• Transcript
  • Show Notes

In this episode of CAFE Insider, “Portland, Vance, and Voting Rights,” Preet and Anne break down the controversy surrounding the use of federal officers to arrest and detain protesters in Portland, the most recent legal maneuvering in the Manhattan District Attorney’s pursuit of President Trump’s tax returns, and the Supreme Court’s decision to leave in place (for now) a lower court order which disenfranchises hundreds of thousands of people in Florida with felony convictions. 

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

JOHN LEWIS 

The New York Times John Lewis obituary, 7/17/20

CLIP: John Lewis crowd-surfing on The Late Show with Stephen Colbert 

SALAS 

“Son of N.J. Judge is Killed: Roy Den Hollander, a Lawyer, Is Identified as Suspect,” NYT, 7/21/20

OREGON

CLIP: Chad Wolf on Hannity, 7/16/20

Fourth Amendment of the United States Constitution 

40 U.S. Code § 1315, Law enforcement authority of Secretary of Homeland Security for protection of public property

Bivens v. Six Unknown Fed. Narcotics Agents (1971), Supreme Court case concerning Fourth Amendment protection from unreasonable search and seizure  

“What the Heck are Federal Law Enforcement Officers Doing in Portland?” Steve Vladeck, Lawfare, 7/17/20

“US Attorney for Oregon Calls for Investigation Into Portland Protester Arrests,” Oregon Public Radio, 7/17/20

Oregon AG Ellen Rosenblum’s lawsuit against federal agencies, 7/17/20

Steve Vladeck’s twitter thread about 40 U.S.C. § 1315, 7/19/20

Vladeck’s interview on Stay Tuned with Preet, 3/30/20

General Barry McCaffrey’s tweet on federal agents in Portland, 7/17/20

“Why Trump’s Military Tactics in Portland Will Likely Backfire,” Barbara McQuade, NY Mag, 7/18/20

VANCE 

Trump v. Vance (2020) 

Manhattan DA Cyrus Vance’s application for SCOTUS to expedite issuance of judgement, 7/15/20

SCOTUS’s order granting the application, 7/17/20

“DA Accuses Trump of ‘Delay Strategy’ in Fight Over Tax Returns,” NYT, 7/17/20

10-page memo outlining both parties’ arguments for further proceedings, 7/15/20

FLORIDA VOTING RIGHTS 

The Supreme Court’s decision in Raysor v. DeSantis 

Alexes Harris, Sociology Professor at University of Washington who studies justice system fines and fees

“Supreme Court deals blow to felons in Florida seeking to regain the right to vote,” WaPo, 7/16/20

GHISLAINE MAXWELL 

“Ghislaine Maxwell denied bail as judge says risk of fleeing is ‘simply too great,’” CNN, 7/14/20

CAFE contributor Elie Honig’s note regarding Maxwell’s incentive to flip, 7/17/20

Elie’s note regarding cooperating witnesses, 7/10/20 

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

How are you Anne?

Anne Milgram:

Hey, Preet. How are you doing?

Preet Bharara:

I’m all right.

Anne Milgram:

We have a lot to cover, again.

Preet Bharara:

We do. Maybe begin with some sad news from the weekend and tragic news yesterday over the weekend. Civil Rights icon legend, American hero, John Lewis passed away. He’s been sick for some time. 80 years old, did a lot of things in his life. As I tweeted over the weekend, I think the Edmund Pettus Bridge should be renamed but more importantly, as people have been saying, if you want to pay tribute to John Lewis, we need to reauthorize the Voting Rights Act. Do you agree?

Anne Milgram:

Yes, yes, I agree very much. I mean, first of all, I think he’s such an inspiring man and as sad as I was by his passing, I was so inspired to read the stories about him over the weekend, and you just see his kindness and integrity. And one of my favorite quotes is how he always talked about getting in good trouble, which is just a brilliant way to talk about peaceful protest and how you fight against injustice and wrongs. But I agree, look, they should reauthorize the Voting Rights Act, they should go beyond even where it was to protect the rights of all Americans to vote. And I think it would be a huge honor to his legacy if Congress would do that. I’m not overly optimistic, I think, and we’ll talk about the Supreme Court decision on voting rights later on today. I think that we’ve seen a real backslide on the ability of Americans to vote. But I could not agree more that it is the perfect way to honor his legacy. And remarkable man, an American hero.

Preet Bharara:

And if you want to see something, that’s a clip, that’s fun and now we usually see when shows show clips of John Lewis, there’s something-

Anne Milgram:

The dancing?

Preet Bharara:

Well, the dancing is great, but there’s an appearance he had on Stephen Colbert four years ago. He was 76 years old, and he body surfs in the crowd. Have you seen that?

Anne Milgram:

You know what else I really like? I have seen that. I love that, I love the dancing at one of those conventions or conferences. The other thing I really love is the image of him meeting the 10 year old boy whose grand mom’s drove seven hours because he was one of the icons of the Civil Rights movement and was one of the 10 year old heroes and that John Lewis spends time with him and then they became close friends. And it’s just he’s, I think we’re all judged by kindness and integrity. And you can just tell how much of both of those John Lewis had.

Preet Bharara:

Then yesterday some tragic news, Judge Esther Salas, a federal district court judge in New Jersey, her family was attacked by a gunman. Her college age son was killed, her husband hospitalized. She’s a friend of yours.

Anne Milgram:

Yeah. So I’ve known Esther, Judge Salas since I was in New Jersey as the first assistant AG and that goes back to 2007. 2006, sorry. And she’s a remarkable person. She is kind, smart, hardworking. She had a career as a federal public defender, went on to become a magistrate judge and then a federal judge. And this is, I think you and I have texted about this, it’s just beyond words. I mean, it’s clear the gunman, now we don’t know a lot of what’s happened. But the gunman was a lawyer, he had a case in front of her advocating for men’s rights. He was a self proclaimed anti feminist. And just this idea that she would be targeted because she’s a judge in the case that he was litigating as a lawyer or because she’s a woman or a female judge, it’s just beyond what I can even imagine.

Anne Milgram:

And so I send, and I know you do too, just my deepest condolences to her and her family and her husband, who’s been in critical condition. But I’m very hopeful for his recovery. I feel this mostly, not just as someone who knows and respects Judge Salas, I also feel this as a mom. I have a boy myself, and it just, I can’t even imagine.

Preet Bharara:

Yeah. My daughter’s about the age of Judge Salas’s son.

