• Show Notes
  • Transcript

In this episode of CAFE Insider, “DeJoy, Bannon, Durham: Mail, Jail, Stale?” Preet and Anne break down Postmaster General Louis DeJoy’s testimony before lawmakers on Capitol Hill, the latest in former Trump campaign chief & White House strategist Steve Bannon’s indictment by SDNY, and the first conviction secured by John Durham, the Connecticut U.S. Attorney tasked with investigating the origins of the FBI’s Russia probe. 

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

INTRO

VIDEO: Kimberly Guilfoyle’s Republican National Convention Speech, 8/24/20 

VIDEO: “Boombastic” by Shaggy

JACOB BLAKE

“Police De-Escalation Techniques Validated In New Jersey County,” NPR, 9/6/2016

POSTMASTER GENERAL LOUIS DEJOY

H.R.8015 – Delivering for America Act, passed 8/22/20

USPS Service Performance Measurement, 8/12/20

Postmaster Louis DeJoy’s statement announcing suspension of cost-cutting measures, 8/18/20

“Examining the Finances and Operations of the United States Postal Service During COVID-19 and Upcoming Elections,” Senate Homeland Security Committee Hearing, 8/21/20

“Protecting the Timely Delivery of Mail, Medicine, and Mail-in Ballots,” House Oversight Committee Hearing, 8/24/20

VIDEO: Postmaster DeJoy’s opening statement before Senate Homeland Security Committee Hearing, 8/21/20

VIDEO: Rep. Stephen Lynch interrogates Postmaster DeJoy over removal of mail sorting equipment, 8/24/20 

VIDEO: Rep. Alexandria Ocasio-Cortez interrogates Postmaster DeJoy over communications with employees of his former company, 8/24/20

VIDEO: Rep. Katie Porter asks Postmaster DeJoy about the cost to mail a postcard, 8/24/20

Rep. Katie Porter’s tweet about Postmaster DeJoy’s testimony, 8/24/20

STEPHEN BANNON INDICTMENT

United States of America v. Brian Kolfage, Stephen Bannon, Andrew Badolato, and Timothy Shea indictment, 8/20/20

“Leaders Of ‘We Build The Wall’ Online Fundraising Campaign Charged With Defrauding Hundreds Of Thousands Of Donors,” SDNY statement, 8/20/20

Brian Kolfage statement on his indictment, 8/21/20

VIDEO: Bannon calls indictment a “political hit job,” 8/21/20

Mike Balsamo tweet detailing Attorney General Barr’s statement that he became aware of the Bannon investigation a few months ago, 8/20/20

Preet Bharara tweet, “Steve Bannon’s alleged fraud hurt regular people,” 8/20/20

@HighSierra6100 tweet in response to Preet Bharara about the victims of Bannon’s alleged fraud, 8/21/20

@ia_snowflake tweet in response to Preet Bharara about the victims of Bannon’s alleged fraud, 8/21/20

KEVIN CLINESMITH CONVICTION

United States of America v. Kevin Clinesmith charging document, 8/14/20

VIDEO: Attorney General Bill Barr on “Hannity,” 8/13/20

VIDEO: President Trump discussing Attorney General Bill Barr’s legacy, 8/13/20

TRUMP TAX RECORDS

Donald J. Trump v. Cyrus R. Vance, Jr. and Mazars USA, LLP ruling, 8/20/20

ERIC TRUMP TESTIMONY

People of the State of New York v. The Trump Organization, Inc. memorandum to compel the Trump Organization to comply with investigatory subpoenas, 8/24/20

“We Found Major Trump Tax Inconsistencies,” ProPublica, 1/10/20

Preet Bharara:

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

Anne Milgram:

I’m Anne Milgram.

Preet Bharara:

How are you, Anne?

Anne Milgram:

Hey, Preet. How are you?

Preet Bharara:

I’m good, same. You? You got some time last week.

Anne Milgram:

Yeah, we took a few days off and just did some little trips, day trips. We went to Sandy Hook State Beach and State Park in New Jersey.

Preet Bharara:

Wonderful.

Anne Milgram:

And then we went to Storm King, the outdoor sculpture garden in New York State. That was also amazing. We played a lot of family soccer and went to the beach. It was great.

Preet Bharara:

Sounds great. Did you catch any of the DNC last week?

Anne Milgram:

I did. I did. Actually, it was great, because a lot of nights… I don’t know if you feel this way and some of our listeners probably feel the same. But a lot of nights, I’m working now. I mean, it feels a little relentless some days. So, it was really nice taking a lot of last week off. I thought it was really well done. I think it’s really different than an in-person convention, but I found it really engaging. How about you? I think-

Preet Bharara:

Yeah, I thought it was well done also. There was a lot of emotion packed into a lot of the days and I think it had impact.

Anne Milgram:

I was laughing at all the people talking about how many times they cried during the DNC. I could cry to commercial. So, I’m a pretty low bar, but I did think parts were emotional for sure.

Preet Bharara:

And then what about the first night of the RNC? We’re recording this on Tuesday morning. I will say as I think I tweeted last night. I’m a little hard of hearing after hearing Kimberly Guilfoyle scream at me for 15 minutes.

Kimberly Guilfoyle:

Ladies and gentlemen, leaders and fighters for freedom and liberty and the American Dream, the best is yet to come!

Preet Bharara:

Did you catch that?

Anne Milgram:

Yeah, I did catch that. You sort of couldn’t miss it also on social media and the news, because it was everywhere. I think part of it is, it’s probably really weird to be giving a speech like that in an empty room, but it was also a choice that she made to be sort of bombastic and really loud. It felt off to me. But I have to also say that someone said today about the convention, “If you were asking questions like, ‘Why is this happening?’ it’s clear that it wasn’t intended for you,” right? That sort of like you and I were not the audience to understand.

Preet Bharara:

I don’t think it was intended for anyone who has normal hearing, actually. The weird thing when it’s an empty… Usually, you would think you would default to being more quiet, because there’s no one to project to.

Anne Milgram:

Also, energy levels.

Preet Bharara:

I think it got louder over time. I want to commend you on your use of bombastic. I think that’s an underused word.

Anne Milgram:

Thank you.

Preet Bharara:

It makes me think of the Shaggy song. Do you know it?

Anne Milgram:

Yeah, of course.

Anne Milgram:

(singing)

Anne Milgram:

What did you think of last night, other than it being loud?

Preet Bharara:

So, I thought Guilfoyle was ridiculous, but look, I thought they were effective speeches. I don’t agree with things. But if you think about what their purpose was, Nikki Haley is a very, very effective speaker and communicator.

Anne Milgram:

Yup.

Preet Bharara:

There was the gentleman from Cuba.

Anne Milgram:

He was effective, I thought.

Preet Bharara:

He was very effective. He had good volume.

Anne Milgram:

That’s not to say that I agree with him at all. But I think as far as speaking skills-

Preet Bharara:

No, I think you have to examine these things and see who’s effective and who’s not effective. I thought he was, but I think overall, there was a debate about the Democrats having Republicans there. But they also had very, very progressive Democrats there, kind of big tent. It looks like they’re trying to reach out to people beyond the natural base that Joe Biden would have. Republican side, that did not seem to be the case. Well, I also thought, by the way, Tim Scott, Tim Scott is a really good speaker and really effective and presents the case better than Donald Trump does.

Anne Milgram:

One thing that’s interesting is that I have sort of thing about this last night, it felt like there were more traditional Republicans almost at the Democratic Convention than there were at the Republican Convention. So, there’s like this omission, which is who would you expect to see on the first night of a Democratic Convention? We saw Bill Clinton, former Democratic President. We saw Hillary Clinton, Democratic presidential candidate, like every one of Biden’s rivals. We saw Barack Obama, of course, President who preceded President Trump. You would have expected to see George W. Bush.

