Preet Bharara: From CAFE, welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: I’m Anne Milgram.
Preet Bharara: Hey Anne.
Anne Milgram: Hey, Preet.
Preet Bharara: Another week, another convention concluded.
Anne Milgram: Yes. I’m relieved there’s no more. It’s two long weeks of …
Preet Bharara: It’s too much. Although, in some ways, they were both an easier watch because it was just a couple hours at night. Did you feel compelled-
Anne Milgram: Yes, instead of-
Preet Bharara: Did you watch all the nights? I did.
Anne Milgram: I did. I didn’t watch all of every night, but I tried to watch both the DNC and the RNC conventions and understand what’s happening.
Preet Bharara: Did you watch President Trump’s 73 hour speech?
Anne Milgram: I watched a lot of it. I can’t say I watched every minute.
Preet Bharara: Then you took a nap and you went for a run.
Anne Milgram: Did you watch all of it? Yeah.
Preet Bharara: Then you came back and you ate breakfast.
Anne Milgram: Ate breakfast, yeah.
Preet Bharara: Took another nap.
Anne Milgram: Did you watch it all?
Preet Bharara: I did. I kind of fell in and out of consciousness though.
Anne Milgram: I like the one, the CNN commentator who’s a Republican was like, “It could have used some editing. The speech could have used some editing,” which was the understatement of the year.
Preet Bharara: No, I think we discussed last week. My ears were still ringing on Thursday from being yelled at by Kimberly Guilfoyle.
Anne Milgram: Yes. You know what was really remarkable to me is, I kept watching it, the convention and seeing it was a lot of the President’s family members and obviously some loyalists, and I kept thinking like, it really was a different convention in many ways than you would expect to see. It wasn’t about the up and coming party leaders. It wasn’t about the party. It was about the president. It was different in that way, I think from the Democratic Convention, but also from prior Republican conventions in a really extreme way at least. I was watching and thinking, “This feels weird to me,” and it just felt odd.
Preet Bharara: Well, one reason it felt odd, maybe this can be our first topic to discuss today is that on Thursday night, the event took place on the South Lawn of the White House, which has never happened before. One of the reasons it’s never happened before, is people consider the White House to be the people’s house. It’s a federal building. Both norms and the statute called the Hatch Act; generally, we can get into the details of it in a minute. But they generally prohibit political activity, campaign activity, which this was, in certain places that taxpayers fund.
Before we get to the issue of whether or not there was a violation of the Hatch Act and the details of that, just generally like the look of a campaign event, a pure political event happening at the White House, how was your reaction to that?
Anne Milgram: Yeah. I think I was really troubled by it. I think you said it well, by talking about the people’s house, the White House, and it’s a very interesting thing. The President is the Commander in Chief, is the President of the United States and also at the same time is running for reelection. The President naturally combines politics and government in a way that nobody else in government is supposed to. But there’s always been that line. The political convention has always been about the pure politics of reelection. To see that on the government lawn, it just, it was jarring for me.
I think it also is just yet another example in my mind of how, the president doesn’t care about norms, he doesn’t care about laws. In particular, he puts himself and right now his reelection above everything else. It’s weird, even if it’s not illegal and we’ll talk about that.
Preet Bharara: I think it’s beyond that. I think it’s even worse than not caring, and being apathetic about the law. I think he actually revels in it. There are some reports that he actually loves the idea, that it makes people angry and it triggers people, and that there’s nothing anybody can do about it because he’s discovered someone else wrote, I can’t remember who it was. The President took some time to discover just how much of government especially in the executive branch at his level, relies upon the honor system, and how much he can do whatever he wants and there’s no one to stop him.
It’s not just he doesn’t care; he I think cares in the other direction. If it’s something that he can do that nobody has done before, it fits with his vision of what looks good and it creates a good Tableau and is a bonus-
Anne Milgram: I think it’s his brand.
Preet Bharara: … that pisses people off. Yeah, that’s what he does.
Anne Milgram: I do think you’re right. I think it’s his brand, in the sense also of, he ran going back to 2016 as an outsider, “I’m going to drain the swamp.” We’ll talk about that. That’s obviously not true. But this idea of I don’t follow, I’m not going to be held in by the government bureaucracy, and I don’t have to follow these rules. There is this huge branding thing with his supporters who have remained, many of whom have remained loyal to him, which is this, he’s different and we like that about him. He leans into the, “Yeah, I don’t follow your silly rules. I don’t have to follow your rules. I’m the president and I’m going to do things my way.” I think you’re right in saying that he relishes in it.
Preet Bharara: It is not just by the way, the fact that his main speech was on the White House lawn. There was also Mike Pompeo first Secretary of State, I don’t know if it’s ever or at least in modern times to speak at a convention from-
Anne Milgram: The Pompeo thing was just beyond.
Preet Bharara: … Jerusalem.
Mike Pompeo: I’m Mike Pompeo. I’m speaking to you from beautiful Jerusalem, looking out over the Old City.
Preet Bharara: Then something that I think is equally crazy was the naturalization ceremony at the White House.
Anne Milgram: Can we talk about that? Those people …
Preet Bharara: Two of them didn’t know they were going to be featured in the convention. I think one of the campaign people said, “Oh, yeah, we didn’t know.” I forget who it was who said, “We didn’t know it was going to be featured in the convention. We just had nine cameras set up and lighting,” and it was done close in time to the convention.
Anne Milgram: I laugh because it’s absurd. It’s absurd. No, please it was all staged for the convention. Then they did like the minimum they had to do to try to have a disguise of it being legitimate and just maybe we should break this down a little bit. But they set it up to do the naturalization ceremony with the President and the acting DHS Secretary Chad Wolf, and they had all these cameras there, and they literally didn’t put it on the President’s public schedule.
Preet Bharara: Right. [crosstalk] It was Wolf who said he didn’t know is going to be used for the convention [inaudible].
Anne Milgram: Right, it was Wolf who said that, yes. They then put it on YouTube for a hot second, just so that they have the ability to say, “We’re taking this public … We’re taking publicly available material.” You don’t get around things like the Hatch Act by basically doing a political act for the convention and just trying to whitewash it, by putting it up on YouTube for five minutes before.