Anne Milgram:

Yeah. And I also do think, I mean, look, there’ll be a look back at what’s happening, but I think we saw the murder of the federal judge, the female judge in Chicago some years back. And I think we have to have a real conversation and the Chief Justice of the United States Supreme Court runs the judiciary, we have to have a real conversation about safety for judges. And I know, we’ve all people who’ve been in positions of authority, I’ve had death threats when I was AG. I mean, others you may have as well, but we have to really have a conversation about how we protect people and their families. And also, you can’t prevent every tragedy, but I do have this question in my mind, we’ve seen this in my lifetime now, a few times. And so I think we have to have a hard conversation about whether we’re actually doing enough.

Preet Bharara:

We should just say that the suspect, who you described, shot himself to death.

Anne Milgram:

Yes, he killed himself. Yes. And was found by authorities. And look, we’ll learn more in the days and weeks to come. But the real bottom line is it’s an unspeakable tragedy. My heart breaks for the judge and her family and we can continue to follow it but I really feel like this is just one of those things, it’s beyond words for me.

Preet Bharara:

It’s horrible. It’s horrible. And I share your sentiments. Should we talk about some of the things that are controversial in legal news?

Anne Milgram:

Yes. And there are a lot of them. It seems like every week we think that it’ll be a quiet week and it’s not.

Preet Bharara:

So we’ve a lot of issues to talk about Anne, and we’ve gotten a lot of questions about what’s going on in Oregon. As I tweeted, what the hell is going on in Portland, Oregon? This is a broad question that I think we can spend some time answering. It comes from June Cooley, who asks, dear Preet and Anne, can you please break down what is happening in Portland, Oregon, regarding the legal rights of our police force versus the Trump force? Thank you. I love your show and stay well, June Cooley. Well, thanks for that question.

Preet Bharara:

So we should set forth what the basics are and we’re talking about federal action with respect to protesters and other people who are suspected of doing things like defacing buildings or harming property. So should we go through what we know so far? What exactly is going on? And then we can discuss the legality of it.

Anne Milgram:

Yeah. So let’s even step back to the protests after the murder of George Floyd, there have been a series of protests in Portland. There are a number of folks who’ve taken to the streets, and they’ve mostly been peaceful protests. But there have been, as is sometimes the case, there have been some people who did damage the property, who were engaged in behaviors that we generally don’t want to see as part of the protest. And so what happened then is that… And the mayor and the governor and the police have all been working to basically keep the protests calm, and to try to have as little destruction or violence as possible. And this has been going on for again, like 50 days.

Anne Milgram:

So last Thursday, the Department of Homeland Security sent, the estimate is about at least 100 federal officers to Portland. Now it’s important to note they weren’t invited in, they were not asked to come in. They were not authorized specifically to come in, they came in, and we’ll talk about the legality of what they can and cannot do when they come into a jurisdiction like that, but the bottom line is they came in and they were out on the streets. It’s been reported that they used tear gas on the protesters. They were in camouflage, essentially military uniforms. They did not have either name badges. If you think about it, most police departments, you’ll see a police officer with their last name and their badge number and they’ll also be wearing a uniform from the police department.

Anne Milgram:

And basically, they’re easily identifiable, you know who they work for, you know they’re wielding the power of the state, and you know what their name is. And that gives you some accountability over the actions of those officers. Both for good and bad, you want to make a compliment, you know it was officer Smith, you want to say, “Officer Smith, hit someone he shouldn’t have,” you’re able to have that information.

Preet Bharara:

Yeah. And just a pause, and in many police departments, they have to wear a body cam too. So additional accountability.

Anne Milgram:

Exactly. That’s right. And so here in Portland, they sent these folks out on the streets, they did not have any identifying information. They were wearing camouflage essentially army fatigues, they look like. And they were members, we now understand, a number of folks were members, at least of the Customs Border Patrol. Those are the federal agents that usually patrol the borders. We should remind folks that technically they’re able to work throughout the United States, but they have particularly large jurisdiction when it comes to being within 100 miles of a border. Portland is within 100 miles of the border of the Pacific and Atlantic Oceans, of course, countless borders and about two thirds of the United States of America, the population is within that range where the Customs Border Patrol would have additional powers than they usually have.

Anne Milgram:

And so there were people grabbed off the street, there were people who reported being taken to the federal courthouse, they were not placed under arrest, they were later released. But there was also a protester who was badly injured when he was shot at close range with not an actual weap, a less lethal form of a force, I don’t remember the exact name but a type of weapon that basically is used for crowd control often. It’s also been reported that there’s no training, that these folks have absolutely no training and how to handle a riot or crowd control.

Anne Milgram:

And so what happens at the end of this is that there’s just a huge outcry from the mayor, the governor, the local US Attorney calls for an investigation. And basically people are saying, “Why are there federal officers on our street, just putting people,” and they’re putting people in unmarked vans. It’s also important to know. So it feels like a secret police force. It feels very much out of the normal chains of the rule of law that you and I are used to. And so when you say what the hell’s going on? That’s how I feel too.

Preet Bharara:

So I have a number of reactions, one of which is, what I don’t really understand, is in case after case, in time after time, the administration takes some action that is either legitimately controversial or illegitimately controversial, but natural questions arise, and legitimate folks are asking, both on the right and the left, although there’s some hypocrisy, I think, on the part of folks who have styled themselves libertarians, and are keeping their mouth shut over this because it’s being done by Donald Trump. And when questions are asked, usually, people in a position of power and authority particularly law enforcement authorities, understand that they have an obligation and a duty and a responsibility to explain themselves. And then there can be a debate and there can be oversight, if that’s appropriate, and people can be persuaded or not persuaded.

Preet Bharara:

And the weird thing about this is given the legitimate controversy, and there are arguments, I guess you could make on one side or the other. But there’s almost no comprehensive explanation of authority and reasoning for the public policy that they’re engaging in, by this administration. It’s amazing to me. You see all these people on Twitter and social media and on television, and in their blogs, try to figure out and guess what the legal authority is and what the statute is, and the reasons why they’re trying to do things, but there’s almost no explanation in any thorough way from the Department of Homeland Security.

Preet Bharara:

You get the acting chief, Chad Wolf goes on TV and says things like, “We don’t need to be invited. We can do what we want.” Well, why don’t you explain yourself? It reminds me a little bit of, what I still don’t think there’s a satisfactory explanation of, why it is that Michael Cohen, when he refused initially, to agree not to write or publish a book was taken back to prison when he was supposed to be essentially furloughed to his home. I just don’t understand why again and again, they foment further controversy by not explaining themselves. Do you know why? Is it because there is no explanation? Is it because of arrogance on the part of the head of DHS and the president and Barr? I mean, it’s not that hard to say they must have some reason that they believe. Whether it’s a good reason or a bad reason that they can do X, Y or Z. Why not share it?

