• Show Notes
  • Transcript

In this episode of CAFE Insider, “Threats Foreign and Domestic,” Preet and Anne speak with Ben Wittes, the editor-in-chief of the Lawfare blog, about the revelations that the Department of Homeland Security compiled and disseminated “intelligence reports” on journalists who reported on Portland protests, including Ben himself. They also break down President Trump’s threats to ban TikTok, his tweets floating the possibility of delaying the election, and the administration’s decision to rescind an Obama-era fair housing rule. 

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

 

INTRO

Axios’ Jonathan Swan’s full interview with President Trump, 8/3/20

BEN WITTES

Ben’s interview on Stay Tuned with Preet, 10/19/17

“DHS Authorizes Domestic Surveillance to Protect Statues and Monuments,” Ben Wittes, Lawfare, 7/20/20

Ben’s initial tweet exposing a DHS internal memo about cracking down on leaks, 7/24/20

Ben’s subsequent tweet exposing a DHS internal memo about blaming Portland protests on Antifa, 7/26/20

“What if J. Edgar Hoover Had Been a Moron?” Ben Wittes, Lawfare, 8/3/20

“DHS compiled ‘intelligence reports’ on journalists who published leaked documents,” Shane Harris, Washington Post, 7/30/20

“DHS authorizes personnel to collect information on protesters it says threaten monuments,” Shane Harris, Washington Post, 7/20/20

“From the Start, Federal Agents Demanded a Role in Suppressing Anti-Racism Protests,” Mike Baker, New York Times, 7/28/20

TIKTOK 

The Committee on Foreign Investment in the United States (CFIUS)

International Emergency Economic Powers Act (IEEPA)

Secretary of State Mike Pompeo’s speech on China, 7/23/20

DELAYING THE ELECTION

Trump tweet floating possibility of delaying the election, 7/30/20

Article II, Section 1 of the U.S. Constitution

3 U.S. Code § 1. Time of appointing electors

“Trump Might Try and Postpone the Election. That’s Unconstitutional,” Steve Calabresi, New York Times, 7/30/20

“No, Trump Cannot Try to Move the General Election,” Marc Elias, Democracy Docket, 7/30/30

Larry Tribe’s tweet proposing the “postmark rule,” 8/2/20 

FAIR HOUSING 

Trump tweet about protecting the suburbs by rescinding AFFH, 7/29/20

Affirmatively Furthering Fair Housing Rule (AFFH)

VANCE 

Manhattan DA Cy Vance’s filing in Mazars subpoena case, 8/3/20

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

How are you Anne?

Anne Milgram:

Hey Preet, how are you doing?

Preet Bharara:

So we’re doing something we … I’m doing great. I mean, not great, I’m doing lousy, I’m doing fine. I don’t know.

Anne Milgram:

Do you want to pick one?

Preet Bharara:

Yeah, actually, I’m all three of those things simultaneously. I sent a tweet in the middle of the night, I couldn’t sleep in like two or three in the morning having watched a clip of the Jonathan Swan interview with the President.

Anne Milgram:

Yes.

President Donald Trump:

I think it’s under control. I’ll tell you what.

Jonathan Swan:

How? A thousand Americans are dying a day.

President Donald Trump:

They are dying, that’s true and you have … It is what it is.

Anne Milgram:

I just watched a little bit.

Preet Bharara:

I just, I don’t even know what to say. I can’t even, I don’t even know what to say.

Anne Milgram:

Yeah, I felt the same thing.

Preet Bharara:

But we are doing something we haven’t done in a while which is, have a guest. We have a very special guest on. So there has been a lot of discussion and debate and controversy over some of the tactics being used by the Department of Homeland Security with respect to protestors in Portland and in other places, and there is yet additional controversy surrounding some of the things that DHS is doing.

Preet Bharara:

And we have a real life, I guess you could say victim of some of that activity with us. It’s our friend, Benjamin Wittes who’s the editor in chief of Lawfare, a Senior Fellow at Brookings, does all sorts of other stuff that we crib from.

Anne Milgram:

Yes, yup.

Preet Bharara:

That we read to educate ourselves and recommend everything that he does at Lawfare to all of our listeners. Hi, Ben.

Ben Wittes:

Hey.

Anne Milgram:

Thanks for joining us.

Ben Wittes:

Sorry you were up at three in the morning. Thanks for having me.

Preet Bharara:

Well, it’s when I ponder the universe, how are you?

Ben Wittes:

Oh, I’m just sitting out on my porch making obscene gestures at the DHS surveillance drones that are circling overhead.

Preet Bharara:

How many are there?

Ben Wittes:

I have lost count.

Preet Bharara:

Are they in some kind of formation?

Ben Wittes:

They’re flying, they’re doing little contrail dances and spelling out the letters DHSI&A.

Preet Bharara:

So Ben, it seems that DHS, a subdivision of DHS was targeting you. What did you do? You must have done something, you must have done something bad Ben, what did you do?

Ben Wittes:

Well, so first of all, they figured out that I am in fact, the secret leader of Antifa and this whole Lawfare thing has been an elaborate cover where I pretend to be interested in protecting national security to divert attention from my secret role as the … It’s like a Scarlet Pimpernel thing.

Ben Wittes:

No, the answer is I really did, I guess the best word for it is journalism. I received some information from inside of DHS about their surveillance activities with respect to Portland.

Ben Wittes:

In the first instance, I analyzed it and wrote about it on Lawfare with my colleague, Steve Vladeck and in two latter instances, I simply screenshotted the documents that had come my way and tweeted them with a little description of what they were and some snarky, in one case, some snarky commentary on it.

Ben Wittes:

And each of these tweets appears to have provoked the creation of what DHS calls an Open Source Intelligence Report which of course, it being the federal government has to have a acronym which is an OSIR which always reminds me of the Egyptian God Osiris, I think they should figure out two more characters to lead words so that they can get all of Osiris in there.

Anne Milgram:

Just to put this in context for the folks who are listening and may not have followed the underlying documents that were sent to you, they were essentially leaked to you by DHS. What was in those documents? The things that you tweeted out and posted.

Ben Wittes:

The three relevant documents, the first of which I did not tweet out, but we wrote about which is actually the most significant document is a document that describes the … An expansion of DHS’s intelligence gathering authority to include from all the things that we think of as traditional Homeland Security missions to include the protection of federal property as well as the protection of monuments whether they are state or federal, union or confederate or otherwise or even privately owned.

