• Show Notes
  • Transcript

In this episode of CAFE Insider, “Durham, Defamation, and Disenfranchisement,” Preet and Anne break down the resignation of Nora Dannehy, a veteran prosecutor and top aide to John Durham in the investigation into the FBI’s Russia probe, the DOJ’s decision to take over the defense of President Trump in a defamation lawsuit brought by columnist E. Jean Carroll, the 11th Circuit Court of Appeals ruling that people convicted of felonies in Florida must pay all fines and fees before registering to vote, and more.

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

This podcast is produced by CAFE Studios.

Tamara Sepper – Executive Producer; Adam Waller – Senior Editorial Producer; Matthew Billy – Audio Producer; Jake Kaplan – Editorial Producer

REFERENCES & SUPPLEMENTAL MATERIALS

NORA DANNEHY

“Nora R. Dannehy Returns to U.S. Attorney’s Office,” DOJ statement, 3/18/19

“Nora Dannehy, Connecticut prosecutor who was top aide to John Durham’s Trump-Russia investigation, resigns amid concern about pressure from Attorney General William Barr,” Hartford Courant, 9/11/20

“About That 60-Day Rule,” Lawfare, 9/3/18

“What Might Force Mueller’s Hand Before the Midterms? Exceptions to the DOJ 60-Day ‘Rule,’” Just Security, 10/9/18

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

DOJ INTERVENES IN TRUMP DEFAMATION CASE

E. Jean Carroll v. Donald J. Trump notice of removal, 9/8/20

E. Jean Carroll v. Donald J. Trump complaint, 11/4/19

28 U.S. Code § 2679. Exclusiveness of remedy (Westfall Act)

28 U.S. Code Chapter 171—Tort Claims Procedure (Federal Tort Claims Act)

Council on American Islamic Relations v. Cass Ballenger, United States Court of Appeals for the District of Columbia, opinion, 4/11/06

Operation Rescue National v. United States, United States Court of Appeals, First Circuit, opinion, 7/1/98 

“E. Jean Carroll, Who Accused Trump of Rape, Can Go Forward With Suit,” NYT, 8/7/20

“The Justice Department says defaming women is part of Trump’s job. Literally,” WaPo, 9/10/20

VIDEO: Attorney General Bill Barr’s statement on Carroll lawsuit, 9/9/20

FELON VOTING IN FLORIDA

Kelvin Leon Jones, Rosemary Mccoy, et al. v. Governor of Florida, Florida Secretary of State, United States Court of Appeals, First Circuit, opinion, 9/11/20

Kelvin Leon Jones, et al. v. Ron DeSantis, et al., United States District Court for the Northern District of Florida, Tallahassee Division, opinion, 5/4/20

“Mike Bloomberg to spend at least $100 million in Florida to benefit Joe Biden,” WaPo, 9/13/20

BOB WOODWARD’S TRUMP INTERVIEWS 

“‘Play it down’: Trump admits to concealing the true threat of coronavirus in new Woodward book,” CNN, 9/9/20

President Trump tweet, 9/10/20

2 LOS ANGELES POLICE OFFICERS SHOT

“2 L.A. deputies shot in ‘ambush’ attack recovering after surgery,” Los Angeles Times, 9/12/20

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

Hi, Anne. Is it fall? Is it autumn?

Anne Milgram:

It feels like it. It’s so cold here in New York City.

Preet Bharara:

I think not yet.

Anne Milgram:

Technically, isn’t it the 21st? September 21st is the end of summer?

Preet Bharara:

Yeah. And the sad thing about it is, other people have commented on this, COVID began… I think, technically, we began a lockdown in winter. And then, we had spring, and then we had summer, and now we’re about to have fall, and we’re still out of this thing. Not to be depressing.

Anne Milgram:

Yeah. Six months, right? We came back to the city yesterday, and I realized as I was walking in that it was just a little bit over six months ago. That was the last day of my son’s school.

Preet Bharara:

Anne, have you seen all the open seating, outside seating at that little restaurant?

Anne Milgram:

Yes, it’s great.

Preet Bharara:

It’s actually quite nice.

Anne Milgram:

It’s great. I haven’t sat in one, but it looks terrific.

Preet Bharara:

I have. I’ve been going in from time to time and having dinner or drinks. For people who are not from New York, their entire lanes of road outside of its streets that are taken over by nicely set up outside dining areas for restaurants so they can make ends meet. And it’s the one thing that has made New York a little bit better.

Anne Milgram:

Yeah, it’s great. It’s all over the city right now, and I hope it stays.

Preet Bharara:

Can I know one more thing?

Anne Milgram:

Yeah.

Preet Bharara:

49 days until Election Day.

Anne Milgram:

Wait, can I just ask you something?

Preet Bharara:

Yeah.

Anne Milgram:

I feel that your account, maybe I’m reading Twitter wrong, but you and Joe Biden seem to have a different day count.

Preet Bharara:

We do?

Anne Milgram:

I’ve been meaning to ask you this, yes.

Preet Bharara:

Maybe we’d go, “Joe-

Anne Milgram:

Maybe so one could check while we’re recording, because like the other day, you said-

Preet Bharara:

Today is Tuesday, September 15th, and it’s seven weeks. No, I misspoke last week on the program, and nobody knows I misspoke because that was edited out. I realized later that I had misspoken.

Anne Milgram:

Okay. Well, the other day, I feel like I saw literally your tweet and a tweet by Joe Biden back to back and you had different-

Preet Bharara:

Different days?

Anne Milgram:

… number of days and I was like, “Is Preet talking about a different election,” or hopefully Joe Biden knows what day of the election is, but something’s not right there. But by the way, it could have been me. Anyway, I’m glad we’re all on the same page that we’re talking about the presidential election, November 3rd.

Preet Bharara:

And debates coming up. We’re going to be talking about debate soon. That’ll be interesting.