Anne Milgram:

Right. Yeah, they refuse to show their math repeatedly. And part of it is that once, I think it’s political, largely. I mean, I’ll answer this piece of it, what I think is, it’s political and that once you engage in the debate, they see that as losing. You’re ceding grounds of even justifying the opposing view in some ways. And they’re assuming that they have this authority. I mean, it also goes beyond what you’ve even said Preet, to the point where, and we should talk about Chad Wolf for a minute, he’s acting like so many other folks who are the head of federal departments.

Anne Milgram:

He was essentially a lobbyist for 11 years, he talks about law enforcement like he’s actually worked a day as a law enforcement official. He has not. And I think it’s really important to watch what he’s doing on Fox News where he’s out there basically saying, “There’s lawlessness in Portland and it has to be controlled.” And he’s using language… I mean, he basically said, one of his recent tweets, and this is reported by Barb McQuade in New York Magazine, she did a great piece on what’s lawful and what’s not lawful.

Anne Milgram:

But one of Chad Wolf’s recent tweets states, quote, we will never surrender to violent extremists on my watch. That language itself is offensive. It is basically talking about American citizens as akin to terrorists abroad. And so, to me, they have cloaked themselves in this idea that, “We are the rule of law. We don’t have to answer questions. We’re going to enforce the rule of law as we see fit.” And they are completely missing the fact that the rule of law and the ability to enforce laws comes from the power of the people. And it comes from legislation, it comes from the United States Constitution, and they do have to explain what they’re doing. You can’t just show up on city streets.

Anne Milgram:

And I mean, furthermore, I personally, and I wanted to get your vibe on this. I mean, this feels to me, we watched DC a month ago where, or six weeks ago now, I’ve lost all track of time where the president of the United States, with Bill Barr, with one of the military secretaries basically goes out and has the protesters cleared by federal agents again, not identifying themselves, basically has that area cleared so he can walk to the church 10 feet away and do a photo op.

Preet Bharara:

Remember, AG Barr didn’t order it. He just ordered that it’d be done. What was the distinction he had. He had some distinction.

Anne Milgram:

Yeah. This is a move and we’ve now seen reports that the feds are going to go to Chicago and we’ve heard the president saying Detroit, Oakland, all these cities are a mess, and I’m going to take control of them. And so I personally think, the one thing I would say today is that now is the time for people across the United States to be worried about this because you may think it’s not going to happen in your backyard, but it is. This is part, to me of a larger campaign by the president and it should be frightening to everyone who cares about the rule of law and accountability of law enforcement.

Preet Bharara:

Yeah. And as I said at the outset, there’s a lot of confusion about what exactly is going on. We’ve described it a little bit. But I tried to do some research crowdsourcing on Twitter last night, and I don’t know and I don’t see it published anywhere, or reflected anywhere, how many people have been taken into custody by these federal officers. How many people have been charged, if any. If there are state prosecutions, if there are referrals to federal prosecutors. I just don’t know. I don’t know if it’s one, I don’t know… There’s some anecdotal evidence of people who were taken into custody, and then, I guess, questioned and then released. And they’ve made some statements about their experience. But we have no idea what the number is.

Preet Bharara:

So in addition to not explaining, why are you going about doing things in a particular way? We also don’t have any accounting that I’m aware of, of what the scope of the issue is, and how many people are taken in.

Anne Milgram:

Right. And you’re asking a really important question.

Preet Bharara:

I think we would know-

Anne Milgram:

Yes. If they were charged, I think we would know.

Preet Bharara:

… if they were charged. Because you have to go to court within a certain amount of time, usually within 48 hours in some places, depending on how the local prosecutor’s offices work, 24 hours under the constitution. You have a right to be presented to a judge, understand what the charges are. I’m not seeing a lot of evidence of charges, which I guess is a good thing, but also suggests that this is just an intimidation and scare tactic where they drive around, pick people up, question them, and then release them because they have no choice. I don’t know what that’s about either.

Anne Milgram:

Right. I mean, that sends a huge message to me along the lines of the questions of legitimacy. I mean, if you make an arrest based on a state crime, that would go… And we should go back and talk about the legality of this in a second because it’s hard to talk about it and not combine the legal arguments. But if you get arrested on a state crime, it goes to the state prosecutor that would be the local DA in Portland, the DA would decide within, as you say, a certain pretty short amount of time whether or not to file charges. If it’s a federal crime, it goes to the federal US Attorney, who as we know has been reported to have called for an investigation into what the CBP, the Customs Border Patrol officers were doing. So it doesn’t look like he’s announced any arrest or has made arrests. And we would know if somebody was charged and went to court for an arraignment, for example.

Anne Milgram:

And so I tend to think nobody’s being charged, that they’re just using it exactly as you say, as a way to intimidate and scare people on the streets. One question I have for you, just to step back a little bit to the DC piece, one of the things that was interesting in DC is remember that the military folks came out after and said, “We shouldn’t have been there. We shouldn’t be a part of this.” And what’s interesting to me here is that this isn’t the National Guard, this isn’t the US military, this isn’t the FBI. This is the Department of Homeland Security, which is the third largest federal agency, arguably the most politically… I mean, I think we could argue this on DOJ as well, but very much politically controlled by the President. And to me, it’s just a really interesting question of, why is this… If you and I were thinking of sending federal agents to a city, for some reason, CBP would not be the group of agents you and I would generally be thinking about. And so what do you make of that?

Preet Bharara:

Yeah. I mean, I agree with that. The whole thing is bizarre. We’ve been talking about how these federal officers were not invited in by the local authorities. They’re not coordinating with the local authorities. The local authorities are instead, bringing lawsuits and telling them to go away. That’s one thing, and it’s disturbing. But not only that, these federal officers are not coordinating with the local US Attorney’s Office. And I’ve never heard of such a thing. The FBI and the Secret Service and the DEA and other agencies, they work in coordination with, and in collaboration with the US Attorney’s Office. And you see here, the US Attorney’s Office itself is calling for an investigation, is wondering what’s going on. So this operation is more rogue than you would even typically think of it, if you read the reports.

Preet Bharara:

On the question of why they’re not wearing badges with names, etc, I get that point. We should note for folks, as you and I discussed, that as a general matter, FBI agents, Secret Service agents who are not on active protection, and even those who are, they’re in plainclothes. They have badges on them, but they’re not on display. They don’t wear body cams. And that’s normal. There’s an argument to be made, that there’s no actual legal requirement to publicly display name and affiliation on the part of federal agents. On the other hand, as I asked in a different tweet yesterday, the question of whether or not there should be an agency identification and even name identification and authority for arrest at the time you take someone into custody, is a totally different thing.