Ben Wittes:

So this is a document that describes DHS’s new authority to collect intelligence and analyze intelligence in support of the important Homeland Security mission of protecting monuments.

Ben Wittes:

The second document was a internal email complaining about the leak of the first document and the third document was a internal email that described a change of terminology regarding the violent actors in Portland and it was a change from the previously DHS had been calling them violent opportunists.

Ben Wittes:

But in this document, that was changed to and I’m forgetting the exact language, violent Antifa-inspired something or [crosstalk 00:05:54]

Anne Milgram:

Yeah, violent Antifa anarchists inspired.

Ben Wittes:

Yes, and also use some rhetoric that was reminiscent of counter-terrorism missions in Iraq, particularly referring to dossiers that had been created on possible suspects as baseball cards which is a terminology directly imported from the Iraq conflict.

Ben Wittes:

So those were the three documents and the latter two of which I tweeted and those two tweets produced these intelligence reports.

Preet Bharara:

So even if you don’t know anything else about what proper policy is, what proper activity is, to gauge whether or not what DHS was doing was wrong or not, to me, all you have to know is that even though Chad Wolf who is the head of DHS at the moment lets a lot of stuff go, allows a lot of activity that gets criticized and I think rightly so and defense it, I think, ineffectively.

Preet Bharara:

With respect to this episode relating to you Ben, another reporter, Mike Baker at The New York Times, he took immediate action. Why was what DHS did so bad?

Preet Bharara:

I mean, they weren’t wiretapping your phone. Joking aside, they were not actually drones, surveilling you they just put together a report. What’s so bad about that? Explain that.

Ben Wittes:

First of all Preet, the no drones thing, that’s what they want you to think. I actually don’t know what the difference is between this and some of the other stuff that they’re doing and my activity was completely First Amendment protected, but a lot of protesters activity is completely First Amendment protected.

Ben Wittes:

And so why Chad Wolf made such a distinction between what they did with respect to me and Mike Baker of The New York Times, and a whole lot of other stuff that they’re doing is actually a little bit of a head scratcher to me.

Ben Wittes:

That said, look, I think it almost certainly violated several rules, and I can identify some of them. I’m not sure I can identify all of them, but first of all, the first most basic rule is that the intelligence community and DHSI&A is part of the intelligence community is not allowed to collect information solely to monitor purely First Amendment protected activities, right?

Ben Wittes:

And so this activity that I was engaged in was collecting information that is not classified information from a government agency about its conduct of its responsibilities and making that information available to the public.

Ben Wittes:

It could not be more molten core First Amendment protected activity and there is no other component of it, right? You’re not going to learn about who’s threatening to blow up a monument or knock it down by collecting my Twitter feed.

Ben Wittes:

So the first component is that. The second component is that DHS actually has a set of missions against it which is allowed to collect, and those missions, and I listed a bunch of them on Lawfare this morning.

Ben Wittes:

In fact, I think I listed all of them on Lawfare this morning. They include things like counter-terrorism, preventing major homeland security threats, preventing weapons of mass destruction, proliferation, major organized crime, right?

Ben Wittes:

These are things that justify intelligence collection by I&A. Leaks are not one of them and leaks particularly of unclassified information just aren’t among them.

Ben Wittes:

And even if you believe that maybe leaks are incorporated into some of the others because leaking information, stopping leaks helps DHS do these other functions, that is not something thing that the guidelines, at least not explicitly contemplate.

Ben Wittes:

The final thing that I think is pretty clear that these rules forbid is the dissemination of the material. DHS, this intelligence report was authorized to be sent to foreign governments.

Ben Wittes:

It was authorized to be sent to tribal governments, state governments, local governments, other agencies of the federal government. None of these entities has a legitimate or lawful need to … Pursuant to some law enforcement intelligence or counter-terrorism objective or Homeland Security objective to know what I tweeted.

Ben Wittes:

It is pretty clearly in violation of the rules and I think that’s why when Chad wolf found out about it, he stepped in pretty quickly even while tolerating apparently similar activity with respect to protesters?

Anne Milgram:

Yeah, I mean, I think one of the reactions I had was that, I mean, no government department likes leaks, right?

Anne Milgram:

And we have seen leaks out of the administration and honestly, we always see them out of administration’s, right?

Anne Milgram:

We’ve seen a lot lately, but it’s common, but the reaction to a leak, to make that basically opening in intelligence investigation into a journalist is really troubling.

Anne Milgram:

And I think your … It is absolutely against DHS rules and it is against rules because it’s not something we do with the First Amendment.

Anne Milgram:

It also feels very odd when you read through these tweets ban and I don’t know if you have a view on this, but first of all, it feels like they spent more letters on your two tweets where you just attached these documents that you did, right? There’s something about it that it’s like …

Ben Wittes:

Oh, by a sort of an order of magnitude.

Anne Milgram:

Yeah, I mean, if we did it, they said, you basically just attach these leaked documents, and then they go on to do this intelligence product which again as you said, and I think people should understand this.

Anne Milgram:

We used to get a lot of intelligence products when I was AG, right? They share them in the intelligence community and they’re provided as validating in a way that Homeland Security thinks it’s important to conduct intelligence on this.

Anne Milgram:

And so it really is. I mean, I feel like at first blush, it can feel just really in my view, at least, my first reaction was that’s so bizarre, but my second reaction is this is a really serious infringement on you as a journalist and on The New York Times journalist as well and it’s just a really bad, it’s just really troubling to me on that level.

Anne Milgram:

And I don’t know … Do you think, I mean, you’ve written a piece about sort of thinking about whether it’s incompetence, or malevolence, or both, and where do you fall on that?

Ben Wittes:

So I think it’s both. Look, at the practical level to me, it’s kind of harmless in the sense that what did they collect?

Ben Wittes:

They collected something that I distributed to 400,000 of my closest friends. I have a lot of Twitter followers, not like Preet, but I have a lot and I tweet things in order to make things public.

Ben Wittes:

And so I have no anxiety at all on my own behalf about government officials sending around my tweets or even studying them for, that flatters my vanity.

Ben Wittes:

If government officials are sitting around pouring over my tweets like they’re studying Talmud or something, this is a big win for me.

Ben Wittes:

So I don’t have a problem with people socially passing it around. I also don’t have a problem with them sending a tweet of mine to the Inspector General and saying, “Hey, it looks like we had a leak to this Wittes guy, can you do a leak investigation?”

Ben Wittes:

And I also don’t have a problem with what I&A did in that document that I released which is send around a note to staff saying, “Hey, whosever doing this, giving this stuff to Wittes, knock it off.”