Anne Milgram:

Definitely.

Preet Bharara:

Should we talk about some news since the last time you and I got together to do this thing we do?

Anne Milgram:

Yup.

Preet Bharara:

So, Nora Dannehy. She’s not a household name. Nora Dannehy was the top deputy to John Durham, who is the U.S. Attorney in Connecticut. And John Durham, some people may remember, has been tasked by the Attorney General of the United States to do an investigation of the investigation into Russia, and all of that stuff that we’ve been talking about for the last couple of years. And what’s interesting about it is Nora Dannehy has been a longtime prosecutor. She overlapped with me when I was the U.S. Attorney at SDNY. She was the acting U.S. Attorney for a period of time in ’09 and in 2010 in Connecticut, known to be a sober and clear-eyed, full of integrity, career prosecutor.

Anne Milgram:

And she did the investigation around the firing of the U.S. attorneys, right, by Alberto Gonzales. She said a lot of political corruption work. She’s very well regarded. I don’t know her personally as you do, but she has a very strong reputation.

Preet Bharara:

And she came back into government, basically, to work on this thing that John Durham was assigned, and then last week suddenly resigned. There’s a local newspaper article in the Hartford Courant, it’s nice when there’s a local news scoop, says that she resigned in part because of pressure she was feeling from the Justice Department Bill Barr, I suppose, to issue some report or charges in connection with the Durham investigation before the election.

Preet Bharara:

Now, we should pause there for a second. I wonder what you think about this. That’s not been confirmed. She didn’t make any statement like some other people have when they step down. It’s just reported that she has been telling colleagues for some weeks that she has been growing increasingly uncomfortable and has been thinking about resigning.

Preet Bharara:

I’d like to caveat these things saying maybe there’s some other personal reason why she stepped down. But it is unusual at this late date to step down from the thing that you came back to do unless you have some qualms about it.

Anne Milgram:

There’s also been some reporting that there’s been pressure to put out an interim report. So, we’ve been spending a lot of time talking about the Department of Justice policy on not bringing criminal charges that could impact election within 60 days before an election or 90 days. We’ll talk about that a little bit more probably depending on who you talk to, but generally, I think it’s 60 days. So, we’re within that 60-day window.

Anne Milgram:

And it would be unlikely, or we should not see in the normal course of things, we should not see any charges coming out of this matter between now and election. The day after the election, no problem. But this is obviously, it’s an investigation into the 2016 investigation of the Trump campaign. It’s political. It will impact the election one way or another. And so, you and I would expect not to see anything if normal rules were followed.

Anne Milgram:

So, what’s been reported is this idea that Barr wanted an interim report from Durham. We should talk about this just for a second because it’s not normal to have reports in investigations, but Durham’s investigations started a little bit strangely, right, like as you say, to investigate the investigators. And it wasn’t ever clear if it would be criminal. It was more done, in my view, at least initially, that it would be a report would be the outcome. They did charge the one lawyer at the FBI, we talked about that recently, who had made a false statement in an email, Clinesmith.

Anne Milgram:

But this idea that there would be any report interim or otherwise prior to an election, if that were true, and again, we don’t know the full facts, she has not spoken, that would be an extraordinary thing. And really, it’s not what DOJ does. They never do interim reports, if they ever do reports, and they rarely do them. But they did do one in Ferguson. Obviously, Mueller did one. So, it’s not implausible to have a report, but the idea of doing an interim, that would be completely-

Preet Bharara:

One thing the whole idea of doing report, the whole thing is, we talked about this back when the Durham investigation began. And I remember thinking and saying, “I don’t understand quite why you have the U.S. Attorney doing this, because it wasn’t clear. It was a criminal investigation or a civil investigation, right, that would lead to an enforcement action, that kind of thing.” I never conducted any kind of review and was never assigned any kind of review like that in seven and a half years. You investigate to see if a crime was committed or you investigate to see whether or not there was a civil infraction, and then you bring an action or you don’t.

Preet Bharara:

There is a body within the Justice Department that does this kind of thing, that issues reports on a regular basis. That’s the mandate. It’s called the Inspector General, right? The Inspector General also has taken a look at the Russia investigation, so it seemed like an effort to get another bite at the apple. I’m not sure why Durham accepted it. It did lead to this one charge with Inspector Clinesmith, maybe there’ll be others.

Preet Bharara:

But yeah, and the ordinary course outside of the Civil Rights Division context, you mentioned Ferguson, you don’t do reports. The idea of doing an interim report or any kind of report that may talk about bad conduct on the part of individuals without charging those individuals, that’s exactly the thing the Trump administration, at first, claimed they fired Jim Comey for, right?

Preet Bharara:

There’s investigation of Hillary Clinton. No charge was brought. And then, he went on and on about why she did all these bad things and mentioned those things in public. And that many people have said, and you and I think I agree, is a no-no.

Anne Milgram:

And actually, I think that what Comey did opens the door to this in some ways because Comey did something that hasn’t been done, right? You don’t do this kind of action that could impact an election. And now, he said a little bit of a precedent. I don’t want to say that too strongly. It was widely condemned, and I think career lawyers, DOJ attorneys all overwhelmingly thought it wasn’t the right thing to do, but it opened a door for Barr to argue like, “Look, this has been done before. This is what we do.”

Anne Milgram:

Can we talk for one second about like, I was thinking a little bit about the Dannehy stuff and thinking what do we know for sure and what don’t we know? And so, to me, here’s what we know for sure. We know for sure that it felt like a sudden resignation, and it’s certainly a resignation close in time, 50 days out to the election. And it feels, to me, like something triggered it, right? Again, we don’t know exactly what.

Anne Milgram:

We do know that the President has taunted Barr. He has that tweet saying like Bill Barr could go down in history as one of the greatest AGs if he does something or he could be just like the others, meaning bring charges in the Durham investigation or release a report. We know that she was very personally close to Durham. They work together for years. They’re trusted confidants. You talked about her reputation being strong.

