the day as I think you pointed out. That some of the committee’s requests will be upheld and some will not.

Anne Milgram:

But even just knowing that that’s the case where I think that puts the president, I think that forces the executive to do the accommodation process, right? I mean part of why the accommodation process sitting in the room between the Congress and the president’s teams and basically working out the terms that the president will provide information or testimony, that has stopped under Trump and that this is really the first time that’s ever happened.

Anne Milgram:

By Roberts sort of creating this path for congressional subpoenas with restrictions and limits, but basically saying, “No. This is legitimate.” That I think will force the executive to engage more because you’re going to end up basically with a lot of subpoenas being upheld. I think that just the fact that they can be upheld should lead. Again, Trump is different. I think no one should assume that Trump is going to follow this, but most presidents will see that there’s a balance now between the two branches and Congress has a right to this information with limits.

Anne Milgram:

I think it’s sort of resetting that or saying it explicitly in a way that’s important because Trump has sort of run roughshod over all these existing practices and norms and rules. I think at the end of the day it’s an important opinion.

Preet Bharara:

Yeah. I think that’s exactly correct. You remind me of another point. This has been true for this administration across issues that Trump may be able to assert that he’s won in the short term here, but as some other commentators have also said the presidency has probably lost and a consequence of President Trump and his White House Counsel and his Attorney General and other people who represent him taking the most extreme position at every turn is forcing a court like the Supreme Court to put limits on what the president’s powers are.

Preet Bharara:

We’ll see that again even more clearly in the Vance case, but he has done in some ways to the office of the presidency, which he thinks has broad, expansive almost unlimited powers. He’s causing checks to be placed on that office by taking too expansive a view. That’s something that historians and legal scholars will be thinking about and talking about for a long time.

Preet Bharara:

In some ways, it’s less interesting as a legal opinion, more interesting sort of as a pragmatic matter and what’s going to happen next. In the case of Cy Vance, the Manhattan District Attorney’s Office sought to investigate various financial transactions and wanted to get information from the president’s accountants. That one was expected to go this way, in other words against the president who had taken the position, his lawyers had taken the position that he has absolute immunity from process, from investigation from a local district attorney.

Preet Bharara:

Again, Justice Roberts writes for the majority, and by the way, both majorities include the two Supreme Court justices appointed by Trump, Gorsuch and Kavanaugh. I don’t know how that [crosstalk 00:48:12]

Anne Milgram:

Can I just stop for one second. I don’t know if I would call this a 7-2 opinion. You called it a 7-2 opinion because I think Gorsuch and Kavanaugh really vote and argue in favor of the heightened standard.

Preet Bharara:

Yes. But they all [crosstalk 00:48:24]-

Anne Milgram:

They all agree. Just maybe explain it. Yeah.

Preet Bharara:

It’s technically 7-2 and the two dissenters in both cases as they often are, are Alito and Thomas. In another way, it’s a 9-0 opinion on I think that the matter that’s most important. That is whether or not the president has absolute immunity from such process. It’s actually Justice Kavanaugh who we reminded people was appointed most recently to the court by President Trump.

Preet Bharara:

He says literally in the first sentence of his concurring opinion. “The court today unanimously concludes that a president does not possess absolute immunity from a state criminal subpoena.” That’s a kind of remarkable statement and really is sort of the center of gravity of the court on this issue and on the extreme position taken by the president, he lost nine-zip, even with respect to the justices he appointed.

Anne Milgram:

Right. I think that’s a critical point. That he was sort of arguing for this absolute immunity and Roberts points us out in the majority opinion. The court says no across the board to that. I think that is really important. I also think, look, the first sentence of the opinion sets really the tone of it, which is Roberts writing and writes, “In our judicial system, the public has a right to every man’s evidence” citing to 1742 in England.

Anne Milgram:

Then, he goes on to say, Roberts goes on to say, “Every man has included the president since the earliest days of our republic.” This whole idea that the president’s above the law, that he has immunity, that he doesn’t have to answer to this criminal process is just not true. I think in many ways, the opinion was what we expected, but it’s a really critical and important thing that the Supreme Court has come down in the direction that they have and basically saying, “The president can be subject to a state grand jury subpoena for private conduct.”

Preet Bharara:

Yeah. I mean look, the court went through the history, starting actually very entertainingly with the trial of Aaron Burr.

Anne Milgram:

It’s a fascinating, right?

