• Transcript
  • Show Notes

In this episode of CAFE Insider, “Barr Fight,” Preet and Anne discuss Attorney General Bill Barr’s testimony before the House Judiciary Committee, President Trump’s recent deployment of hundreds of federal officers to American cities as part of “Operation Legend,” and the release of Michael Cohen from prison after a federal judge called his re-imprisonment “retaliatory” in response to his plans to publish a book. 

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

REFERENCES & SUPPLEMENTAL MATERIALS

BARR TESTIMONY

VIDEO: AG Barr’s complete testimony before the House Judiciary Committee, 7/28/20

Barr’s written opening statement, 7/28/20

Preet’s live-tweeting of the hearing, including about Jim Jordan, the quality of the questioning, and what he thinks should have been asked, 7/28/20

Anne’s live-tweeting of the hearing, including about members of Congress giving speeches, Hakeem Jeffries questioning, and Barr’s involvement in the Roger Stone case, 7/28/20

OPERATION LEGEND 

Trump and Barr announce expansion of “Operation Legend,” 7/22/20

“Federal Operation in Kansas City Targets Violent Crime,” New York Times, 7/22/20

“Philadelphia’s Top Prosecutor is Prepared to Arrest Federal Agents,” Bloomberg, 7/22/20

18 U.S. Code § 1361, statute concerning destruction of federal property

PORTLAND 

DOJ IG Michael Horowitzs’ letter to Oregon congressional delegation announcing investigation into federal use of force in Portland and at Lafayette Square, 7/23/20

DHS IG Joseph Cuffari’s letter letter to House leadership announcing investigation into federal use of force in Portland, 7/23/20

District Court Judge Michael Simon’s decision granting temporary restraining order in Index Newspapers et al v. City of Portland et al, 7/23/20

District Court Judge Michael Mosman’s decision denying Oregon AG Ellen Rosenblum’s petition for a temporary restraining order in Rosenblum v. DHS et al, 7/24/20

Lawsuit filed by Protect Democracy and Perkins Coie on behalf of plaintiffs including “Don’t Shoot Portland” and “Wall of Moms,” 7/27/20

Former DHS Secretary Tom Ridge calls presence of federal agents in Portland a “massive invasion,” 7/23/20

Former DHS Secretary Michael Chertoff says Trump administration has taken a “belligerent, aggressive tone,” 7/22/20

MICHAEL COHEN 

Judge Hellerstein’s order granting preliminary injunction, effectively releasing Michael Cohen to home confinement, 7/23/20

SDNY memo opposing Cohen’s release, 7/22/20

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 you doing?

Preet Bharara:

It’s very hot.

Anne Milgram:

It’s very hot. It is very hot. It’s, I think, like a 100 in the New York area with the heat index. There’s a heat warning today.

Preet Bharara:

We rarely talk about the weather because we have so many other important things to talk about.

Anne Milgram:

We’ve officially become my parents.

Preet Bharara:

Do you have neighbors or folks around you who ask that dumbest question ever? You know what it is?

Anne Milgram:

Which is what?

Preet Bharara:

Hot enough for you? Is it hot enough for you?

Anne Milgram:

I haven’t been asked that.

Preet Bharara:

No.

Anne Milgram:

No.

Preet Bharara:

I like it to be 130 degrees. Yeah.

Anne Milgram:

It’s pretty hot though. Yeah.

Preet Bharara:

I don’t know about this Drive Time with Anne and Preet this morning. I think…

Anne Milgram:

Well, look, my parents, they follow the weather, so they’ll be excited to hear the weather conversation.

Preet Bharara:

Well, I’m glad we’ll be pleasing them. So Anne, speaking of weather, how you like this for a segue, it’s kind of hot in the Capitol.

Anne Milgram:

Yeah.

Preet Bharara:

Where the attorney general of the United States has been testifying for about four and a half hours. I think we’ve seen enough of it. So we decided we’d talk about it. It’s not fully concluded, but it shouldn’t be too much longer. A bit of hot air in the hearing room with the House Judiciary Committee. I have tweeted, as have some others. I saw you tweeting as well.

Anne Milgram:

I was tweeting too, which I often don’t do, but I was beside myself. I had to just get it out and put it on the Twitter.

Preet Bharara:

I think there are a lot of important questions that needed to be answered. There’s a lot of transparency that we haven’t gotten.

Anne Milgram:

And they weren’t asked in my view.

Preet Bharara:

They weren’t asked. The Judiciary Democrats led by Jerry Nadler, I thought overall, and I think there were some notable exceptions, but overall, weren’t focused, didn’t ask penetrating questions, didn’t ask good followups. I mean, Steve Cohen gave a speech that I didn’t fully understand and then left no time for an answer to the question. And by the way, some of the Republicans who said, “You should let the attorney general answer,” were not incorrect. I mean, sometimes they’re hypocritical because they do the same. But overall, I thought there was not a lot of light shed.

Anne Milgram:

Yeah. I mean, I have so much to say about this. I mean, first of all, I think there were a lot of important questions to be asked. It is the first time that Attorney General Barr has testified since he came into office. And there is no shortage of information that is available to members of Congress to use, to ask questions. And there are exceptions, there were a few notable sort of queries that I thought were strong, but overall I felt like the members were unprepared. They didn’t ask the right first questions. They almost never asked the followup questions.

Anne Milgram:

I mean, there were a couple of things today where there’s one moment, and we’ll come back to some of the specifics later, but there was just a real opportunity today that I think was lost, which is to really pin the attorney general down on a number of things, on a number of facts. There is a real important time and place for speeches. A congressional hearing where you have the attorney general testifying is not it.

Preet Bharara:

Especially as this is the first time, and probably the last time of this entire Congress. And people have said that maybe they should adopt a different approach.

Anne Milgram:

And the format is bad. Yes.

Preet Bharara:

Yeah, you could have affective questioning from the staff members of the district, like we saw on the Intel committee during the impeachment proceedings, but just remember, folks that the House Judiciary Committee under Jerry Nadler told Bill Barr last spring, after the Mueller report was completed, that he would be questioned by staff. And he said, “No, I’m not coming.” And they never pushed it. And they never forced it. They never compelled it. And this is what you get.

Anne Milgram:

Yeah. It turned out he was right. And I don’t mean he was right. I don’t agree with him. But it turned out that, it seemed like he was afraid to come and answer questions from professional staff who are trained litigators and people who know how to ask questions. And I don’t know why Nadler didn’t insist that they have staff today be able to ask some questions because it just, again, there’s just a lost opportunity. I mean, there were some moments that broke through, but a lot of it was just… I was sort of sitting there saying, “Here are the next five questions you should be asking.” And there were even moments where they got Barr to say certain things, but they didn’t go deep enough to really get at what’s important.

Anne Milgram:

And then just the last thing I’ll say, which I think you and I think about a lot and we talk about a lot, but when it comes to witnesses, Barr is not going to agree with the democratic framing of his actions. He’s not. And so you know that as a lawyer going in, or as a prosecutor, so you know that witnesses agree with facts. They don’t agree with conclusions. And so you’re not going to yell at Barr or repeatedly say something to Barr that’s going to get him to agree with your conclusions. You have to make him agree with facts that lead to the conclusion you are drawing. Right? And that’s what good people and good questioners do. And we did not see that today.

Preet Bharara:

So we saw it a couple of times, just continuing with your thesis that is the correct one about having people agree with facts. So one conclusion that people have drawn and the criticism that people have made is that there’s two sets of rules. There’s one for the associates of the president, friends of the president, and one for other people. And the vehicle through which you can get that questioning done is a Roger Stone case. And he’s not going to agree that he did something for a particular reason, but Eric Swalwell, whose questions came way deep into the hearing because he’s fairly junior, got Bill Barr to essentially say he can’t recall another case in which he reached down into the line level and changed the sentencing recommendation.