Anne Milgram:

Some of the other things we know for sure, we know for sure, in my view, this crushes Durham. And I want to hear what you have to say about it, but I think it puts Durham in a very difficult position. If, let’s say, it’s true that they were moving toward issuing an interim report or bringing an indictment before the election, it just really compromises him. He’s out there on his own, right? And it looks like it’s political.

Preet Bharara:

So, what we also know is John Durham and Nora Dannehy are personally and professionally close. And look, I got to tell you, when you work on something like this, and she’s so important, maybe overseeing the day-to-day operations of the investigation as an initial matter, just losing that important person affects the investigation. No doubt other people are working on it. It affects their morale. And then, John Durham probably is wondering what he should say or do, right? I totally agree with you. Because Durham himself has a good reputation. We’ll see if that lasts depending on what he does and whether he balance the pressure.

Anne Milgram:

You know, I was going to ask you about this. So, everybody says he has a good reputation. I don’t know him and I’m not doubting his ability as a prosecutor, but there’s a question in my mind as to how strong he is, right? And I don’t know if that’s fair or not, but that seems to be-

Preet Bharara:

People are revealed-

Anne Milgram:

… of some of the things. Yes.

Preet Bharara:

We should pause on this, right? Let’s make a general statement. There are lots of people who have had good reputations. And then, Trump comes along or Barr comes along, then there’s pressure brought to bear or there’s influence that’s brought to bear, and some people distinguish themselves and stand up to it and don’t do the wrong thing and are independent, and others go along. And so sometimes, people can have relatively lengthy careers and have good reputations, but that’s in part because maybe they haven’t been tested in a particular way that this administration tests people. So, that is certainly true. And it reveals people.

Preet Bharara:

Do they want to cling to power? Do they want to stay in office? Do they want to do the right thing? What is the decision they’re going to make? Nora Dannehy, I think all the evidence points to the fact that this was a resignation, at least, in part out of protest, but we don’t know that yet for sure.

Anne Milgram:

I think it’s also important to note that the fact that she did political corruption cases as a federal prosecutor means that she will have, throughout her career, adhere to the DOJ policy, right? It’s a practice. It’s not formal in the way that some people might think it is. And you and I have talked about should this be a law-

Preet Bharara:

We should talk about that a little bit more, right, the 60-day rule.

Anne Milgram:

Okay.

Preet Bharara:

Let’s just be clear. People go on television and they say things about the 60-day rule. There is no statute hard and fast regulation that says, in no circumstances at all, can you bring any case that may have some effect on an election within 60 days of the election or 90 days of the election. That’s not true. And cases have been brought that have been applauded within 90 days of the election. Two republican congressmen were charged within 90 days of the 2018 election. Trump got mad about that because he thought it was going to hurt the Republicans in the House, not because he thought it was a violation of some rule.

Preet Bharara:

It is, however, a prudential rule of discretion that prosecutors should take into account the proximity of an election, and not do things that would unduly influence the election. It’s a conversation that we’ve had in my office from time to time, and I’m sure in other offices. That doesn’t mean that you, in no circumstances, can never do it but you have to consider what the political landscape is.

Preet Bharara:

And so, it’s not like Bill Barr seems to be pressuring John Durham to put out a report or making diamonds or bringing diamonds close in time to an election. He looks like he understands what Donald Trump is going to do, right? Donald Trump has been hinting that he wants to use whatever Durham finds as a cudgel politically against Biden and against Obama, even though Obama is not on the ticket. And knowing that there’s a political figure, and it’s the President of the United States, no less, who is dying to use it for political purposes should put a thumb on the scale to not rush it.

Preet Bharara:

I mean, again, it’s one thing to say, “Look, the report is done. Should we delay it because there’s an election around the corner?” It seems to be worse than that. It seems to be that there’s some time that they need to do to complete the investigation and do whatever report or bring whatever indictments they need to bring, if any, and that they’re being rushed to do it before the election, for what purpose, for the purpose of influencing the election because that’s the signal that Donald Trump is sending. Whether or not there’s a hard and fast 60-day rule, that seems wrong, immoral, unethical, and contrary to precedent.

Anne Milgram:

I think that’s the right. I think that’s exactly the right way to say it, which is that the practice has come up because it’s considered to be unfair and to be unjust. And so, that’s why the practice has evolved, and it’s exactly right. And the fact that it’s a long-standing process and norm just reinforces that it exists for a reason, which is to stay out of politics.

Anne Milgram:

We all know the reason why now because we’ve watched the President attack institutions and really undercut the reputation and respect for institutions. And institutions matter, right? People only go forward to law enforcement if they have trust in law enforcement. And you want people to have belief in the Department of Justice and its fairness particularly in part because they do have to do political corruption cases, they have to do very sensitive cases. You want to believe that the men and women who work there are following the law and the facts. And so, that’s why it’s so important for the department to follow this type of practice.

Anne Milgram:

It’s never been more important than it is now when the department is so under attack. It’s like the President has doubled down in trying to use the department for his own political advantage, and Barr seems to be acquiescing to that and going along with it. And one of the things about Dannehy is that it looks like she’s not, right?

Anne Milgram:

And I think it’s important to remember also that there were very, very well-respected prosecutors who resigned in the wake of the Michael Flynn. When Bill Barr changed course on Michael Flynn, their prosecutor’s Roger Stone, right? So, this is something that, in my time at the Department of Justice, and I was there under George W. Bush, I can’t think of anyone who resigned in protest in the way we’re seeing happen here, and whether Dannehy says it explicitly or not. She’s been on this investigation for a year-and-a-half. All of a sudden, she’s stepping out essentially right before the election when everybody’s been talking about Barr bringing in October surprise and Durham bringing in October surprise. So, it just feels, to me, like the likelihood of this being a coincidence and it not being connected to the election is almost zero.