Preet Bharara:

If you’re sitting around doing surveillance as a federal agent, you don’t advertise yourself. You sit in an unmarked car, and you don’t wear a uniform. And people understand that. This is not that. And I have not heard a single answer to the question, what is the policy basis or reasonable basis, not to advise a citizen you’re arresting where you’re from and what your basis for arrest is?

Anne Milgram:

Yeah. So I would take issue a little bit. So there are a couple of pieces. First is we have to remember that as a rule, federal law enforcement is very different from state law enforcement. The people who are on the street generally interacting, dealing with the public or state and local officers, they wear badges, they wear uniforms, we require often as a matter of law that they be, or city ordinance, that they be identifiable and that they be named. So that again, for the reason of accountability.

Anne Milgram:

When it comes to federal officers, what you’re talking about with surveillance is, yes, they’re doing an investigation to somebody. In surveillance, they’re not interacting with the public and if they are interacting with the public, and you and I both know this, they generally wear their badges around their neck and they will wear, if they’re doing a raid for example, in a house, they’ll wear a flak jacket that says FBI or ICE or CBP on the back.

Anne Milgram:

So there are policies and protocols when they interact, generally with members of the public and they’re not just doing a specific investigation where there’s a reason as you just articulated, you should not have to wear an ICE or an FBI jacket when you’re trying to be under, plainclothes, blend in. That’s also true of local officers when they’re doing investigations, sometimes they go in plainclothes. So there’s legitimate reasons why we could argue you wouldn’t.

Anne Milgram:

But when it comes to interacting with the public, the norm and practice and often law and regulations in the United States is that you wear a uniform and a badge. Now in Oregon, there’s also a state law that gives federal officers limited ability if they see a violation of state law to make an arrest. But if they do that, they have to identify themselves as a federal law enforcement agent, and they have to basically bring somebody to the state immediately for processing. They can’t make a citizen’s arrest. So they could effectuate a, “We just saw somebody engaged in a carjacking, we’re going to grab the carjacker. I’m a federal agent, I grab that person, I immediately have to take them to the state and I have to identify myself to that person as a federal agent.” That has not happened here from what we know. They haven’t taken people to the state and they have not identified themselves from the public reporting we’ve heard from a few folks who were taken. And so I think these are really important points.

Anne Milgram:

The other piece is that, the CBP press secretary when asked about, why are you putting people on the street? To your point, these are questions that need to be answered, why are you putting people with guns on the street in army camos and not having them identify themselves? They had this argument, which is basically that the agents were being doxxed, meaning that they were taking their… They were basically using their personal information to harass them in some way, whether online or in person to find out personal information about the officers. And so they argue it’s an officer safety question.

Anne Milgram:

Now that argument, they put forth no evidence for that argument, number one. Number two, it is also part of the job. We put police officers out there every day, and we require them to wear a badge with a badge number and their last name and a uniform, because that’s how we enforce our laws. And that’s a decision that we’ve made in our country generally. So that to me just really is, the federal agents have a different standard than the local police who are out there every day. It just strains credibility in my mind, and it’s just an absurd argument to be making.

Preet Bharara:

There are different arguments you can make for different things that they’re doing. What’s the argument for unmarked vehicle? What’s the argument for wearing camouflage? What’s the argument for not having your name displayed on your uniform? And you can argue about those things, and I think they’re not doing it the right way. But when push comes to shove, and you’re talking about the moment of actually taking liberty away from someone, at least for a temporary period and putting cuffs on someone and arresting them so that they’re not free to go. At that moment, I don’t understand what the policy reason is for not explaining what agency you’re from, whether or not you tell the person what your name is. And I found no one able to explain why that’s the case. Because the doxxing issue does not go to that, at the moment of arrest. What agency you’re from.

Anne Milgram:

Right, I agree.

Preet Bharara:

I heard general Barry McCaffrey, long serving retired general. And he made a point that I thought was interesting. He said, “When we try to teach other countries how to engage in democracy,” developing nations, “we tell them, one of the things you want to avoid is having some national police, secret police that looks like it’s operating outside of the normal bounds. And looks like they’re not accountable and are not identifiable. And that’s a terrible look for a country that supposedly is trying to become a democracy.” That’s what we tell other countries to do. And the fact, and he seemed very pained about it, as a lot of people are, and the fact that we seem to be now importing that look, and that process and procedure, without any public explanation whatsoever, is very, very disturbing.

Anne Milgram:

Yeah. And I think two points that are worth making. First is I think the president’s going to try to do this in other cities and states. We saw it in DC, we’re seeing it in Portland. This is just the beginning I think, of what we’re going to see, unless it gets pushed back hard in a bipartisan way. I think there has to be Republican opposition, as well as Democratic opposition. And I also, I don’t think it’s a coincidence that the cities that the president is picking are all controlled by Democratic mayors who have disagreed publicly with the president.

Anne Milgram:

I also think, to your point on the military, and general McCaffrey, this is not the US military. And the question I have in my mind is, were they asked? Did they try to get the military to do this? Did they try to get DOJ to do this? Is Chad Wolf the only person who would say yes? What’s happening here, is really, really troubling. And I think most people who are career law enforcement or who are career government would say no. And so you and I have talked about this before, but it may be worth just stopping on this for a second, of like the hardest thing when you sit in these jobs is to say no. And to basically say no to people with political power over you. And it is the single most important thing that you can ever do.

Anne Milgram:

And Chad Wolf and his deputy, Ken Cuccinelli who was the Virginia Attorney General, we overlapped a little bit, is deeply conservative, they’re leading the charge, and they’re leaning into doing this and they’re asserting that they have absolute authority to do it wherever and whenever they want. And that cannot go… If it goes unchecked, I think we’re going to basically see DHS occupying cities across the United States of America.

Preet Bharara:

So we’ve been talking about the policy and the look and the coordination. There is some statutory authority for some of what may be going on, although the administration has not gone out of its way to identify the authority. You see people, scholars, and law types, saying, “Look, it’s becoming,” like Stephen Vladeck, our friend who’s been on the Stay Tuned podcast, wrote a couple of days ago, it should be increasingly clear we have to guess this, as opposed to being told is, I’m not sure why that is, it is increasingly clear that the authority for using CBP officers in Portland is, as a lot of people have pointed out, a statute identified as 40 United States Code Section 1315, which allows the DHS secretary to designate certain officers to do certain things.

Preet Bharara:

And so let’s take a quick look at it, under 40 US code 1315 law enforcement authority of the Secretary of Homeland Security for protection of public property. So for example, such an officer can, quote make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent. Or for any felony cognizable under the laws of the United States, if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony. So that’s a category of things. So if you’re on scene and you’re such an officer, and you see a citizen try to destroy the wall of a courthouse, a federal courthouse or federal post office, you can make an arrest without a warrant.