Eric Swalwell:

Mr. Barr, have you ever intervened other than to help president’s friend get a reduced prison sentence for any other case where a prosecutor had filed sentencing recommendation with the court?

Bill Barr:

A sentencing recommendation?

Eric Swalwell:

Yeah. Have you ever intervened other than that case with president’s friend?

Bill Barr:

Not that I recall.

Preet Bharara:

That’s an incredibly significant thing to say, given that there are tens of thousands of cases that go on in the United States. The one time that he decided he was going to bring the weight of the cabinet official, the cabinet secretary itself to bear on a particular case, was one that involved a friend and associate of the president. I mean, Bill Barr said, and again, you and I have agreed that maybe the initial sentencing recommendation of 79 years was a bit high and reasonable people can differ about that, although it was consistent with the guidelines. But you got to believe there are many, many other cases that would make a better example for seeking more leniency. Bill Barr has never done it in another case and seemed to have no interest in doing another case.

Preet Bharara:

He spoke with great indignation about the great injustice that was about to be done to Roger Stone. You would expect him to say, “Well, we’re undertaking a review of other cases in the department because justice should be done appropriately and individually in all cases.” But he only did it with respect to Roger Stone.

Anne Milgram:

I think Swalwell did a great job. I thought his questions were good. I thought Representative Jeffries had good… There were a series of folks who did have good questions. So I want to just qualify that overall, I think it was very much a lost opportunity, but there were some moments that came through. What’s really important about the line of inquiry we’re talking about now is that Barr, he basically gets up and says that the original recommendations were too harsh. It wasn’t fair. He wanted the fair thing to be done. To your point, all of that is fine if that’s the rule that he has throughout the department. And the thing that I wanted Swalwell to do was to go a little deeper and basically say like, “You approve… There are thousands of cases that are brought by the Department of Justice every year. In those cases, do you personally get involved? The answer is no. Do you defer to the local U.S. attorneys? The answer is yes.

Preet Bharara:

You know what answer he gave? He did give an answer and we should assess the quality of his answer. His answer was, “Well, certain things get elevated to me,” which is an excuse. Which is a big fat excuse.

Anne Milgram:

But that’s unequal justice, because you defer to the hundreds of line prosecutors throughout the United States of America in thousands of cases per year and the one case where you do something different happens to be the President’s friend who agrees not to testify against the President. It could have been made painfully clear how unjust and unfair that is and instead, Barr does this sort of dance of saying, “Well, I don’t want to be unfair to Roger Stone.” And by not putting it in the context of the entire department and how much … Look, the whole point is to defer to the line lawyers because they’re not the political folks. And there are times where there are decisions that are made that you overrule for a variety of reasons. But this really is, this was one of those moments where I think Barr really did show who he is, and I wish that Swalwell had gone even farther.

Preet Bharara:

They just didn’t put the sharpness on the end of the point, even though he got the concession, because the point is not whether the sentence was too high or not too high. The point is, are you giving special treatment? And for the only time in your tenure as Attorney General, are you doing something so extraordinary and where’s that benefit for other people and people didn’t make that point.

Preet Bharara:

The other way that Barr justified himself, which again misses the whole point, was at the end of the day the judge agreed with him. So what? That’s not the point. The point is you chose to change a sentencing recommendation where the only thing significant about that particular case that should’ve gotten to your attention is that he was an associate of the President and a friend of the President.

Anne Milgram:

And Barr was working really hard to basically try to say, “I’m the just one. I’m the one doing the fair thing by Roger Stone, and I’m not being politically motivated.” Yet by undercutting and basically putting his hand into just one case, he’s being completely politically motivated. There’s a way in which this just … I wanted more of this to sort of come out, but yes. And I think Barr, also on its surface, you could see that people would say, “Oh, well of course he’s doing that.” Or, “Of course he wants to be fair,” but it’s really, you can’t just look at that one case. You have to look at all the cases. I actually even think as I was listening to a …

Anne Milgram:

And I’m not going to articulate this well, but you and I would have done exactly the opposite of what Barr did, which is the following. You’re even concerned. You could have even seen a line of questioning about even the appearance of political influence is harmful for the Department of Justice. Yes, and if all the cases you’re going to put your finger into, the one case you shouldn’t do it in whether you’re right or wrong is the Roger Stone case.

Preet Bharara:

Especially because it’s up to the judge. The whole thing was up to the judge. And even if you thought there was a problem there, unless you’re prepared to say, “You know what, it has come to my attention the Roger Stone sentencing recommendation is really high. This worries me about whether or not line prosecutors in the Department as a whole are being overly harsh, so this is the example that’s come to my attention. Now, I want to have a department wide assessment. Are we being too harsh? Are we contributing to mass incarceration? Are we not being individualistic in making our sentencing recommendations?” And that would make a little bit more sense or you stay the hell out of it.

Preet Bharara:

There are other examples where members of the House Judiciary Committee on the Democratic side would get some information from the Attorney General, but they wouldn’t hone in on it, right?

Anne Milgram:

Yes, agreed.

Preet Bharara:

And he could weasel out of a specific answer. So if somebody asks, I think wisely, have you been part of discussions about the President’s reelection? And he turns around and says, “Well, the other people around it comes up from time to time,” and someone else asked the question and I think Barr, he says in his written testimony, “The president has not attempted to interfere in these decisions and expects me to exercise my independent judgment to make whatever call I think is right.” Well, you have to test that a little bit. You can ask also the question, are there any cases the president has ever mentioned to you? Has he ever asked you about cases? Have you given him updates about cases? And then you can sort of get into the question of whether or not the conversation constituted interference or constituted coercion or constituted persuasion or influence, because those are weasel words. And I don’t know that I trust Bill Barr’s characterization of conversations. The first thing you do, if you’re asking questions, is …

Anne Milgram:

You pin down the facts, exactly.

Preet Bharara:

As opposed to going right to the conclusion.

Anne Milgram:

Right. Well, I could not agree more. There was a moment where Barr basically said that he’s talked to the president about the election and he’s talked to the president about cases. Now, which ones? When? Who called for those meetings? What was said? What was the nature of the inquiry or the conversation that was had? There was so much that … Just to stop and let Barr say, “Well, I never let the president interfere.” That’s his conclusion. What we needed to know were what are the facts? I would have asked specifically, did you ever talk with him about Roger Stone? Did you ever talk with him about Paul Manafort? Did you ever talk with him about Michael Cohen? I would have literally gone through them one by one and look, let Barr say what he says.

Preet Bharara:

Instead, these guys go straight to the legal conclusion and ask questions like, didn’t you do … And also leading something like, didn’t you interfere in the Stone case to please the president or do the president’s bidding? He’s never going to say yes to that. You’re not going to get that.

Anne Milgram:

Exactly. You don’t need to get it.

Preet Bharara:

You haven’t laid any foundation that there was at least a conversation because those are the things that cause people to wonder what really happened in those conversations. And you set those building blocks down and then you say incredulously, and given all of that, and give me what the president said, and given the tweet, and given that you say you didn’t read the tweets, but they’re important to figuring out what the present state of mind is, it’s still your testimony that you did that completely independently and it wasn’t involved with politics at all. You conclude with that. You don’t begin with that.

