• Show Notes
  • Transcript

In this episode of CAFE Insider, “POTUS & SCOTUS,” Preet and Anne break down the bombshell New York Times report exposing President Trump’s tax returns extending over two decades, Trump’s nomination of 7th Circuit Court of Appeals Judge Amy Coney Barrett to fill the Supreme Court seat vacated by Justice Ruth Bader Ginsburg, the politics of the forthcoming confirmation battle, 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

TRUMP TAXES

“Long-Concealed Records Show Trump’s Chronic Losses and Years of Tax Avoidance,” NYT, 9/27/20

Ann Coulter tweet, 9/28/20 

AMY CONEY BARRETT

Planned Parenthood of Indiana and Kentucky v. Commissioner of the Indiana State Department of Health, United States Court of Appeals, Seventh Circuit, opinion & dissent, 6/25/18

Kanter v. Barr, United States Court of Appeals, Seventh Circuit, opinion & dissent, 3/15/19

“Countering the Majoritarian Difficulty,” Amy Coney Barrett, Notre Dame Law School, 1/3/17

“Precedent and Jurisprudential Disagreement,” Amy Coney Barrett, Texas Law Review, 2013

“Sen. Lindsey Graham lays out a swift schedule for confirming Trump’s Supreme Court nominee,” Vox, 9/27/20

“Ruth Bader Ginsburg’s Death Sets Off Battle Over Court Vacancy,” NYT, 9/24/20

“Profile of a potential nominee: Amy Coney Barrett,” SCOTUSblog, 9/21/20

“Supreme Court Strikes Down Louisiana Abortion Law, With Roberts the Deciding Vote,” NYT, 6/29/20

Sen. Marsha Blackburn tweet, 9/25/20

VIDEO: Professor Amy Coney Barrett at the Jacksonville University Public Policy Institute, 12/5/16

VIDEO: Amy Coney Barrett argues against filling Justice Scalia’s vacant seat, 2/15/16

“RBG & The Mountains She Moved (with Melissa Murray),” Stay Tuned with Preet, 9/24/20

TRUMP V. BIDEN

“Biden camp clapback: Trump’s best debate case ‘made in urine,’” Politico, 9/27/20

Preet Bharara:

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

Anne Milgram:

And I’m Anne Milgram.

Preet Bharara:

Hey Anne, how are you.

Anne Milgram:

I’m good how you doing? I’m back in New York City.

Preet Bharara:

Oh, welcome back to the city of New York.

Anne Milgram:

The anarchist city that I call home.

Preet Bharara:

Do you feel like an anarchist?

Anne Milgram:

Not yet, but you know. Give me time.

Preet Bharara:

There’s a big event coming up, has me a little nervous.

Anne Milgram:

Yes, me too. The debate.

Preet Bharara:

No, no, no. I’m not talking about the debate. I’m talking about the CAFE happy hour on Thursday evening. Look, the debate’s important, and I understand-

Anne Milgram:

I can’t be nervous for that yet.

Preet Bharara:

It’s important for America, but before we get to substantive matters, we should remind people that we’re going to have a happy hour, virtual, bring your own drinks, BYOB. Thursday October 1 at 6:30 p.m. via Zoom. You can tune into watch or to listen. If you already get CAFE emails, you should’ve already received an invitation. In the Café Brief Newsletter. And if you don’t, and you want to hang out with me and Anne and the other CAFE hosts, that includes Lisa Monaco, Ken Wainstein, John Carlin, Ellie Honig, go to CAFE.com/Preet and sign up. And we’ll send you an invitation. The Zoom link will be sent on the day of the event a few hours before it begins.

Anne Milgram:

Yeah, and I should alert people that the happy hours are really fun. They’re a little less-

Preet Bharara:

You should alert people? That’s an alert? I should alert you.

Anne Milgram:

It’s a news flash.

Preet Bharara:

Usually that’s a warning. I should alert you that the happy hours are quite fun.

Anne Milgram:

Well, just if people are expecting a lot of wonky policy-

Preet Bharara:

It will be very droll.