Ben Wittes:

All of that seems to me totally appropriate and I don’t think I have any kind of legitimate interest in privacy and something that I broadcasted to 400,000 people.

Ben Wittes:

That said, there is a difference between socially passing something around or even sending it for business purposes within the agency like a press clipping or something, and what they did here which is casting it as an intelligence collection and in the post-Watergate era, we made a judgment as a society that the government has no business conducting intelligence activity against the people of the United States in the absence of some very specific reason to do so.

Ben Wittes:

And reason enough, those reasons are articulated in the off for DHS anyway in the authorized missions against which you’re allowed to collect, they are big, important things.

Ben Wittes:

And when you exceed that authority, and you collect somebody’s tweets because it’s annoying that people are leaking stuff to him, it’s really, there’s no difference in principle between them doing that and saying, “Hey, this Wittes guy is getting a lot of leaks. Let’s see, let’s create a dossier of public record information about him. And by the way, let’s go to Equifax and buy all the public record information that they have.” Right?

Ben Wittes:

If this is appropriate, I’m not sure why that isn’t appropriate. And that’s exactly what Congress in the Privacy Act in the 1970’s said we don’t want government to be doing.

Ben Wittes:

And so I do think this is comically stupid and it’s fun to have a good laugh over. And I am not personally threatened by it at all.

Ben Wittes:

That said, I think it is very bad that government is doing these things and here’s the real point, they kind of (beep) with the wrong marine on this one.

Ben Wittes:

I’m somebody who has a platform that’s pretty substantial and I have a network of sources all through the intelligence community and through the national security bureaucracy as a function of what I do in Lawfare, I also have a lot of potential lawyers at my disposal to assert my legal rights in this context.

Ben Wittes:

And by the way, all of that is true of Mike Baker as well, messing with The New York Times on something like this is a bit of a mistake, that’s a well resourced organization that has a very, very long history of protecting its journalists.

Ben Wittes:

So you go after people in the press, and the press is going to bite back really hard. This is not true of a lot of protesters and if they are doing this kind of thing to protesters in Portland who have every much as much of a First Amendment right to do what they are doing, assuming they’re not engaged in violence as I do with what I am doing, those people don’t have a network of sources throughout the federal government to leak to The Washington Post, the intelligence reports that are being compiled about them.

Ben Wittes:

They Don’t have a platform like Lawfare or a Twitter feed with hundreds of thousands of followers to air the issue and they may not have large numbers of lawyers at their disposal who want to represent them pro bono to assert their legal rights.

Ben Wittes:

And so I think what happened to me is mostly funny, but what it represents is not funny at all.

Anne Milgram:

Yeah. We were talking just a minute before we jumped on about how DHS, the Custom and Border Patrol which had been the lead agents that were on the ground in Portland is the largest law enforcement agency in the United States.

Anne Milgram:

So I think the potential here for real challenges and potential infringement, we shouldn’t overlook it.

Preet Bharara:

Ben, before we let you go, you had said and you just alluded to this again a minute ago, you said, “I’m considering my legal options.” Quick answer, are you going to sue?

Ben Wittes:

I don’t know yet. I will if I think there is a suit that I can bring that will shed significant light in discovery on the programmatic activity that DHS is engaged in.

Ben Wittes:

I know I have standing to bring something because there’s this intelligence product that involves me, but frankly, I can find out what they did to me with a FOIA request.

Ben Wittes:

What I really want is to figure out the parameters of the intelligence activity that they’re involved with, engaged in. And so I’m interested in figuring out a legal theory that gets me, that allows a window into that and if we can figure one of those out, yes, I will bring that case. I won’t sue for the sake of vanity caption, Wittes versus Wolf.

Preet Bharara:

Ben Wittes, thanks for being with us, keep us posted.

Ben Wittes:

Thanks.

Preet Bharara:

And if you do sue, we know a few lawyers too.

Ben Wittes:

I’m about to go have a Zoom meeting with some.

Anne Milgram:

Thank you Ben, talk to you soon.

Ben Wittes:

Thank you. Talk to you later.

Preet Bharara:

Take care buddy. So it’s nice having Ben on as usual.

Anne Milgram:

As usual. Have we done it before?

Preet Bharara:

Oh, I guess I’ve had him on the podcast.

Anne Milgram:

Oh, you had him on Stay Tuned? Okay.

Preet Bharara:

But I feel like Ben is always on because we’re always [crosstalk 00:20:15]

Anne Milgram:

… Listening to him or yes, it’s true.

Preet Bharara:

To inform ourselves so we can inform our listeners. Look, I think he’s absolutely right and I think he has a very good attitude and perspective on it.

Preet Bharara:

Not a big deal for him personally, he has a lot of resources, he’s a big boy, but what it represents, and the kinds of things that DHS may or may not be doing is of great concern to everyone.

Anne Milgram:

Yes, and I also think this Chad Wolf has sent it for an internal investigation within DHS, but I do feel this has to be a part of a larger public conversation about what they’re collecting and what they’re doing.

Anne Milgram:

There has to be some oversight mechanism whether it’s the DHS Inspector General, but it does, it raises very serious questions and now is the time to be asking them, not waiting two years for a look back or even a year.

Preet Bharara:

So other national security news, I guess there’s a lot of controversy over this thing called TikTok. Are you familiar with TikTok?

Anne Milgram:

I am. Well, so yes. My niece has it and so do a lot of other young people, teenagers that we know.

Preet Bharara:

My boys do. I don’t know if my daughter does, but my, I think maybe all three of them.

Anne Milgram:

But I have to say, I hadn’t downloaded it till last night when I was prepping for the podcast and as you know, because I kept sending you TikTok videos, I went into a bit of a rabbit hole. I mean, it’s fascinating. They’re short videos.

Preet Bharara:

It’s essentially a short video platform. The funniest thing that I’ve heard someone say about TikTok is you notice that there are these postings on TikTok which are kind of lame and then someone puts the same video on Twitter, and all the Gen X’ers go wild.

Anne Milgram:

Yeah, I mean, a lot of them just so folks know, I mean, some of them are very funny. Some of them, there are a lot of cat videos and silly animal videos, but there’s also a lot of young people just sort of lip syncing and dancing to their favorite music and there’s some dances where everybody’s doing the same dance to the same song and sort of does it differently and then post it, but if you looked at it, I mean, it certainly looks on its face Preet, harmless. When you look at the content, it’s a lot of young folks.