Preet Bharara: We should address what the Hatch Act does and does not say. To be clear, the Hatch Act explicitly exempts the President of the United States and the Vice President of the United States for various reasons, because going back to what you said before, it’s difficult in the wisdom of Congress to apply those things and that separation to somebody who is both the leader of a political party and also leader of the country, but everyone else has to obey and abide by the Hatch Act. It says a lot of different things, among them, that political activities are prohibited. Specifically, “an employee may not engage in political activity, while the employee is on duty, in any room or building occupied in the discharge of official duties by an individual employed or holding office in the government of the United States, or any agency or instrumentality thereof.”
Then it goes on to talk about not doing political activity when wearing a uniform, not using your official authority or influence for the purpose of interfering with or affecting the result of an election. You and I have both had experiences, where we’ve had to abide by the Hatch Act. We were talking about this last week in passing. Maybe we should give an example to folks of how seriously people in Congress and staff in Congress heed the Hatch Act on a daily basis, only to watch it flouted by this president.
Anne Milgram: Yeah. I remember, it’s one of the first things you are told when you start at the Department of Justice is basically, here’s what you can’t do. And you can’t … Here’s an example. Let’s say, you wanted to go out and canvass for a presidential candidate. You individually could go out and do that. You just couldn’t say “I’m Preet Bharara, I work for the United States government.” You could say, “Hey, my name is Preet Bharara. I’m supporting X for President. I’d like you to support them too.” But you can’t, in any way connect the political activity to your government office.
It’s important to note that the goal of the Hatch Act and this is from the Office of Special Counsel at DOJ basically says like, “The purpose is to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to make sure federal employees advanced based on merit and not political affiliation.” The goal really is to like as you say, separate it out. It’s also you can’t stop someone from being politically active, right? That’s a right that we all have. But you can basically say to them, “You can’t in any way be political at work.”
There’s a lot about, you talked about it last week of, when you worked for Senator Schumer, if anything had to do with the campaign, you would not physically be in your office, your senate office.
Preet Bharara: No, staffers have to … You have to leave the building. You have to leave the building that the public pays for, whether it’s the Senate Hart building or the Russell building, or whatever house building, and you go to a privately paid for office or office space or the sidewalk, so you can do anything political like campaign fundraising or anything else. The same true for you when you worked for your senator.
Anne Milgram: Right. I think we even talked about this. I don’t remember if we did it when we were recording or when we were just chatting during the week, but members of Congress, the political parties rent offices near their office building so they can go and make fundraising calls from them. They take this so seriously, Democrat, Republican, they wouldn’t make those calls from their office. It is a long standing tradition. It is a really important tradition. The idea is to insulate the work of government from politics and it’s really important. One of the things that I think is interesting, and I wanted to ask you about this a little too, is that, you can’t be …
You have to be in your personal capacity, not in your professional capacity. All those White House employees, all those government employees who were at the White House during the President’s speech, they had to be there in their “personal capacity,” not in their work capacity. They’re also not allowed to be in an official government building. The President, if he’d given that speech at DOJ, they couldn’t be there doing politics. But what’s interesting is, the law is pretty … It’s interesting because it talks about being inside official government buildings, but the Rose Garden is not, the White House lawn is not inside an official government building.
Preet Bharara: Well, the special counsels takes the position and it’s a little bit of a weaselly … It’s a little bit of a weaselly document that the special counsel put out, saying the concerns could be raised if there are these circumstances, not raised if there are these other circumstances. I don’t know if this is a position taken before, maybe it’s never had to be taken before. But the special counsel in this administration, the current one, as you said, takes the position that the South Lawn and the Rose Garden are exempt from the Hatch Act prohibitions, because it’s not federal building. I don’t know if that’s true.
Anne Milgram: I don’t I don’t fully agree with it. But I think the way the law is written, gave them the opportunity to make that argument. It feels to me, those spaces of the White House are used as government spaces and so it feels to me a stretch, but, again, it’s a very interesting question of nobody’s pushed the Hatch Act like the literal language of the Hatch Act in this way before, and so you end up in a-
Preet Bharara: [crosstalk] It’s cheeky by habit. It’s not that different from the immigration, naturalization ceremony. Let’s figure out a hyper technical face saving way to say, “No, we were doing this for just regular purposes, official purposes. We put it on YouTube for a hot minute, as you said, and then we’re going to just use that footage, like we would any other kind of footage for campaign and political purposes.” It’s the same kind of thing with the South Lawn and the Rose Garden.
Anne Milgram: Yeah, I agree. One of the questions a lot of people have asked me in the past week is, what’s the penalty for violation of the Hatch Act? Again, not the President and Vice President, but Chad Wolf, the employees of DHS, all those folks. One of the things that I was really interested to see is that the Office of Special Counsel at DOJ can investigate the allegations of Hatch Act violations. NPR reported this past week that it’s often up to the employee’s supervisor, to act on the advice of the Office of Special Counsel.
But one of the things I’ve found really interesting is that the federal agency that’s supposed to actually adjudicate violations, so if somebody violates it, it goes to the Merit Systems Protection Board. That board usually has three members. Did you see how many members it has right now Preet?
Preet Bharara: I believe that’s the null set zero.
Anne Milgram: Exactly. There are no …
Preet Bharara: I’ll take what is zero. I’ll take what is zero.
Anne Milgram: You could almost always guess that in this administration that, how many people are actually on that board? Zero. Again, you start to think of this way in which it’s like a web of ways in which Trump and the administration are undercutting the rule of law and the norms. But that’s a great example of, okay, somebody violates it, file a complaint with the Merit Systems Protection Board. Then what happens when there’s nobody on that board?
Preet Bharara: Can I stop you for a second? As I like to do from time to time, comment on your language, which I enjoy very much. You used a new phrase just now and I kind of like it, because it has literation.A web of ways.
Anne Milgram: What is it?
Preet Bharara: A web of ways you said, they have a web of ways.