Anne Milgram:

It tends to be a little more lighthearted.

Preet Bharara:

Yeah, no, I get that.

Anne Milgram:

You’ve been warned Preet.

Preet Bharara:

All right. Again, that’s Café.com/Preet. There is no cost. This is a free service. Be warned. It’s a lot of fun. Before we get to the supreme court, which is the dominant news and I think one of the most important things happening in the country, can I ask you a personal question, Anne?

Anne Milgram:

Always.

Preet Bharara:

Did you pay more than $750 in federal income taxes last year?

Anne Milgram:

I did. In fact, I can’t really think of-

Preet Bharara:

Does that make you a sucker? Are you a sucker?

Anne Milgram:

I can’t really think of a time since maybe even college or before college when I paid that amount of money or less. It’s that long. Look, it’s astonishing, Preet. And I know, I understand that you can’t charge people with a crime based solely on a tax return. I watched a story with the analysts yesterday being very thoughtful on this. But it’s stunning. There are not many things in life that you have to do as an American. You have to pay your taxes, and you have to do jury duty. And if there’s a war, and there’s conscription-

Preet Bharara:

And take out the garbage. You’ve got to take out the garbage.

Anne Milgram:

Well, yeah. That’s your personal one. But there’s not a lot of things you have to do. It really is, I mean it’s incredibly striking. And look, we’ll talk about this another time, but I think there are issues of obviously the potential tax fraud, but also the bank fraud, the investigation that the Manhattan DA’s office and the state AG in New York have been doing. And also potentially there have been conversations about insurance fraud with some of the transactions that are potentially listed. I just think there’s a lot there for prosecutors and investigators and go through. Certainly there’ll be plenty for us to talk about. The Times says that more is coming. I for one-

Preet Bharara:

Yeah, that’s an important point.

Anne Milgram:

Yeah. I couldn’t put it down either. I don’t know about you, but that article, I dropped everything.

Preet Bharara:

In case you’ve been living under a rock, this is the blockbuster New York Times story from the last couple of days that talks about all the ways in which Trump has avoided taxes, which is different from evading taxes, and I think that remains to be seen. A couple of the stunning things, and we’ll get onto the supreme court. The article notes that just based on his time working on The Apprentice, Donald Trump made $427.4 million dollars through 2018. And at prior times made substantial sums of money and yet owed almost nothing in taxes. I guess 10 of 15 years, zero dollars in taxes. In 2016, the year he was elected and the following year when he was in office, he paid only $750 in taxes.

Preet Bharara:

A lot of people including, noted conservative Ann Coulter, I saw this morning said, “It is not the right talking point and the retort from republican allies of the president to say, ‘Well good for him, everyone should figure out a way not to pay taxes and take advantage of loopholes.'” This is Ann Coulter, so it’s interesting, said, “Any system in which I or an ordinary citizen pays half their income in taxes and a billionaire pays nothing, is a system that’s in need of redress.”

Anne Milgram:

I think that’s a very fair take away. Regardless of whether or not there are specific crimes here, the fact that this has gone on and obviously been allowed to go on for decades, it’s shocking. Look, I was fascinated by just reading that even the most aggressive extreme wealth individuals who look for every tax haven, every possible way to avoid taxes end up paying about 24%. So they don’t pay close to half of their income, as many of us do. They pay a quarter, but still, Donald Trump you’re talking about paying zero taxes for 11 years and for two years paying $750 when you’re talking about millions that he’s showing as assets, as income. It’s unbelievable. I couldn’t agree more that there’s a bigger conversation that has to take place here too.

Preet Bharara:

Yeah, and look, like everything else with Donald Trump, maybe it’s just because when people talk to me they always want to ask about crimes. And maybe that happens with you also. But whether or not something is crime, doesn’t mean there are not other reasons to be deeply concerned about them. I think the most distressing thing about this is the part of the story that reports that Donald Trump is potentially deeply in debt and has loans that are coming due, for which he is personally liable to the tune of $421 million dollars. Most of that coming due in the next four years, which would mean, if he gets reelected during his presidency. It’s not clear he has the wherewithal to pay it back. It’s also not clear at all-

Anne Milgram:

It’s not clear who he owes that money to.