Anne Milgram:

You would have expected to have seen a lot of the sort of stalwarts of the Republican Party, and they weren’t there, right? So, Nikki Haley is sort of a recent… She was the Governor of South Carolina, but people thought of her as an up and comer, but Tim Scott, same. These sort of core people that you would have expected to have seen were not there. Do you think it’s because they weren’t asked, or do you think it’s because they said no?

Preet Bharara:

I think both, I think depending on the person. I think it was both. So, look, we got three more days to go. So, there’s another terrible event over the weekend. We talked about this when it happened with George Floyd. It sparked a lot of protest and it’s going to happen again. A young 29-year-old, unarmed Black man, Jacob Blake was shot seven or eight times depending on the report in the back by police officers in Kenosha, Wisconsin. We don’t have all the facts. We don’t have the names of the police officers as far as I can tell, but based on the video, which is brutal to watch, it looks inexcusable. It doesn’t make any sense.

Preet Bharara:

Another tragic fact is that Jacob Blake’s three young children were in the backseat of the car. We should note this doesn’t justify any of the action that was taken, but police had their guns drawn. Blake look like he was not following their instructions and he seeks to get back into his car. They shot at point-blank range in the back. His father has reported that Blake though alive and stable is paralyzed from the waist down.

Anne Milgram:

Yeah, I mean, look, it’s both an individual tragedy for Blake and his family. But it just begs the question and this larger national conversation we’re having of why the police are shooting, killing and injuring unarmed Black men in this way? You cannot watch that video, in my view, having led a police agency and overseen more than 30,000 police officers and believe that the police acted correctly in my view. The idea that you would shoot someone in the back, because they’re not complying with a lawful order. It’s not the way it works, and it’s not the way it should ever work.

Anne Milgram:

So, I think, as people have started to stop paying as much attention to the Black Lives Matter protests that are still going on around the country and there are some that are going to take place I think in Washington, D.C. later this week, but as people start to sort of lose interest and look away, the bottom line is that you see this, and you understand why people are still protesting. We haven’t even really begun in some ways to have the conversation we need to have about how do we stop this from happening. It also speaks to me, Preet, of a larger problem, which is that I promise you that almost every police chief in America, the last thing in the world they want is for any of their officers to be involved in any of these shootings.

Anne Milgram:

So, I would predict, I would guess that most of them are saying, “Don’t draw your weapon unless you absolutely have…” Basically, be as careful as you possibly can be. Try to de-escalate violence. You look at something like this, and this was an escalation by the officer. No question about it.

Preet Bharara:

The irony is again, all this reporting is new and is fluid and we’re recording this on Tuesday, August 25, in the 10:00 AM hour. So, by the time you listen to this, there may be more facts that come out that contradicts some of this, but the reporting is that Blake was there to deescalate a domestic incident himself.

Anne Milgram:

Between two women who are fighting, right? Yup. Again, we need to know more about it, but it just raises this question of “Structurally, can we change policing the way that we started the conversation to talk about it; or do we have to move to do things that are far more drastic, because the institutions themselves are not able to stop this kind of conduct from happening?” I think it’s a really important conversation that needs to be happening.

Preet Bharara:

What’s remarkable to me about it and is kind of disconcerting and disappointing is that you would think that an individual officer in the country right now in the wake of George Floyd and other people, but particularly George Floyd and how much reaction there has been, that a police officer has in their mind this thought, “I don’t want to be the next person to engage in that kind of brutality that’s inexcusable.” It’s unclear if it was one officer or two officers who shot at this point.

Preet Bharara:

Notwithstanding all the publicity, notwithstanding all the new training, notwithstanding all the criticism, this officer when there were opportunities to deescalate or maybe even if they thought they needed to take Jacob Blake into custody before he reaches his car, he shoots anyway. So, it’s kind of upsetting to think that among other things that should cause people to have pause is the publicity and universal condemnation of what happened to George Floyd, it still happens.

Anne Milgram:

Right. I mean, that’s my point is that even individually knowing is a terrible thing to do, institutionally having a police chief say, “It’s a terrible thing to do,” it’s still happening. I would suggest that folks watch just for an example of like the counterfactual of how this can be done. There’s a great video and this is one of countless examples… I’m sorry to always like hold up, Camden, but it’s really, we’re seeing the man who’s mentally ill, he has a knife. Basically, the police officers follow him down the street. They ultimately disarm him, and it ends without any violence. But it is a classic thing to watch that the officers have countless opportunities and he’s armed, remember?

Anne Milgram:

Whereas Blake, there’s no evidence at all that he was armed or that the police believed he was armed, at least from what we know at this moment in time. Again, the other individual in Camden was a threat to other people more directly than Blake, it looked like was trying to leave. So, when you counterbalance that and you watch that video and you see that the police officers acted strategically, tactically, they have proper training, they surrounded him, but they did so in a way that was safe to them. That basically stopped him from being able to hurt somebody else. Eventually, it goes on for like nine minutes. He basically relents. He drops his knife and he’s taken into custody.

Anne Milgram:

So, the idea that there’s only one way to do this and that involves using a service weapon and shooting someone to stop them from getting in a car to leave. The only other thing I’d say, Preet, is like I imagine… We don’t want to fill in the blanks here. We obviously want Blake to be able to speak for himself. I hope to God that he’s well enough and recovers. But there is this point of he’s also been watching the news. He’s also been watching Derek Chauvin murder George Floyd. So, the police officers telling him to stop, he doesn’t think he’s doing anything unlawful, right?

Anne Milgram:

For the police officers to actually use force to stop you, it can’t just be that they want to talk to you, right? They have to have a higher level of suspicion. So, he basically is probably thinking in his mind like “This is going to go badly. I don’t want to have this interaction with the police. It’s potentially dangerous to me.”

Preet Bharara:

Yeah, well, if they detained me… Look, George Floyd wasn’t shot. George Floyd was detained and put in the ground with Chauvin putting his knee in the back of his neck. That’s what killed him. So, yeah, maybe Blake was like, “This is not going to go well for me if I obey, because it didn’t go well for Floyd.”

Anne Milgram:

I’m not saying here that he shouldn’t comply with a lawful police order. I think what it says to me is that there’s a huge issue of legitimacy. Meaning that a large portion of the population is going to be fearful of complying with a police command, because they have seen what happens to people who do.

Preet Bharara:

Non-compliance is not a better option as we see.

Anne Milgram:

No.

Preet Bharara:

Although the officers are going to argue or suspect that they weren’t trying to prevent him from leaving, but rather… This is just a hypothesis of mine. … they’re going to say, “He went into his car and we didn’t know if he was reaching for a gun in the car.

Anne Milgram:

If he had a weapon, exactly, exactly.

Preet Bharara:

Once he’s going in the car, maybe he was going for the glove compartment. That’s all speculative, but there was no reason based on the video that I saw that it should have gotten to the point where he walks around to the side of the car. By the way, they’re firing shots with three kids in the backseat of the car.

Anne Milgram:

Right, that could have hurt them.

Preet Bharara:

So, any action taken should have been from the automobile, it seems to me.

Anne Milgram:

Yes, yes.

Preet Bharara:

Anyway, I’m sure a lot of facts will develop. I don’t know if you’ve seen reports whether there were body cams on the officers.

Anne Milgram:

I don’t believe that there were body cams. At least if there were, they have not been released. Remember, this is a pretty small city. I don’t know they have body cams. I do think that one of the things we’re seeing is that when people have cell phones and they take these videos and these audios, it completely changes the national conversation. It’s a different level of accountability. I mean it is one of the best advertisements for both body cams and police dash cams that record everything and requiring the officers to park basically with a view, so you’ve got multiple cameras.