Anne Milgram:

Everybody knows, and you’ve made the case. And yes, completely. One example where I thought that there was some effective questioning was representative Hakeem Jeffries, where he was doing some of the questioning about the president and Barr’s involvement in the COVID-19 actions. On other thing Jeffrey did well is the president said that people should bleach, true or false. He got Barr to sort of have to go on the record on things that ultimately again, the fact are the facts, but it made bar look … I mean, he made Barr look like there were real issues with how the president had handled the coronavirus and also Barr’s involvement with the health matters. And I thought he did by basically just going through things that were publicly reported that were known and saying, “Did you say this? Did you do this?” and not allowing it to be sort of a debate about what Barr’s intent was or his philosophical beliefs are.

Anne Milgram:

Even some of the civil rights questioning about whether it was Portland or the Department of Justice, there are very specific data on prosecutions of voting rights cases, prosecutions of police misconduct cases. You have to do that work to pull that together, but then you can make a really compelling narrative about how someone is approaching questions like voting rights and about systemic challenges in the criminal justice system. And they just didn’t really get there. They did say one thing I thought was interesting, which is at one point … My read, and I would be curious to know your read, is that Bill Barr did say that you can use tear gas on peaceful protestors.

Speaker 5:

Mr. Barr, my question is very specific. Do you think it is ever appropriate to use tear gas on peaceful protestors?

Bill Barr:

It is-

Speaker 5:

Yes or no?

Bill Barr:

It is appropriate to use tear gas when it’s indicated to disperse-

Speaker 5:

On peaceful protestors?

Bill Barr:

… to disperse an unlawful assembly-

Speaker 5:

Sir-

Bill Barr:

Sometimes, unfortunately, peaceful protesters are affected by it.

Speaker 5:

Okay.

Preet Bharara:

Well, first he was evading a question about whether or not tear gas was used. There’s a debate back and forth about what the definition of tear gas is and whether there was some substance used that caused irritation to the eyes and whether it should have been or not. That was kind of a nasty back and forth. Yeah, the conclusion of that was Bill Barr took a pretty aggressive position on that. I think that was a news-making moment.

Preet Bharara:

There are other things, and again it’s still going … I can see on the television it’s still going. There was surprisingly little on Michael Flynn and the special attention that that case got and all the reasons why the decision to change course in that case didn’t make a lot of sense and whether or not the investigation and the decision to question Michael Flynn was properly predicated. I think it’s very clear. But he got away with saying some of the standard stuff that’s in the government’s motion. He wasn’t really pressed on that.

Preet Bharara:

The one area that took a long time to get to that’s near and dear to my heart, obviously, was the circumstances surrounding the firing of Geoffrey Berman, the Southern District US attorney.

Anne Milgram:

Yes. It took a long time to get there, Preet. It was three and a half hours in.

Preet Bharara:

I think I sent a text to the group, to our team.

Anne Milgram:

You did. You were like, “Did I miss that?” Yeah. No, you hadn’t missed it.

Preet Bharara:

Because you can miss some things in those five minute rounds. A combination of Representative Val Demings and Representative Neguse was very, very interesting to me, but, again, I think they could have even been more pointed. At a minimum, they got out that when the Attorney General put out a statement that Geoff Berman was “Stepping down”, Val Demings got the Attorney General to say, “Well, yeah, Berman hadn’t said. That’s not what he said.”

Anne Milgram:

That’s what we say. Right? Didn’t he say something like, “Well, that’s just the language we use or that’s what we say”?

Preet Bharara:

He was vague about it. Neguse-

Anne Milgram:

That’s what we say when we fire people.

Preet Bharara:

Neguse went at him again about stepping down, and then there’s great, great moment of linguistic jujitsu, I guess, Orwellian, where Bill Barr says …

Bill Barr:

He may not have known it, but he was stepping down.

Speaker 6:

He may not have known that he was stepping down? That’s your testimony today?

Bill Barr:

He was being removed.

Preet Bharara:

That’s not how that phrase is understood. When you say someone is stepping down-

Anne Milgram:

It means they know it as a rule.

Preet Bharara:

They’re doing it voluntarily. The question that I posed on Twitter that I wish people had asked, because it doesn’t seem like such a sensational thing, but it would be important to establish the extent of transparency of Bill Barr. He should have been asked, did he tell Jay Clayton who we wanted to replace Geoff Berman with that Berman was stepping down voluntarily? Did he tell Carpenito, the New Jersey US attorney who might’ve been coming in as acting-

Anne Milgram:

Agreed. Exactly.

Preet Bharara:

Again, it’s not the thing that maybe congresspeople think about because it doesn’t go to the ultimate question, but it tells you something about the guy. If he was going around pretending that Geoff Berman was stepping down voluntarily and yet that wasn’t true, that tells you how nefarious it is. It gives you some grist to argue that this was a politically motivated thing. Nobody asked those questions.

Anne Milgram:

Yeah. I wanted those questions to be asked, as well. Look, I also wanted them to ask questions. Barr spent a lot of time talking about police training when it came to questions about police use of force, but he wasn’t asked a lot of specific questions of, do you support choke holds. There was a way in which they could have gone through. Whether people agree or disagree with his answers, they really could have pinned him down on specific conversations he had had, positions he takes.

Anne Milgram:

I wanted someone to ask him about adhering to congressional subpoenas. He’s taken a very … They really didn’t touch his view of sort of the presidency as being just this incredibly powerful institution, that essentially I think he views the president as being more important than the other branches of government. I would have pushed a lot on when does the executive branch have to answer subpoenas, how do they do it. There was so much there that could have gotten to who he is philosophically and what actions he’s taken. Yeah. I mean, I sort of, both on specific instance.

Preet Bharara:

Yeah. Look, I think there are two examples of ways you can be effective in doing questioning when you only have five minutes. One is pick a narrow issue, know everything about the issue, anticipate what the responses are going to be, and then show him that he’s not telling the truth. The other thing to do, like you just suggested, is ask short, pointed lightning round questions. Go through a checklist. Would you consider supporting a ban on choke holds? X, Y, Z, and go through the list.

Preet Bharara:

On the policing, also, I may have missed it, but something that’s been bothering me, and we’ve talked about in the last couple of weeks on the Insider podcast, is I would like to hear from him a justification, policy, legal, or otherwise, but mostly a policy justification for why federal officers shouldn’t identify themselves by what agency they’re with and their arrest authority when they take an American person who’s protesting into custody. I for the life of me haven’t heard anybody get a policy justification for that. I would have spent my five minutes on that and see what he says, and then, depending on where he goes, press him further.

Anne Milgram:

I agree. That’s a great point. I also sort of felt like one thing that it can be easy to let people do, but you shouldn’t do when you’re questioning a witness, is that when it came to Portland and things like you’re talking about with not having, just the whole dialogue, they really let him just paint this view of, sure, peaceful protests are okay, but these aren’t peaceful protests, these are all aggressive. What was missing was the conversation of, what made you think they were aggressive, what facts did you have, what conversations did you have, and by the way what did you do to try to stop that short of sending in those federal officers? Right? What actions did you take or did you just immediately decide you had send in the federal officers in camouflage? What kind of conversations did you have about their training? They hadn’t been trained. Did that concern you? If he says no, then you’re like … It’s obvious it should have concerned him.

Anne Milgram:

I agree. I also will say this five minutes is not enough.

Preet Bharara:

No, it’s a terrible system. We’ve talked about this at length, and I’ve written about it in many forums. To be fair to these guys, you cannot get any momentum going. You can’t prevent against filibustering when you only got five minutes. That’s why you have to coordinate. That’s why you have to choose your battles. You’ve got to choose a narrow issue or you’ve got to just go sort of one by one through things. In the Senate, frequently, because there are fewer members, you get sometimes seven minutes or 10 minutes. In Supreme Court confirmation hearings or other very substantial hearings, you can sometimes get up to 30 minutes. Then you can develop a line of questions. You can’t really do it here. All you get to do here is, “Reclaim my time. I’m reclaiming my time.” I’m glad that wasn’t a drinking game for us.