Preet Bharara:

A more fun read than a lot of, and he’s wanted the testimony of Thomas Jefferson and there was a subpoena that was issued. The court goes through in detail many examples of where a president had to be subject to and answerable to a subpoena, in a federal case. The difference here is this is the first time the court had to deal with an issue involving a state prosecutor and the president argued, “Well, this is distinguishable from a federal case and didn’t make a good argument for it because it would divert the president, it would cause stigma on the president, and it would be a harassment of the president.” Which maybe is what causes the president to tweet those two-word posts, presidential harassment by the time.

Preet Bharara:

The court essentially said there’s really no difference. There’s no heightened standard, the majority said this. There’s no heightened standard for the President of the United States just because it’s a state subpoena and as you point out, there are a couple of justices who said they concur in the judgment, but they think that there should be a heightened standard and that’s not a crazy point of view either.

Anne Milgram:

Well, let’s talk about that just for a second because this is what we see the Solicitor General who represents the sort of interests of the United States, the president here. There’s this line also through Mazars as well through the other case that we just talked about the congressional subpoenas case. Here in Vance, what the president is basically saying and the Solicitor General is basically saying is “I should have absolute immunity.” is what the president says. But and here’s where the Solicitor General comes in, if you don’t, give me an absolute immunity.

Anne Milgram:

There should be a heightened standard that the government has to go through. To get that standard, they go to the United States versus Nixon case which is remember President Nixon was subject to a subpoena, a grand jury subpoena for the White House tapes. Those recordings and the court found that there was a balancing test essentially but that the government had shown this specific detailed need in that case to basically get that evidence.

Anne Milgram:

That’s what allowed them to overcome executive privilege. What the president was arguing for was this standard that was used when there was executive privilege. Meaning, the official acts of the President of the United States in the course of the president’s official duty. There’s an argument about what’s privileged and what’s not.

Anne Milgram:

That failed in Nixon because there was a sufficient need for the criminal prosecution to get access to that evidence. Here, these are the president’s private papers. There’s no executive privilege argument, but what the president’s, the Solicitor General and the president are trying to do is basically say, “But still you have to meet, the government has to meet this really high burden and standard to show that there’s an absolute need for this information and the court rejects that.

Anne Milgram:

They basically say, “Look, there’s no basis for that here and that’s not a legitimate thing where these are the president’s private papers.” This isn’t an executive privilege issue. But it’s a clever way I think for the Solicitor General to have made this argument of like, “Look, there’s a higher burden here that has, that the government should have to go through.”

Anne Milgram:

Meanwhile that burden has never been applied to the president’s papers in other instances. The court pretty roundly says, “That’s just not the right standard here. There doesn’t need to be a heightened standard.” But that’s a lot of the argument and the opinion is basically, “Look, the president is subject to subpoena like other people.”

Anne Milgram:

One of the things that I think the Manhattan DA’s Office did really well and talking again about lawyering is that they basically, this was a argument by the president the United States against essentially any state criminal subpoena, right? It wasn’t specific to this one as much as it was the president can’t be subjected to this.

Anne Milgram:

One of the things that the DA’s Office I think did really well and contrast this with the House of Representatives in the case, is that the DA’s Office said, “Yes. There are cases that you could imagine where a subpoena wasn’t undue burden on the president or was going to basically cross the line. That should be individually decided and also obviously, all subpoenas are subject to anybody can challenge a subpoena saying, “It’s harassing. It’s over broad. It’s not relevant. That this person’s testimony is not relevant and all that still exists.”

Anne Milgram:

The court basically, Robert basically writes, “Look, there’s still as to specific subpoenas, they’re all these abilities for the president to sort of assert these challenges to a specific subpoena, but overall the president is in the same boat as all other Americans are.

Preet Bharara:

At this point, I guess some listeners are probably thinking, “Okay, enough with the legal analysis, what the hell’s going to happen now?”

Anne Milgram:

Yeah. Exactly.

Preet Bharara:

I’ve seen some folks on TV and others who I respect speculating that all sorts of things are going to happen immediately and Trump could be charged before the election. I humbly suggest that none of that is going to happen. Just maybe we should explain the process for a second. What the court decided is basically the president’s arguments are terrible, but they have not ordered the turning over of the documents. Go back to the district court. Go back to the lower court, and the case is being heard by Judge Marrero who I know from the SDNY.

Preet Bharara:

The president like you said, like any other citizen can make particularized arguments as to why some of these things are over broad, and I don’t have to respond. But this absolute immunity argument does not work. There will be some proceeding, maybe even on a fairly fast basis.

Anne Milgram:

I think it’ll be fast.

Preet Bharara:

Yeah. You’ll have that first. You’ll have the delay. Then, at some point, you’ll get some version of the documents because the accounts have said they will obey whatever the court says. People have to be reminded that those documents are not going to be on the internet. They’re pursuant to a grand jury subpoena and they will remain secret and privately held by the DA’s Office until such time as it’s appropriate to release them, which would only happen if there ends up being a charge and a trial.