Preet Bharara:

Now in most of these cases, I don’t think there’s evidence that that’s exactly what’s happening in real time and some of these officers appear to be roaming the streets and driving around at some distance from federal property. So then this other provision maybe is invoked, and that is, quote, officers may, quote, conduct investigations on and off the property in question of offenses that may have been committed against property owned or occupied by the federal government. So that says they have some authority to conduct investigations. But it doesn’t say there that they have the authority to arrest unless the offense was committed in the presence of the officer or you have other reasonable grounds to believe that they have committed the offense. So there is some legal justification for some of what they’re doing. Do you think it’s enough?

Anne Milgram:

But yeah, I mean, this is the right question. And so just to be really clear, the federal law applies to federal property, United States property. So it’s not all public property within the city, which could basically mean that they would have jurisdiction over the entire city. It’s limited to federal property. So there are three federal buildings in Portland for courthouses and the US Attorney’s Office. There’s also obviously the US Post Office. That’s the property that’s envisioned here.

Anne Milgram:

And so you’re right, if there is an agent, there’s no question that the statute is intended to be a federal officer who’s protecting that property and it would be totally legitimate for them to put any type of federal officer. I mean, I would question whether CBP would be the right people to do it, and we can talk about the lack of any training on doing this type of work. But it’s very clear they have not trained on this and they do not know how to do it.

Anne Milgram:

But put that aside for a second, you have a federal officer or agent who is protecting the federal courthouse, for example, completely reasonable. That’s what the law envisions. If they then see someone commit a federal crime, while they’re doing that, they can make an arrest for that. And so that’s one piece of it.

Anne Milgram:

The part where you are going which is, if they have a reason to do an investigation, they can go out and basically do that investigation, that’s where this gets really, really dicey. Because they are not number one, standing in front of the federal courthouse or the US Post Office and just arresting people that they see committing offenses. And again, that feels to me like it’s within the scope of the law. This is them basically feeling like they’re free to police the streets and to go outside from the street.

Anne Milgram:

So if they’re one block from a federal courthouse because they have reason to believe that somebody is going to harm the federal courthouse, there’s no issue. If they’re riding around in a van just policing the street, nowhere near a federal property, that to me is not at all envisioned by this law. The piece that gets into this analysis you’re asking is, is it enough if they have a basis to investigate? Well, to me to have a basis to investigate someone, if they’re not directly tied to that federal property, it has to be that they have reason to believe that this specific individual committed a crime against a federal property. It’s not any crime, it’s not any felony offense, it’s basically it has to be tied to the purpose of the statute, which is basically to protect federal property.

Anne Milgram:

And so to me, this goes beyond it. I think I believe that there should be the ability for people to sue that’s basically an action under the constitution saying willful violation of civil rights by someone acting under color of law, a federal agent is acting under color of law, the violations here would be unlawful search and seizure under the Fourth Amendment or potentially even Fifth Amendment due process, First Amendment right to assembly. But really the way I would think about this is a Fourth Amendment violation if you have a federal agent just roaming the streets of Portland and picking people up and questioning them.

Anne Milgram:

But the problem here Preet, is a little bit of like even you and I having this conversation about what is the scope of the law? The fact that there is a law allows DHS to argue, “We have some power to be on the streets.” They do. I don’t think they have power to do what they’re doing here at all. But it does get us into this legal debate of where that line falls.

Preet Bharara:

Yeah. Look, it goes back to the original question. And this comes up basically, on many, many issues with respect to the Trump administration. I guess two questions. One is just because you have the legal authority to do something, does it make it right to do it? Whether it’s to pardon someone, or fire someone, or engage in any other tactic. And then second, if you do believe you have the authority, make the public case for it. Don’t wait to go to court. Don’t don’t dare people to march into a courthouse and attack your policies. If you have the courage of your conviction, then state what the reasons are. And people can debate them. And people can say that they’re good reasons or bad reasons. But they engage in practices, and then hunker down in secret.

Preet Bharara:

So it’s not just the police who are acting in secret fashion, the federal agents, it’s also the supervisors and the cabinet secretaries and the Department of Justice, and the White House also. I always thought it was a case, particularly when you have certain power like the government has, particularly in the law enforcement arena, if you’re not able to publicly justify the policy or practice, then you’re probably not doing something right. And that’s the fundamental problem here, whether or not you can argue, based on the letter of a particular law, can they do certain things? Why don’t we have a public discussion about it, explain yourself, so it doesn’t look this way.

Anne Milgram:

Yeah, completely. And I think one point you just made which I would emphasize is that we’re really focused on the individual officers and the agents on the streets of Portland. But the responsibility for this and the responsibility to explain it belongs to the bosses, to Chad Wolf, to the president. There’s no doubt in my mind that these officers are being told to do this and they’re following their orders. That’s not to say, I think that they shouldn’t be asking a lot of questions and that people shouldn’t be saying, thinking about whether or not they’re comfortable being in this space as an occupying force, essentially, in a free American city. But I think that the real responsibility belongs to the bosses.

Anne Milgram:

The debate really, under this law, this federal law is going to be were the federal officers legitimately entitled to be where they are? And so if they’re in front of a courthouse, they see a federal crime committed, okay, I think that’s very clearly anticipated by the law. If they’re doing an investigation, they would have to show that they have reason to believe that someone engaged in a offense against the federal property, show that. If they’re standing 20 blocks away, I think they have to be able to articulate why they are there and I don’t personally… The ability the law really revolves around where an officer can legitimately be. And I would argue it’s tethered to the public property or to having actual evidence that an individual committed an offense against that public property. And it cannot be done in this way. But again, they want to test the law. They want to push it. These are conversations we have to have nationally.

Anne Milgram:

And instead, you’re right, they’re waiting. The Oregon attorney general has filed suit. The Federal US Attorney has asked for an investigation by the Inspector General of DHS, which feels to me pretty meaningless. The other thing, just for us to talk about for a minute, Preet is the… We have seen protests nationally about the murder of George Floyd and calling for police reform. And one of the things we’ve been talking a lot about in that context is how to deescalate conflicted situations.

Anne Milgram:

And one of the conversations is do the police do enough to deescalate conflict in communities? And this to me, just from a what is the best judgment about how, if the purpose really is to make sure that the protests are peaceful, then the question is, how do you deescalate any potential violence, how do you basically work with a community to do this? This strikes to me as, we’ve already seen that there are more protesters out now than there were before. This strikes me as an escalation of law enforcement and community, like a conflict between law enforcement and the community, not a deescalation of it. And so I just think, putting the law aside for a second, this is absolutely terrible judgment, if what you want is a safe community and a community that feels like basically is a partner in community safety.