Preet Bharara:

I was going to say, it sounds super harmless, it’s a little bit of fun, how on earth is that an issue that the President of the United States is talking about, senators are talking about, national security experts are talking about? What is going on there?

Anne Milgram:

Yeah, and so Trump said to reporters on Air Force One on July 31st, as far as TikTok is concerned, we’re banning them from the United States.

Anne Milgram:

And so that leads everybody to have this whole conversation about can they ban it and what’s going to happen to it?

Anne Milgram:

And essentially, it’s owned by a Chinese company called ByteDance and that company has been accused, there’s two allegations that have been made against it and TikTok.

Anne Milgram:

One is that their terms of service and what data they can access from users are really expansive, meaning that they get a lot of private data and have access and the ability to use a lot of private data.

Anne Milgram:

So the question that a number of folks have been raising is whether the Chinese government can access all that data and so that’s a piece of this.

Anne Milgram:

The other piece is whether or not the Communist Party, there’s some sort of political bias in TikTok on behalf of the Communist Party.

Anne Milgram:

That to me, I haven’t seen it, that may be true in other places, but at least from my sort of short investigation, personal investigation last night, but the data piece is a real question and TikTok isn’t the only company that these questions have been raised about, but it is a … It’s a billion, I think it’s a billion dollar company.

Anne Milgram:

It’s a very, very successful social media app for young people and I think there have been a lot of questions raised about what data are we basically giving to the Chinese government and so that leads us to the question of is it a national security question?

Anne Milgram:

See, it all comes back to Ben Wittes and Homeland Security and national security, but there are a lot of rules that exists where the President has been given the authority to make decisions about for example, the merger or the acquisition of different companies ByteDance acquired the prior company of TikTok was Musical.ly, they acquired that within the last two years.

Anne Milgram:

And so the federal government actually has a process through which they can analyze this and they can say no to the sale and there’s also another way in which they can issue emergency orders that would allow the president to ban TikTok in the United States.

Anne Milgram:

So I think the first reaction, I don’t know if you differ on this, but I think the first reaction from a lot of people is like the president can’t ban a social media app, but when you look at it from a national security perspective, it turns out that the president has a lot of authority that has been delegated to him by Congress.

Preet Bharara:

Yeah, and the important thing to bear in mind, one of the important things to bear in mind is unlike some things where Donald Trump is Speaking completely out of nowhere, and is the only person who has a particular view whether it’s about the coronavirus or anything else, this is an issue that has been raised by people on both sides of the aisle.

Preet Bharara:

The security issues relating to TikTok, it’s something that national security professionals have been talking about for a while, what their response should be and what the proportional reaction should be is a separate question, but it is not something that’s unique to Donald Trump to express concern about China and TikTok.

Preet Bharara:

I also do think it’s true, but I haven’t researched it fully that the President cannot by fiat or some kind of executive order ban TikTok in the United States.

Preet Bharara:

I think the consensus is he cannot do that, but as you point out, there are procedures by which effectively that can be done and in particular, from time to time, people may hear the name CFIUS, it’s an acronym for the Committee on Foreign Investment in the United States.

Preet Bharara:

And that comes into play, that committee comes into play when there are acquisitions or sales involving foreign company even if it’s a completely wholly owned foreign company, but if they’re doing business in the United States through the CFIUS process, they may have something to say about it.

Preet Bharara:

If there’s a problem, they can call for the divestment of a particular asset or subsidiary for the purposes of maintaining national security and people suggest that’s what may happen here.

Preet Bharara:

One of the things that’s on the horizon is that another very, very big company, an American company, Microsoft has signaled its intent to try to close a deal and buy Tiktok from the parent company in the next four to six weeks.

Anne Milgram:

Right. And what they would be buying is the US, they wouldn’t be buying all of Tiktok. They’d be buying the, essentially the part that operates in the US, New Zealand, a few other countries, I think there’s five countries in which they would be controlling so they wouldn’t control all of it, but Microsoft would obviously get it, acquire a significant stake in it and own that part of it.

Anne Milgram:

And what’s important about that is what Microsoft has said is that they would keep all user data related to for example, in the United States, all user data in the United States would be stored in the United States and the Chinese government would not have access to it.

Anne Milgram:

And so I think that solves what feels to me like the real national security concern here is the access to private data and the use of that data by the Chinese government.

Anne Milgram:

And so it feels to me like the Microsoft sale if that goes through, the sale to Microsoft would basically take the national security issue off the table.

Anne Milgram:

One other thing just to note because I did get some questions about this is remember that TikTok was used by young people as a way to sort of pass around information about buying tickets to the president’s campaign rally. Remember when he was expecting [crosstalk 00:27:43]

Preet Bharara:

Right, buy ticket, reserve tickets, but then not show up.

Anne Milgram:

Exactly. So he was expecting more over 100,000 people and something like I don’t remember the exact numbers, but it was a very, very small number of people who showed up and a lot of those tickets had been bought by young TikTok users who had sort of spread the word using social media app to get others to do that, and then they didn’t show up.

Anne Milgram:

And so, but this investigation far predates that. The Committee on Foreign Investment piece began last Fall in 2019 and just so to your point, there were issues that were raised.

Anne Milgram:

I mean, I sort of feel like it’s really bizarre to have the President of the United States talking about this and one of the things that is particularly bizarre is that there is a process by which this usually goes and so the committee you talked about foreign investment, that operates separate from the president.

Anne Milgram:

So there is something very strange about the president going out and publicly doing this, but it is also consistent with Mike Pompeo made a very strong speech against China recently.

Mike Pompeo:

Securing our freedoms from the Chinese Communist Party is the mission of our time and America is perfectly positioned to lead it because our founding principles give us that opportunity.

Anne Milgram:

It’s very clear that the President is also using this type of fight with China. So it’s many things, it is Homeland Security but it also obviously, in the run up to the election is political.

Preet Bharara:

Yeah, obviously, in normal circumstances, you would never attribute to a sitting president something as base and political as that, but there’s a track record here, the president all the time will spout off on some company or individually.

Preet Bharara:

He doesn’t like for political reasons, he’s done that about Jeff Bezos in Amazon and The Washington Post and you can never discount the possibility that there is some retribution or political aspect to anything he does or announces or says.

Preet Bharara:

By the way, I just want to amend one thing I said before. There’s an argument to be made that there’s another statute under which the president can kind of by himself ban TikTok in the United States.