Preet Bharara:

Right.

Anne Milgram:

Which is-

Preet Bharara:

What if it’s Vladimir?

Anne Milgram:

Which is unacceptable. Right. It’s unacceptable that you would have a president that has that level of liabilities, basically potential exposure to blackmail, to problems, who could be beholden to other people, and we don’t know who it is. That is completely unacceptable. By the way, that’s why historically not just presidents divest, but all government officials divest, right? You left the law firm to go to the US attorney’s office. I negotiated this a lot when I was AG. There would be senior people who were in business or in law who were entering government service, they had to divest. We helped them work through what was required. You just can’t have people out there with existing … You can’t serve two masters when you serve the people of the United States.

Preet Bharara:

Well put. By the way, this whole funny business about Donald Trump saying “Fake news, the New York Times is fake news.” One of his lawyers basically said, “Most facts in there are false.” Well, there’s a pretty easy way to prove that they’re false.

Anne Milgram:

Yeah. Release them.

Preet Bharara:

Release them.

Anne Milgram:

Yeah.

Preet Bharara:

So, I don’t fully get it. One last point about this-

Anne Milgram:

I found the denials very weak for what it’s worth. Attacking that they were illegal leaks. Never your strongest argument when you’re trying to say that something isn’t true.

Preet Bharara:

Yeah, there were previous reports about Trump’s taxes from an earlier period and that didn’t last a long time in the news cycle. I think this one, because it’s closer in time, the period that’s being examined, and it’s close in time to the election. And the figures are I think, even more astonishing both the amount of money he’s paid in taxes, federal taxes, and the amount of money he potentially owes third parties. It makes it a much bigger deal and a much bigger story. I would imagine it’s going to come up in the debate.

Preet Bharara:

But a question I have for you is, obviously the IRS mostly deals with collecting taxes, but there’s also a criminal component, and they do criminal investigations based on information that they might have about fraud, tax fraud, tax evasion, etc. I’d be curious to know if The Times has any evidence that the IRS aside from having this long time audit that’s been going on with the president’s tax returns, and a particular tax refund he got of $73 million dollars. If they have also opened up a criminal investigation. Because that’s the entity to do it, right?

Anne Milgram:

Yeah. Well, yes. I think there’s potential as I said, bank fraud that it wouldn’t necessarily be the IRS who would do bank fraud, or some other types of white collar fraud. That could be here. But you would expect, you would expect yes that the IRS would look at this. There are the deductions around consultant fees that look like they were Donald Trump’s children. The taking of an investment property around the Seven Springs house in Westchester that was clearly not used as an investment property. There’s a lot of what I would say are real red flags. I would also just add that IRS agents tend to be in my experience excellent. They’re the sort of folks that they’re happy to be in a tiny broom closet. They’re not going to appreciate this description, but with stacks and stacks of files around them, and they just work through paper and complex financial arrangements. I would suspect that that has happened or is happening. And I would hope actually that it is. There’s so much potentially problematic here.

Preet Bharara:

Well, as you pointed out at the beginning, The New York Times has more stories to come, and obviously they’ve been working on this a long time-

Anne Milgram:

It’s going to be a drum beat up until the election, I suspect.

Preet Bharara:

Yeah, it’s sort of interesting to see-

Anne Milgram:

Every couple weeks.

Preet Bharara:

Yeah, and what the denials are. It’s pretty telling that even in the face of this, Trump will not reveal his taxes. In part maybe because he didn’t want people to know that he pays almost nothing in federal income tax. There are a lot of stories obviously that are going around. We have limited time. So we’re going to focus on the supreme court and get to some of those other stories including the president’s taxes in the coming weeks.

Preet Bharara:

Saturday, prime time, lots of flags in the Rose Garden. The president nominated Amy Coney Barrett. Are you surprised that it was her and not Barbara Lagoa or someone else?