Anne Milgram: Oh, they do. Yeah. A web of ways that they’re doing this. Yep. It’s sort of-
Preet Bharara: It’s kind of a twist on a web of lies, a web of ways.
Anne Milgram: Yeah.
Preet Bharara: As you point out, there can be an investigation, there can be a clear violation, there can be a recommendation of punishment which has been made a number of times with respect to the now departed Kellyanne Conway. But if the supervisor is the president, and the President doesn’t give a damn and doesn’t care, then you can do these things with impunity.
Anne Milgram: Right. We talk about the … just briefly talk about what the … There are both civil and criminal laws that prohibit violating the Hatch Act. A lot of this is done civilly, so somebody who violates the Hatch Act … The penalties under the Hatch Act, if you violate it are an employee or individual who violates it shall be subject to one: disciplinary action consisting of removal, reduction in grade, which is your level in government, debarment from federal employment for a period up to five years, suspension or reprimand, civil penalty not to exceed $1,000 or any combination of the above.
There’s also a criminal statute that basically makes it unlawful for any person to intimidate, threaten, command, coerce, intimidate or attempt to do those things, someone to engage or not engage in any political activity. The criminal statute is really not frequently used in this. It’s really often about the civil violations that are brought … People have been fined, people have been fired. There are …
Preet Bharara: There was a Washington Post article that you and I both read, that gives example after example, of people who get real penalties. There’s an example of a Defense Logistics Agency employee suspended for 30 days after giving his office colleagues, all he did was give a PowerPoint presentation that displayed the words vote Republican. That’s a no, no, 30 days, no pay. An Energy Department worker forced to resign earlier this year after admitting she gave a woman running for Congress a tour of a federal waste treatment plant, so the candidate could show her expertise to potential voters.
There’s many examples of this, and this president doesn’t seem to care when it comes to him and his campaign.
Anne Milgram: One last point is that within the White House, there have been violations of this and the most prominent has been Kellyanne Conway, who as we know, she’s given multiple speeches basically advocating for Republican candidates, disparaging Democratic politicians. There was one particular example, where she was disparaging Democratic political candidates while speaking on TV interviews and social media. Basically, there’s a finding made against her that she violates the Hatch Act. It’s recommended that she be fired.
That’s the recommendation, but then it goes to, who does it go to to make the decision? President Trump and obviously President Trump didn’t do anything. There is a line where Kellyanne Conway is asked about it and her response is, quote, and this is from the Washington Post article you mentioned, she says, “Blah, blah, blah, let me know when the jail sentence starts.” Meaning she can do this with impunity. She’s never going to be held accountable.
Preet Bharara: It goes back to the point we’re making about Trump. It’s not that he doesn’t care. It’s almost reveling in it, by Kellyanne Conway too. The current White House Chief of Staff used to be a member of Congress, Mark Meadows. This is what he said.
Mark Meadows: Nobody outside of the Beltway really cares. They expect that Donald Trump is going to promote Republican values, and they would expect that Barack Obama when he was office that he would do the same for Democrats. Listen, this is a lot of hoopla that’s being made about things, mainly because the convention has been so unbelievably successful.”
Preet Bharara: That’s a stunning statement of the Chief of Staff to a president who keeps saying law and order, law and order, only when it comes to other people. It’s also stunning, because I’ve seen footage of Mark Meadows as a member of Congress in the Obama administration, absolutely saying that the Hatch Act was important, and absolutely saying it should apply to cabinet officials in the Obama administration. There’s a lot of hypocrisy. There’s a lot of double standards going on here. Look, is it a matter of life and death in the country?
No, but it’s a steady and continuing erosion of things that were established for a reason and that, by the way, are supposed to apply to both parties. It’s just going to make it easier for people of the other party when they come into power, if they also don’t have ethics to engage in this violation and this kind of unethical conduct and it won’t be right then either.
Anne Milgram: I agree, and we should note that Democratic administrations have also had violations of it. One of the Obama cabinet members who ran Health and Human Services made a political comment at a speech, and was held accountable under the Hatch Act for it. It’s not like this never happens, because again, sometimes people wear multiple hats.
Preet Bharara: But those are minor things compared to the series of things that happened last week.
Anne Milgram: Yes. What it appears to be is not strategic, intentional, repeated violations of the law knowingly and intentionally, right? There were there was a lot of condemnation about the president doing this at the White House before the Republican National Convention. A lot of people raised issues about it and to your point, they embrace that and they did it. I think that’s very different than somebody giving a speech, making a comment they shouldn’t have made being held accountable. This is intentionally deciding to violate the law and understanding that their intention is not to hold people accountable.
Look, somebody could make a complaint against a DHS employee who was there and say they were ordered to be there. They weren’t there in their personal capacity. They were engaged in political conduct. Again, it’s going to go either to their supervisor who is going to have been likely instructed not to hold them accountable, Merit Systems Board where there are no counselors. It all leads back to the same road of the President will get away with it. The administration will get away with it, but we shouldn’t accept that as something that’s okay to do.
Preet Bharara: The other big news, more recent even, yesterday, August 31st. The continuing saga … I think we call it a saga, right? The case of Michael Flynn, United States versus Michael Flynn which goes back and forth and up and down and in a web of ways, as a friend of mine recently said. The latest when we last left this saga, the DC Circuit Court of Appeals sitting in its entirety, was considering the question of whether or not they could compel the district court judge to drop the case, to accept the motion to dismiss, or whether or not they should let the district court judge go about his business and conduct an inquiry, as to why all of a sudden the Department of Justice was suddenly asking for the case to be dismissed.
It’s a narrow legal question against the backdrop of a lot of politics and a lot of legal wrangling. But a narrow question of whether or not the court at the appellate level, can before there’s a decision by the lower court force a decision, favorable to the defendant. In the initial adding, there a three judge panel, two judges, Judge Henderson and Judge Rao voted in favor of compelling the judge to drop the case. Saying you don’t really have any business in conducting a big inquiry of any kind. Then it went to the whole court, 10 of the 11 judges sat and what was the result?