Anne Milgram:

Yeah. I agree.

Preet Bharara:

The other thing on the issue of racism in policing, Barr was hesitant to adopt some of the views of some people. There was an interesting thing that he acknowledged or cited in his written testimony where he said, “I think in this year so far, this calendar year so far, there have been eight black Americans unarmed killed by police and 11 whites.” Sort of trying to make the same point that President Trump has made, which is people get killed by the police, but more white people do, not taking into account the disproportionate population, eight black versus 11 white shows a disproportionate number of black Americans being subjected to this. And the overall stats going back a number of years is two and a half times more likely if you’re black than if you’re white, and he didn’t address that at all.

Anne Milgram:

That’s exactly right. He didn’t address that at all. He also said in passing that there’s more use of force against African-Americans, but he didn’t go into the specifics on that overall… I mean, again, and you’re looking at… He chose the facts that I think were helpful, were most helpful for him. And look, he also did this thing where he said, I think there’s systemic racism in the United States, but not in policing. And I thought he should have been pushed more to say, well, where is it? Right? Is it everywhere, but policing?

Preet Bharara:

It’s systemic in the United States.

Anne Milgram:

Right?

Preet Bharara:

But somehow the police are immune from it.

Anne Milgram:

It’s the one system. Right. It sort of felt like, again, he said some things that I think probably I didn’t necessarily expect him to even say that, but I would have pushed further. And again, I think you’re right on the stats and that those stats the president has used, the sort of administration is really touted a lot in terms of, well, it can’t be racist because a lot of white people are also shot and killed. Look, I think their numbers are wrong, but it also doesn’t make it right. Right? So it’s sort of like this bizarre argument to me that, to me, one person is too many.

Preet Bharara:

Yeah. And I think overall the hearing was a lost opportunity and you know what? The Democrats did not gain anything by kind of ranting at the attorney general, even if it was legitimate to do so, and then not letting them answer. I mean, there are times where they went on and then they went on to the next questioner and the next representative on the other side would give a minute or two of their time to finish.

Anne Milgram:

Which makes it look bad. Right. It makes it look bad, the Democrat look bad. Yes.

Preet Bharara:

Any lawyer, no matter how hostile the witness is in a regular courtroom, you get yelled at by the judge, eventually you get held in contempt if you don’t let the witness answer the question.

Anne Milgram:

Right.

Preet Bharara:

Now, once the witness starts answering and then starts being a jerk and starts lying or doing all sorts of other kinds of manipulative things, then you have a little more leeway to do something, but you got to let the guy answer in the first instance.

Anne Milgram:

And you can say to the chair, “I’m going to ask the chair to direct the witness to answer, to be responsive to my question.” And look, one of the things you can also do is ask really simple questions like yes or no, is it accurate that there were X number of voting rights cases brought by the department? Is it accurate that none of those related to absentee ballots? Whatever it is. And then if he goes on and says, “Well, in 1963,” you could say, “I’m going to ask the chair to please direct the witness to answer the question. It’s not about 1963.” And then you can start… See I’m all riled up to question attorney general Barr.

Preet Bharara:

Get in there. I miss seeing Dan Goldman, I’m miss seeing… Look, Dan Goldman is our colleague who served in the house until committee for a period of time, he said over and over again exactly correctly, when Bill Barr stated the conclusion about things or the nature of antique for anything else, what is your evidence? What is the proof? It’s a simple question.

Anne Milgram:

Yeah, you got to break it down.

Preet Bharara:

You don’t need a brilliant staff to be able to ask the follow-up question, “Well, what do you base that on? What is the data? What is the evidence?” And I didn’t see a lot of that either. And we should probably stop bashing the house judiciary committee.

Anne Milgram:

Yeah. I mean, look, it was hard. And by the way, the Republicans, there were a couple of times that I was like, “I’m not even following this argument.” So I don’t want to, in any way, suggest I would be an equal opportunity critic, but for the fact that I thought that-

Preet Bharara:

Oh, don’t get me start on Jim Jordan, I think the first tweet I sent was, “It turns out apparently that if you don’t wear a jacket, you must yell.”

Anne Milgram:

Yes. There was a lot of that. So we should-

Preet Bharara:

And then that film, the edited film at the beginning, which we don’t have to talk about, but it was kind of a lost opportunity and not a lot of light was shed. Some things I think came out, there’ll be some follow up, but I don’t think we’re going to see Bill Barr again in such a forum for the rest of this term of the presidency. So maybe we should talk a little bit more specifically putting the Barr hearing itself aside, the things that are going on in some of these American cities like Portland and what may be happening in Kansas City.

Preet Bharara:

And you and I were talking before we started taping, a lot of this is very confusing and if people are confused about what’s happening in Portland and what’s about to happen in Chicago and Kansas City, don’t be upset by that, or I guess maybe you can be upset by that, but don’t be surprised by that because it’s confusing to us or at least it’s confusing to me. And you had a good point, maybe you can elaborate on it.

Anne Milgram:

Yeah.

Preet Bharara:

You said the opacity is the point being opaque as part of the point.

Anne Milgram:

Yeah. Not having people understand a little bit of what’s happening or who’s doing what, and just using this high level values language of tough on crime, securing our streets, surging to… It sounds like the language of war very much. I mean, I think there’s purpose in not explaining, well, this agency is doing this, that agency is doing that. But it is complicated, and I don’t think you’re alone in feeling like it’s a little bit of a spaghetti soup of federal law enforcement actions and agencies. And I think we should try to break it down to the best that we can, but understanding there’s a reason why I think, and I don’t credit the federal government’s argument that you can’t wear a badge because it’s not safe for you. Well, if that’s the case then it’s not safe for any police officer in America, and we’ve made a decision that we put a badge and identification on you, so we know who you are.

Preet Bharara:

Wait, can I ask you a question? Spaghetti soup? Is that a thing? What is spaghetti soup?

Anne Milgram:

I don’t know, I don’t know where that came from. I don’t know where that came from.

Preet Bharara:

Did you mean alphabet soup?

Anne Milgram:

I think I mixed my metaphors. I think I was thinking where you throw spaghetti on the wall to see what sticks, I don’t know.

Preet Bharara:

Oh, to see what sticks.

Anne Milgram:

Yeah.

Preet Bharara:

And then there’s the alphabet soup of agencies.

Anne Milgram:

And alphabet soup. Which is often federal law enforcement agencies. Yeah. They’re all different names. And really, I think the thing that people need to understand, I guess I would sort of start by saying maybe we should separate this into two buckets, which is the protest, which we spoke about last week and what’s happening in Portland, which we can get to in a minute. And then the new initiative that the federal government, the president and the attorney general Bill Barr announced of going into cities, Operation Legend, and this idea that they’re sending, it sounds like federal law enforcement agencies, it’s not clear whether it’s FBI, DEA, ATF, they’re sending them to Kansas City, Albuquerque, Chicago.

Anne Milgram:

And again, with this argument that we should talk a lot about the way that the president has framed this, which is basically as a way to combat… Like that these cities are more violent than they’ve been because of efforts to defund, this conversation about defunding the police. And so he’s tying it to the protest and he’s tying it directly to, there are people in some cities who want to change the way we police America, and so there’s more violence because of them, is what the president I think is saying. And so we need to send more federal law enforcement agents in to protect the people in those cities.