Preet Bharara:

Can I ask you a question?

Anne Milgram:

Always.

Preet Bharara:

We keep talking about this issue of influence of the election as if that’s pre-ordained, but I have my doubts about that. Even if there is some report, even if it does say things whether you agree with them or not that are negative about the Russia probe, I have my doubts about whether or not it will actually move the needle on the election. I think most people’s minds are made up. People have a view of the Russia investigation one way or the other. And so, I don’t know. Not to dismiss the fact that this is an important issue and influencing the election shouldn’t happen, but I don’t know. Is it going to matter? Is it really going to matter? I don’t think so.

Anne Milgram:

I agree with you. I think people expect. I expected almost now that the President is trying to use this. What I think is really going on, Preet, is that the President is obsessed with this issue. And every chance he gets, he tries to undercut the Mueller probe, the 2016 Russian hacking into the election, everything about it is he’s fighting hard to try to say that his election was legitimate. And so, it feels to me like this is about the President and the President’s ego.

Anne Milgram:

To your point earlier, the Inspector General’s already looked at it. I doubt there’s much new that they’re going to uncover, even the guilty plea of the FBI lawyer that was in the Inspector General report. So, I’ll be really surprised if there’s a lot new that we don’t know that Durham could uncover. And again, I think most people will now either believe it because their part of the President’s base or they’ll discount it because they think it lacks credibility and has been done for political purpose. So, I tend to agree with you, but at the same time, the whole point is that we shouldn’t even…

Anne Milgram:

We won’t know whether or not it influences the election, right? There’s no way ever to measure that exactly. I mean, they could pull on it, exit pull on that, but it then becomes a little bit of this question of like, it’s just wrong and it shouldn’t be done, and it shouldn’t be a question. I know you’re not saying this, but it shouldn’t be a question of whether or not it’s actually going to have a real impact. They just shouldn’t do it.

Preet Bharara:

Absolutely. I’m just wondering. There’s a lot-

Anne Milgram:

Yeah, I know. I agree with you.

Preet Bharara:

… about will it affect the election, and we’re only, as I said, 49 days out. I think there’s going to be a lot of other things that influence the election, but I guess we’ll have to see.

Anne Milgram:

So, Preet, there’s another issue that came up this past week and the Department of Justice also relates to the Department of Justice. The Department of Justice moved to intervene in the defamation case that’s been brought by President Trump against Jean Carroll. Listeners may remember that Jean Carroll, she’s formerly a contributor to Elle Magazine, a writer.

Anne Milgram:

She stated that she’d been raped by Trump in the Bergdorf Goodman’s dressing room 25 years ago. While she made this accusation a couple years back, Trump denied that while he was president and said that she was lying. Jean Carroll then went on to sue the President for defamation surrounding this. And so, the President has been represented by his private attorneys. Now, DOJ is moving to intervene. What was your reaction to that?

Preet Bharara:

My reaction was the same as most legal experts, and I think the same as yours. It seems odd and weird and not the normal course. That’s before I look deeply at the law. The President of United States did something years ago in his personal capacity, and there was an accusation with respect to that. And then, as President, he made some remarks that I don’t see how they can be considered part of his official duties as President, and that has to be the basis on which you get the DOJ at taxpayer expense to defend you.

Preet Bharara:

I mean, you and I have worked in government. Many, many people are sued. Criminal defendants sometimes file suit, civil defendants sometimes file suit. And because you’re doing things in the ordinary course of your official duties, my office’s civil division would represent AUSAs who got sued and have to face litigation. There has to be a certification by someone in the department that, in fact, the conduct on which you’re being sued happened in connection with your official duties. That certification was made here with respect to the President. It seems bizarre that these comments about conduct that happened years earlier as a private citizen could be deemed to be within the President’s official duties.

Preet Bharara:

I have talked to two superstar former colleagues in the U.S. Attorney’s Office in my civil division, wondering, “Am I missing something?” The view of both of them was that this was not a sound argument.

Anne Milgram:

That the President’s making. That the Department of Justice is making.

Preet Bharara:

That the President’s making. I’ll just point one other parochial thing. This suit was unfolding in state supreme court in New York, and removal means it goes to federal court. And as you said, it’s come to the Southern District of New York. In the ordinary course during the seven-and-a-half years that I was there, that lawsuit and that motion would be handled by some person in the SDNY, maybe alongside someone in Washington, but there will certainly be the U.S. Attorney’s signature block on the motion and a particular Assistant U.S. Attorney would be on the motion.

Preet Bharara:

There’s no such signatory on this. That could mean that Washington decided they want to handle it on their own because they don’t trust SDNY and usually we would object to that, or the acting U.S. Attorney Audrey Strauss wants no part of this either because it’s overly political or because they don’t think it’s well-grounded in law and fact. It’s got to be one of those two things. And that will be noticed by the judge in the case.

Anne Milgram:

It feels to me like it is more likely to be the latter that acting U.S. Attorney didn’t join, in part because I think you’re right, I think Southern would fight very hard to be a part of it. And also, DOJ should understand that the judge will note that the Southern District isn’t part of it. It looks strange, right? It raises an issue that you wouldn’t want to raise, I think, in the normal course, unless there was a problem.

Anne Milgram:

So, one of the other things just to note is that, and this has been in state court, the state judge recently opened up the door for a potential deposition of the President related to this and also said that the President may have to provide DNA because of a dress that Jean Carroll still has.

Preet Bharara:

Didn’t you think the dress and DNA and President would never have to be spoken in the same sentence ever again?

Anne Milgram:

Again. Yeah, exactly, after Bill Clinton. Yes. I very much hoped that that would be the case.

Preet Bharara:

Look, history rhymes as they say.

Anne Milgram:

Yeah, it’s true.

Preet Bharara:

I’m sorry. Carry on.