Preet Bharara:

So we’ll keep focusing on what’s going on in Portland, give you better explanations as they become available and as we can figure them out. Meanwhile, people, remember that the Supreme Court decided the case involving the financial, personal financial records of the president in the Vance Supreme Court case, which just means that the issue goes back down to the federal district court. And the president, as the Supreme Court said in the opinion by Justice Roberts, the president can make whatever additional kinds of arguments they want to make, but that can’t begin until the final issuance of a copy of the opinion and certified copy of the opinion of the court, the Supreme Court issues. And the Office of Cy Vance moved to expedite that. And that expedited acceleration was granted by the Supreme Court, and it’s not always done.

Anne Milgram:

And the president agreed with that. We should just note that it was not contested, the president agreed, yes, we can certify this and move on to the litigation around the subpoena.

Preet Bharara:

So it gets the ball rolling a little bit more quickly than might otherwise have been. I’m still of the view that, given how long it takes to sift through material and grand jury secrecy and the proximity of the election, which is rapidly approaching that we’re not likely to see some sensational move like a charge before the election. Notwithstanding people making good efforts, like Cy Vance to expedite the process.

Anne Milgram:

Yeah. I mean, what we saw also last week was in federal court in the Southern District, remember the federal judge had basically said to the parties, the Manhattan DA’s office and the president’s lawyers, “We’re going to have this hearing. We’re going to basically figure out what’s coming next. And we’re going to set a briefing schedule.” And the president’s lawyers walked in and not unsurprisingly basically said, “The subpoena is very over broad.” They did say a couple of things that were surprising to me that I will just throw out there for your thoughts on it. I mean, one of the things that they said that strikes me as just like…

Anne Milgram:

So the president’s lawyer, Mr. Consovoy also said the president should be able, and this I’m quoting now from a New York Times article about the hearing, also said the president should be able to learn more about the district attorney’s investigation, which has largely been kept secret, and suggested that it was unfair for him to have to challenge a subpoena without having access to quote at least some information about its nature and scope, close quote. Well, Preet, if you ask me the definition of a grand jury proceeding, I would basically include in that definition, secret.

Preet Bharara:

Secret.

Anne Milgram:

Secret. They’re not public. And by the way, they’re not public for anyone in the United States of America. So the president doesn’t get special treatment, but he also doesn’t get worse treatment. These are investigations that are conducted in secret, in part because we don’t want to make public accusations that are made against people unless there’s sufficient evidence to bring a formal charge. And because it also allows the investigators and the prosecutors to do their work without showing their hand and allowing somebody to manipulate evidence or try to change the outcome of that investigation. And so that’s par for the course. So I noted that, the president’s lawyers are saying it’s too broad. And by the way, the DA’s office hasn’t told us please make them tell us which is never the way this works.

Preet Bharara:

Well. The other thing that people don’t always appreciate is and they think, well, it’s very reasonable for a target or a potential defendant to say, “What are you up to? What are you looking at? What is it that you think that I did?” Well, the target knows what they did. And in many cases like this case, the target knows what the documents are. I mean, the documents are in the possession of the president’s accountants. So the president and his lawyers, they’re the ones who actually know everything there is to be known about the documents being sought. These are not documents being sought that the president has no understanding of or his lawyers have no understanding of.

Anne Milgram:

That’s a great point.

Preet Bharara:

Yeah. If you know what the subpoenas are calling for, and you know what the statute invoked on the subpoenas are, and you know-

Anne Milgram:

What they’re really saying-

Preet Bharara:

… what your conduct is, yeah, you know. You know.

Anne Milgram:

What they’re really saying is, “We know what we did, but what do you think we did?”

Preet Bharara:

Yeah. What do you know?

Anne Milgram:

What do you know?

Preet Bharara:

Exactly. People have this debate all the time, when people come in, and they want to know what the evidence is before the case has been brought. And sometimes they’re doing that because I mean, obviously that has to be done before there’s a trial and you have full and fair adversarial proceeding at some point.

Anne Milgram:

Yes. But that’s not at this point in the process as a rule. So judge Marrero, the federal judge who’s overseeing this litigation, this back and forth about the subpoena, it’s worth noting that last year, he basically found that the DA’s office was not engaged in… That basically, there was a legitimate basis for them to have been asking for the subpoena. And so it’s clear that he has reviewed some of the information, the predicate for the subpoena, he would have done that out of the presence of the president’s lawyers, but he’s already ruled that the prosecutor is acting in good faith.

Anne Milgram:

And so I think that this argument, the judge actually set a really tight briefing schedule. And so I think it’s weeks, not months, I think before we’ll have a resolution of this. That doesn’t mean that the evidence will come out before the election. I very much believe that given this timing, we won’t see it before the election. But it does mean that this issue should be resolved quickly. And one of the things that the individual arguing for the Manhattan DA’s office in court said and I think that this is really important is basically he said quote, it’s a lawyer named Carey Dunne said, quote, what the president’s lawyers are seeking here is delay. I think that’s the entire strategy here. And then he added, let’s not let delay kill this case.

Anne Milgram:

And he went on to say during the argument that there are a statute of limitations issues, meaning there are, we’ve talked about this before, under state law, there’s a certain amount of time that prosecutors have to bring a case. And if you are not charged within that period of time, you can’t be charged. And so basically, what I think the DA’s office is saying is what the president is trying to do right now is run down the clock. And they talked about it as individuals and institutions, which means that they’re about to lose the statute on certain individuals or organizations or institutions unless they get a ruling quickly. And so it is, in my view, the judge is going to be very mindful of that. And he’s going to try to get this done as fast as possible.

Preet Bharara:

Yeah, no, I totally agree, that there’s a delay strategy. It’s not an uncommon strategy, particularly if you have the benefit of a deadline on the statute of limitations coming up. So 100% agree. So speaking of courts and the Supreme Court, there’s an update on an issue that we’ve talked about in the past, and that I’ve talked about on Stay Tuned and it’s pretty disturbing. As people know, when you go to prison and you’re convicted of a federal crime or state crime, depending on the state in which you live, you lose various rights. You lose the right to carry a firearm. But again, depending on the state in which you live, you also may lose the right to vote. Sometimes for the duration of your life, because you have that conviction.

Preet Bharara:

And a lot of people think that that’s not fair, that’s not good for democracy. That once you’ve paid your debt to society, as they say, you’ve done your jail time, you’ve finished your supervised release or parole or probation, or whatever the case may be, then you’re done and you should be able to vote just like everyone else. Well, the citizenry in Florida in 2018, had that view and they put a referendum on the ballot that essentially says once you’ve done your prison time, and then subsequent parole, etc, then you have the right to vote and 65% of the electorate in 2018 voted to re-enfranchise people who had prior felonies in the state, which would have been the largest re-enfranchisement of voters, I think in Florida or perhaps anywhere in like 50 years.