Anne Milgram:

Correct.

Preet Bharara:

I don’t have any basis to know how strong a case there is if there is any case. So, to have the proceeding to get the documents, to build a case, to bring a case in the next four months, I think is pretty much impossible.

Anne Milgram:

I think it will be after the election. I think it’s for two points though. One is that people move to quash subpoenas all the time. The president is essentially going to have his lawyers go in and basically say, “Look, here are all the reasons why we don’t think we should have to answer this specific subpoena.” I think the judge is going to dispatch with those arguments pretty quickly if the investigation is in to the president and his family’s financial dealings and there’s a sufficient basis, there’s probable cause to get access to those documents for the grand jury.

Anne Milgram:

Then, the court is going to grant it because if you’re doing an investigation to the president’s finances, it’s hard in my mind to see that the taxes and related tax schedules are not going to be relevant to many questions that would come up in that investigation. I think the government will be able to show the need and the basis for those subpoenas have been properly issued. But then you’re exactly right.

Anne Milgram:

The matter will be before the grand jury, the prosecutor is allowed to decide once they get access to those documents, has a crime been committed? Should they present those charges to a grand jury to vote? Only after that grand jury votes would we potentially see some of that information in a charging indictment.

Anne Milgram:

Then, as you point out, most of the conversation wouldn’t happen until, there might be some information put into an indictment, but most of it would happen at trial. It really is a far way out. Also, I personally think that Cy Vance would not, if the president were to be charged, I don’t think Cy Vance will charge the president within say 60 days of the election. That’s not a state rule. It’s as we learned from Jim Comey who broke what I would [crosstalk 00:57:36]-

Preet Bharara:

Yeah. You don’t want to be doing this at the eve of the election.

Anne Milgram:

You just shouldn’t do it, right? I mean you don’t want to put your finger, your thumb on the scale of the election and you can charge the president on November 15th or November 30th, whatever. I think we’re at this point in time where it’s the middle of July. That basically gives the Manhattan District Attorney six weeks maximum in which to present charges and bring a case.

Anne Milgram:

That may happen but I think you’re right. This week is the federal court hearing on litigating the subpoena. I don’t see the timing happening until after the election. Again, if at all, I mean part of this is about getting the evidence to know whether a crime was committed. It’s not this evidence proves a crime was committed. It’s the DA needs this evidence to figure out, for the grand jury to figure out if a crime was committed.

Preet Bharara:

Yeah. I think a lot of people think that this is the end, this is the endgame. This is the beginning game.

Anne Milgram:

It’s the beginning game.

Preet Bharara:

The first thing you do is get documents. Let’s end on something that’s actually serious, but I find aspects of it comical. You’ll remember that my successor, Geoff Berman was unceremoniously fired from his position. I think the day before he was fired, I believe that the Attorney General lied about Berman stepping down. Geoff Berman testified behind closed doors last week in front of the House Judiciary Committee, some of his testimony… Actually, all the testimony has been released, but his opening statement was made available on the day he testified.

Preet Bharara:

I don’t mean to make light of this, but there’s a detailed statement setting forth the facts of that two or three day period. I just want to share some of it with you. Geoff Berman says that on Thursday, June 18th, he got an email from someone on the Attorney General’s staff saying the Attorney General wanted to meet him the next day.

Preet Bharara:

By the way, that meeting was at the Pierre Hotel. I don’t know if the Attorney General stays at the Pierre Hotel.

Anne Milgram:

Yeah. That’s a fancy hotel for the Attorney General.

Preet Bharara:

We were not allowed to stay at… Maybe he’s paying out of his own pocket, but we had to stay at much lower level hotels.

Anne Milgram:

Yes. Agreed.

Preet Bharara:

He describes that he met with the Attorney General in his suite. That sounds like not government rate. It began approximately 12:10 PM on June 19th. The Attorney General’s chief of staff was present with me and the Attorney General, but he did not speak. There were sandwiches on the table but nobody ate. But nobody ate.

Anne Milgram:

It’s such a great detail.

Preet Bharara:

It’s a dramatic literary moment. It was a [inaudible 00:59:51]. You’ll recall that the Attorney General was trying to like engineer his polite resignation and take another job in DC. Although he didn’t have any interest in going to DC. The first thing he suggests is according to the testimony, “The Attorney General pressed me to take the Civil Division position as the head of Civil Division in Washington saying that the role would be a good resume builder.”