Anne Milgram:

No, I was having this moment when I read it and I was thinking about all the work I did when I did sex crimes with DNA, and DNA stays on clothes for long periods of time even if you dry clean it.

Preet Bharara:

I don’t think it was a Gap… I think this one was not a Gap dress.

Anne Milgram:

No. Exactly. But the whole thing was going through my head as well. It parallels. But yeah, so look, there’s the question, why is DOJ doing this now? I mean, in part, it’s because the state court was heating up. And really what I think it is, is that the President’s defense lawyers have basically said, “Look, this is the best possible defense, which is to walk in and say that the Federal Tort Claims Act protects you and that you will be immune.”

Anne Milgram:

And just to go a little bit weedy on the law for a second because my initial reaction was exactly the same as yours. This is 25 years ago. It relates to an incident that has nothing to do with the President’s official duties. And essentially, the only thing that the President did was make a denial and a criticism of Ms. Carroll while he was in office. There are two things to look at. First is the tort law and the second is a case that Bill Barr cites.

Bill Barr:

The case law is very clear and there’s a D.C. Circuit case called Ballenger on the topic that says that because we are a representative democracy, officials who are elected and answer press questions while they’re in office, even if those questions relate to their personal activity and could bear upon their personal fitness is, in fact, in the course of federal employment and can be therefore certified under the Westfall act.

Anne Milgram:

Ballenger related to a Congressman who had made some statements about his wife didn’t like living across the street from an organization that she’d likened to being similar to Hezbollah, which is the organization that’s on the terrorist watchlist. And so, he’s sued for defamation and this goes in front of the D.C. Circuit which found that the Congressman was immune and pointed to the restatement of agency, which is a law that defines the scope of an employee’s conduct.

Anne Milgram:

The restatement says that basically points out two potential areas that could be defined as within the scope of employment that could apply in this matter, which is one is the action, the kind that the person is employed to perform, and the other is whether or not the action is actuated at least in part by a purpose to serve the master, right? Basically, you’re doing it in the course of your employment to serve your boss.

Anne Milgram:

And so, the question really here, you short-handed it, is this within the scope of the President’s actions? What I think is complicated is that, and why I think that this isn’t exactly as I would have expected to be, is that your gut is that this is a private matter relates to the President’s conduct when he was not in office. But as to the defamation claim and the statement made by the President, it is clear that there are cases that have found… Like, Senator Kennedy was found immune when he had a conversation at one point about Operation Rescue talking about anti-abortion activists.

Anne Milgram:

And so, it’s clear that a politician’s scope of office, they talk about a lot of things. And so, there are definitely examples where there has been immunity that has been found. But I think the President may win this one, but I don’t think he should. There’s a legal argument the President can make, but the reason I don’t think he should win is that it basically be saying that anything in the world is within the President’s domain and anything he talks about is part of his official job. I mean, it goes back to the President having this view of himself as this autocrat and the President being all powerful. Would there be no line if this could apply to his private conduct?

Preet Bharara:

Yeah, we should be sure that we’re distinguishing two things. One is whether or not he deserves taxpayer-funded defense by the Justice Department, and separate from that is whether he deserves to prevail on the suit whether he’s immune or not. Those are two different questions and they have different standards. With respect to the first question, that’s the one on the table most directly at the moment.

Preet Bharara:

You and I were talking about this before we started taping. Often, Bill Barr could ask a question and they talk some smack, and he makes passing references to facts that are not in the record. Here, he was pretty strident and made specific reference to that case that you mentioned and to other areas of law. You got the sense that he was a little bit more prepared to answer this question, and look, and they do have a certification from within the department saying this is within the scope of the President’s duties, and you can argue about it.

Preet Bharara:

But when we think about the arguments made by the Justice Department and by the President’s allies and by the President himself, it is useful sometimes to put them on the spectrum. And sometimes the arguments are ludicrous and ridiculous. Sometimes they’re arguable and sometimes they’re strong. That last bit is not often the case, but sometimes they are.

Preet Bharara:

There’s another legal question that I don’t know the answer to, but people have talked about it. With respect to the question of whether or not the DOJ should be defending the President and what looks like a private suit, and that is the Federal Tort Claims Act applies only to an employee of the government.

Bill Barr:

The case law is crystal clear that the Westfall Act applies to claims against the President, the Vice President, as well as other federal employees and members of Congress.

Preet Bharara:

Is the president an employee of the government? I think that’s a little bit of an unclear question or the answer to that is a little bit unclear. The act defines employees as officers or employees, or persons acting on behalf of a federal agency, or members of the military. One legal scholar, Leah Litman, has pointed out it’s not at all clear that the President is an employee. The President is the head of government. And if he’s an employee, that implies that there’s an employer, and who would that be?

Anne Milgram:

Yeah, I think that’s right. And just to go back to the specifics of demerits, just to say it this way, I think that there’s an argument that the tort immunity statute that the courts have had an expansive reading of the scope of what an elected official’s office might be, but I think it’s also really important to think about here, we’re talking about a rape allegation against him personally. I think it’s different if he were discussing a bill to outlaw rape, a victim’s compensation bill. Obviously, he’s going to be talking about this subject. But what’s different is that this is about his personal conduct, and there’s no potential argument that a sexual assault would fall within the scope of the presidency.

Anne Milgram:

And so, I think that there’s a really interesting… Politicians have been given wide berth on what statements can be considered part of their official capacity and what cannot be. But this feels to me like it is beyond the line, both potentially because the statute doesn’t apply to the President. And as everybody knows, if the law doesn’t say it applies to you, then the court either has to read it in that it would apply to the President, which it hasn’t done before, this has never come up, or they have to follow the letter of the law as it’s written, which is what most courts… In my view, when a law is clear on something, most courts will follow the clear language of the law.