Anne Milgram: Yes. By eight to two, they overruled the original DC Circuit decision and they basically found that Judge Sullivan could go ahead with the hearing, that he could have the help of Amicus, and particularly former Judge John Gleason, who had appointed to do an evaluation of whether or not Flynn had perjured himself, and that Judge Sullivan wasn’t biased and that he could … He didn’t have to recuse from the matter, that he could sit on the matter. It’s a wholesale …
Preet Bharara: Not disqualified, no reassignment, no disqualification.
Anne Milgram: Not disqualified.
Preet Bharara: Basically that they lost on all counts.
Anne Milgram: Wholesale. Yes, it was like a complete undoing. I think you and I talked about this a lot, but the rules around mandamus is, as we know, it’s an extraordinary writ, and it doesn’t happen except in the most extreme situations. This is and I think both of our view consistent with what the law is and where it should have been. The original DC Circuit Court opinion was wrong. What is really interesting to see is that, there’s also this little subtext here of the, of course, the two judges, Henderson and Rao, they dissent. They’re the two who go against the DC circuit and en banc ruling.
They basically are making this whole argument against Judge Sullivan, who’s the district court judge saying he shouldn’t be … He’s biased because he’s appealing this ruling. It’s all very, very interesting. The majority opinion comes back and says, “Actually, we took this because a judge raised it sua sponte, on their own.” One of the judges of the DC Circuit wanted to hear this. You and I had talked a lot about this up front that any single judge could say, “We want to hear this,” but this does …
The fact that the judge did ask for it, in addition to Judge Sullivan, asking the court to hear it says to me that the DC Circuit thought that as an institutional matter, it was really important to address what the court did here. The administration is getting called out and will be held to account through this hearing. But again, that’s just the right thing that’s supposed to happen under the law. It’s an important day and a big win I think for the rule of law. But, we should all understand that, this is what should have happened in the first place in my view.
Preet Bharara: Yeah. Look and it comes on the heels of en banc, full court ruling that overwhelmingly favored the other side. I think it’s worth just quoting briefly from a concurring opinion filed by one of the DC Circuit Court judges, Judge Griffith who says … This is an important point for everyone, right, because everything gets steeped in politics and President Trump talks about Democrat judges and Republican judges, and Griffith tries to cut through that by making the following point, “In cases that attract public attention, it is common for pundits and politicians to frame their commentary in a way that reduces the judicial process to little more than a skirmish in a partisan battle.
The party affiliation of the president who appoints a judge becomes an explanation for the judge’s real reason for the disposition, and the legal reasoning employee is seen as a cover for the exercise of raw political power.” Then he says, “This proceeding is not about the merits of the prosecution of General Flynn, or the government’s decision to abandon that prosecution. Rather, this proceeding involves questions about the structure of the judiciary and its relationship to the executive branch.” He goes on to talk about the narrow question of whether or not as we said, a circuit court can basically direct a ruling when the decision is still pending.
At the end of the day, part of the reasoning of the majority is that, “Look, the defendant who made the motion still has a chance to win.” As you and I have been discussing from the beginning, probably will. The case probably will be dismissed because the Justice Department does have the main role in deciding whether to pursue or not pursue a criminal prosecution. All that Judge Sullivan is trying to do is get a little bit more explanation, which he’s allowed in his discretion as the overwhelming majority of the court also agreed with.
Anne Milgram: I think your point on Judge Griffith is really important also. He’s retiring from the DC circuit. He’s a George W. Bush appointee and he felt strongly enough about this not to just join the majority, but to separately write this concurrence. I think that’s important because he’s basically arguing, “Look, this is … There’s no basis for a mandamus here.” He’s trying to cut through some of the noise about, this isn’t a partisan thing. This is basically how the law works. I think that’s also important, because he of course sat and it’s been pointed out by a number of commentators, he sat on the DC circuit with Kavanaugh. He’s worked with Roberts.
He has very close relationships with a lot of the Supreme Court justices. He’s well regarded as a jurist, and so this may be appealed to the Supreme Court, and I think what he was trying to do is send a really powerful and strong message of like, “Look, we shouldn’t even be having this conversation in many ways, and we have to sort of reset where we are.” What do you think happens next Preet? Do you think it gets appealed?
Preet Bharara: Yeah, I think the Flynn folks will appeal. But even before we get to that, we don’t do a lot of … I guess we do some of this second guessing of lawyer’s tactics. I think it was a real mistake on the part of Flynn’s lawyers to go for the mandamus. Things were essentially going their way. There may have had to be some and now there will be an uncomfortable hearing for the Justice Department. But I don’t know why they got sidetracked, given the weight of the law against a mandamus in this kind of situation. All they’ve done is succeed in I guess dragging it out far beyond the point where it would have been.
But what will happen next? I don’t know. I think this … Look, I think the law is overwhelming that mandamus should not issue, that Judge Sullivan should be able to have his hearing and then make his decision. It’s as simple as that. But as Andy McCarthy of the National Review said the other day, “Flynn will eventually prevail in having the case dismissed because he has an ace in the hole. If all else fails, the President will pardon him.” That kind of I think is correct.
Anne Milgram: Yeah, I think so too. I guess to your point about legally, there’s no question legally, it was a mistake to do mandamus, I think. But I guess the question I would ask you is, is there a political advantage that they see in some ways dragging this out? It feels strange to me as well. There’s sort of …
Preet Bharara: I don’t think so. The party that’s going to be put in the hot seat is not so much Flynn as the Department of Justice. The hearing that the government …
Anne Milgram: Completely.
Preet Bharara: The hearing that the judge wants to have is, why have all the cases in all the world is this the one where the government said, “Despite two guilty pleas, we want to make it go away?” What is so different? What happened? Who interfered? Why does Bill Barr care so much? It doesn’t matter from the perspective of Michael Flynn, except in so far as if the judge found that there was something nefarious going on, I guess he could deny the motion. I just don’t think there’s going to be a denial of emotion, although you never know.