Anne Milgram:

Also, a lot of cities and I don’t think this is one of them, but a lot of major cities have CCTV set up basically for crime fighting purposes. That also needs to be used in these cases to be capturing and holding officers accountable for misconduct.

Preet Bharara:

I understand the two of the officers have been placed on administrative leave. Again, we’re talking about this early on Tuesday. Maybe the facts will change by the time you listen to this. We’ll be obviously looking at this closely and talking about it next week, I’m sure.

Anne Milgram:

Yes.

Preet Bharara:

So last week, we spent most if not all of our time talking about the US Postal Service. The Postmaster General, about whom much has been said, Louis DeJoy appeared to two hearings last Friday. He appeared in the Senate and yesterday, Monday, August 24th. He appeared before the House Oversight Committee. So, did we learn a lot from Mr. DeJoy, Anne?

Anne Milgram:

Well, we did not learn that much aside from learning that he actually doesn’t know nearly as much about the agency he runs as you would expect. Let’s break that down in a minute. But remember that after we taped on Tuesday, the Postmaster General made a statement saying, “I’m going to delay the changes.” He didn’t say he was going to undo the changes he had made since he came into office in June, but he basically said, “I’m going to hit pause.” I think you might have talked about that a little bit.

Preet Bharara:

Do you notice that I had to… Because it kind of undid some of what we talked about, I recorded-

Anne Milgram:

That’s right.

Preet Bharara:

… a disclaimer while I had no power. Power went out of my house.

Anne Milgram:

That’s right. That’s right. So, we then came into Friday’s hearings with the Senate basically with this idea of “Okay, DeJoy is going to explain what’s happened and what hasn’t happened.” But the things that I think are worth noting are number one, that even though he said he’s committed to prioritizing ballots, but he wasn’t willing to go back and undo the work that has been done, the things like taking sorting machines out of commission. He did stop them from taking away other mailboxes, but he did not commit to putting them back in the place where they were before.

Anne Milgram:

What also has come out is that if you just look at the numbers, the mail delay really does correlate almost exactly with his starting in office. So, what troubled me about the hearings, and particularly yesterday’s hearings, is that he basically blamed other people for all of it and said, “Stopping overtime was in the works for a long time. I didn’t do it.” He was asked by Representative Katie Porter who did it and he said, “I don’t know.” I mean, it just belies credibility for him to be up there as the head of the agency.

Preet Bharara:

He said a couple of positive things. I don’t know how much to credit him, but he did say he supports mail-in voting. He also did say, quote…

Louis DeJoy::

As we head into the election season, I want to assure this committee and the American public that the Postal Service is fully capable and committed to delivering the nation’s election mail securely and on time.

Preet Bharara:

He said that before the Senate. There’s a big difference between words and deeds, though.

Anne Milgram:

Yes, but one other thing he did also say that I think was important is that as a rule… Again, you don’t get points for doing the right thing, but it’s still welcome news. For years, the Postal Service has treated ballots, absentee ballots, whether they’re being mailed or being sent-in as first-class mail, even if someone hasn’t paid for that level of service, that level of speed. And then this year, they said for the first time that they were not going to do that, that if you bought sort of bulk mail rate to mail out an absentee ballot, a mail-in voter ballot, that they would not treat that as first class, which had been the practice. So, he also reversed on that and said that anything election related, they’ll treat as first-class mail, which should mean that it gets delivered more quickly. So, that was also positive.

Anne Milgram:

Again, he’s the one that made that change to sort of put that in jeopardy. So, I don’t know how many points we should be giving him for going back to what was the status quo, but it’s still important to note that there’s been a lot of public pressure, people of the post office, people need to get mail, medication. This was a victory in some sense that it did appear, at least to me… I don’t know what you thought. It did appear to me that the scrutiny has made a difference and he’s stepping back from some of the more drastic changes. The problem still to me though, Preet, is he basically said, “We’ll authorize overtime as necessary.” Who gets to decide what’s necessary? There’s just so many pieces that feel to me like-

Preet Bharara:

I worry that he said what he needed to say to sort of save himself. Some of the rhetoric was good, but the proof is in the pudding, as they say. Look, on sort of concrete measures, he flatly refused to do certain things like Democratic Representative Stephen Lynch said, “Will replace the 600 some odd sorting machines that had been removed?” He just said flatly, “No, I will not,” not putting them back. I don’t quite understand why not if they’re capable of handling huge amounts of mail in efficient way.

Anne Milgram:

Another thing that was troubling to me is that when Representative Katie Porter… We talked about it, she said she was coming prepared and she definitely did come prepared. She asked him, “How many vote-by-mail ballots were there in the last election?”

Preet Bharara:

So, we previewed what we thought would be the case when Katie Porter came time to ask her questions. I just said she said she came prepared, and afterwards, she tweeted, “Spoiler, DeJoy did not.” I think we should actually showcase some of the back and forth between Porter and DeJoy. Do you want to play the part of representative Katie Porter?

Anne Milgram:

I would prefer that part. Yes. If I get to choose, yes. If we’re casting.

Preet Bharara:

Next time we do this, I want to play the good guy.

Anne Milgram:

Okay, we’ll swap. What is the cost of a first-class postage stamp?

Preet Bharara:

55 cents.

Anne Milgram:

What about to mail a postcard?

Preet Bharara:

I don’t know.

Anne Milgram:

I have so much I want to say.

Preet Bharara:

We’re getting to the laughing town early.

Anne Milgram:

What if I want to mail one of those greeting cards? That’s a square envelope.

Preet Bharara:

I’ll submit that I know very little about a postage stamp.

Anne Milgram:

Do you know about within a million or so, can you tell me how many people voted by mail in the last presidential election?

Preet Bharara:

No, I cannot.

Anne Milgram:

To the nearest 10 million?

Preet Bharara:

I would be guessing, and I don’t want to guess.

Anne Milgram:

Okay, so Mr. DeJoy, I am concerned. I’m glad you know the price of a stamp, but I am concerned about your understanding of this agency. Could you please tell me who did order these changes if you as Postmaster General did not? If you did not order these actions to be taken, please tell the Committee the name of who did.

Preet Bharara:

I do not know.

Anne Milgram:

That about summarizes.

Preet Bharara:

Case closed.

Anne Milgram:

Case closed. That about summarizes how it went. I think the issue here to me is, first of all, it’s incredible to me that you would show up for a hearing like this and not be prepared on all of those things. But put all that aside just for a second about terrible government service where the people should demand and expect a higher level of knowledge, the problem is that if he’d come in and just started running an agency even in June and walked in and said, “Look, I don’t know all these things,” if he hadn’t made changes, we would give him the benefit of the doubt, right?

Anne Milgram:

We would basically say, “Okay, well, you don’t know those things, because you just started.” But the fact is he’s dramatically shifted the organization in serious ways that have led to a spike in mail delays. For him not to be able to then answer those questions, it’s like, what did you base the changes you made on if you don’t know anything about the agency that you’ve run?

Preet Bharara:

We should talk about strategy for a minute, because we’re both lawyers and spend time in the courtroom. We think both of us that Katie Porter is very effective. Part of what made it effective is that she exposed the ignorance on the part of DeJoy. I’ve been wondering, and I’ve been waiting to ask you this question. What if DeJoy actually didn’t know the prices of the stamps and he didn’t know the numbers of people who voted by mail? That’s something that members of his staff you would think would have prepared him for, if not prepare himself as the head of the agency. If he had known the answers to those questions, would they have come off as sort of petty gotcha and made the whole session much less effective? How do you think about, just as a pure-

Anne Milgram:

Like legal question?