Preet Bharara:

First, I think it’s important to address the intentional confusion… And look, and maybe partly intended confusion on the part of the president, but also he might be confused. It’s not clear to me that he ever knows what he’s talking about. For example, he keeps tweeting about the federal law that makes it a crime to harm statues and monuments. And he keeps saying things like, you go to prison for 10 years, minimum. That’s not true. That’s the maximum sentence. There’s no mandatory minimum for those things. He didn’t pass that law. That law was passed a number of years ago.

Preet Bharara:

Again, sometimes it’s hard to tell whether he’s just ignorant and stupid or intentionally misleading. And on this point, the president keeps conflating these various strategies and approaches. So what’s happening in Portland as you and I have discussed before is disturbing because you have these unmarked vehicles and you have these unnamed and unidentified agents, and supposedly they’re dealing with the protests and trying to protect federal property, but there’s not a lot of transparency into what’s going on at all. And in fact, local authorities don’t want them. And the local state attorney general filed a suit, and the local US attorney raised questions as well as distinct from this other thing that you mentioned, Operation LeGend. It seems to be the president wants people to believe the surging of federal agents under that operation to various other cities is an extension of what they’re doing in Portland.

Anne Milgram:

Because for him, it is. Because for him, it is. To me, he wants that federal police, secret police force, in every city. He called them… I don’t remember his exact language. It’s basically the democratic cities. That’s what he wants. Now, what I think has happened is people like Bill Barr who in my view has very few lines of things he won’t do for the president. But this is a line where I don’t even know if it’s Barr. I think it’s probably people like Chris Wray who runs the FBI saying, “Oh, no. We’re not going in as an occupying military police force, but we will go in to do the things we always do, which is to combat violent crime.” And this is part of what I think is making it complicated is like the president’s goal is to do exactly what he’s doing in Portland all over the United States. And he’s intentionally combining these things together. But the pushback of the law enforcement agencies have changed the way that they are speaking about it. The US attorneys are talking about it and Bill Barr even is talking about it.

Anne Milgram:

I think that’s why. There are clearly separate law enforcement operations. One in Portland being run by Customs and Border Patrol from Homeland Security. The other being more DOJ led, it feels like, by Bill Barr, which would include, it could be the FBI, it could be the DEA. I think that there is a distinction, but again, it all goes towards the same goal. And the president’s language is really problematic on this.

Preet Bharara:

To distinguish between the president and other folks, putting the Portland issue aside and protests aside, officials in the government, both federal and local, have been very clear that Operation LeGend is something completely different. The spokesman for the US attorney’s office that includes Kansas City in Missouri said, “Operation LeGend has no relationship whatsoever to protests, marches, and demonstrations. These are investigative law enforcement agencies. The attorney general has said that.” And unlike the situation in Portland, in Kansas city, the Kansas City Police Department, the state attorney general’s office, both support the effort-

Anne Milgram:

The mayor.

Preet Bharara:

… and it looked… Yeah, the mayor too. And that looks like the kind of thing that we would do also. We would partner with local authorities, the FBI, DEA, and others, to deal with either gang issues or organized crime issues, or you name it. If there was a surge in crime, we would all coordinate and work together.

Preet Bharara:

And it looks like the people who are getting involved in Operation LeGend are doing that. And the local officials and department officials are making it clear that there is a distinction. And as you’ve said already, the president doesn’t care for that distinction at all. He wants it to look like in part it’s all part of the same thing. He doesn’t care what the rules are. He doesn’t care what the authorities are. It’s just brute force, overwhelming force. And he tweets the name of that show, Law & Order!, all the time, I guess, painting it as a defining principle of his presidency with no nuance, no distinction whatsoever.

Anne Milgram:

Let’s talk about the Law & Order piece just for a second, because I think the history of the historic levels of mass incarceration that we have in our country in part comes from politicians wanting to argue that they’re tough on crime and it being politically successful for many years. And so I think we should understand the context in which the president does this, which is that, people get elected by saying, “I’m law and order! I’m tough on crime.” And in recent years, the past, maybe five years, maybe even 10 years, but more like five years, people have really pushed back to say, it’s not about being tough on crime. It’s about being smart on crime. What we ultimately want are safer communities. And the question is, how do we best get there? And the president is invoking.

Anne Milgram:

And we saw Jeff Sessions when he was attorney general do this too. We’ve now seen Barr do it. The very sort of old school idea of like, you just arrest as many people as possible, and that makes community safe. And this idea of like, this is what it’s about. It’s about federal law enforcement agents and cities. And I want to agree with you very strongly that the federal government can be incredibly helpful with cities. Now, I personally have always thought that the feds don’t do enough to actually care about public safety in a city. They’re more operation driven. It might be they’re targeting a specific gang, they’ve been brought in for a specific drug seller that’s high level and the locals want help with.

Anne Milgram:

But they can be when used correctly and in partnership. It is invaluable. One of the first thing that sometimes people on the streets of Camden when we had these great partnerships, particularly with like the DEA and ATF, one of the first things people would say is, “Is this case going to the feds or to the state?” Because the federal sentences are longer. There’s a lot less volume.

Anne Milgram:

You and I’ve talked about this. The likelihood of being convicted is I think probably higher in many communities, if you’re in the federal system. Not in all. But that’s like a huge benefit to communities. The question in my mind is, is that what this is? And I think that’s a really important piece. If the feds are working hand in hand with the locals, great. Very helpful. Particularly if they’re being driven by local priorities. Because in my view, and maybe you disagree with this, but most federal agents would have no idea what the priorities are, who the gangs are that run the streets, who the drug trafficking organizations are. They’re just not going to know enough to be strategic and helpful in the way that you want them to be in a community to really drive down violence. And I have a lot of questions about this.

Anne Milgram:

I also have one other point to make, which is, the president always does this and he frames things. But here, look, just to step back. These are cities the violence isn’t new, nor is the increase in violence since the pandemic unique to these cities. And so we have seen nationally, we’ve seen an increase in murders nationally. It varies in different cities and states, but we’ve seen numbers go up. And I think if you want to really be rigorous about this, and I don’t know how you feel about this, but first of all, there are a lot of cities on the top 10 most dangerous cities in America list from 2019. If you looked at those, even if they have Democratic mayors, they’re in Republican states, that the president hasn’t touched.

Anne Milgram:

So you’ve got Memphis, you’ve got Birmingham, you’ve got Cleveland, you’ve got Milwaukee. So it feels a little cherry picked to me to begin with. So that’s one point I would make. The second point is that the issue with violence in cities. I don’t know if you disagree with this, but it’s great to have the feds come in, but the cities need generally more funding for social services. One of the problems in a lot of these cities is they have a historic number of different problems, so, sure you can send federal agents in, but I think a lot of those cities, if they could choose the help they got, it wouldn’t be an ATF or DEA agent. It would be more front-end help to deal with the problems and prevent the violence in the first place. Sorry go on. I’m so frustrated by this. Yeah.

Preet Bharara:

Yeah. In a lot of places, I think it works very well. I think it worked very well in New York. And as you point out the differences, that federal agents and US attorney’s offices, have fewer cases, they have longer term strategies. They can patiently investigate something for a long time. They can solve cold cases, old homicides that haven’t been able to be solved by the local police. You do it in cooperation with each other. The other thing that’s going on sometimes, and this is true of many justice departments. Sometimes the conflation of operations is in an effort to show that the justice department and federal agencies have been really effective.

Preet Bharara:

And you see that, for example, in what Bill Barr mentioned about Kansas City. And he said, “Look, the efforts that we’ve been engaging in have already resulted in 200 arrests.” And his staff and people around him didn’t know what he was talking about, local officials didn’t know what he was talking about and they made clear, “No, we’re talking about the number of arrests that have been made going back a number of months.”