Anne Milgram: I don’t think there’s going to be a denial of the motion either. I think ultimately Judge Sullivan is going to dismiss it. But I think he’s going to make them… Well, we don’t know what’s going to come out at the hearing so obviously that could change. But I think he’s going to make DOJ do exactly what you said, which is to explain why they’re doing this and to be forced onto the record, and to be held to account even if he ultimately goes with them. He’s going to make them articulate it and explain it, and he’s going to take his pound of flesh on forcing them to not be able to just whitewash it.
I think that’s what he was going for my gut. We don’t know. We obviously have no insight into this, but it feels to me like he wants them to have to explain what they’re doing, not to just be able to walk all over the rule of law with no accountability. He’ll get that and then the ultimate decision, I think you’re right, that it’s more likely than not that he’ll go, that he’ll favor Flint and dismiss it. I agree also with the conservative commentator McCarthy that, look at the end of the day, the President could just pardon him and the President probably will just pardon him if it doesn’t go the way that Flynn and his team want.
Preet Bharara: We should also talk about continuing developments in Wisconsin upon the shooting of Jacob Blake. Then there’s been protests in Kenosha and other places. There’s a young individual named Kyle Rittenhouse, who shot and killed two protesters, wounded another. There was a lot of controversy about that, and of course the president decides to get involved in some ways with respect to this controversy, and not involved in other aspects of this controversy. Should we talk about the case regarding Jacob Blake first?
Anne Milgram: Yeah, let’s start with Blake. Our understanding, and we talked about this a little bit is that Blake has been paralyzed, and one of the officers has now been named Rustin Chesky, the officer who shot Blake seven times in the back while holding on to Blake’s shirt. There’s also been some reporting that Blake had a knife in his possession or in his car. It sounds more likely that’s been reported by the Wisconsin Department of Justice, and all the officers have been placed on administrative leave. One of the other officers had used a taser on Blake, Chesky had used a taser on Blake and also shot him seven times from close range, as you can see in the video.
There was a female officer at the scene who it appears did not use any force. I think there are a couple of points to be made. There’s a lot that we don’t know about this. I want to just sort of stress that, because there’s been a lot of information, the unions have made statements, the police chief has made statements and what we don’t have is a clear picture of what happened that day. It looks like there was a 911 call to the scene for a woman who was reporting that her ex-boyfriend had arrived.
It’s not clear to me and I just want to say this to folks. It’s not clear to me what if any basis the police had to stop Blake. I think that that’s an important point just to make, which is that if the police do not have reasonable suspicion, they can always ask you questions. A police officer can always come up to you and say, “Hey, what’s your name? What are you doing?” You can answer or not answer. But as a rule, if there’s no basis for that stop, the police can try to get you to say something, but they have to let you walk away.
The reason this is important also is that, and not justifying what happens later in any way, but just understanding and it’s important to ask these questions like, was the attempt to detain Blake even lawful at the first point? Was that under the Fourth Amendment to the United States Constitution that prohibits unreasonable search and seizure? This is a legitimate question of why are they even there. What are they doing? What are they entitled to do? Were they even entitled to put hands on him to stop him?
Then we get to the second point, which is, you have someone being shot in the back with no obvious weapon, and so that had been followed essentially by officers for some distance, and so there are going to be a lot of questions about the use of force by those officers. My view always is when you have somebody who’s shot in the back; you need to be asking a lot of questions about that as a rule. This is going to be a complicated situation, because we don’t have enough information. But at some point, it’s going to become clear. We’re going to know a lot more.
We do need to know a lot more. But I think people should understand that there’s just this basic principle, which is that, when an officer says that they needed to fire, the use of force becomes justified. It is often because they will articulate that they believe someone had a weapon and was about to kill them. The use of deadly force is often only allowed, in response to a belief of a threat of deadly force. It is really hard to make that argument when somebody is not facing you, when there’s no weapon in someone’s hand.
It’s just worth noting that a lot of concerns that people are raising relate to the fact of, they had chosen to tase him, which meant they chose less lethal force to begin with, meaning that the officers didn’t think that there was a threat to their safety. Then it looks like the officer shot him because he couldn’t stop him and he wasn’t complying with a lawful order. You don’t get to do that. If an officer is telling somebody to stop, and they’re running away, you can’t shoot someone to stop them from running away.
That’s not a reasonable use of force. Again, we’ll come back and have longer conversations as this goes forward about, if there are charges brought what those charges are against the officers. Blake, it appears had an open warrant for a sex assault allegation. A lot will come down to, why the officers were there, what level of force they could have used. It changes over time as situations evolve, but this is what people are going to look at. Again, my very quick read from looking at it is that it’s a problematic shooting and should not have happened. But again, we’ll follow it.
Preet Bharara: Look, I agree. I think your analysis is very good here. But the other point I would make is, there’s a larger question of how policing should be conducted. People like you and me and others and people who are in a decision making capacity after an event happens, go through rigorously what the law is, and make arguments about whether or not a police officer in a problematic shooting can be charged, and what they can be charged with and should they be. That’s an important question for accountability.
But it’s not the only question. The other question is, whether we should be talking about police being able to exert their discretion up to the edge of legality, and what arguments you can make in favor of that or against that. I think it’s plain to see that in case after case after case, there should be policies, regardless of what you could argue ultimately at the end of the day in a court of law if there’s a bad shooting, but policies that make certain kinds of conduct by the police just wrong. There are these questions of whether or not as a legal matter, you can make the argument that if he was going for a knife, they could shoot him.
But the more important question in some ways as a matter of policy throughout the country and police departments around America is, what officers should be doing whether or not you can later make some argument legally or otherwise, what should they be doing when you have an unarmed person who is many feet away from a car, about whom it’s not clear you have full … Not probable cause, but not even maybe reasonable suspicion, what is the thing you do to prevent a bad result like this? That’s the fundamental question the police department should be asking.
Anne Milgram: I think that’s the right question. I think it’s the right question also, because if you think about, the Camden use of force policy, which requires deescalation, then the first question you’re asking is, how do we step back from conflict? How do we avoid getting into a shooting? The question then becomes, how do we avoid even putting ourselves in a situation where the end result can be a bad one? That completely changes the way officers think about, whether they approach them in the car. People have asked me like, “Well, what else could they have done?”