Anne Milgram:

You know, I think you and I had both sort of felt the same, which was Barbara Lagoa felt to me, like just an all around smart pick for a lot of reasons. Including the fact that she would be the first Latina republican justice. She’s from Florida. It just felt aligned. I think also she’s deeply conservative. Just like Amy Coney Barrett. I sort of felt like you would get almost everything you would get with Amy Coney Barrett, but you wouldn’t get the culture war. You wouldn’t have someone who had so explicitly articulated views that I think will lead to the overturning of things like women’s right to choose and so on. I think to me it made more political sense to do Lagoa.

Anne Milgram:

That’s not who Donald Trump is. I think as I’ve reflected on it right? He loves the fight. He always plays the offense. I think it was reported that he had told people he was saving Barrett for Ginsberg’s seat. So in some ways I’m not surprised. But I don’t know if you had the same reaction.

Preet Bharara:

Yeah, I think it makes sense. He had his eye on her as you say for the Ginsberg seat all along. I think the other thing going on is even though Barbara Lagoa in ordinary times might get more bipartisan support or some bipartisan support, she was confirmed for the 11th circuit I think by a vote of 80 to 15. Whereas Amy Coney Barrett was 55 to 43 only three democrats crossed party lines to vote for Barrett.

Anne Milgram:

And one of them was her home state senator, which is pretty common-

Preet Bharara:

In this time-

Anne Milgram:

Yeah.

Preet Bharara:

But in these circumstances, given how angry democrats I think rightfully are, that they’re going to push through a confirmation on the eve of the election even though McConnell said something very very different and Graham said something very very different in 2016. It almost didn’t matter. There was going to be a conflagration no matter who he nominated. And I think he decided to go with the person who is more embraced by The Federalist Society and The Heritage Foundation.

Anne Milgram:

Yeah, and by his base. I agree. And by the base.

Preet Bharara:

And by his base-

Anne Milgram:

I agree.

Preet Bharara:

Because she’s so much more clear on the litmus test issue like Roe vs. Wade. We’ll get to that in a minute. But in retrospect, it seems almost … I was talking to some reporters who were calling and asking my opinion on things. And every single one of them said, “No, it’s not going to be Lagoa. It’s going to be Amy Coney Barrett.” It’s not even clear to me he interviewed anyone else.

Anne Milgram:

No, it was reported that he’d only interviewed Barrett. I don’t know if that’s accurate or not.

Preet Bharara:

So here we are. Maybe let’s talk generally about how different the court is going to be. Whether it was Barrett or Lagoa, a number of things probably will not be the same for a long time. Because you’re moving from a 5-4 court and a 5-4 court on which, as people know, John Roberts sometimes would vote with the liberals and has done that a couple times in the last year. Not to say he’s trending left or drifting to the left, but on certain issues because he has a certain view of institutions and he has a certain view of pretextual arguments that have been made by this administration, he has been a vote on the liberal side. That’s not going to matter anymore if Barrett is confirmed. Because it’s going to be 6-3 on issue after issue after issue, right?

Anne Milgram:

I agree. And I think it’s hard to explain to people how important that is. With the 5-4, there’s room. We’ve seen Roberts sometimes join the progressive justices. That will not happen. There will be a solid … And to be clear, that the existing five, the existing four, take Roberts out for a minute, are deeply conservative, and they are a reliable extreme conservative vote. I think that’s really important, and Barrett will be as well. It’s not like when you think about justices who get on the court and really look at each case in a unique … uniquely, and they take the facts and the law and what the constitution says. This is a situation where we do know that the court is going to swing hard right. I think we also have to be honest that in my view, the president is working to pack the court, to do just this, by doing this before the election. It’s really clear to me-

Preet Bharara:

During, during the election.

Anne Milgram:

During the election. Yes.

Preet Bharara:

I think this is an important point. People forget that. Because there’s so much early voting.