Preet Bharara:

… [crosstalk 00:22:20] cross-examine?

Anne Milgram:

Yeah, that’s a great question.

Preet Bharara:

You have this strategic question. You’re thinking with your staff, “You know what? I bet this buffoon doesn’t know anything about the agency. I’m going to ask him this most simple questions about the prices of stamps.” You would think a member of the staff, I would have said, “Well, yeah, Congresswoman, that would be very effective, but maybe he does know. How’s that going to look?” What do you think?

Anne Milgram:

So, I think, look, we’ve seen her question a few times that I’ve really focused on. I haven’t watched enough to know the sort of depth of her ability. So, I want to sort of caution that, but now, let me tell you what my immediate takeaway was. These are kind of questions of like, well, how much do you really know? How connected are you really to the agency? By the way, if he had answered 10 or 20 of these in a row… I used to do the state legislative testimony on our budget. The more questions you can answer correctly, the more people know, like, “Oh, they know their stuff.” They sort of move on.

Preet Bharara:

They lay off of her.

Anne Milgram:

They lay off. So, she-

Preet Bharara:

She have probably would have-

Anne Milgram:

She would have throttled back. I think she had a bunch of lines of questions set up. Another one, which is this, basically, the decision about cutting over time and that’s a great example of like a cross-examination avenue. Because at the end of the day, there’s a direct correlation, he cuts over time, seniors are waiting. There have been all these testimonials. There’s data that shows the mail delays have gone up. There’s all this anecdotal testimonial, qualitative evidence that seniors are saying, “I had to wait for my mail. I had to go put money out of my pocket instead of getting it through my health insurance because the mail didn’t come in time.”

Anne Milgram:

So, ultimately, that’s a very winning line of argument. Here, it became really interesting, because he was basically like, “I didn’t do it. I don’t know who did it.” So he looks completely incompetent. But there’s another version that that could have gone where he said, “Yeah, I authorized that, because I think people are inefficient. I want them to be more efficient. So, if I cut overtime, I think they’re going to be more efficient.” And then you go through cross-examining like you’re willing essentially to have an 85-year-old person who needs heart medicine go without that medicine. There’s no other way you can improve the function of your agency. By the way, what’s your proof that the overtime is what’s causing the inefficiency?

Anne Milgram:

So, I think it would have been a much more complicated train of cross-examination, but there were a few points that are just really the facts are irrefutable. But again, I think I go back to my initial point of how prepared was she? How able would she have been able to do that? But I think I wonder if you agree with this. She knows how to ask the second and third question, right?

Preet Bharara:

Because she listens.

Anne Milgram:

Yeah.

Preet Bharara:

She listens, and the questions are short. There’s another example. We also previewed how we thought… I think we mentioned this. … how AOC, Alexandria Ocasio-Cortez will do. She doesn’t have legal training. She gets mocked by Republicans for having been a bartender. I think she is one of the most effective questioners in the entire body.

Alexandria Ocasio-Cortez:

Mr. DeJoy, you’ve received about $1.86 million in rental payments from your former company XPO, correct.

Louis DeJoy::

Proximately yes.

Alexandria Ocasio-Cortez:

Have you taken any meetings with XPO Logistics since becoming Postmaster General?

Louis DeJoy::

I have not.

Alexandria Ocasio-Cortez:

Have you emailed, texted, called, video conferenced or communicated with your former company, XPO Logistics?

Louis DeJoy::

I have many friends at the company, and I’ve spoken to them casually over the last several months. Yes, I probably would have spoken to them.

Alexandria Ocasio-Cortez:

Thank you.

Preet Bharara:

She’s like taking a deaf deposition. I mean, that is a very high compliment. She had I think mostly trained her fire on one topic and that is meetings the DeJoy might have had with people from his former company, because there’s perhaps a conflict of interest. She asked him repeated questions about his calendar, whether he keeps a calendar, who has access to the calendar, whether he will provide the calendar to the Congress. It wasn’t showy, but it actually has the effect of being kind of dramatic, because there’s simple focused questions, getting to facts. [crosstalk 00:26:25].

Anne Milgram:

Yeah. She pinned him down, and he said, “No, I won’t provide it.” So again, when you put all this together, they I think were effective at making him look like he doesn’t know what’s happening at the agency or he’s lying about that, one of two things, either which is bad. He’s not willing to provide the kind of transparency that the legislators are asking for to know look, “What’s really going on? You say that you’re going to be mindful of conflicts. How often are you seeing these people?” I think that they both were very effective. I agree with you.

Anne Milgram:

Now, I guess we go back to the same point though, which is he did his time. He went before the Congress. The House passed a bill basically called Delivering for America Act asking for an additional $25 billion funding infusion for the Post Office. It sounds like McConnell will not take it up in the Senate, but the one thing that was interesting is that some Republican House members switched sides and voted for that bill. That’s something we have not been seeing a lot of. So, I think that-

Preet Bharara:

I think, 2026, right?

Anne Milgram:

Yes, and I think the Post Office-

Preet Bharara:

Not a ton, but it’s not small.

Anne Milgram:

Everybody needs the Post Office, everybody relies on the Post Office. So, I guess the question in my mind is… I guess there are three questions. One is has he already done so much damage that there will be problems with voting? Two, does he stay true to his word and basically saying he’s not going to make additional changes? Three, if anything goes wrong, will it be too late by the time we find out?

Preet Bharara:

So, something else happened since we last taped. I went in and I had to do it on my own because you were taking some well-deserved days off.

Anne Milgram:

Thank you.

Preet Bharara:

I taped 15 or 17 minutes about the indictment of Steve Bannon and three others. I know it must have caused you some pain. Even though you’re enjoying your time with your family, it must have caused you some pain not to be able to weigh in on this craziness. So, just to remind people very quickly, then I want to hear your take, because I spend a bunch of time reacting already.

Preet Bharara:

Steve Bannon and others arrested on one count of conspiracy to commit money laundering and one count of conspiracy to commit wire fraud in connection with this effort to raise money to build a wall, on the southern border that Donald Trump has told us was going to be paid for by Mexico. So, the whole thing is bizarre. And then Steve Bannon is arrested on a Chinese dissident like $30 million yacht, this populist. It’s kind of nutty. Do you have a reaction, Anne?

Anne Milgram:

Yeah. It’s very nutty. Well, the first thing I’d say is I woke up to the news and I was less surprised than I would have expected myself to be. I think that just goes to the fact that I don’t know whether Bannon is the sixth or seventh member of the President’s inner circle that’s now been indicted and charged with crimes. But I’m going to use it here, Preet. That’s an extraordinary thing to have that level of people and ran the campaign for a period of time. He was the Chief White House strategist. His reported net worth is very high. He’s worth millions of dollars in assets and to his name.

Anne Milgram:

So, you see something like this, and I should be stunned by it. Yet, in some ways, I was not surprised at all. We’ve talked about this on and off over the past four years, but it’s like the President surrounded himself with almost grifters, a sort of high-end version of folks who are out to basically profit themselves personally. They are furthering an agenda to some extent, but they’re also really about themselves and their own personal gain. We could argue that’s also true the President, but just to see it and having read the indictment… I mean, it’s also worth-

Preet Bharara:

It seems strong to you, right? It seems strong to you.

Anne Milgram:

It’s really strong. It’s really strong. People probably know this because you and I talk about this a lot. But fraud cases that are paper cases where you have bank transfers and you have wires and you have text messages back and forth between people saying, “Keep this confidential. Don’t talk about this.” Those cases are very, very hard to beat, because it’s not like where you have a witness in a “he said, she said” right? Where there’s like one witness that says something, the other witness says no. You’re relying on the jury believing your witness. But here, you don’t need to believe the witnesses. You basically can follow both the money and the paper trail.