Preet Bharara:

And I think people who believe in democracy and believe in enfranchisement thought that was a big victory and a blow for democracy. Well, the people of Florida, notwithstanding, the legislature in Florida had a different idea. And the governor had a different idea. And they passed a law in 2019, that essentially said, well, not so fast. Before you’re able to vote, you need to have paid up and show that you’ve paid up all associated court fees with respect to your case.

Anne Milgram:

One of the things that I was noting when I was reading about this is that there had been moves to do this in the state before it was done by referendum and the Republican controlled legislature had said no. And so they then go directly to the people and the people of the state say, as you noted, by two thirds. Two thirds of the people say, “Yes, we think people should get the right to vote back.” And then the legislature turns around and says, “Okay, we’re going to restrict it with fines and fees.”

Anne Milgram:

And it’s even more awful than you’ve made it sound, although I think you did a pretty good job of making it sound as bad as it is, which is that, so there are a couple of other points. First is that the defining feature of people in the American criminal justice system is often poverty. So the idea that it’s this law is passed, it’s very pretextual, this idea of, well, we just want people to close out their cases, fines and fees. We need the money for the state, whatever their arguments are, when they well know that most of the people in the system, and it looks like about a million people cannot actually pay those fines and fees.

Anne Milgram:

I am hugely opposed to fines and fees in the criminal justice system. I think they’re deeply unfair. I also personally believe that when you exert the power of the state, you’ve made a decision to do that, we collect taxes from people to be able to pay for courts and roads and police officers and trash collection and that, frankly, the state has to pay for it. I don’t like the idea of assessing individuals, those fines and fees and I think that to the extent that we put pressure on the states to figure out, how do they do criminal justice in a way that generally fits within their budget, that could be a good thing. So I don’t like the fines and fees. And I think it’s really meant as a way to keep people who otherwise need a break after they’ve served their time, and they’ve paid their dues to society to prevent them from being able to escape this loop of poverty.

Anne Milgram:

Now all that being said, here’s the even crazier part, they don’t have the records of what people owe. So even if you and I were to take the fines and fees as legitimate, which we both don’t, they literally today, and the state has said it will take them up to six years to do this, they cannot tell the one million people exactly what they owe and who they owe it to. And it matters that they can’t do that. So to me the idea that the Supreme Court would let the 11th Circuit’s stay. And basically, by the way, they lost this. This was stayed initially. And the court basically said, “No, you can’t do this.” And then the 11th Circuit basically said, “Well, we’re going to let this go into effect,” and the Supreme Court refused to hear and take it up. Basically, that means that all these people, the primary is this week, they’re not going to be able to vote. There’s a question as to whether or not they’ll be able to get this sorted out by the November presidential election.

Preet Bharara:

There’s no way they’ll get it sorted out. And it’s even worse than you and I both described. So on the one hand, you have these fines and fees, which we think are not good. Second, you’re not able to figure out what fines and fees you do owe, if any. And then third, if you guess wrong, and you’re a former felon, and you try to go to vote, and it turns out there was a fine or fee that you haven’t paid, you can be arrested for that. So that has a huge chilling effect.

Anne Milgram:

Totally. Which basically means that those one million people, that devoted the people through a referendum in the state of Florida should be able to vote, now really will not be able to vote or they’ll risk potential prosecution and I don’t put it past a number of local folks from bringing or the attorney general or others from bringing charges against those people. Now to me, there really is an issue here with, fine, if you’re going to say I have a debt to my community and to society, you need to be able to tell me what that is so I can dispatch with that immediately.

Preet Bharara:

And if not, it has to be waived. It should be waived.

Anne Milgram:

Exactly.

Preet Bharara:

If you can’t figure out what it-

Anne Milgram:

Exactly.

Preet Bharara:

Right. It’s like you go to a restaurant, like, “Okay, we want to leave. What did our meal cost?” “Well, we really can’t figure it out.”

Anne Milgram:

So you can’t leave.

Preet Bharara:

But you can’t leave.

Anne Milgram:

You have to stay.

Preet Bharara:

Well, yeah, I’m prepared to pay. I have a credit card, I have cash. “Yeah, well, we don’t know. It’s going to take us a couple of days to figure out what the meal cost.” And so bed down here for two days.

Anne Milgram:

Do you think it’s intentional? Because there’s a way in which I could see a national movement, like a GoFundMe that’s done to basically pay off the fines and fees of the folks in Florida. You could think about folks raising money, whatever the dollar amount is, you could think about folks raising a significant amount of money to basically cover those costs, but you have to know those costs in order to be able to do it. And this is where I think government inefficiency and bureaucracy cannot be the way, and it cannot be an excuse for basically disenfranchising people.

Preet Bharara:

So I’m going to say one speculative thing, and I don’t know enough, so maybe someone can enlighten us. I wonder if it’s the case that this super cynical move by the legislature could have been anticipated or was anticipated. And in the language of the referendum that was put on the ballot in 2018, they could have prevented it. They could have anticipated it, and written the language in such a way as to not allow a future law to impede the process. In other words, have something that talks about, and takes into account the possibility that there might be a fine or a fee that could later be a block to voting and deal with it that way. Maybe not, I just don’t know. I’d love to be enlightened on that. And if so then it just shows, because I think the people who were pursuing the referendum and who advocated were very smart people, and very thoughtful people, and were well meaning. I just don’t know if they was any way to have prevented this.

Anne Milgram:

Right. That’s a great question. And I think worth thinking about a little bit, particularly as these types of referendums move around the country. And certainly, there’s a huge move now to eliminate fines and fees. And there’s a lot of research on how problematic they are. A lot of it comes out of Alexis Harris at the University of Washington, who has done some tremendous work in this space. But really, you’re asking a great question of like 65% of people are willing to say, these folks have served their time they should be able to vote and whether or not you can basically put in that referendum and essentially, this removes that basically, that fines and fees are not a bar to them voting.

Preet Bharara:

Finally, as we talked about in recent weeks, Ghislaine Maxwell, associate of, and I guess, former love interest of Jeffrey Epstein was arrested and charged by the Southern District of New York. And as we discussed, one important factor in whether or not she would cooperate if she has something to cooperate about was does she get bail or not? And so she appeared with her lawyers last week in front of judge Ally Nathan in the Southern District of New York. And the judge found, quote, Miss Maxwell poses a substantial actual risk of flight end quote, no bail.