Look, they could have let him get in the car and had another car try to stop him when they had a bigger team of supports.” There’s 20 things they could have done to try to avoid the situation getting here. I think, you’re right. What I was just doing, because a lot of folks have asked for the … We’ve gotten questions from listeners about this, what’s the legal analysis of the shooting in that moment? That’s what I’m going through is what’s required. But I think you’re asking the right question, which is, why are we even getting to the point, and how do we change policies and structure so we don’t get there?
Because we’ve seen this many times that, if you get to this point where something happens, officers react in a certain way. I think the question is, how do you avoid getting into that situation in the first place? You’re asking exactly the right question. The other piece, I’d say is that for a long time, we’ve talked about shootings, police department shootings, and I think this has to change as many of them being lawful but awful, meaning under the law, a judge or a judge or jury will find that, based on the law that an officer at that moment in time, it was reasonable for them to have used their weapon.
But all of us can agree, it should never have gotten to the point where that happened, there was no reason that someone had to be killed.
Preet Bharara: One more point on this, unlike in some other cases, it has been reported that the Department of Justice has opened a federal civil rights investigation into the shooting of Jacob Blake. You and I have been critical of the department, whether or not it brings pattern and practice investigations to various police departments in the wake of things happening over the last months and years. But in this case, they did open one up. Do you think that means that there’s a change of policy or direction at the department or is it a one off?
Anne Milgram: Yeah, it’s not clear to me why they would open this and not the investigation in George Floyd specifically. I have a lot of questions as to why this department investigation was open. That’s my old section of DOJ. As a matter of course, usually there’d be investigation open into all of these shootings, all of these police shootings. I think it’s the right thing for DOJ to do it. They may also have been asked, again, we don’t know this, but they may have been asked by the locals to do so, to open up a investigation.
But it is important and it’s worth just noting that there’s value in DOJ often doing these things, because there’s local politics, it’s difficult with local police officers. There’s value in having the federal investigation, although we’ve talked about this, the standard is quite high, willful violation under color of law so a police officer willfully violating someone’s constitutional rights here, would be the Fourth Amendment right to be free from unreasonable search and seizure.
I think one of the national conversations that’s happening is, should this be taking place in state or federal, because the federal law the standard can be high and difficult to meet? But yes, DOJ is opened it, I think that’s an important piece of this.
Preet Bharara: In the wake of the shooting, there have been protests, I think understandably. Then there have been people who have traveled to the protests from outside the state. One such person as we mentioned, Kyle Rittenhouse, 17 years old, armed with a long gun in the midst of a protest, and there’s some controversy about exactly what transpired. There’s some video that has been shown and people are drawing, in some cases dramatically different conclusions from the video. Essentially what we know for sure is that Kyle Rittenhouse shot three people, killed two.
Before we get into what we think of the conduct and whether it was lawful or not, the local prosecutor has immediately charged Rittenhouse with a series of significant crimes. Six counts, first degree reckless homicide, two counts of first degree recklessly endangering safety, first degree intentional homicide, attempted first degree intentional homicide and possession of a dangerous weapon by a person under 18. Quick charges, serious charges and among the most serious you can bring, and yet there are people up to and including the President of the United States and people like Tucker Carlson, who are not only decrying the charges, but basically saying things like-
Tucker Carlson: We do know why it all happened though. Kenosha has devolved into anarchy because the authorities in charge of the city abandon it. People in charge from the governor of Wisconsin on down, refused to enforce the law. They stood back and they watched Kenosha burn. Are we really surprised that looting and arson accelerated to murder? How shocked are we that 17 year olds with rifles decided they had to maintain order when no one else would?
Preet Bharara: How do we have such a gulf between the charging decision here by the local prosecutor and the things that some people are saying in his favor?
Anne Milgram: I think we even have to go back a step, which is that after the shooting of Blake, there were a number of protests that … Obviously nationally, we’ve been seeing Black Lives Matter protests. But in Kenosha, Wisconsin, there have been a series of protests just continually demanding reform to the police department, the resignation of the police chief and the sheriff. It’s been largely peaceful protests. Now, one thing I think that’s important to understand is that there has been this movement by groups that are against the protesters.
There have been right wing groups. There have been white supremacist groups that have been posting on social media. There have been defend our towns against rioting and looting posts that have been going on social media. Some of the groups are stated to be pro Trump. Many of them are just right wing extremists. There’s been this marshaling on the right of these counter forces to the demonstrators. Rittenhouse was there as part of … He shows up at these counter demonstrations, to ostensibly protect property from looting.
I think we just have to be honest about what’s happening, which is that there are protests, they’re largely lawful. There has been some looting and rioting, which of course everyone, we condemn that very strongly. It has no place in this. Then you have this counter thing on the right that looks to be almost exploiting or taking advantage of this unrest in cities and communities, that’s basically putting it in a position, where so you now have the police and folks in a community trying to make sure that the protests are peaceful.
You now have them dealing with the anti-protesters who are coming many of them armed like Rittenhouse, who are escalating conflicts. You have this, what I think is a really, it’s just a tinderbox. We’ve now seen this happen with Rittenhouse shooting, murdering two people and having one person injured, but this has also happened in others places. In Portland, there was an individual who shot and killed, who’s murdered who was basically wearing a hat that was affiliated with a right wing group.
You’ve done a lot of terrorism work Preet. This feels to me like there is … I don’t know whether we would classify some of this as domestic terrorism. But there’s a real undercurrent here that makes me very concerned of what we’re seeing play out in cities, and Rittenhouse is a part of what we’re seeing play out.
Preet Bharara: Yeah. There are too many people who are seeking violence and violent confrontation, and you have politicians, like the president who are basically looking like they’re inciting violence and taking side, as opposed to having everyone come out and take down the temperature and promote peaceful protest, and discourage people from being armed and going to protest whatever side you’re on. I think it’s exactly right what you said, there’s a tinderbox situation. At any moment a match can light the fuse, and it can get even more out of hand than it is already.