Anne Milgram:

No, I think it’s an important point. I think it’s also important to understand that this is court packing. That Garland in my view should’ve been seated in the Obama administration. Scalia’s seat was open in February, the election was not until November. Here you have a situation where the election is as you say, happening now. It is basically almost October, and we’re talking about the president jamming through something with the intent of swinging the court for the next 30 to 50 years in a conservative way. We should maybe just highlight people sort of think generally about these things. But Roberts was the swing vote on immigration recently, on the DACA case. He was the swing vote on June Medical Services vs. Russo which was the case that struck down a state law that was restricting abortion and would’ve created a situation where there was only one abortion provider in the state. All of that will change. Environmental restrictions, campaign finance, voting. I would anticipate that ruling after ruling will come out to the far right.

Anne Milgram:

I wanted to ask you this, Preet. Because I’ve been thinking a lot about the fact that I don’t think that that’s in sync with America. Even if you just look at the polling, the polling now is a majority of Americans think that the seat should be open for whoever gets elected and sworn in in January. A majority of Americans support keeping Roe. I don’t know if that matters, but it feels to me like the court is moving farther and farther out of sync with the country.

Preet Bharara:

I think that’s going to continue to happen. I had our friend, our mutual colleague, Melissa Murray on the Stay Tuned podcast last week. We talked about what is going to be developing as time goes by. A 6-3 court if Trump is reelected, potentially a 7-2 court. As the country moves a little bit to the progressive side, the court remains conservative. And you will have these tensions, right? Both with FDR when he was trying to pass New Deal legislation. I think we’re going to have moments like that in our future as well.

Preet Bharara:

The last point on the precedent here, and this to re-emphasize the fact that we’re in an election. People keep saying, “Well, in the Obama case, with Merrick Garland, there was a nomination made during an election year, and this is during an election year.” It’s not during an election year. Voting has begun in many states. I read somewhere that there have already been a million votes cast and it’s not even October. At this time in 2016, there were just a few thousand votes cast. This is not a case where, “Let’s not wait because we can move now and the election will happen later. The election is already happening.

Preet Bharara:

The best analog to the current situation as some people have mentioned was 1864, during the reelection of Abraham Lincoln. There came a supreme court vacancy, close in time to the election. No early voting then as far as I know. And President Lincoln waited. He waited until after he won reelection to make a nomination. And that’s what should’ve happened here. Should we talk about what are good arguments and maybe what are not so good arguments about Amy Coney Barrett? I mention that because there will be a lot of debate and hand wringing over the issue of her Catholic faith. For my part, I think that people, democrats included would do well to stay away from that. A, because I think people are entitled to practice their faith the way they see fit. And B, it will be counter productive and will cause a lot of blow back.

Preet Bharara:

Maybe it doesn’t matter, because no matter what people say there will be republicans who want to raise the straw man argument that her faith is being attacked. I’ll give you one example of the stupidest thing I’ve read since the nomination. Senator Marsha Blackburn tweeted, “In Chuck Schumer’s America, only atheists can be supreme court justices.” Which is really, fabulously stupid. By the way, I was kind of appalled to see yesterday that Marsha Blackburn started following me on Twitter.

Anne Milgram:

Oh boy.

Preet Bharara:

I don’t know why that is.

Anne Milgram:

I don’t know what the right reaction to that was but I was surprised.

Preet Bharara:

By the way, she’s talking about only atheists can be in the supreme court according to Chuck Schumer-

Anne Milgram:

It’s not true! The court is Catholic!

Preet Bharara:

Well, also, at literally at the same moment that Ruth Bader Ginsberg, Jewish woman, is about to be laid to rest. And obviously, Sonia Sotomayor who is championed by Chuck Schumer, Catholic.

Anne Milgram:

Also, six of the current eight justices are Catholic. They affiliate. They consider themselves to be Catholic. I actually don’t quite understand why there are so many Catholics on the supreme court. It’s a very interesting thing. I am Catholic myself. When I saw that fact, it felt very unusual. So I think nothing could be further from the truth that you can’t be Catholic and be on the Supreme Court.