Preet Bharara:

It’s a complicated statute that we’ve used in sanctions cases when I was at SDNY called the International Emergency Economic Powers Act, we refer to lovingly as IEEPA and we don’t have to get into all of it now and see if it’s invoked, but in certain circumstances, if the president declares a certain kind of National Emergency and probably in this case, it would have to relate to malicious cyber activities, there’s an argument that there’s a process by which the executive branch can sort of take care of this issue without going through the CFIUS process, but that’s a bit in the weeds and let’s see what the President intends to do and let’s see what happens with Microsoft.

Anne Milgram:

I feel like the takeaway for our listeners who have kids or nephews and nieces or grandkids who love TikTok that I think TikTok will be allowed to continue and that it will be acquired by a US company, the US portion of it and so all will be fine with your teens.

Anne Milgram:

Although there are actually a lot of parents out there who I think wouldn’t mind TikTok no longer being in existence, but the world is going to be saved for TikTok.

Preet Bharara:

I feel like some parents think they’re getting through the pandemic because of TikTok.

Anne Milgram:

Yeah, I think so too.

Preet Bharara:

Because kids have something to do. So something else keeps coming up because the president keeps bringing it up and it’s topmost on his mind, and I’ll say quite frankly, it’s top most on a lot of people’s minds.

Preet Bharara:

We got this thing happening, 91 days from today is the election for President of the United States and obviously, all the house in a third of the Senate and the President has said ominously something that everyone said, “Oh, you’re engaging in a conspiracy theory, it’s far-fetched to think that the president would ever consider postponing or delaying the election.”

Preet Bharara:

But Donald Trump on July 30th tweeted the following, “With universal mail-in voting, not absentee voting, which is good …” Can I say in aside that they’re exactly the same thing?

Anne Milgram:

Yes.

Preet Bharara:

The president goes on to say, “2020 will be the most …” In caps, “Inaccurate and fraudulent election in history. It will be a great embarrassment to the USA.”

Preet Bharara:

And then he writes, “Delay the election until people can properly securely and safely vote???” So he’s not nobody. He’s the president of United States who clearly sees what’s happening in the polls, seems to be concerned, wants to win or at a minimum, lay a foundation for being able to assert fraud in case he loses and he is specifically raising the possibility of delaying the election. Is that a holy cow moment?

Anne Milgram:

It’s a holy cow moment. And he actually went on to tweet again, to tweet separately about mail-in voting, calling it catastrophic.

Anne Milgram:

He also said it’s an easy way for foreign countries to enter the race, and that there is no accurate count. Well, this is a great example of the president saying just a series of things that are untrue and jumbling them all together.

Anne Milgram:

As you said, mail-in voting is the exact same thing as absentee ballot voting, you get a piece of paper at home, you fill it out, you send it in, there is a paper record of that vote.

Anne Milgram:

The paper record is the ballot itself and so there’s a way in which all these allegations really just about it not being safe.

Anne Milgram:

It’s the opposite of that. In fact, in many places where people have been concerned about electronic voting machines, they’ve wanted just to go back to paper ballots both in the booth and through absentee ballots and the second piece is this whole idea that, I mean, there’s so many pieces, but the other piece I really focused on was obviously you can’t change the date which we’ll talk about in a minute.

Anne Milgram:

But even beyond that, just this idea that foreign countries are going to enter the race, right? Where people have been screaming about Russia, Russia’s interference with the 2016 election there’s been recent briefing of Congress that Russia is poised to hack the election again, or try to hack the election and is actively trying to influence our election.

Anne Milgram:

And then the president basically using exactly the thing he should be acting against which is Russia’s interference in any way.

Anne Milgram:

He’s sort of is using it as an excuse for why, why we shouldn’t be voting. I feel like this is one of those moments Preet where Joe Biden had said back in April Trump is going to try to change the date of the election, and a lot of people had said, “That’s crazy. You’re a conspiracy theorist.”

Anne Milgram:

And had really attacked Biden. And Biden is not the only one who was saying it, there were a series of folks who are saying it, and then you see these tweets …

Preet Bharara:

Yeah, because the president is capable of anything.

Anne Milgram:

Yes.

Preet Bharara:

I’m just sighing, I kind of sometimes don’t have the words because this president, it’s not an exaggeration to say if he had his druthers, and if he could get away with it, would do a lot more things.

Preet Bharara:

Look, this is the guy who talked about buying Greenland and nuking a hurricane. So there’s all sorts of things that he thinks about and contemplates, he’s jealous of authoritarians given how much power they have.

Preet Bharara:

He sees how much there’s the ability to affect elections in other places, he wants to do the same. So the idea that anybody is being outlandish in suggesting some extraordinary activity or conduct on the part of this president, that’s a silly accusation.

Anne Milgram:

Yeah.

Preet Bharara:

Should we go through …

Anne Milgram:

Let’s go through the law. Yes, it’s important.

Preet Bharara:

Yeah, let’s just go through it. We may have to … We may do this again and again, I think it’s really important.

Preet Bharara:

Unlike the more gray area of TikTok, our elections are a little bit more secure in terms of timing, right? There’s no executive order that can be issued to change the election.

Anne Milgram:

Preet, I think you should make a TikTok. I think you should make a TikTok of this, but until then, until then, till we can do that, let’s go through it.

Preet Bharara:

I don’t want to cause a national security crisis. So Article 2 Section 1 Clause 4 of the Constitution says the Congress … Note, the subject of the sentence is the Congress may determine the time of choosing the electors, it’s in the Electoral College, and the day on which they shall give their votes which day shall be the same throughout the United States.

Preet Bharara:

So that says that the setting of the date is at the hands of Congress, at the feet of … How can it be the hands of Congress and also the feet of Congress?

Anne Milgram:

Well, and even if we went back to one other constitutional piece which I think is really important is that while the constitution doesn’t say the specific day, it says Congress decides the day.

Anne Milgram:

What the Constitution does say is that the president will be sworn in January period, right? And there’s no way that date gets move. So that January …

Preet Bharara:

January 20 noon. So whether or not there’s an election …

Anne Milgram:

Exactly. The President is been sworn in.

Preet Bharara:

A new person that the speaker … Well, if there’s no election for whatever reason, the Speaker of the House assumes the presidency if there’s no election.

Anne Milgram:

But that’s the date, right? And so it’s important to know there is a firm date in January when the President of the United States will be sworn in, then the Constitution does that and then it gives the power to Congress to pick what day it is and then Congress passed a law in 1845 saying that the electors of the president and vice president shall be appointed in each state on the Tuesday next after the first Monday in November and every fourth year succeeding every election of a President, Vice President.