Look, so the facts are with respect to Rittenhouse, that he shot three people, two were dead and he’s been charged. The only thing he can assert, given that there’s no defense to his not being the guy, right? When you have a homicide case, there are two things that you can argue, it wasn’t me, or it was me but I had the right to self defense. In this case, he’s only got the second thing. The state laws about self defense are interesting. It doesn’t come up that much in federal prosecutions.
But in Wisconsin, people should understand a couple of things about the law of self defense, because the President himself from the White House podium, has basically rendered a legal conclusion and said …
President Trump: You saw the same tape as I saw. He was trying to get away from them, I guess it looks like and he fell, and then they very violently attacked him. It was something that we’re looking at right now and it’s under investigation. But I guess he was in very big trouble. He would have been … He probably would have been killed-
Speaker 7: But do you think-
President Trump: … but it’s under investigation.
Preet Bharara: I don’t think that the President has read the Wisconsin statute. But luckily for our listeners, you and I have, and among other things, the self defense law in Wisconsin says, “The actor …,” meaning the person who did the shooting, the defendant, “The actor may intentionally use only such force or threat thereof as the actor reasonably believes is necessary to prevent or terminate the interference,” and that means the interference with his or her person, by another person and then importantly, it says, “The actor may not intentionally use force which is intended or likely to cause death, which would be shooting or great bodily harm, unless the actor reasonably believes that such force is necessary to prevent imminent death, or great bodily harm to himself or herself.”
The question is going to be with respect to each shooting, remember that facts evolve and circumstances change. I don’t think we have a full video of the whole incident. The question will be, did Rittenhouse reasonably believe that he was about to be on the other side of imminent death or great bodily harm? You’ll have to make an assessment. Another important point and then I’m wondering what you think about all this. There’s this legal concept of provocation. If you are a provocateur, if you’re the one who engaged in a provocation that may render you unable to assert self defense.
The provocation law in Wisconsin says, “A person who engages in unlawful conduct of a type likely to provoke others to attack him or her, and thereby does provoke an attack is not entitled to claim the privilege of self defense against such attack.” Then it goes on to talk about imminent danger of death and great bodily harm. Both of those concepts are at play here and it’s going to matter, not just whether he thought he was under threat of imminent death, or serious bodily harm, but whether or not he did something to provoke the reaction of the other protesters. It gets a little complicated, right?
Anne Milgram: Just to add to that on provocation, it does get complicated. If you provoke someone, then you have to … Rittenhouse would have had to basically to use deadly force, would have had to reasonably believe that he has exhausted every other reasonable means to escape from or otherwise avoid death or great bodily harm. It really is a situation where if you provoke somebody, you can’t shoot them because they’re coming towards you. It’s a very high burden. You have an obligation to try to escape or to basically do something short of using that level of force. What’s really important in this case Preet, I think also you have to remember that there’s been reporting in Wisconsin that Rittenhouse and some others brought weapons to a used car lot to try to defend that, allegedly defend that used car.
Kyle Rittenhous…: People are getting injured and our job is to protect this business and part of my job is to also help people. If there’s there’s somebody hurt, I’m running into harm’s way. That’s why I have my rifle because I can protect myself obviously.
Anne Milgram: They are not entitled to do that under the law. That is the job of the police. The police are not asking them to go out and protect the neighborhoods and the used cars. They are there basically of their own decision to go out armed. It is a carry state, not under the age of 18. But people can be armed in the state, but they’re not allowed to be doing what they’re doing. You sort of get to this position of it’s hard not to see that as in some ways, beginning this question of like, are they provoking something even just to start, by basically going out there armed and getting into arguments with people?
Then there’s also a video of one of the individuals who is I believe shot and killed by Rittenhouse, throwing a plastic bag in his direction. We should be very clear that if it comes to self defense, you cannot shoot someone because they’ve thrown any type of bag at you. It has to be in that moment that you fear that they’re about to kill you or cause serious bodily harm to him, and you’re in imminent danger. I think that the self defense … I absolutely agree with you, Rittenhouse is going to argue self defense.
I agree it’s going to be one by one. I think it is a very high hurdle for him to meet and particularly on the provocation piece, because he shoots someone and then he’s going to argue that people were trying to basically stop him and that’s why he fired the second and third shots. But if they’re trying to stop him, they’re trying to stop him because he’s just shot someone and he’s trying to leave the scene.
Preet Bharara: Yeah, I think with respect to the second whether or not he was a provocateur is going to be important. He will also be able to argue, I think the reporting is, that at least one of the protesters that was chasing him or surrounding him, also was armed with a firearm and that will change the calculus as well. There’s just one more part of the provocation law that I want to read. I’m very fascinated by Wisconsin self defense law, because this may apply in this case if you think about the mindset of the people who were the counter protesters, who traveled interstate to come to this protest.
This part of the law says … Think about how this applies to Rittenhouse, “A person who provokes an attack, whether by lawful or unlawful conduct with intent to use such an attack as an excuse to cause death, or great bodily harm to his or her assailant is not entitled to claim the privilege of self defense.” Now, we can discuss whether or not that has application to Rittenhouse, and we maybe don’t know his state of mind. But that concept, I worry we’re going to have to come back to in the future, as there are undoubtedly people who are counter protesters and support certain views, who are going to be going to places absolutely with an intent to have an excuse to impose bodily harm or death with their weapons, and we’ll see what happens here.
But it’s an important provision in the law that takes into account, people who are going to show up and pretend that they’re engaging in some lawful conduct, like being substitute police officers, and menacing protesters in a particular way to provoke them into having a justification to shoot and that doesn’t fly, at least not in Wisconsin.
Anne Milgram: But I agree. I think it will be litigated. Choose two other questions for you Preet. One is, traditionally, federal law enforcement agencies like the FBI, they have tracked white supremacist groups. They have tracked these movements, the right wing, extremist movements, the armed militias. I assume … There are a lot of postings on social media. I assume that they are tracking them. I think one of the questions I’ve had in my mind is, what are they doing now to negate that? What are they doing if they know that there’s going to be a gathering, and they know that they’re potential problems, what is federal law enforcement doing and have they’ve been told to stop doing what they used to do?