Preet Bharara:

Do you know who else is Catholic?

Anne Milgram:

Other than me?

Preet Bharara:

Joe Biden.

Anne Milgram:

Joe Biden is Catholic. That’s right. He is Catholic.

Preet Bharara:

The democrats hate Catholics so much, they want to make one president. I’m sorry.

Anne Milgram:

That’s a good point.

Preet Bharara:

[inaudible 00:19:15].

Anne Milgram:

The attacks are hollow. They’re really meant to go to the base. I should say that there’s Pugh polling that shows that 59% of Catholics don’t want Roe to be overturned. It really is this sort of argument that this is about your faith. I think it is intentionally driven to try to get religious conservatives and the president’s base to think that somebody’s trying to stop someone because of their religion. My personal view is I don’t care what your religion is. I care what your views are and how you will vote on the court. Whatever you bring to that personally is completely distinguishable for me as to how you see your role vis a vis the laws and the constitution of the United States. I think there’s going to be a lot of attention potentially focused on it. I think it’s kind of a mistake.

Anne Milgram:

I will point out one thing though that … One thing that I saw that really did give me pause was an answer that Barrett had given about the death penalty. When she was previously asked about her willingness to basically uphold the law. Look, agree or disagree, the death penalty is the law in many states and also in the federal government. If you’re sworn in as a federal judge, it is legitimate to expect that everyone will apply the law.

Anne Milgram:

Again, you can disagree with that. You can vote for people who want to change that rule. You can become a policy activist. But if you become a judge, or frankly, I even felt as a prosecutor, you have to be willing to uphold the law. So she said something where she would not personally sign an execution order. If she was a district court judge, she would not sign that. I think in questioning she has to be pushed not on why she thinks the death penalty is wrong, it may or may not come from her faith. I don’t care where it comes from. But I think she has to be pushed on her view of seeing herself as above the law, as outside the law and not having to adhere to it. That to me, that is a really fair question of again, having nothing to do with your faith, but are you willing to pledge fidelity to the constitution and laws of The United States.

Anne Milgram:

When thinking about this question of whether or not a supreme court justice should be seated, Barrett herself, the president’s nominee has spoken on this. She made statements when Justice Scalia’s seat was open. Again, going back to February of the last year of President Obama’s presidency and she was trying to distinguish it from when Justice Kennedy had been sworn in. And Justice Kennedy had been nominated and confirmed also during an election year. So she’s trying to distinguish that situation in explaining why Merrick Garland shouldn’t get a vote and shouldn’t be seated. And she said:

Amy Coney Barrett:

Kennedy is a moderate republican and he replaced a moderate republican, Powell. We’re talking about Justice Scalia, the staunchest conservative on the court, and we’re talking about him being replaced by someone who could dramatically flip the balance of power in the court. It’s not a lateral move.

Anne Milgram:

That’s not the way it works. There is no democrat or republican seat. If there was, we would be arguing that Ginsberg’s seat should go to democrats. But I really hope that the sort of hypocrisy of that statement will be brought to bear. You could not go further in terms of jurisprudence from Ginsberg to Barrett. There’s a huge, huge distinction.

Preet Bharara:

I saw that too. I think the larger point she was making in the extended clip for the interview, it’s a little less clear if she was being hypocritical or was just talking about different circumstances and saying there’s no concrete governing rule with respect to these things. So I sort of leave that aside. Before we get into a couple of different specific issues, we’ve already talked about the death penalty. Overall, even though she’s got a track record on the court, on the circuit court, three years. And hasn’t written a lot of controversial opinions, she does embrace certain things.