Anne Milgram:

Right. And here, the judge basically, the prosecutors, of course, opposed bail, as we’d said. And the judge found that Maxwell has a number of bank accounts as we’ve discussed with millions of dollars in those accounts. She also has passports from multiple countries, including France, which does not extradite to the United States, and that she’s a very, very serious flight risk. And I believe that trial was set for July of next year, of 2021, which basically means that Maxwell will spend the next year incarcerated as in the lead up to trial.

Anne Milgram:

One of the things that government did say and I found this interesting was that they didn’t anticipate that additional charges would be brought, which basically means that the investigation is continuing, but that they’re going to trial on these charges. And again, remember that these charges predate the human trafficking law in 2000. So they all relate back to the Mann Act in the 1990s. And so that’s what the government is gearing up to go to trial on. And I think the real question then becomes, this to me, provides significant incentive for Maxwell to consider cooperating. And the question becomes, will she cooperate? Will she be willing? As you’ve said many times, the Southern District requires that you confess to everything, every crime you’ve committed, whether it was in the Southern District or not. And so it’s a hurdle to be a cooperator. You really have to come clean completely. And so I don’t know if she will. But I think the likelihood and I would wonder what you think on this, I think the likelihood of her becoming a cooperator went up greatly when bail was denied.

Preet Bharara:

Yeah, it’s human nature. The interesting question for me will be the following, if Jeffrey Epstein were still alive and pending trial, then I think you would have a very, very, very high likelihood that she would not only be willing to cooperate, but she would meet the threshold of being able to provide what in the federal system we call substantial assistance. That’s a term of art. Because you have a real live defendant, who is an important person that you’ve targeted, anyone who have as much evidence as possible to make sure you can secure a conviction.

Preet Bharara:

Obviously, Jeffrey Epstein is no longer with us. There’s no pending case against him. But that doesn’t mean, and I’ve been thinking about this a little bit, that doesn’t mean that she still can’t provide some assistance to the extent it is important for the government to get some closure on and full information about all of the bad things that Jeffrey Epstein did. In other words, Geoffrey Berman, before he left, made statements about how the office cared deeply about the victims and wanted to know the full scope of how many victims there were and all the bad and terrible things that Jeffrey Epstein did.

Preet Bharara:

I suppose if you’re a lawyer for Ghislaine Maxwell, you can make the argument that even though she might not be able to bring substantial assistance with respect to a pending investigation or prosecution of some person, she can do a lot, if she wants to document all the misdeeds and criminal acts. And that may be something that the government cares about as they think about restitution. Because to the extent they have forfeited money, and they want to give compensation to victims, it’s important to who those victims are, and the extent to which they were damaged, and Ghislaine might be able to provide assistance there.

Anne Milgram:

I agree 100%. What I think the government may also or if I were sitting in the government, I would also want to know is it’s been reported that Epstein not only was engaged, personally engaged in sex trafficking these young girls often, but also in procuring young women for other people. And so where this gets potentially interesting is, let’s say hypothetically, and there’s no evidence of this. I mean, well, there are some allegations that have been brought related to other people. But let’s just say hypothetically, that Epstein not only procured women for himself, but also for other people. And that either Epstein or those other people were paying some form of money to those young women. At that point, you have someone who, the other person depending on their knowledge, if they knew that money was being paid, if they knew the age of the young women, you have potential charges that may be able to be brought against them.

Anne Milgram:

And you also potentially have people who could be targeting young women, not just with Epstein, but other young women. And so that’s a real basis for an investigation, and potential sex traffickers, and child predators that the US Attorney’s office, if Maxwell had information on that, that’s potentially very helpful to them, in my view. So I agree with you that the number one thing is closing the Epstein loop and what she knew, what she was involved in, who the victims were. The second piece is, who else was potentially involved in abusing the young women and whether there are potential charges that lie as to that.

Anne Milgram:

And so yeah, I mean, it could also come out, you and I also should say this, that there are times where whether you’re doing it as a prosecutor or a defense lawyer, there times where people come in as potential cooperators, and they don’t make it. They can’t do it, they can give you half the story. The government still believes they’re lying. And those deals break down. So that’s also possible here.

Preet Bharara:

Yeah. I mean, we talked about one such case that I’ve been thinking about in other contexts earlier in the show, he came up in passing, Michael Cohen. Remember, Michael Cohen was arrested with great fanfare, and there was lots and lots of speculation, is he going to turn on the president? Can he be a cooperating witness? And he never was signed up as a cooperating witness. And in part, my speculation is, I don’t have any personal knowledge, direct knowledge is that he probably didn’t fess up on everything. And he was not trustworthy. As we’ve seen how he’s dealt with being out on essential furlough, sometimes people aren’t able to be trusted, and you lose the benefit of their cooperation because you just can’t go to court with their testimony, because you can’t trust their conduct, their behavior to the degree you need to be able to.

Anne Milgram:

Yeah, completely. And I think it’s something we may not know about, because obviously the government generally doesn’t disclose. Michael Cohen was unique in that he essentially put out the bat signal saying, “Please cooperate me. Please make me a cooperator.” Because he wanted to seek that leniency. But yeah, I agree completely. And look, I also think one of the things we talked about a little bit with Epstein is, if Epstein were alive, then Maxwell could have cooperated against him. There’s also a way in which if he were alive, there’s a reason for her to be afraid of cooperating against him and the amount of leverage that he had on her. And so-

Preet Bharara:

That’s a great point. It’s a really great point.

Anne Milgram:

That equation, we don’t really know. And so I think it’s, my view is the denial of bail makes it a lot more likely that she considers seriously cooperation. But whether or not she’ll get through that door is really a whole separate question. It’s fascinating and we may never know or may not know that for some time.

Preet Bharara:

All right. So that’s a lot of stuff we have to talk about. We will follow the stories, we’ll follow the Maxwell and the Cy Vance subpoena and everything else, and what’s going on in Oregon. And by the way, two more things we should mention. One is a week from today is supposed to be much anticipated testimony by the Attorney General Bill Barr, before the House Judiciary Committee. But you don’t have to wait a whole week to hear from us, at least to hear from Anne, because we have something special coming up tomorrow. Anne?

Anne Milgram:

Yeah. I got the chance to speak with Andrew Weissmann, who was one of the lead prosecutors on Muller’s team. He headed up the Manafort prosecutions, and we had a chance to connect yesterday and that’s going to come out tomorrow morning. And it was a really interesting conversation. I hope people will like it. Talk to you soon Preet. And please send us all your questions. We love getting your feedback and your questions.

Preet Bharara:

To [email protected] 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 CAFE 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 CAFE Insider community.