Anne Milgram:

Meaning, Congress has picked the date in November. It’s the Tuesday after the first Monday in November every four years, and that’s the date and that has been the date and that date, I mean, I found this incredibly compelling Preet and I don’t know if you did, but talking about how the United States has been at war during times of election and we have not moved date of the presidential election.

Preet Bharara:

The Civil War, World War II, but you know why I have confidence that the election will not be moved? Because it’s in the hands of Congress and one reason that I feel better about the whole thing is that the House of Representatives does not belong to the party of the president.

Preet Bharara:

And I will tell you, if we were having this conversation with the president raising the specter of changing the election, and the Senate and the House were both in the same, in the hands of the party of the President, I would have a slight concern that the President would be able to bend them to as well.

Preet Bharara:

I don’t know if you were, I was very heartened to see a difference in the reaction from members of his party to this trial balloon.

Anne Milgram:

Yes.

Preet Bharara:

That we haven’t seen on other occasions.

Anne Milgram:

Yes.

Preet Bharara:

So republican after republican including Senator Mitch McConnell and others have been pretty strong in their language saying we’re going to go ahead with the election on the designated day, but I got to tell you, given the track record and given other things that he gets a pass on, I wouldn’t feel as comfortable if the house and the senate were both Republican right now.

Anne Milgram:

Oh, I agree with that. I also feel like with Mitch McConnell, I had a similar reaction to what you did, but then I started to reflect which is what a strange universe we live in because it goes back to the old adage, you don’t get points for doing the right thing.

Anne Milgram:

So Mitch McConnell’s saying that the election is happening in November, it’s like really stating the obvious of what is consistent with the law and it is exactly what he should have said, but I think you’re right [crosstalk 00:38:28]

Preet Bharara:

The sun will rise tomorrow.

Anne Milgram:

Yes, but I think you’re right to basically say we can’t even take that for granted right now from what we’ve seen. And so I agree with you.

Anne Milgram:

Congress is not going to change it. We know that because of the democrats controlling the house, but one thing I’ve been thinking a lot about is that sometimes the President does these things and he’s doing a few things.

Anne Milgram:

First, he’s sowing doubt in the minds of his base and some people who vote in the United States as to whether or not the election will be fair, and whether or not mail-in ballots are acceptable.

Anne Milgram:

And he’s also signaling this thing because states have … They basically control how elections are run. So there are a lot of pieces that the federal government and the constitution set, but the states decide what are the rules on voter registration, there’s a piece by a prominent democratic election lawyer, a guy named Marc Elias who has basically pointed out that they, the states control voter registration, polling site locations and hours, voter identification requirements, and vote by mail options.

Anne Milgram:

And so the president is also basically sending a signal to state legislatures and Republican governors like, “Hey, we should be pushing against the expansion of vote by mail.”

Anne Milgram:

And there’s something about that, that I think is really problematic even beyond this first, let’s change the date of the presidential election whether or not that date gets changed and it’s not going to, there’s still so many other things that can be done that could really harm the election.

Preet Bharara:

The other thing is the president sometimes harms himself and he’s done that here in two ways. One is he’s alienating some people and this is an inside legal inside baseball observation, but there’s a professor named Steven Calabresi whose work I tend not to agree with, a very conservative person, clerked for Robert Bork and Antonin Scalia.

Preet Bharara:

He’s a co-founder of the Federalist Society and he’s been a defender of Trump, voted Republican his whole life, didn’t like the appointment of Robert Mueller and he wrote the following in an op-ed, “I am frankly appalled by the President’s recent tweets seeking to postpone the November election.

Preet Bharara:

Until recently, I had taken his political hyperbole. The Democrat’s assertion that President Trump is a fascist, but this latest tweet is fascistic and is itself grounds for the President’s immediate impeachment again by the House of Representatives and his removal from office by the Senate.”

Preet Bharara:

It’s one person, but a person who the President has lost three years and eight months or so into his presidency and the second way in which he has done himself potentially political harm is he’s making the idea of voting by mail, someone appealing and sound so corrupt even though that’s an exaggeration and false, in fact, based on experience of people in Oregon and other places that … Did you see the article?

Preet Bharara:

Lots of Republican operatives around the country are concerned that Republican voters will not [crosstalk 00:41:24].

Anne Milgram:

Right. Go out, yes.

Preet Bharara:

Utilize the mail-in ballot.

Anne Milgram:

And then if …

Preet Bharara:

When they really need to and their participation will be deflated and Trump is really causing a certain kind of potentially voter suppression among his own base.

Anne Milgram:

Yeah, but I do think … I mean, look, other people have argued and it’s worth just sort of talking this through that this is about a way for him to justify a loss if he loses and so others have argued that 150,000 Americans, it’s heartbreaking, have died from COVID-19.

Anne Milgram:

It’s estimated an additional 70,000 Americans will die this Fall and the President has showed zero leadership, zero integrity on those issues and this kind of announcement, it basically … The media follow the president.

Anne Milgram:

I mean, we’ve talked about this before, but all of a sudden, all the articles, essentially around the day that we hit the 150,000 death mark become about the election.

Anne Milgram:

And so the president is definitely controlling the narrative and you’re right and I think Republican operatives have pointed out, it may actually be ultimately to the President’s detriment, but in that moment, he doesn’t seem to care about that, he doesn’t seem to care.

Anne Milgram:

We’ve said this before, but about the institutions which matter, things like voting, or law enforcement agencies, and it’s not that there aren’t problems with both because there are, but really, he’s done a lot to sort of degrade trust in those institutions which again he thinks benefits him.

Preet Bharara:

We for a while have been making the point that part of what Trump is doing is laying the foundation to excuse a loss. I actually think it’s much more nefarious than that now, my worry has increased.

Preet Bharara:

He’s not just trying to create an excuse to explain away a loss, he’s trying to sought out with respect to the election so he can take or his attorney general, can take extraordinary action before there’s a final result.

Preet Bharara:

And you and I have talked about this. It’s one thing as returns come in to say, “Hey, this is nonsense, this is BS, I shouldn’t have lost.”

Preet Bharara:

There was all this unlawful voting. It’s quite a different thing to say the day after the election November 4th when there’s not yet a final result.

Preet Bharara:

And all sorts of absentee ballots have not yet been counted, for example, in Pennsylvania, or Wisconsin or Florida or wherever.

Preet Bharara:

And come up with some reason or excuse to send federal agents and I know this sounds far-fetched, but we are living in the universe of far-fetched with this president and at this time in the country.