Preet Bharara:

There’s two things, right? It’s strong, and it’s also simple.

Anne Milgram:

Yes.

Preet Bharara:

It’s very easy to understand. They said over and over and over again, “We’re not going to take a penny, no salary, not going to take a penny, no salary.” And then you have documents that show they took a lot, a lot of pennies. They took a lot of, a lot of salary. They speak for themselves. Sometimes you have complicated frauds that involve technical accounting principles and how you monetize assets, etc. Sometimes you have to have expert witnesses come in and testify about that. Everyone understands this was a charity. We said, “We wouldn’t take a penny.” We took a million dollars or more. Case closed, right?

Anne Milgram:

Yeah. I mean, and then you start to think about what are the possible defenses. I mean, one defense, which they I think will try is, “Well, he was entitled to his salary. It didn’t impact whether or not people made the decision to give money to the charity.” But we know that’s not true. We know that they’re from the indictment, which is a lengthy indictment, right? It’s a speaking indictment. Meaning that the government wanted to put a lot of the facts out there, so the public would understand what was happening and why. But it basically says that there were people who reached out and their contributions to the charity were contingent on believing that all their money was going to actually go toward building the wall and not towards salaries.

Anne Milgram:

The bottom line is if it didn’t matter and he wanted to get a salary, they would have just said that. If they believe that that was the right way to approach this, to raise money, they would have done that. They didn’t do it and they went out of their way. Bannon is on record saying, “This is a volunteer organization.” So, my question for you, Preet, is “Does Bannon cooperate?” Because these are serious charges. They’re simple, but I think they’re very strong.

Preet Bharara:

I don’t know. I keep getting asked that question. I’m sure you do. Every time there’s a case like this, the question is, “Will someone flip? Will someone flip on the President?” Roger Stone obviously did not and may have received sort of in-kind benefit for that, the commutation of a sentence. Michael Cohen kind of tried to cooperate. For various reasons, maybe he was considered unreliable or unworthy. SDNY did not sign him up as a formal cooperator. Steve Bannon is kind of a sketchy guy. In various ways, he might have substantial assistance abilities with respect to some other business partners of his, with respect to an associate of Trump, with respect to his co-defendants. Remember, he’s not the top defendant on the caption.

Anne Milgram:

Right, Kolfage is. Yup.

Preet Bharara:

It’s Kolfage. Ordinarily, it’s not always the case. He just is the most famous one. You will sometimes want the cooperation of people further down on the caption to cooperate against the people who are further up on matter. What do you think?

Anne Milgram:

Well, I think the other piece is that, so I think Kolfage, for defendants, he is the top defendant. So, Bannon and two other defendants are the lesser defendants. I think it’s very likely one of those three cooperates. So, once you get to that point, if you’re Bannon, you know that the likelihood of your conviction I think is very high. So, he’s either got to gamble for a presidential pardon, which I think of course is possible here. We just saw it obviously with Roger Stone had his sentence commuted. I think it’s possible that he takes that gamble, but this is different. The Stone piece, the Flynn piece, the Manafort, all that has relates…

Anne Milgram:

Again, the President’s only so far done Stone, but it all relates to the President’s narrative of the 2016 election was fine. The Muller investigation was a witch hunt. So, it sort of fits into the President’s public statements. This is very different, right? This is related something the President was doing. I think it’s a lot harder for the President to get involved in this. Again, the President doesn’t really see limits, but it just feels to me like a harder gamble. So, then you get to the point of “Will he cooperate or not?” I think that there’s a decent possibility that he does.

Anne Milgram:

Again, it’s hard to know this, but also, what do you make of this defense? I mean, the immediate defense is, this is politics. They’re doing this to get back to President Trump. They don’t like the wall, right? That is essentially a really bizarre defense to walk into trial, which is basically saying, “Yeah, we broke laws, but they’re only prosecuting us for politics.”

Preet Bharara:

It’s a rhetorical defense. People use it. People will say, “It’s a witch hunt.” They’re saying they don’t like Donald Trump and they’re trying to get back at people who don’t like Donald Trump. Steve Bannon is mouthing off against the SDNY and saying, “It’s a political hit job.”

Steve Bannon:

This was to stop and intimidate people that want to talk about the wall. This is to stop and intimidate people that have President Trump’s back on building the wall.

Preet Bharara:

To my mind, I’m like, “Blah, blah, blah.” Anyone who knows anything about the Southern District knows that that’s not how it operates. It charges more Democrats than Republicans historically, certainly during my tenure there. I’m not sure how much you can even make that argument to a jury. This is something he’s saying to the press, because they don’t have much other defense, it seems to me. I also think it hurts his ability to cooperate. Prosecutors are people. If you’re going to go around and crap on the motivations and the integrity of the prosecutors, it makes you a more volatile witness. That stuff comes back to haunt you later if you’re a witness for the prosecution. It also maybe signals that he’s take-no-prisoners guy. He referred to himself as a honey badger.

Steve Bannon:

I am not going to back down. This a political hit job. Everybody knows I love a fight. I was called honey badger for many years. You know honey badger doesn’t give.

Preet Bharara:

I think he will find that the true honey badgers are the people in the US Attorney’s office. You will likely-

Anne Milgram:

I had to look up the honey badger reference.

Preet Bharara:

Don’t you know about the honey badger?

Anne Milgram:

No, I didn’t know about it. Have you explained it to our listeners?

Preet Bharara:

I’m trying to do it in a way that’s Rated G. The honey badger is famously one of the most fearless, perhaps stupidly fearless animals in the wild. There’s a viral video from a few years ago in which someone is playing the part of a honey badger who’s speaking and basically saying, “Honey badger don’t give a (beep) about anything and will tangle with snakes, will tangle with stinging bees, because honey badger don’t care.” Steve Bannon is likening himself to that honey badger. People can talk a big game when they’re out in the public and they’re not being detained. Once you get in the courtroom, it’s not so easy.

Anne Milgram:

I agree. I also think that it’s Bannon as the individual up against the institution of the government that is built this case against him.

Preet Bharara:

The deep state. It’s the deep state.

Anne Milgram:

Yeah, it’s going to be very difficult to convince a jury a lot of things I think that they’ve sort of floated so far as their defense. The lead defendant, Brian Kolfage, his defense, at least according to his wife, it feels like and to him a little bit so far is, “Look, I had other money. So, when I bought a luxury car, it’s because I had a Range Rover that I traded in,” which really just misses the whole point that if you stole money, yes-

Preet Bharara:

He got $1,000 plus $20,000 a month, that was concealed through pass throughs and shell companies, some of which went to his wife to hide the payments. The fact that you had other fungible money with which you bought your toys and trinkets does not affect your yields. That’s the thing. When you argue these things in the press, you can pick and choose what you want to argue about. But the fact remains the government has to be held to its proof and these people are presumed innocent.

Preet Bharara:

But in my experience, you don’t put an allegation, especially in the indictment, that you can’t prove. Usually, it’s the case, by the way. It’s almost always a case that what you see in the indictment is the minimum of what they have. Their bank work clearly was extensive. There’s a whole asset forfeiture section at the back of the indictment listing with specificity and bank account numbers, account after account after account. The US Attorney’s Office has seen all of this. The investigation goes back to at least October of 2019 and probably many months before that.

Anne Milgram:

Yeah. What do you make of the search warrants? I mean, it was reported that there were five or six search warrants that were also executed on that day. So, they have-

Preet Bharara:

They’re going to get more evidence than that too.

Anne Milgram:

They’re going to get more evidence. Yeah.