Preet Bharara:

Yeah, we should make another point. When you make arguments, whether you’re a member of Congress, or you’re a company, or you’re the President of the United States, you’d like to think there’s some consistency in the arguments you make to the courts even if there are different contexts. You don’t make arguments of convenience to avoid liability or responsibility depending on what the circumstances are, and you argue different points of law. In other contexts, we’ve seen the Department of Justice advance one position in one case and a different position in another case, and that is happening here as well.

Preet Bharara:

Leah Litman, to cite to her again, points out that in this case, with respect to the defamation suit, the President wants to make the argument through the Department of Justice that his comments, even about a private matter, constitute official action. Something that’s officially part of the duties of the President of the United States as a supposedly employee of the government.

Preet Bharara:

Another context has been fought out in court as well. The President wanted to justify the ability to block people from following him on Twitter, right? And in that case, as Leah Litman writes, “The department has argued that the President can block people on the social media site because the President’s Twitter feed amounts to purely private speech, not official action.” So, if it’s on Twitter and he likes it and he wants to evade liability for blocking people, it’s private speech. On the other hand, if it’s about an alleged rape from years before that he talks about and denies, that’s official action. Those things are inconsistent. And by the way, courts notice things like that.

Anne Milgram:

I agree. And also, it really does speak to the President’s intent what he’s trying to do here. I agree, it’s important to look at how he flipped Fox’s position really in order to gain additional power for himself.

Preet Bharara:

So, we’ve been doing this long enough, Anne, that stories come back to us that we’ve talked about at some length previously, and one story that we both talked about is the voting situation in Florida. I think we’re both in agreement that we were former prosecutors, that once you’ve served your time, in a criminal context, and you come out of prison and you re-enter society in the same way that you are able to re-assert all sorts of other rights, the right to vote should be reinstated. And Florida is one of those states that didn’t allow it and was pretty draconian in removing the right to the franchise on the part of people who had been incarcerated.

Preet Bharara:

And in 2018, as we’ve discussed, there was a referendum on the ballot. The people of Florida voted pretty overwhelmingly to restore the right to vote for people who have been incarcerated, presuming that they have finished their period of incarceration. That was undone, right, by Governor DeSantis, who essentially put through the legislature a law that basically took a lot of the thrust out of that constitutional amendment saying you still can’t vote if it is the case that you owe any fines or penalties in connection with your sentence. And that finally went to court and was winding its way through court.

Preet Bharara:

It’s interesting that in this show, we’ve talked a lot about something that people have maybe not focused on as much, and it’s obscure in the law, the en banc sitting of a court. Well in Florida, there’s the Eleventh Circuit. We’ve talked about the Second Circuit, the D.C. Circuit. You had the entire Eleventh Circuit Court of Appeals considering this issue, whether that law was enforceable or not, or was it proper or not? And they decided something that I don’t think we agree with, did they?

Anne Milgram:

Yeah, I was surprised by the decision although the Eleventh Circuit is fairly conservative. And so, I think maybe it isn’t a surprise, but the decision that the Eleventh Circuit came to is that Florida can require felons to pay all fines and fees before they can vote. Basically, they found that it wasn’t a due process clause violation, and they also said you’re not required to tell each felon what they owe and set up an easy system for them to know basically.

Preet Bharara:

That’s the craziest part of the whole thing, right, just as a practical matter.

Anne Milgram:

Totally.

Preet Bharara:

One can make the argument… We’re talking about putting arguments on the spectrum. Look, I think it’s not great, but you can make the argument. Look, if the point is that you pay your debt to society, that includes doing your incarceration time, and also paying whatever fine or penalty that was assessed by the judge, I get that. I think that there are reasons why you should give a buy on that. But it’s crazy to say not only do you have to pay your fines and penalties, but we don’t have to tell you what they are because our system is all messed up. And by the way, if you guess wrong and you have a fine or a penalty that hasn’t been paid, and you show up to vote, that’s a felony. That’s going to land you back in prison. That, to me, is insane.

Anne Milgram:

Yes. You’re completely right. Just to go to the legal crux of the Eleventh Circuit’s argument also, what they basically said is that the fines and fees are part of the terms of sentence of an inmate. We should also go back to the fact that Florida voted overwhelmingly in favor of this constitutional amendment, and this applies to 1.4 million Florida residents that fall under this and people who’ve been formerly convicted of felonies and they would be eligible under this. What the Eleventh Circuit is saying, you have not completed your sentence until you paid your fines and fees. It’s onerous, the opponents of it have likened it to a poll tax basically making people pay money to vote. And it really, I think, goes back to this underlying question of, in my view, the people of Florida have spoken on this issue and the governor is now trying to basically obstruct people’s ability to vote.

Anne Milgram:

Also, as you note on the practical question, if you expect people to be able to pay fines and fees, government has to be responsible to provide that information quickly and easily. And again, I don’t favor fines and fees. I personally think that it’s really important that systems… We’ve seen this and we particularly see it in some particular states where states have tried to pass off all the costs of criminal justice to people who are impacted.

Anne Milgram:

So, for example, if you want to be out on release on a GPS device, you have to pay for that GPS device. And it’s obvious that you could say, “Well, that makes sense. Why wouldn’t you?” and the short answer is it’s very inequitable. A lot of people don’t have access to the ability to do that, and then that determines who’s in and who’s out.

Anne Milgram:

There is something, in my view, about making a system pay for itself to be very efficient and to run well, right, to basically make decisions about how you prioritize things. And by the way, a lot of people cannot pay fines and fees. And so, again, I think the bigger point here is I think this will go to the Supreme Court. I don’t know that it gets there before the election. And so, I think that Governor DeSantis will have won this round in Florida. The question is, does it stick if it goes to the Supreme Court, or is there another constitutional amendment? Does the State of Florida do the right thing and make it easy and simple for people to figure out and pay off fines and fees? But again, I’m not a believer in fines and fees overall.