Anne Milgram:

I don’t think it’s far-fetched.

Preet Bharara:

And say irregularities, yeah, irregularities are such that we’re going to send agents and seize 200,000 uncounted ballots and all sorts of bad things and all sorts of bad mischief can arise from that, right?

Anne Milgram:

Yeah, and I think we should be prepared for that. I mean, we’ve talked a little bit about if you look at authoritarian regimes, one of the things that the leaders always do is control the military.

Anne Milgram:

And this is an area where look, we just talked about Customs and Border Protection, that agency being the largest law enforcement agency in the country.

Anne Milgram:

Trump clearly can exert authority over them. The question about the National Guard whether the President could order the National Guard to go out and collect those ballots.

Anne Milgram:

And it could be really, really problematic and just, I mean, it goes beyond problematic. I almost don’t have a word to describe how frightened I think we should be of this, about this, and how much we should be thinking now about all the possible things that the president can do because I would not put it past the president.

Anne Milgram:

And actually if anything, I think one of the problems over the last three and a half years has been that we’ve all been operating and even in the face of knowing that the President does not operate this way, but we’ve all been counting on norms and the way that laws and rules work to think that certain things will happen in the way they’re supposed to happen.

Anne Milgram:

And I think that the president has shown time and time again that that’s not his playbook. And so we have to be really thinking about what would happen if the president were to basically say, “I’m invalidating all these, we’re seizing all these ballots.”

Anne Milgram:

And it would end up in the courts, much like Bush v. Gore and that’s also a problem at this moment in time. So where we go and how we think about this, I don’t think you’re an alarmist at all to basically raise a flag on it and say, “People should understand that there’s a lot at stake.”

Anne Milgram:

And to me, the question is sort of like what can we do to fix that? Can we have state legislatures pass laws that let them count mail-in votes early so that we’re not in a position where it’s Election Day and there’s millions of ballots that have been cast that nobody has counted and is able to count, but there are a lot of specific things we can talk about, but I wish I could say Preet that I thought that you were remarkably off base on this and I unfortunately agree.

Preet Bharara:

And then of course, we have a donor to the president who is the Postmaster General and we have all sorts of concerns and problems with the post office and we don’t have universal adoption of the rule that I think was promoted by a number of people, including Larry Tribe of Harvard Law School that so long as your valid is postmarked by the date of the election whether it’s received after or not, it should be counted. And that’s going to be a big problem if there’s an overwhelming of the postal system.

Anne Milgram:

Yeah, and at one point just to make on that is that that’s how taxes work, right? Your taxes and contributions into IRAs and things like that, entire retirement accounts, they just have to be postmarked on the day that they’re due.

Anne Milgram:

And the government does that to basically say in part because it’s not your fault if the post office is running slowly or they get inundated as they will, they’ll get a lot more mail right before an election, they get a lot more mail around tax time.

Anne Milgram:

So basically saying we’re not going to put that on the person, on the customer, we’re going to put on government basically understand as long as you get it in that day and you post market, it’s acceptable.

Anne Milgram:

One other thing I thought a lot about Preet which and then I found out as I was doing prep for the podcast today that Colorado actually does it, but I was wondering why there aren’t drop boxes for ballots, right?

Anne Milgram:

Places where you go to a FedEx drop or UPS drop, we live in this pandemic world now where some people can get groceries put into their trunk, and it doesn’t seem like a crazy thing at all to basically say have secure places and they do this in Colorado apparently where people could drop off ballots and again, have those ballots be counted and not be in this issue of the post office.

Anne Milgram:

And just so people understand, I mean, since the Trump appointee has gone in, you and I have now followed that they’ve cut back on over time, they’ve cut back on how they’re delivering mail.

Anne Milgram:

And there really are delays in the postal service and so it’s the kind of thing where people voting by mail should be voting very early well within giving that extra time to make sure that it gets that it gets in, but again, is it intentional? Is it just that the postmaster, it feels intentional to me, prohibiting overtime, shutting down the sorting machines that allow the mail to be sorted so that the mail delivery folks don’t have to do it by hand.

Anne Milgram:

These seem to me the things that will obviously cause delay in all mail which is also a bad thing during a pandemic where people are relying on the mail for things like medicine and food and groceries and stuff like that so.

Preet Bharara:

And Social Security checks.

Anne Milgram:

Yes. It’s really troubling that that’s happening. And again, it may also be, the president may be doing it just because he doesn’t like the post office and he’s trying to undercut it, but whatever the reason is, it’s a bad outcome for the American public.

Preet Bharara:

91 days guys. Do what you got to do.

Anne Milgram:

So Preet, thinking about the election and what’s happening, the president made a number of statements last week related to fair housing rule and it was very clearly aimed at suburban voters and he told us as much, I can even read you his tweets which was essentially, “I am happy to inform all of the people living their Suburban Lifestyle Dream that you will no longer be bothered or financially hurt by having low income housing built in your neighborhood.

Anne Milgram:

Your housing prices will go up based on the market and crime will go down. I have rescinded the Obama-Biden AFFH rule. Enjoy.” What do you think of that Preet?

Preet Bharara:

It’s as people have said on television and in the newspapers responding to this, it’s not a dog whistle anymore, it’s out now blatant racism in connection with trying to get votes.

Preet Bharara:

I mean, he’s basically saying we’re going to have fewer brown and black people move to your neighborhoods. Don’t worry, I’m going to protect white suburbia. I don’t see any other way to read that statement.

Anne Milgram:

I agree.

Preet Bharara:

He’s clinging as hard as he can to certain constituencies that were part of whatever you want to call his coalition that allowed him to win in 2016 and he sees some of them slipping away especially in the suburbs and he thinks, and I think he’s … I hope he’s wrong about this.

Preet Bharara:

He thinks that appealing to this kind of sentiment is going to help him keep those voters and not let them slip away. I think it’s one of the worst.

Anne Milgram:

It’s hard. Yeah, it’s horrifying.

Preet Bharara:

Tweets I think he said in his tenure and it’s hard to rank them.

Anne Milgram:

It is hard, it’s a race to the bottom. I also wanted to note for you that he’s basically saying low income people and you’re right, he’s making, it’s a race thing where he’s saying black and brown people commit crime, but I also wanted to just point out that in his administration, the people who have committed crime are actually white-collar defendants like Paul Manafort and Michael Flynn and Roger Stone and the president, people could argue that the president himself is engaged in behavior that potentially violates criminal laws, but he was not charged.