Preet Bharara:

A couple other things I want to get your reaction to. There is conflicting reporting about what Bill Barr knew about the case and what he knew it. Bill Barr himself has said, “I was briefed on it a few months ago,” which would indicate that he knew about it before Geoff Berman was removed. But then there’s other reporting that says when Bill Barr said months ago, since Geoff Berman was removed two months ago, he didn’t mean before that. He only found out about the case after. That actually comports with my sense of things. I’ve been asked the question, “Was there any obligation on the part of the US Attorney and SDNY to get approval from the Attorney General?” I cannot think of any. I mean, sometimes-

Anne Milgram:

Yeah, on a fraud case.

Preet Bharara:

When the relationship is decent and you’re not worried about being interfered with, you just give a heads up, but the only thing that makes us different from any other garden variety charity fraud that you and I have both prosecuted is the fact that one of the people is kind of a former Associate of the President.

Anne Milgram:

Yes. I think that these are great points. The times the DOJ has to be notified, there are specific statutory requirements. There are DOJ rule requirements that basically say, for example, in human trafficking case, “Local US Attorney’s Office could not indict a case without giving notice to the Department of Justice.” The reason was at that point in time, it was a very new law. They wanted to make sure that it was correctly prosecuted and done in a fair, uniform way. Terrorism obviously is something you would not prosecute without notice and approval to the Department of Justice, but most cases, you do not have to give approval to the Department of Justice. So, I agree completely. It’s a garden variety fraud case. It’s a pretty straightforward fraud case.

Anne Milgram:

The only difference here is Bannon… I don’t know this, I have zero inside knowledge, but I suspect it was more like, “Look, we’re investigating this guy, Brian Kolfage. We believe he may be associated in some way with Steve Bannon. There are a number of other individuals. We’re looking at all of these folks, but not in the weeds of the investigation. We don’t want you to be surprised if something leaks or if we get to a point where we’re going to return indictments or we’re going to give you a little bit of knowledge.”

Anne Milgram:

And then what I wanted to ask you about is the public reporting is really interesting. Because as you and I both know, you can go into a grand jury, ask for an indictment to be returned and do it under seal. Meaning that it’s not public yet. And then at some point, you unseal that indictment and then it becomes public. So, there are a variety of reasons that you would have a sealed indictment, and that it wouldn’t be unsealed until you’re ready to be public. But here, it looks like from the public reporting that they gave notice to Barr last Thursday when the charges came down, that they were about to announce the indictment. That it was about to be unsealed, which means they’d already done the grand jury, which means he couldn’t really walk it back. Does that comport with your feeling about it?

Preet Bharara:

Yeah, I think that’s right. So, I want to be careful because I don’t know… Because SDNY doesn’t leak and talk about these things. … what the communications were, when they took place, how detailed they were. But look, I think this is an unfortunate thing, right? You want it to be the case that a local US attorney… By the way, US attorneys, for the most part, not recently, are independently confirmed by the Senate. Yes, they are within the auspices of the Justice Department, but they have an independent aspect to their tenure as well. They’re not supposed to go rogue and do nutty things and violate policies and direct orders. I never did, but I also felt it’s important to exercise my own independent judgment as the leader of that office, accountable to the public in my district also.

Preet Bharara:

If you have an Attorney General who again and again and again seems to have interfered with only one kind of case, cases that involve associates of the president like Roger Stone and Michael Flynn, you might think twice about overindulging notifications to the Justice Department. Some people may find that controversial, but there was no policy violated if notice wasn’t given as you have said. When you have something like the track record of Bill Barr, maybe you don’t go above and beyond the call of duty and tell him about everything you’re doing, because of what you’ve seen him do before.

Anne Milgram:

I mean, it’s not clear to me when Barr was given that first heads up, whether it was before or after Berman left. But remember, we said at the time that Berman was pushed out, that it could be an investigation related to what we know about is happening, things like Rudy Giuliani that it’s been publicly reported, is been the subject of investigative steps by the Southern District, but it also could be something that we had no idea was coming. This sort of falls into that later bucket. So, whether or not it happened before or after Berman was removed, I think given Berman’s removal… Even if they gave Barr notice after, when you think about Berman’s removal, remember, they tried to put in you know a civil lawyer from the SEC.

Anne Milgram:

It was never clear why the timing was what it was. They were trying to in the interim put in a loyalist, the New Jersey US attorney. So, it smelled really badly. So, all of those reasons are reasons for the woman Audrey Strauss, who’s the acting Head of the Southern District for her basically to be incredibly cautious with Barr and frankly, distrustful to assume that a bad result could happen if she wasn’t cautious. So, to really play it straight down the road and not let Barr interfere.

Preet Bharara:

Can we talk about the victims for a second? So, I put out a tweet when we put out the special episode last week, in which I said, “Look, regular people were hurt by this fraud.” As you pointed out, the indictment says, “Look, there’s some folks who didn’t have a lot of money and they had to be induced into giving money to this cause,” whatever you think about this cause. You and I might have a particular view that’s different from the victim’s view about building a wall. We’ve gotten a couple of responses by Twitter that I’ll read, and we should address.

Preet Bharara:

Twitter user @HighSierra6100 writes, “I have a hard time feeling sorry for the MAGA’s that lost their money. Anyone with an IQ above room temperature understands that Trump surrounds himself with grifters, yet they choose to support him, and in this case, send money.”

Preet Bharara:

Here’s another one from Twitter user @iasnowflake, good name, “No, they aren’t regular people. They are racists who fell victim to their own ignorance and nastiness. They exploit the circumstances of immigrants and were exploited in return. Sounds like karma to me.” Now, you and I have prosecuted frauds where you have gullible victims. It happens all the time. On the one hand, it is bizarre, right, that this thing that Mexico is supposed to pay for that is the responsibility of the federal government. That in a week, this is maybe also one of the things that’s

Anne Milgram:

$17 million.

Preet Bharara:

… brought the fraud that you didn’t expect.

Anne Milgram:

Yeah.

Preet Bharara:

17 million buckaroos.

Anne Milgram:

Yeah.

Preet Bharara:

Can I say buckaroos?

Anne Milgram:

Of course.

Preet Bharara:

In a week. Maybe look, this is not an excuse. They thought, “Holy crap, we’re getting a lot of money. Why can’t we skim some off the top?” It a little bit insane thinking about it just as a casual observer that there are people in small amounts who gives so much money for building this wall on the southern border. I bet many of them don’t even live along the southern border. So, there’s something bizarre about that, the depth of feeling about having a border wall, which many people think is just not effective and causes all sorts of other problems, even when the President that you support has failed. Now we’re going to take private money to do this. So, on the one hand, that is true, but on the other hand, victims are victim. How do you think about that?

Anne Milgram:

I come down as the victims are victims part, because we can completely disagree on the goal of the organization to build the border wall. Also, let’s just step aside and say, it’s really bizarre. The government could not accept that private money, which is why they ended up building a private section of the wall that’s less than five miles and is apparently falling into the river. So, the whole thing turns out to be a disaster. So, the whole thing, the whole construct is just really… I think it was meant as probably a political way to sort of garner some support. And then all of a sudden, all this money came in. It’s like, “Wow, we could actually try to use this money, in part to build a part of a wall and also to line our personal bank accounts and enrich ourselves.”

Anne Milgram:

But when it comes to the victim piece, I think and there’s already been some of this in the news, which is people saying, “I would have given the money anyway, right? Like, I don’t care. Those guys deserve to make a little money.” So, there’s a little bit of this idea is going to be people are going to push these people really weren’t victims. But the bottom line is when someone makes a material representation, saying, “We are going to take 100% of what you give and give it to the wall,” and then they lie and they cheat and they steal, that’s a violation of the law, regardless of what the underlying purposes, regardless of whether or not you think that people should have known better.