Anne Milgram:

By the state probably also. Or on state and local federal task forces.

Preet Bharara:

You see this in previous administrations too, that you have 12 different operations going on in different places relating to opioids or relating to heroin or relating to some other such thing. And they’re independent of each other. But for purposes of trying to show the country and the world, “Well, we’re doing something and it’s a massive coordinated effort. Look, we have like 417 arrests.” And not to say that anyone’s trying to mislead anyone, but, there is an effort to try to show effectiveness.

Anne Milgram:

Yeah. Let’s talk about that because it is a game. So we ran state federal task forces in New Jersey where there’d be like two federal agents and 30 cops. And they would basically make 60 arrests and then the feds would count all the arrests. And so it’s a little like, you go to work and someone who’s not even your boss takes credit for all your work. It just is what it is. And I’m not saying that it’s not fair to share the credit, but we should be very clear that a lot of what will happen in these cities will be the same state level enforcement that would always happen and the feds will just mark them off as their arrests because they’re part of the task force.

Anne Milgram:

And so if we ask the question of, does it matter? It’s a really interesting thing. Arrest to me is just not the measure. First of all, there weren’t 200 arrests since Operation LeGend started, there was I think one or two, number one. And you could be right there could be longterm investigations that are happening, that’s what the feds do best. But the second point is, arrests for what? The goal is not to make the most arrests you can, the goal is to reduce violence. And so that just to me, listening to Barr say, “We’ve made 200 arrests,” shows he doesn’t get it. I don’t think the feds understand violence reduction in the way that locals do. It’s just my personal bias.

Preet Bharara:

Well, I think it depends on the locals. I think it depends on the city. It depends on the police force.

Anne Milgram:

I agree. But by the way, that’s not their job usually either. It’s usually not the feds job to do street crime.

Preet Bharara:

Well, I got in trouble some years ago when I was a US attorney and I testified in an open forum about resources that we needed in the federal government [inaudible 00:39:08] already happened. And crime rates had come down in New York and I said, somewhat offhandedly, “We don’t want to become like Chicago.” And the reason I got in trouble was, the newly sworn in US attorney in Chicago-

Anne Milgram:

Called you and yelled at you, rightly so.

Preet Bharara:

“Why are you dissing Chicago?” But Chicago has had a serious violence problem that exceeds some other cities, including New York for a long time. And lots of folks think if you have resources on the local side, fine, but if you can add resources from the federal side, maybe that can alleviate things. So there’s nothing wrong with a President in the abstract saying, “Look, if you’ve got these problems and you want more resources, we’re there.” The US attorney’s office in Chicago got involved. Those are the feds. And they said, “Look, we live here too. We’re subjected to the disintegrating situation and the violent crime too. And we care about our communities too.”

Preet Bharara:

And I appreciate this distinction that we have in the federal system. There’s some irony here too because conservatives have often said, “Well, you want to keep federalism intact and so local things that don’t implicate interstate commerce and don’t implicate a federal interest should be left to the local police.” Interesting now there’s a lot of contrary thinking on that and the imposition of federal agents on these circumstances. But we’re all part of the same community. And if there’s a problem and people can help, they should help.

Anne Milgram:

The ideal situation is to have… Look, the policing power belongs mostly to the locals and the states and it should. And so you have the local folks who are there and then you have federal agents on task forces and you have these combined integrated efforts that can be incredibly helpful and important in communities. So the ideal is people working together and Kansas City, the point you made is well taken, which is that the folks there have welcomed the help and I think that’s really important because I do not like the idea.

Anne Milgram:

And this is part of the conversation with Chicago, where you have the Chicago mayor saying, “Don’t send me your surge of agents.” And part of it I think, is because of how political the President has been. Also, let’s just make the point that I feel for people in communities because again, I believe having federal law enforcement work with locals is ideal. There’s a problem, if the problem is violence in the community, thinking together about how do you attack it. And then some of the cases will go state, some will go federal and that’s the right thing.

Anne Milgram:

But what we’re talking about here is the President literally stepping out there and saying, “Violence in our city is being caused by these efforts to defund the police.” And the protestors are people in the black community who are protesting against the police and the use of force. And so it couldn’t get more racially divided. The President’s language is very, very problematic. So to be a city, even under normal circumstances where you would say, “Yes, we’d love the help.” Now you have these 200 agents and the tone is very much about it being caused by the people who are protesting against the police. Putting aside all the arguments of what the right thing to do in communities is, that to me is really problematic. And so even the mayor in Kansas City, Lucas-

Preet Bharara:

Well he’s got an election.

Anne Milgram:

Yeah he’s got an election and that’s basically what it comes down to.

Preet Bharara:

Yeah. And he’s in fear of losing.

Anne Milgram:

Yes. And the mayor of Kansas City basically said he agrees, he basically says, “Yes, come help us.” As long as it’s basically done the way that the US attorney’s office says, which is like, “There’s no relationship to the protest, marches and demonstrations.” So, the mayor Quinton Lucas says, “Great, as long as you stated that, I’m good with it.” And then Trump comes out and basically ties the use of federal agents in Kansas City and other places to the protests, and to the movement to defund the police.

Anne Milgram:

And Lucas basically comes out and says, “There’s no data to support that, and this is aimed at heightening racial tension and dividing the country.” Basically, Lucas says he wants to find justice for gunshot victims, and says, “To get that justice, you don’t have to actually claim that cities are failures. And to get that justice, you don’t have to make our community part of a political ploy in an election year.” This is why I think that this is also so deeply, deeply problematic.

Preet Bharara:

So, I guess what we’re looking at it now in various places, and maybe soon in Philadelphia where there’s a particularly aggressive prosecutor in a particular way, named Larry Krasner. Because you have a situation in which, it is not good, where local prosecutors and officials have suggested that they will, in their discretion, arrest federal agents who are engaged in doing their job in a way that the local officials say breaks local law. And Larry Krasner, the DA in Philadelphia has made that point explicitly. Now, we can have a very legalistic discussion about the supremacy clause and about who’s allowed to arrest whom, and who’s allowed to function in whose jurisdiction, federal versus local, et cetera.

Preet Bharara:

But before we get to that, I want to repeat a point that I think I made last week, which is, what a mess it is. If you have a situation in which local officials who carry weapons are suggesting that they are going to make an aggressive forcible arrest of federal officials, also carrying weapons, operating on the same streets, not only not in coordination with each other, but in open antagonism against each other. That’s just a recipe for disaster. And as I used to say when I was trying to coordinate in a congenial way, back in New York in the southern district, the public should be fed up with that. They want us to get along. They want us to work together. They want us to do what we call deconflict, so that both officers can be safe and the public can be safe, and I don’t know what the resolution to this is, but it’s a recipe for absolute disaster.

Anne Milgram:

I think Krasner, just to be clear, he was really talking about federal law enforcement officials doing in Philadelphia what they did in Portland, with the protesters. And so, just so we’re clear that I don’t know whether Philadelphia is on the list for Operation Legend, which is just the additional federal agents going to local communities to help with violent crime. But what Krasner, I think, was basically saying is, if federal officers are here and they engage in the kind of unconstitutional behavior that he is saying is happening in Portland, then he would basically not hesitate to go out and arrest those officers.

Anne Milgram:

And what’s really… You make a point, and I think it’s the right point. The fact that we’ve even gotten here is so problematic and so troubling. What I do think Krasner’s statement… And I actually, I think you’re right also to raise. Look, there are legal issues. The supremacy clause say… Basically gives supremacy to the feds, and in many things. Federalism though says all the powers not given to the federal government are reserved to the states. And so you have these two conflicting ideas. And the police power is generally reserved to the states and locals.