Preet Bharara:

Yeah, I think my view on fines and fees is more complicated depends on what we’re talking about. If you have… I know this is one of the circumstances that issue here. If you have someone who’s defrauded Bernie Madoff or someone else who’s defrauded people out of a $100,000, and there’s a restitution order in place, and it’s also shown that that person has assets and has not made any restitution, that, to me, is an open question if you really paid the penalty that was imposed upon you by the judge. But then, there are also all sorts of small-bore assessments. There’s a special assessment with respect to every count on which you’re convicted in federal court. I believe it’s still $100, which are administrative costs. Not the kind of penalty you’re talking about that really relates to the conduct that you’ve engaged in.

Preet Bharara:

And if you’re somebody who’s impoverished and you go to prison, and you have a $400 assessment that you’ve not paid, and also you’re not told that it’s precisely $400, is it $300, is it $200, is it $400, that, to me is very different. But there are circumstances in which financial penalty or restitution, I can see that being a good argument that you got to do that before you’re fully restored all your rights.

Preet Bharara:

By the way, did you see that Michael Bloomberg has promised $100 million to help elect Joe Biden in Florida? And the question that some people have asked, I don’t know the answer to this, I don’t know if you do, will any of that money go towards this cause of paying back formerly incarcerated people’s fees?

Anne Milgram:

So, I think someone should push the state of Florida on this. If Michael Bloomberg walked in and said, “I’ll pay the fines and fees,” and the state of Florida can’t give him the full amount, then the people should be able to vote, right, because that would be, in my view, an unacceptable obstruction by the state if you can’t effectuate this because you can’t know. Again, some of it just feels like a very unfair playing field if you can’t find out what it is.

Preet Bharara:

It’s like if you go to a restaurant and you order food and then you want to leave, it’s like, “Well, you haven’t paid your bill,” and you got to pay your full bill. Well, what is the bill? How much did the food cost? “Yeah, we’re not sure.”

Anne Milgram:

And they say, “I’m not going to tell you if you will pay.”

Preet Bharara:

We’re not sure. And by the way, pay what you want and then leave. And if it turns out that you underpaid, we’re going to come after you and the cops are going to arrest you. I mean, that’s how ludicrous this situation is.

Anne Milgram:

Yeah. And that’s why I think somebody should test it and really basically say, “Oh, fine. Okay, we’ll pay it all. We’ll pay it tomorrow. We want people to be registered to vote, that 1.4 million people,” and my prediction is the state of Florida could not do it. And that, to me, makes this a false… It’s false, right? It’s fake. If it’s not possible to actually pay it off, then it’s theoretical. You cannot stop people from voting based on that.

Anne Milgram:

And so, this does feel to me like the wrong decision by the Eleventh Circuit for many reasons. Again, I think they’re going on this idea that it’s part of your sentence so it’s your responsibility, and they’re not putting any responsibility on the government of Florida. I think the governor of Florida has to take responsibility on tracking this.

Preet Bharara:

But the bottom line is, and I’ll repeat again, the election’s 49 days away. I think the likelihood of this being resolved in a way that allows lots of people who couldn’t vote to be able to vote, unlikely to happen before the election.

Anne Milgram:

I agree.

Preet Bharara:

So, before we go, Anne, obviously there’s been a lot of talk about this Bob Woodward book and the fact that there are tapes, Lordy. A lot of people have mentioned. One question that arises aside from what you feel about Donald Trump having played down and intentionally play down the seriousness of the coronavirus when he’s behind the scenes telling Bob Woodward on tape.

Anne Milgram:

I would say lie, but yes.

Preet Bharara:

Yes, it’s five times worse and deadlier than the flu. It’s airborne, etc. There’s more tapes have been released in the last day showing that he said, “It’s the plague. It’s really horrible.” That’s not what he was saying in public. And there has been some criticism about Woodward since he had those tapes way back in February and March that he didn’t make them public sooner, and maybe that would have saved some people’s lives.

Preet Bharara:

Whatever you think of Donald Trump, he does have some rhetorical cleverness about him, at least with respect to his base. He’s literally, when asked the question… I mean, I think a sane person doesn’t make any sense, but it has, I guess, some persuasive force. When asked, “Why were you saying those things,” and they put your public statements and your private statements, they’re at odds with each other, Trump takes advantage of the fact that Woodward didn’t release those statements for many months until the book came out to say, “Look, if Woodward thought they were so bad, he could have taken them to the authorities.” The President of United States says about someone else-

Anne Milgram:

It’s an absurd argument, yeah.

Preet Bharara:

… take them to the authorities. What do you think about the criticism of Woodward?

Anne Milgram:

So, I had three reactions to the tape. One, obviously, which I think a lot of people have said very articulately, it’s a horrible thing to see the President of the United States actively misleading. And I would argue, lying to the public and trying to undercut scientists when it’s very clear that he did believe what the scientists were telling him.

Anne Milgram:

The second is that I found the President to be surprisingly lucid and in command of the facts in a way that when you see him, he isn’t always, right? It was a very interesting moment of… It’s almost like a reverse Colombo thing. Publicly, he doesn’t seem to be able to string three sentences together, and yet privately, he seemed-

Preet Bharara:

He can do five words. He can remember five words in a row.

Anne Milgram:

Yeah, but he seemed like he… He understands this more than sometimes you would think when you watch him. And so, that makes it even worse, in my view, that he has a level of basic understanding. But then, when it comes to this… Look, I think you and I both know a lot of folks who have books coming out right now and they’re time to come out before the election, and the publishers decide when they come out to maximize book sales, and that’s well and good for most things that are coming out where people are releasing statements. This feels different to me. This feels, to me, more like…

Anne Milgram:

The analogy I would give you is whenever you run a randomized control trial where you’re basically saying, “Okay, we’re going to have a group. Think about anything. You’re testing a vaccine, even. One group gets the vaccine, one group doesn’t.” But as a rule, there are ethical requirements that the minute you see that some group is benefiting or being harmed significantly, you stop the test, right? So, you’re morally obligated not to… If you can save lives, you do so, right? And this is a really important principle that as a rule, we don’t let things go on when we have an obligation to one another and to protect and secure the safety of others. And so, here, I feel like-

Preet Bharara:

It’s hard to know if it would’ve changed. To point out hypocrisy on the part of Trump… I agree with you totally, and I think he should have done more with it-

Anne Milgram:

I think Trump’s argument is terrible, and I don’t think we should follow that.