Preet Bharara:

He said that I should want to create a book of business once I returned to the private sector which that role would help achieve. He also stated that I would just have to sit there for five months and see who won the election before deciding what came next for me. Now, no offense-

Anne Milgram:

Yeah. That caught my attention too.

Preet Bharara:

… to my friends in DC, but you’re the United States Attorney for the Southern District of New York after having spent decades in private practice, you don’t need another resume builder, and in no universe would I have left the US Attorney position, either confirmed by the Senate or authorized to serve by the court for that job. Again, that’s a big, it’s an important job, but it’s not a promotion. You don’t leave to do that.

Preet Bharara:

The idea that he would need a resume builder is another sign of Bill Barr’s arrogance and offensive thinking about how he shuffles positions around in the Department of Justice. The next one that caught my eye after Geoff Berman says again and again that he’s not interested in stepping down. Then, the Attorney General gets kind of tough with him. He says, “The Attorney General said that if I did not resign from my position, I would be fired. He added that getting fired from my job would not be good for my resume or future job prospects.”

Anne Milgram:

But it’s worked out okay for you, Preet.

Preet Bharara:

That’s makes me laugh.

Anne Milgram:

It’s been okay. I was thinking the same thing. I was like, “Well, maybe if…” I’m sure Geoff Berman didn’t want to say to the Attorney General, “Well, Preet’s okay. He’s been fine. [crosstalk 01:01:38] happened.”

Preet Bharara:

He’s doing fine. To the extent I’m not working as a partner to law firm, that is by my choice. Because I prefer hanging out with you and doing these articles.

Anne Milgram:

Totally. But I mean it’s just this moment of unbelievable… Yeah.

Preet Bharara:

He doesn’t read the room. He doesn’t read people and these are not the most consequential issues with respect to the termination of Geoff Berman. But the Attorney General does not have his head screwed on straight.

Anne Milgram:

No. It’s pretty awful to actually read the inside of it. It’s duplicitous, right? It’s not truthful. I mean you sort of think about Berman is pushing the AG to basically say, “Look, do you have a problem with my job performance?” He says, “No.” I personally don’t believe that’s true. I think they wanted Berman out. I don’t know why, but to the point that I think Dan Goldman made this point on Twitter and I thought it was right. If it was really about putting Jay Clayton in that job, they would have just nominated him.

Anne Milgram:

Then, they would have led, even if Berman… Berman could have stayed until Clayton came in or even if Berman stepped out, they would have put Audrey Strauss, his deputy in. This whole strange thing with putting in the US Attorney, the judicially appointed US Attorney Craig Carpenito into the Southern District. It shows that everything Barr was doing was not, he wasn’t being honest about it.

Anne Milgram:

Also, I had a lot of empathy for, well, you have empathy, I guess I have sympathy for Berman sitting there and saying to the Attorney General like, “Can we talk? I want to give you the decision on Monday.” Barr says, “No. We’ll talk Saturday.” Then, all of a sudden Friday night, the press release comes out saying that Berman resigned. It’s so unjust and unfair. It feels sleazy and awful and corrupt and again-

Preet Bharara:

Its lies. Its lies.

Anne Milgram:

Yeah. We don’t know why but it just feels like, it’s really disrespecting the job of the Attorney General. It feels like an abuse of power. It feels really bad to me. I’m not articulating it well, but when I read his statement, it just made me feel queasy for all the great men and women who work at the Department of Justice and Berman’s just sitting there basically saying, “I want to do my job. Just let me do my job.” It’s terrible. I feel like today’s takeaway is like a lot of bad things happening in the world.

Preet Bharara:

Well, that’s the takeaway on a number of things. But I think those are very important decisions-

Anne Milgram:

But some good stuff. Right. Yeah. That’s what I think too.

Preet Bharara:

… [crosstalk 01:03:50] on the whole… Good.

Anne Milgram:

Yeah. I agree.

Preet Bharara:

I got to go and eat some durian fruit.

Anne Milgram:

Preet, don’t make the police come in with an emergency response.

Preet Bharara:

I think some people said that-

Anne Milgram:

Eat it outside.

Preet Bharara:

… they eat it outside. [inaudible 01:04:05]. They love it so much but they can’t bring it inside.

Anne Milgram:

Right.

Preet Bharara:

All right. Maybe we’ll have as event filled week coming up [crosstalk 01:04:11]

Anne Milgram:

Maybe we should wager on what’s going to happen on Friday night. Yes. Exactly.

Preet Bharara:

No. I don’t wager any more.

Anne Milgram:

Smart man.

Preet Bharara:

All right.

Anne Milgram:

Great to chat with you.

Preet Bharara:

Talk to you next week.

Anne Milgram:

Talk soon. Take care.

Speaker 5:

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