Anne Milgram:

One of the victims here was a seven-year-old kid who clearly thought “I’m contributing to something I believe in.” We can disagree with what he believed it, but the idea that his money would be taken, so Steve Bannon can sit on a yacht or buy a car or Kolfage can put money down on jewelry and plastic surgery, we can’t get to the point where we discount victims because of their political beliefs. So, I feel pretty strongly about that, just as I feel like there’s nothing to be…

Anne Milgram:

Someone asked me the other day, “I’m really happy about the Bannon thing. Is that wrong?” I said, “Look, for me as a former prosecutor…” You probably feel the same way. “… it’s about the law and the facts.” Look, I wasn’t surprised in many ways. I’m always disappointed. I’m always a little bit shocked that people risk spending 20 or 40 years in jail to basically steal amounts of money to people to buy luxury cars like Kolfage had a Range Rover. Was that not good enough for him? He needed more. I mean, there’s a greed to this that’s always a bit-

Preet Bharara:

It’s very hard to understand why some people who have a lot of money commit fraud when they don’t need the money. It’s also by the way, sometimes the case that people who look like they have money don’t, that it’s all house of cards.

Anne Milgram:

Smoke and mirrors, right. Yes.

Preet Bharara:

That’s happened with wealthy people before, people that that we prosecuted that I write about in my book. I don’t know if that’s true with these folks. But we should also just make clear and it’s implicit in what we’ve been saying, the allegation is not that all $25 million was blown on personal toys for the defendants. A lot of the money was used, but a significant portion of it was pocketed. In the face of representations that not a penny would be pocketed, that’s the fraud. So, there’s some wiggle room, I don’t think effective wiggle room, but there’s some wiggle room for the defendant to say, “Look, here’s what this money did. We applied this money to do all these things and to get construction materials and everything else.” That misses the point. So, prosecutors will have to really hone in on that.

Anne Milgram:

I agree. That’s going to be a key part of the trial. So, Preet, as we sort of get toward the election and it’s coming quickly, there was news in John Durham, the Connecticut US Attorney’s probe. You remember that Bill Barr started this some time ago saying, “You want to look into the origins of the 2016 investigation into the Trump campaign.” The FISA that was brought against Carter page initially as part of what turned into the FBI’s intelligence investigation, later turned into a criminal investigation.

Anne Milgram:

But last week, we had one of the first developments where one of the FBI lawyers… This was reported over a year ago in the inspector general’s report, but one of the FBI lawyers basically was charged with and pled guilty to altering an email related to… I think it was the fourth FISA application when they were trying to renew the FISA application on Carter page. So, what do you make of this? Is this evidence of more serious wrongdoing? How should we be thinking about this in the context of the Durham probe and the President and Barr’s attack on the 2016 investigation into the Trump campaign?

Preet Bharara:

Yeah. So, look, it’s not good. Kevin Kline Smith not only was accused of committing a crime, he decided to plead guilty to it. The standard that we have always talked about, whether it’s Michael Flynn or any other cases, if you accept responsibility and you are prepared to allocute, meaning confess what you did in your own words, and the judge accepts the guilty plea as was done here, it’s a crime. A crime is quite serious no matter what. But if you’re a law enforcement official, he wasn’t an FBI agent, but a lawyer within the Federal Bureau of Investigation, that’s a bad thing.

Preet Bharara:

He had no excuse for passing along what looked like an email from another party over to a Supervisory Special Agent. He added a phrase that was not in the original communication, in fairness to him, meaning the defendant Kline Smith, he says that the thing he added comports with his understanding of the facts, which is that Carter page was not a source for the CIA. There’s some controversy about that and some disagreement about that, but it is true that he altered the document. This doesn’t mitigate the fact that he’s guilty of making a false statement. But Kline Smith does says quote at the time, “I believe that the information I was providing in the email was accurate, but I am agreeing that the information I inserted into the email was not originally there and I inserted that information.”

Preet Bharara:

So, bad, crime. Yes, acknowledged and pled guilty to. Not pleaded guilty to but pled guilty to in my mind. The things that are important in respect to the whole broad question that you asked, and that people consider, this was not the original Carter page FISA application. This was I think the fourth one. On June 15th or so of 2017, there was no finding in connection with this case or on the part of the Inspector General, that there was something decidedly wrong with the origins of the Russia case.

Preet Bharara:

We’ll see if John Durham has something more to say about that. So, there’s nothing in this thing that shows that there was a broader conspiracy to do something bad. This was terrible judgment and in fact felonious conduct on the part of an individual lawyer at the FBI, not to be minimized, but also not to be overstated.

Anne Milgram:

Yeah, I guess I would add two things. The first is that it feels to me hard for anyone to argue that this undercuts the 2016 investigation of the President’s campaign. Remember, Muller’s investigation led to a number of charges against Russian individuals for interfering in the 2016 election as well as some of Trumps associates. But what’s important here is that this representation, this email went to Carter page who has never charged and really goes nowhere as part of that investigation, either the investigation of the Trump Organization campaign or of the administration and the actions of the Russians and the president.

Anne Milgram:

So, I think it’s important to know this is basically a road to nowhere. It’s an indication of something that happened with regard to a FISA application that should not have happened. I agree with you completely. This was terrible judgment. I want to just sort of say, it’s not so clear to me that the allocution, the quote you just read from Kline Smith is really admission of a crime. It’s a little bit complicated. So, do I think the conduct was terrible? The answer’s yes. But I think it’s also important to note he had turned over all the underlying CIA materials.

Anne Milgram:

This was sort of like the email that he put on the top where he said, “To the best of my recollection, blah, blah, blah.” And then he doctored the part from the CIA, he inserted, “Not a source.” That was his view of the materials that wasn’t actually what the CIA had said. So, that is a serious misrepresentation, and it is really a problem. The real sort of wrong here is in he could have written just a sentence at the top that said, “Look, I don’t think he was a source.” The reason this is important is that if Carter page was actually a source for the CIA, it sort of undercuts this argument that he was a source or an asset for the Russians, right? If he’s working for the US, it’s sort of hard to believe he’s working for the Russians.

Preet Bharara:

That’s the whole point. That’s why it’s important, I agree. Now, with respect to the overall Dirham investigation, a couple of troubling things. About a week and a half ago, the AG Bill Barr said on The Sean Hannity Show.

Bill Barr:

I’ve said there are going to be development, significant developments before the election, but we’re not doing this on the election schedule. We’re aware of the election. We’re not going to do anything inappropriate before the election, but we’re not being dictated to by this schedule. What’s dictating the timing of this are developments in the case and there will be developments.

Preet Bharara:

Which is worrisome on its own, but it’s particularly worrisome when you have the President of the United States sort of goading him on and hoping that there’ll be some revelation that’s helpful to the President’s election prospects on the eve of the election, which is only 70 some odd days away. Trump said to reporters about 10 days ago, “Bill Barr has a chance to be the greatest of all time. But if he wants to be politically correct, he’ll just be another guy.”

Anne Milgram:

Yeah. So, he’s taunting him to basically say, “Bring charges, bring charges.” This whole idea that they would bring charges now before an election, it’s really troubling to me. Again, we’re really just right up unless we see it within the next week, but sort of September 1st, after Labor Day is sort of the unofficial time that anything that would impact an election shouldn’t be happening within the federal government. Again, you can’t control the states and the locals, but the federal government has a long-standing norm that they don’t want to influence the outcome of an election.

Preet Bharara:

I think it’s a guideline.

Anne Milgram:

It’s a guideline.

Preet Bharara:

I just want to make it clear.