Anne Milgram:

But regardless of all of that, you really have a situation where, what I think Krasner was trying to do, is basically just send a message to law enforcement, maybe the law enforcement unions, all the folks there basically saying, don’t do this. I’m looking at you personally, don’t hide behind the president and Bill Barr. Again, I can’t even believe we’ve gotten to the point where this is the conversation. And do I think he should be out arresting federal agents who just show up? You and I have talked about this. Part of the challenge is, some of it is lawful, right? If there’s a federal US Marshall who goes to protect a courthouse, that’s lawful.

Preet Bharara:

And there’s actual violence taking place. By the way, the other thing we should make clear is, yeah. As far as I can tell, the majority of people protesting in various places are peaceful and they’re exercising their first amendment rights to assembly and speech. But there are some who are destroying property, and there are some who are engaging in violence, and those people should be held accountable and can be arrested. And it seems like, on the one side, on the conservative side or on the president’s side, all they do is focus on the occasional bits of violence without understanding how much peaceful demonstration there is, and how important that is. But everyone else would also acknowledge that there are some people who are breaking the law and causing public safety to erode. That’s a fact.

Anne Milgram:

And this is part of what makes it so complicated, that there is a potential lawful use of force by the federal government, if there’s a federal crime being committed against, say a courthouse or a post office, or they’re witnessing violence taking place. And so I think that the Trump administration and Barr in particular have done a lot to try to exploit these spaces, where there is a potential legitimate use of force. And then they step over that line in a way that breaks norms, and I think likely, the constitutional law.

Anne Milgram:

I mean, there was a great thread last week from a Harvard law professor commenting on the acting DHS secretary, Chad Wolf, and the individual in charge of the federal police force, that they’ve created DHS, where they essentially admitted that they did not have probable cause to essentially detain one of the individuals that they took off the street in a van. And that to me is just… It was also very clear they don’t understand what that is. And so they take a situation where agents could have lawfully potentially been there, and they push it beyond what’s lawful. And so, again, I think that the administration should be held to account for this. I think that there has not been enough accountability for what’s happening and who’s doing it.

Preet Bharara:

While some accountability may be coming, there are various members of the senate and the house, in particular the delegation from Oregon, who wrote to the inspector general of the Department of Justice, and I think also DHS, and both of those inspectors general announced in the last few days that they were going to open up an investigation about the goings on in, not just Portland, but also Washington DC a month ago. The statement from the inspector general, the Department of Justice says, “The DOJ OIG officer inspector general is initiating a review to examine the DOJs and its law enforcement components, roles and responsibilities, in responding to protest activity and civil unrest in Portland, Oregon, and Washington, DC over the prior two months.”

Preet Bharara:

And I’ll just read a little bit more of it. “The review will include examining the training and instruction that was provided to the DOJ law enforcement personnel, compliance with applicable identification requirements, rules of engagement and legal authorities, et cetera, et cetera.” And then at the same time, I think this makes sense because a lot of these officers, we believe, came from the Department of Homeland Security. The inspector general of DHS announced also that they have opened an investigation in to allegations that on July 15, 2020, DHS law enforcement personnel improperly detained and transported protesters in Portland, Oregon. So, how soon before those two IGs get fired? Maybe this Friday?

Anne Milgram:

Yeah. Yeah. So it’s obviously done in coordination. They put out those letters on the same day saying that they were opening the investigations and they pretty similarly defined the problems that they’re investigating or the actions. And DHS is obviously the lead agency in Portland but the US Marshalls were involved which is why it’s DOJ and there’s been some reporting that the US Attorney’s offices were consulted, and so that would also put it under DOJ.

Anne Milgram:

A lot of people find that Inspector General response and the fact that they’re doing an investigation to be a good thing. I personally, I don’t want to be the one who… I’m like the salmon swimming upstream here but how long does it take them to do a report? There’s two issues with them. First of all, yeah, it’s going to go forever. So there’s something happening on the streets now, this is not the way to stop what’s happening on the streets. This is more of the look back, the hot wash once something’s been done, where you look back and say, “Okay, what happened? Did we do it right?” The second thing is that the Inspector General, and we’ve seen this repeatedly, they don’t get into a lot of the was this right or wrong? They get into was a specific regulation violated?

Anne Milgram:

So here, DHS officers, did they have sufficient training to do this? There’s a requirement that they have sufficient training. Were they allowed to not wear their name or insignias of their law enforcement agency. So again, all that’s important but it doesn’t get at this bigger question of is this the right use of federal agents on the ground? So to me, it’s great they’re doing it but to me it’s slightly, it’s not that meaningful in the immediate moment when you’re looking at a constant thing that could also happen, continue to happen, and happen other places.

Preet Bharara:

There are people who don’t have the authority of investigative power where the Inspector General’s office, but they have some public persuasive ability. I thought this was significant in the last week. You have two former secretaries of homeland security, both republicans, appointed by republican presidents, who pretty aggressively criticize what’s going on in Portland. One of them is Tom Ridge, former governor of Pennsylvania, who was the first DHS secretary, who has said that what’s going on in some of these places corrodes the federal system of government we have, the republic.

Preet Bharara:

And then you have Michael Chertoff, who again, no bleeding heart liberal, said in the last week, “They’ve taken a very belligerent, aggressive tone. You can protect federal property but that doesn’t mean it’s an unlimited license to roam around the streets and pick up people based on some suspicion that maybe they’re involved or going to be involved in something.” He went on to say even stronger things.

Preet Bharara:

So that’s not an Inspector General investigation but these are people who have some respect among conservatives and republicans in the Congress.

Anne Milgram:

Yeah, and Chertoff particularly. Chertoff, obviously he ran Homeland Security, he was also a federal third circuit judge, he’s in the US attorneys… He’s very, very well-regarded on national security issues. And not to say that Tom Ridge isn’t, but I think Chertoff runs his own homeland security group right now, and to me him speaking out and speaking out in the way he did, he just really rang the alarm on the problem here and I don’t know that most people will understand what a significant thing it is for Chertoff and Ridge to come out and say this but basically for them to call a flag on this is just enormous.

Anne Milgram:

Look, what it should be doing is convincing republican senators and congresspeople, there’s a problem here and there’s a level of inquiry that needs to happen that’s not happening and there’s a conversation nationally about what are we doing, how are we doing it, and should we be doing it that’s not happening. And so I don’t see that happening right now in Congress. I see the democratic members of Congress sort of calling for… they’re going to ask Bill Barr about it today when he testifies but there’s a way in which this sort of feels to me like a five alarm fire and you have people saying that it is and the administration again, has not engaged in specifics, and they have not been pushed to do so or to really articulate or be held accountable for what they’re doing.

Preet Bharara:

So the inspectors general who are going to take a look at these things, we have people who are commenting about them who have some persuasive authority, but there also have been court actions not to successful. I guess one was successful.

Anne Milgram:

Yeah. Well there’s one court action that said journalists and legal observers can’t be moved by the federal agents when they’re basically documenting a process and the federal judge went so far as to say like, “If you do this, I’m not giving you qualified immunity.” Meaning you can be sued for your actions, you can’t hide behind your badge and gun, and the reason why is I’m telling you, you can’t do this, you have to leave journalists and legal observers.

Anne Milgram:

Then the suit from the Oregon attorney general was tossed out by another federal judge who basically found that she didn’t have standing and just to remind folks she went in said, “This can’t happen.” She didn’t have a specific individual that she was suing on behalf of and I think that might have been a part of the problem.

Preet Bharara:

Yeah, there’s no actual protestor who was a punitive victim of the conduct.