Because in my experience doing hate crimes cases, these groups are tracked very closely, sometimes not … You could understand someone who’s a fringe individual, who’s a lone wolf could come out of nowhere. But when you start talking about these organized groups that are posting on social media that are using public means to get the word out to folks to attend, I just wonder what countermoves the government is taking to try to negate this? Because it really is, the minute that you let this situation evolve into protesters and counter protesters who are armed, it really is the again, the results are not going to be good in most circumstances. I just wonder what you think.
Preet Bharara: Yeah, it’s hard to say. I think that the FBI director Chris Wray, has talked about these threats, I think in a reasonable and balanced way. Some of the politicians talk about, one side versus another side and draw distinctions that I’m not sure are right and proper when we’re talking about public safety. But I hope it’s true that things are being tracked in the way that they have been in the past, but it’s impossible to know.
Anne Milgram: One other thing Preet, I’ve had in my mind and I just wanted to talk through with you a bit is that, as nationally there are these conversations about defunding the police. It means you and I’ve talked about this, what that means no one knows for sure. It means a lot of different things to different people. But there is one very extreme version of it, which is that you’d essentially eliminate law enforcement and that you would have only social service agencies or community outreach workers on the street.
It feels to me … I’m deeply against that for many reasons that you and I have talked about. Obviously, I think policing has to be so much better than it is, and we have to stop what’s been happening and this bias policing and the killing of unarmed black men obviously. But this idea of having no law enforcement presence, it just really came home to me with this idea of, if you didn’t have the police on the street, you would have people like Rittenhouse and others who are taking it upon themselves to be, “protecting the used car lot,” to be protecting the buildings.
It just really, it raised this issue for me of where are we going with this and just making people aware that, defunding the police would necessarily mean, that other people take it upon themselves to do public safety. Just I don’t know if you have any thoughts about it, but it’s an extreme version of it obviously. But it just raises with me the importance of the police to provide safety in a community, not to have these homegrown militias thinking that they’re the ones who are going to provide private security.
Preet Bharara: Yeah, I don’t think it should be left up to private citizens to take into their own hands, either protection in this way. Then what follows after that is how they hold people accountable. If that is in the hands of private citizens, and young men not even of the age of 18 like Rittenhouse, that’s a recipe for worse disaster than we’re in now, so I agree. Before we go Anne, something that I’ve been saying over and over again, the election’s coming. In some states there’s still primaries, vote, register to vote, figure out how to vote, vote early, don’t vote often. That’s illegal.
There’s a primary actually in the state of Massachusetts today. It’s a highly watched race one of the ballots, and it’s representative Joe Kennedy, who is challenging the incumbent senator also a Democrat Ed Markey for the Senate seat, and it’s unclear who’s going to win. I think Markey has a slight advantage. But last week, there was a new development in the race. It turns out that a lot of mail in valid voters have not been voting either for Markey or Kennedy, and they’ve been voting for a write in candidate whose name is Vermin Supreme. You heard that right, Vermin Supreme, which used to be my nickname.
No, absolutely not, a noted performance artist known for his wizard like beard and boot hat. Mr. Supreme or Vermin decided to ride the wave of support and officially announced his write in candidacy for the Massachusetts senate seat. We thought people might want to know some of his platform.
Anne Milgram: Yes. Vermin has a whole campaign platform that he’s put up. He’s got four core tenants to his campaign. The first is, he wants to reform America’s police departments and enact mandatory toothbrushing laws. He believes that America has been suffering a great-
Preet Bharara: Haven’t we done that?
Anne Milgram: … moral
Preet Bharara: I thought we had that, at least in this house we have that.
Anne Milgram: He writes, America has been suffering a great moral and oral decay in spirit and incisors. Gingivitis has been eroding the gum line of this great nation long enough and so … Oh, and instead of police forces he wants to replace police officers with moral hygienists.
Preet Bharara: What does that mean? Oh it says [crosstalk], “The moral hygienists will conduct regular inspections of all individuals seeking out any traces of literal or ethical gingivitis.”
Anne Milgram: But that’s not all Preet.
Preet Bharara: That’s not all.
Anne Milgram: The second part of his platform … That’s not all. The second part of the platform is for Vermin to replace detention centers along the border with a theme park that he would focus around fun, that would have a lazy river around the perimeter, and the lazy river will be known as the border and it will be patrolled by lifeguards. The third part of his platform involves prison reform, where every inmate will be given a brand new dental hygiene kit. No, there’ll be daily group tooth brushing sessions and flossing lessons, and they will also get lifeguard training so they could be lifeguards at the border, lazy river. [crosstalk] There’s one more thing Preet.
Preet Bharara: Can I say what the fourth pillar of his platform is?
Anne Milgram: Please.
Preet Bharara: Because it’s my favorite one.
Anne Milgram: Yes.
Preet Bharara: Number four, universal pony ownership. Vermin says he will give a pony to every American, “We can afford all these wars. We can afford this, that and the other thing, so why not ponies?”
Anne Milgram: Why not ponies? Yeah.
Preet Bharara: I think he’s got a shot.
Anne Milgram: That’s a very, very good question.
Preet Bharara: I think he’s got a shot.
Anne Milgram: I think it’s really interesting … Is he a dentist by the way? I don’t know. But there seems to be a strange amount of fixation here.
Preet Bharara: Would you go to a dentist named Vermin Supreme?
Anne Milgram: I would not, would you?
Preet Bharara: I don’t think I would.
Anne Milgram: But I don’t really [crosstalk] like the dentist to begin with. Sorry dentists.
Preet Bharara: If I got a pony, I would think about it.
Anne Milgram: Who doesn’t like a pony?
Preet Bharara: Who doesn’t like a pony? Anyway we will be bringing you updates on these cases that we’ve discussed, on Vermin Supreme and anything else that transpires between now and next week. Thanks Anne.
Anne Milgram: Thanks Preet. Talk to you soon.
Preet Bharara: Send us your questions to [email protected]
That’s it for this week’s insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The senior audio producer is David Tatasciore. The cafe team is Matthew Billy, Natt 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 Doss. Thank you for being a part of the CAFE Insider community.