Anne Milgram:

It’s a norm.

Preet Bharara:

There are things that happen that have to happen and then are actually worthwhile happening, but you take the clock of an election very, very seriously. You at least subject yourself to the norm, that if you violate it, you have to have a really good reason. To the contrary, in this case, they’re kind of like boasting about the idea that they’re going to do something significant before an election. It’s not like, “Oh, our hands are tied.” There’s a statue limitations problem.

Anne Milgram:

Right. That would be an exception. That’s a great example.

Preet Bharara:

No, they’re boasting about “Yeah, guess what? We got a lot of stuff coming in. It’s going to happen before the election.”

Anne Milgram:

Well, what’s also-

Preet Bharara:

Sorry, like it or not.

Anne Milgram:

… troubling is that this relates to the last election. So, it is so clearly being engineered in my view to relate to the President and this next election. Again, the President has had a four-year campaign of saying, “I’ve been wrongfully accused. I didn’t do anything wrong. I’ve been targeted. I’m the victim.” So, to step into that, if John Durham does that… I mean, he basically, in my view, has zero integrity, because there is no reason why. I’ve said this before, and I’ll probably say it a million times before November.

Anne Milgram:

There’s no reason why this can’t wait until the middle of November unless it’s something like you’re saying which is the statute is going to run, but to me, that’s an argument. You’re John Durham, you make sure you get everything in before you come close to an election. So, that would just be you almost move the statute up three months in your investigation. So, you know this is the drop-dead date that we have to figure out whether we have a case or not. The other piece just to note is that I sort of feel like from having followed what’s been happening with Durham and with Barr, it almost looks to me like they’re pointing at the CIA and the clients meant peace. I could be completely wrong on this, but it sort of felt like they were looking at the FBI.

Anne Milgram:

The only sort of allegation they’ve come up with and again, we already knew this from the inspector general’s report was this terrible thing that was done by the FBI lawyer with this misrepresentation and an email that was used to get authorization for FISA that ultimately doesn’t lead anywhere, but still was wrong and he pled guilty to the crime. But the overall vibe of this is the CIA wanted was after the President. They were trying to sort of gin up and trick the FBI into basically going up on page, starting this investigation, and that the FBI took the bait. I could be wrong on that, but I feel like as we watch the Durham stuff, my eyes sort of peeled to what’s going to happen related to that.

Preet Bharara:

So, before we end, we had a lot of legal news this weekend, while you were taking some days off. Two quick things, which addressed this continuing saga of Cy Vance trying to get financial material relating to the President, which went up to the Supreme Court, went back down to the district court judge. That has advanced a little bit, right?

Anne Milgram:

Yeah. I mean, the district court judge said, “Cy Vance gets the materials. There’s no basis for these arguments being made by the President.” What does the President’s lawyer turn around and do? He immediately says, “We’re appealing. This is wrong.” So, he’s essentially re-litigating everything. I think it’s going to be heard by the appeals court on September 1st. Vance has agreed not to enforce the subpoena until then, that’s next week, obviously.

Anne Milgram:

But I fully expect that the President is not going to win this. But again, he’s playing a game of process, which is he gets the chance to appeal this, he wants to appeal it. The one thing I noticed that the trial judge, Judge Marrero, he wrote a lengthy opinion. So, he anticipated this. I think we’ll quickly see it go up and come back and that Cy Vance will get the materials, but at least it’s another delay.

Preet Bharara:

And then there was another announcement, I guess, surprises some folks, timed oddly and interestingly, depending on your perspective. For the first day, the Republican National Convention, the New York Attorney General Letitia James asked a judge to order Eric Trump, younger son of the President of the United States to provide testimony under oath and to hand over documents from the Trump Organization about various properties they’re investigating relating to, as I understand it, the possibility that assets were inflated for the purposes of getting loans from banks. That’s something that I think Cy Vance also suggested he was looking at and something that came up in congressional testimony as well.

Anne Milgram:

I mean, I think the first point is what’s interesting to me is that this is clearly at least has been publicly reported in the last couple months, part of the Vance investigation. Vance, to me, has clear jurisdiction. I think the New York AG may have jurisdiction over this, but it feels to me like it’s part of what Vance is already doing. We don’t know that. I would hope that Vance and the New York AG have had this conversation.

Anne Milgram:

But the second thing is that I just didn’t like the timing. So, it doesn’t surprise me at all that the New York AG would look into this. It was reported… There was a great podcast, a ProPublica article about the sort of discrepancy between Trump was saying, he had a ton of assets when he went to get a loan and when it came to paying taxes. He was saying, “I don’t have a lot of assets.” So, he was changing what his income and assets were, according to the reporting. So, that is certainly a space that you would investigate and look at, but the timing, I don’t know how you feel about it. But it’s like-

Preet Bharara:

In fairness to her, as I understand the reporting, apparently Eric Trump was supposed to come for an interview voluntarily under oath last month. I didn’t know that and that didn’t leak out. And then he abruptly canceled that meeting and said, “We can’t go forward.”

Anne Milgram:

It’s more complicated than just canceling the meeting too, because it looks like he invoked his Fifth Amendment, right?

Preet Bharara:

Right. Although people don’t like to use the number five.

Anne Milgram:

Right. I understand that, but let’s just watch.

Preet Bharara:

We should quote the lawyer. The lawyer said, “We cannot allow the requested interview to go forward pursuant to those rights afforded to every individual under the Constitution.” It may be that one reason he didn’t want to say the Fifth Amendment, which is obviously what he’s referring to, is so as not to endure the ire of his father, the President, who on one occasion famously said…

Donald Trump:

Like you see on the mob, right? You see the mob takes effect. If you’re innocent, why are you taking the Fifth Amendment?

Preet Bharara:

Maybe Eric wants to continue to receive love such as it is from his father. I mean, I’m joking.

Anne Milgram:

Yeah, look, I mean, I think, this is what’s most fascinating about this whole situation to me is that he’s agreed to come in. His lawyer sends a letter basically not saying directly, “I’m taking five,” but basically saying, “I’m going to take the Fifth Amendment. I’m not going to testify, because something I say may be used against me in a court of law.” That applies in the criminal context, it does not apply in the civil context. It also does not apply for an organization, like the Trump Organization cannot take the Fifth Amendment. So, it really applies to him individually. That’s interesting.

Anne Milgram:

Now, what’s interesting about the AG going in to compel him is that what she’s basically going to do is force Eric Trump to say, “I have a Fifth Amendment right not to answer the following questions.” Right? So, she’s pushing on that because again, assuming her investigation is criminal and the New York AG has limited criminal jurisdiction, if it’s civil, she has a much easier time of compelling him to answer. There are a lot of pieces here that I think are pretty interesting.

Anne Milgram:

Again, my only caveat on the timing is we live in such a hyper politicized world that investigations, particularly serious investigations as to whether or not there was fraud, I don’t like anybody having the argument that they’re being politicized. So, it’s not even the substance of it so much as I worry a lot that we’ve come to a point where people feel like everything has been politicized.

Preet Bharara:

Anne, so a lot of news this week. I predict there will be a lot of news for next week too.

Anne Milgram:

Yup.

Preet Bharara:

Get some rest. Try not to go crazy watching too much of this convention.

Anne Milgram:

You too, and I’ll talk to you very soon. Please send us your questions and we’ll try our best to answer them.

Preet Bharara:

Send them to [email protected]

Anne Milgram:

Take care.

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 producer is Adam Waller. Senior audio producer is David Tatasciore. The CAFE Team is Matthew Billy, Nat Weiner, Sam Ozer-Staton, David Kurlander, Noa Azulai, Jake Kaplan, Calvin Lord, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.