Preet Bharara:

But the idea that pointing out hypocrisy on the part of Trump that he’s saying one thing in public and the different thing in private, that that would have had some enormous gigantic effect on public perception or on policy on the part of the administration or on the part of government. I mean, I don’t know that that is true. The President is hypocrite every single day.

Anne Milgram:

Yeah, but the point is we don’t know if it’s true. And to the extent that the President was undercutting the scientists saying, “Don’t wear a mask,” when he’s also, at the same time, saying, “It’s airborne. It’s five times deadlier than the flu,” that feels to me like it could have also been relevant for people just to understand how to listen to the President’s comments, because the President was aimed at election.

Anne Milgram:

So, I would say I don’t know what the right standard is to hold Woodward to, but here’s what I would have liked for him to have done, which is basically he have said to his publishers because it does feel like the publishers determine the book schedule and it’s not a coincidence that his book is coming out a month before the election when it’s poised to sell the most copies, I would have liked him to have basically said to them, “The book has to come out right now. I know we don’t do it, but this is important enough that either I need to release this or we up the date of the book release.”

Anne Milgram:

And again, I want to be fair to him. I think he’s a great journalist. I think it’s an amazing thing that the President of United States is just willing to talk to him on and on. And I think-

Preet Bharara:

By the way, he has not really attacked him in the way that you would expect and the way he’s attacked people. I think he actually does-

Anne Milgram:

No. I agree.

Preet Bharara:

… respect the guy. Look, I should point out also on this issue of the President being hypocritical on mixed messages about the coronavirus. It’s happening at this moment, right? The official policy put out by his doctors and Fauci, and he’s actually echoed this from time to time, and actually worn a mask and was happy that people said he looked badass in a mask, he said, “I don’t have a problem with the mask.” And when pressed by the media, he has said, “Yeah, masks? Yeah, people should wear masks,” because he has no choice but to say that.

Preet Bharara:

At the same time, he’s retweeting accounts that are talking about no masks and protesting masks. So, he himself… At the same time, some months ago, he’s talking about how there should be some shutting down of public events. When it makes sense for him to talk about it that way and in front of the national media, my recollection is, at the same time, he’s sending out tweets like Free Michigan. So, he’s all over the map on all of this stuff all the time. That’s the only point I’m making.

Anne Milgram:

No, I think that’s right. And look, I want to be fair to Bob Woodward. I just didn’t love that piece of it, but I also think it’s really important that he’s written it. It’s also really important that he released the tapes because he obviously knew the President would undercut whatever he said. The proof is there, and it’s clearly the President of the United States talking. I was waiting for the President to say, “It’s not me.”

Preet Bharara:

Right. And it makes for effective Joe Biden ads also.

Anne Milgram:

Definitely. So, Preet, before we leave today, just a moment to talk about something really tragic and distressing that happened in Los Angeles two days ago, where two sheriff’s deputies were shot, ambushed, essentially by a gunman. They were both shot multiple times. We know one was a 31-year-old female sheriff’s deputy, the other was a 24-year-old man. They both just graduated from the academy about 14 months ago, so fairly new on the job. Both, we think, has been reported, at least so far targeted as police officers, as law enforcement. We don’t know more. This suspect is still at large.

Anne Milgram:

But I think it’s really important just to note that as we’ve talked a lot about police misconduct in our country and use of force and had probing questions about what the right use of force is, and talking about racial justice and equity, it’s also really important to note how important it is to have law enforcement in our communities and how it’s just devastating to see this. And particularly, if it’s true that they were targeted because they’re men and women who have essentially devoted their lives to serving the public, that would be beyond tragic.

Preet Bharara:

Yeah, I’ve seen a surveillance video of that shooting, which is very disturbing and distressing to watch. Essentially, gunman happens upon their car, very intentionally levels off and fire shots, and then scurries off. That person is still at large. I hope and pray that that person is found and hopefully accountable. The good news is that it looks like, at least, the woman is in stable condition. I’m not sure what the condition of the young man is. Hopefully, they’ll survive and be well.

Preet Bharara:

It reminds me, I don’t know if you remember this, a few years ago, there were two NYPD officers who were similarly ambushed, shot in the head, and they both were essentially killed execution style. That should never happen. And debates that we engage in with respect to policing and reform and all of that are important, and peaceful protest is important. But everyone should condemn violence of this kind against police officers because it’s a dangerous job.

Anne Milgram:

I agree. Look, it’s also happened in Camden. I can’t remember if it was a year or two ago, but there was an officer that was shot similarly to New York. And again, it is among the most dangerous jobs and it might be one of the most important jobs in society. And so, I think we have to both be able to be reflective on how we police self-reflective and ask questions of whether we’re doing it as well as we possibly can, but also really honor and respect it. Of course, this is… I agree with you, I hope that the individual is apprehended and prosecuted to the fullest extent of the law.

Preet Bharara:

So, Anne, in that said note, that’s it for this week. Next week, it’ll be 42 days from the election. Be well, I’ll talk to you then.

Anne Milgram:

And please send us your questions to [email protected] Thanks so much. Talk to you soon, Preet.

Preet Bharara:

That’s it for this week’s Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The senior audio producer is David Tatasciore, and the CAFE team is Matthew Billy, Nat Weiner, Sam Ozer-Staton, David Kurlander, Noa Azulai, Jake Kaplan, Calvin Lord, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.