Anne Milgram:

And so there’s something just so outrageous about, it’s just explicit racism, it is an explicit appeal to just this horrible, this horrible idea that he thinks will help get him elected. The second tweet by the way is to suburban Housewives of America where he basically says Biden will destroy your neighborhood and your American dream.

Anne Milgram:

And that is just to go over the politics for a second. One of the reasons that the president won in 2016 is that he did have a number of women in the suburbs, white women who voted for him, and a lot of people were surprised, including myself, frankly, about how many of those women voted for President Trump instead of Hillary Clinton, but really, this is a direct appeal.

Anne Milgram:

And it really is politics also because you and I have now both familiarized ourselves with the Obama-Biden rule which basically required communities to do assessments of have housing discrimination and to change where … And then basically to change zoning laws and other laws that were basically restricting Equal Housing Access.

Anne Milgram:

And so that rule went into effect with Biden and Obama, it really only went into effect very shortly before they left office and so it was just starting to be implemented.

Anne Milgram:

President Trump stopped that from being implemented in 2018 and so really he’s now officially rescinded it, but there was a hold on the rule since 2018.

Anne Milgram:

So in terms of practice, it doesn’t really change anything. In terms of overall the problem with getting rid of that rule is that communities were basically just allowed to say whether or not they were in compliance.

Anne Milgram:

Largely they were able to say themselves whether they were in compliance with the Fair Housing Act and the Civil Rights Law of 1968.

Anne Milgram:

And so what the Obama era regulation was really doing is basically making communities go through a process that would be data-driven to figure out whether or not they were discriminating, and if so, to come forward with how they were going to remedy it.

Anne Milgram:

So they have undone what is really an important tool, an enforcement tool for the Civil Rights Act, but the Trump administration had already undone it.

Anne Milgram:

And so this really is about my view making these announcements and these tweets are really about the politics of this horrible racist idea of appealing to the suburban white voters by telling them that their neighborhoods are going to go downhill. I mean, it’s awful.

Preet Bharara:

Yeah, and we should know that the Joe Biden I believe has said that if he’s elected, he will reinstate the rule.

Anne Milgram:

Yes.

Preet Bharara:

Final thing we should talk about. The case of the financial records and tax records of Donald J. Trump which has been litigated in the district court and the appeals court, and the Supreme Court of the United States of America.

Preet Bharara:

As people remember, we talked about that a couple of weeks ago. The Supreme Court said that there’s no absolute immunity on the part of the president not to disclose those documents to a district attorney’s office.

Preet Bharara:

It went back down to the district court and the Supreme Court said, “Look, the President and his lawyers can make any arguments that ordinary private citizens like you, Anne or I would make and they’re making those arguments in connection with that litigation. Cy Vance, the district attorney, his office put in a brief in which they describe how broad their investigation is.”

Preet Bharara:

And that got a lot of attention yesterday because they make a reference to the possibility that there is bank fraud or insurance fraud going on with respect to their investigation that raised a lot of eyebrows.

Preet Bharara:

I don’t think it’s quite as shocking as some people are making it out to be. There was a record that was laid in the house in that hearing that Michael Cohen testified at and there were questions asked by AOC and others that laid some predicate for the possibility that Trump organizations are inflating assets and income in order to get bank loans in a fraudulent way.

Preet Bharara:

Cy Vance’s brief points out that there are lots of reports and newspaper articles that talk about other kinds of fraud that might be going on.

Preet Bharara:

So it is a confirmation of what the judge suspected a few months ago that there might be something more than just the hush money payments that Michael Cohen engineered that’s at the heart of the investigation by the Manhattan DA’s office, but it raises the specter of potentially more serious charges one day coming although I don’t think that’s in the immediate future.

Anne Milgram:

Yeah, and look, I read this the same way you do. First of all, I don’t think there’s anything surprising about this. The DA’s office never said it was limited to the hush money payments and actually, there’s been a fair amount of reporting and I think it’s been excellent on this question of whether Trump inflated his … Basically made it seem like his assets were greater in an effort to get loans and secure different bank loans an insurance coverage and then when it came time to taxes, basically it said something different and showed different levels of income and of course, all those documents would have been signed under penalty of law.

Anne Milgram:

And so there’s been public reporting about the difference between what Trump had said, his assets were when it came to loans and insurance and when it came to taxes and some other things and obviously, you cannot defraud banks, you cannot defraud insurers.

Anne Milgram:

And by the way, I would say this, it could even go beyond that, right? And so these are the kinds of things where the DA’s office has now outlined like, “Look, there’s public reporting on this. This is a legitimate place for us to be looking.”

Anne Milgram:

And it’s clear that I think that they have the right to get the data, to get the President’s taxes based on if they’re investigating these types of things, it feels to me like legally, they’re well within the scope of what I would see as a valid grand jury subpoena.

Anne Milgram:

The other piece of thing that was news and I think it’s not necessarily huge news, it’s a little inside baseball, but was that Walter Dellinger who’s a former, I think he was a Clinton Solicitor General and so he’s a very prominent appellate lawyer in the United States.

Anne Milgram:

He has joined the Vance team to argue in the federal court. He is a very, very smart, high powered appellate lawyer and so it’s a … It’s interesting to me that they would bring him on now versus he’s the kind of guy you often would go to argue a Supreme Court case.

Anne Milgram:

He’s argued a number of supreme court cases, but anyway, that was also an announcement that came yesterday.

Preet Bharara:

So before we go, we should remind everyone, 91 days to the election, 13 weeks, make sure you’re register to vote. Make sure you get your ballot.

Anne Milgram:

I just asked for my ballot this morning. I just did it.

Preet Bharara:

Great. And by the way, the other things happening next week is the entire DC Circuit Court of Appeals minus one I think who is … Because one judge is recused will be deciding the fate of Michael Flynn.

Preet Bharara:

They’re going to decide whether or not the district court judge has to be compelled to dismiss the case against Michael Flynn because the Justice Department requested it.

Preet Bharara:

So we look forward to that. We look forward to covering all the news in the next week. We wish Ben would as well. Thank you for being our guest and have a good week.

Anne Milgram:

Thanks Preet, you too. Take care.

Preet Bharara:

Hey folks, a bit of news from CAFE. We have partnered with the Words Matter podcast for a new season. The hosts are Katie Barlow and Joe Lockhart and the podcast will soon be part of the exclusive CAFE Insider portfolio.

Preet Bharara:

Their first guest, somewhat controversial one, Rod Rosenstein, the Former Deputy Attorney General. As always, write to us with your thoughts and questions at [email protected]

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