Anne Milgram:

Exactly, she was basically just saying, “I’m stepping in on behalf of the people of the state.” And you have to be really concrete and specific when you do that and the court basically found that she hadn’t done that. Then you have another lawsuit that was filed I think yesterday by Protect Democracy, which is an advocacy group basically arguing with specific plaintiffs, people who were harmed. So my favorite of the plaintiffs, can you guess it? The people who are specifically named? The moms.

Preet Bharara:

The moms.

Anne Milgram:

Right? And so they’re basically out there saying, like the moms, you cannot be teargassing the moms when they’re out there doing lawful protests.

Preet Bharara:

Dad you can teargas till Sunday and deservedly so.

Anne Milgram:

You’ve got to love the moms in their yellow T-shirts out there, I love it. I feel like you don’t mess with the moms, it was a big mistake by the Trump administration. But anyway, so we’ll continue to follow the Protect Democracy lawsuit but as of this moment the federal agents can continue.

Preet Bharara:

We should touch on something else that we’ve been following for a number of weeks, and that is the saga of Michael Cohen, the president’s former personal lawyer, who is getting out of prison and going to be subjected to home confinement because of the coronavirus and then he went to sign some paperwork that would set forth the particulars of the conditions of his home confinement, and there have been conflicting reports about what happened.

Preet Bharara:

He apparently objected to some of the terms. At the time it was reported that he objected to a particular term and that was the ability to write and publish a book, and it looks like he was objecting to many, many of the provisions and conditions of his confinement. In any event, there was a confrontation in the office and the probation department decided to cuff him and remand him. So he went back to jail and there has been litigation about that and my office has defended, my former office has defended what the Bureau of Prisons and the Probation Department did, and it’s a little weird and a little murky but the judge in the case, Judge Hellerstein, basically ruled in favor of Michael Cohen making a finding that the return of Michael Cohen to jail looked like it was in retaliation for his deciding he was going to write a book.

Preet Bharara:

Now, there’s a conflict in what some people say the facts are between the lawyer for Michael Cohen and the people who are involved, the officials who were involved in deciding to remand him all of a sudden when there was this disagreement in the office about the conditions of confinement among the things that the US Attorney’s office puts forward in their signed and sworn declarations from various officials that it wasn’t retaliation.

Preet Bharara:

They say that the main agent involved, the main probation officer involved, didn’t actually know that Michael Cohen was writing a book and didn’t actually write a custom made set of conditions for Michael Cohen. Because this was the first such case he had of this kind, because usually the BOP deals with this, not the probation department. He asked a fellow probation officer in a nearby district for a model and he just copied the model. So it’s unclear exactly whether there was full-on retaliation. It does seem weird to me. You should assume that I’m a little bit biased because I trust the word put forward by my former office.

Preet Bharara:

I do think that it seemed wrong that he would be sent back to jail because there was a brief dispute, and then he agreed to all the conditions after they put cuffs on him. And it’s kind of like obnoxiously, it’s too late, and so we got to send you to jail. That seems to have been over aggressive and heavy handed.

Anne Milgram:

This is a thing that I think that’s worth just sort of pointing out here is that the US Attorney’s office made a lot of Cohen being “antagonistic” and his lawyer pushing back on all the things in the agreement. And look…

Preet Bharara:

It’s not a good basis.

Anne Milgram:

Yeah. It felt so weird for me for them to even put that in a brief. So the truth of what they knew and didn’t know, I’ll leave that aside. But the tone of even filing that to me, I wouldn’t have let that go out. And it just sort of feels like, if somebody can be antagonistic, this is the criminal justice system. It looks petty.

Preet Bharara:

From what I can tell, it’s a brief that was put in, not by the Federal, not by the criminal division side, but by the civil division side. And what sometimes happens when you represent a government agency is the agency did something, didn’t consult with the US Attorney’s office, didn’t consult with the Assistant US Attorneys, and then the client, which is the agency…

Anne Milgram:

Comes asking for help.

Preet Bharara:

Yeah. Wants to persist in that position and like lawyers in other places, although I think you have a different responsibility to make sure you always do the right thing, even if you have a client like this on the civil side. They’re making sort of the best argument that they can. I don’t know that there’s been an appeal that will tell you something about what the US Attorney’s office thinks about the merits of the argument.

Anne Milgram:

There’s also an underlying issue though, of like what they were asking him to do, which felt directly in conflict with his First Amendment rights. And so, there’s a line…

Preet Bharara:

The only thing I’m saying is what’s been out in the public that this was a deliberate retaliation for the fact that he’s writing a book. I don’t know that that’s fully sustained by the record. I think it’s correct that he was treated over aggressively and heavy handedly and shouldn’t have been sent back to jail for a variety of reasons, and I think some of the conduct that occurred here does not seem to have been professional and seemed to have gotten overheated.

Preet Bharara:

But on the specific point that someone high up in the Justice Department commanded that he be sent to jail because there was retaliation for the fact of this book coming out, I don’t think that’s been shown.

Anne Milgram:

Yeah. I mean, and that may be correct that it wasn’t a high level official at the Department of Justice saying it. But the US Attorney’s office has to also be mindful and sensitive both of number one, what are they asking people to do? Number two, Paul Manafort is out. Roger Stone’s sentences has been commuted. Michael Flynn’s case has been dismissed. And so they have to understand that the perception of unfair treatment here is enormous.

Preet Bharara:

Oh, absolutely, and they should have explained further. I don’t think you even wait on the day of, if you have a basis to explain what’s happening and you believe in the explanation. You explain it to the public because people are watching and lots of people don’t understand what’s going on and based on exactly what you’re saying, based on the landscape as we see it, and how politicized it’s become, people aren’t going to give folks the benefit of the doubt in this administration, like they might have before.

Anne Milgram:

Well, here’s the other piece too. It’s clear that this wasn’t a standard probation agreement. That the probation officer had consulted with somebody else who’d used a similar probation agreement on somebody else who was writing a book or what… If it’s standard, there should be no question about it. Cohen signs it or he doesn’t sign it. It’s when you get into trouble with situations like this, where they’re making specific requirements for him, and there’s a higher burden to be able to defend and to be able to argue that.

Preet Bharara:

But again, not to be overly defensive, as I understand it, this is a very rare occurrence. You have somebody not who’s being given to the probation department because they’ve completed their sentence or only been given a sentence of probation. What you have is somebody who is supposed to still be in jail and got special dispensation to be released because of something extreme, namely the pandemic. And they’re technically within the jurisdiction still of the Bureau of Prisons, even though they’re no longer in prison.

Preet Bharara:

And so, as I understand it, that’s not such an ordinary circumstance, but the probation department has conditions of probation that they have that are different from what you have in a rare situation like this. I guess it’s not as rare as it used to be because there are a lot of people who are now being let out.

Preet Bharara:

Part of the problem is, and it gets very sort of in the weeds, if you read the brief. There was a person in the room with Michael Cohen and I’m confident that Michael Cohen was being belligerent and aggressive and a jerk. And that person in the room then called some other supervisor who’s located in some different place at the Bureau of Prisons. And there’s a game of telephone going on, and someone made a rash quick decision, and they didn’t want to come off it. So whether it was over aggressive, wrong and ham-handed versus political and retaliatory unclear, but either way, it seems right that based on the circumstances that he was allowed to leave the jail.

Preet Bharara:

So Anne, I’ll talk to you next week.

Anne Milgram:

Yes.

Preet Bharara:

There’s a lot going on. There always is. We’ll see what happens with these two Inspectors General and we’ll keep you posted.

Anne Milgram:

Sounds good. Talk to you soon.

Preet Bharara:

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.

Preet Bharara:

Thank you for being a part of the Cafe Insider community.