Preet Bharara:

She calls herself an originalist, which has a particular meaning. And Heritage Foundation folks and Federalist Society folks love that. She basically said she embraces and considers herself to be in the philosophical mind of Antonin Scalia. Also an originalist, also known as a strict textualist. By which, I think what people mean is, that’s a view of constitutional interpretation that depends heavily if not exclusively on trying to figure out what the original public meaning was of those words. Even if they were 200 and something odd years ago. As opposed to having an appreciation for a living document. And that-

Anne Milgram:

Yes. And the text-

Preet Bharara:

Circumstances change. And the text-

Anne Milgram:

Of the constitution 200 years ago. And really really pinning that to the actual language that’s used, and the actual language of if they pulled from common law in England to create provisions of the American Constitution. What was the specific text of the language they pulled from the common law, for example. It really does focus on the text and the language of the original constitution. It basically leads you to a very conservative view, and I think it should allow us to assume that Barrett will vote as Scalia would have voted.

Preet Bharara:

Yep. I mean, explicitly. We should remind people that she clerked for a conservative judge in the DC circuit, Larry Silverman, and then also a clerk for Antonin Scalia. So Scalia was a mentor, and she follows in his footsteps, explicitly so. And that even though we only have a three year track record on the Seventh Circuit Court of Appeals, it’s a predictable vote. Nothing is 100% predictable, but it’s a fairly predictable vote on a lot of different issues. Should we talk about a couple of them?

Preet Bharara:

I guess one that is important to people is reproductive rights, Roe vs. Wade. She to my knowledge has not written directly on the substantive issue of a woman’s right to choose while on the bench. But she has said some things about choice in her academic writings. A couple of comments that have been interpreted to be not so devastating to the right to choose, which we can mention in a moment. But overall, do you agree that she’s probably a pretty reliable vote to at least hollow out the right to choose, if not to overrule Roe 100% directly.

Anne Milgram:

I have no question about that in my mind. I think she is a completely reliable vote on that. I think that the tact now on the right is not to explicitly overrule Roe, because I think they realize that they can really gut it, a death by a thousand cuts. By letting states pass onerous restrictions. Some of the restrictions that Barrett has even ruled on. Again, she hasn’t written the opinions herself, but just sort of joined in opinions, have addressed, can states prohibit abortion based on the sex, gender, or disability of the baby. Basically really bringing this question of, will states be able to prohibit families from choosing to discontinue a pregnancy if they understand that a child would have severe developmental disabilities. Which is currently the law, and has been allowed to happen.

Anne Milgram:

I think that yes, I think that’s exactly what we should expect. Is that she would have a series of decisions that would hollow it out. And we should just note that she has herself said that … This has been publicly reported frequently, but it’s worth just noting that supreme court precedents are not sacrosanct. That’s sort of her language.

Anne Milgram:

She’s talked about something called super precedents. I think she’s trying to work through this idea that look, there’s a reason you need precedent because it allows people to know what the law is, and to be able to live their lives and settle debates. Her argument is Roe still isn’t settled. There are still a lot of people who are angry about it and who don’t agree with it. So she’s dividing the world into precedents that can be overturned, and super precedents that can’t be. So I would very much also like to see members of the senate judiciary committee ask her an grill her on what are super precedents and what are not, and what constitutes a super precedent? But, 100% on Roe.

Preet Bharara:

She has commented on Roe, just a year before she went on the Seventh Circuit Court of Appeals, at a discussion at Jacksonville University. She said, “I don’t think the court case,” And probably she had no expectation of being on the bench in the near term, back then. But she said, “I don’t think the court case rose core holding that women have a right to an abortion. I don’t think that would change. But I think the question of whether people can get very late term abortions you know, how many restrictions can be put on clinics. I think that will change.”

Preet Bharara:

She was making a prediction about the court as it was constituted and how it might be constituted in the future. That’s not really a statement about what she would do if she were on the court. Which probably was not something she was expecting to happen in the space of just four years from the time she made that statement.

Anne Milgram:

Well, maybe not, but I would say this. I don’t think it’s a coincidence that she hasn’t been on either of the panels that decided the abortion case, the two abortion cases that have come before the seventh circuit, and she hasn’t personally written. She’s only joined the writings of others in dissent, right? I think it’s actually very interesting and it makes me question whether … in some ways it’s very convenient.

Anne Milgram:

The only other thing I’d say, Preet is there is something about when we talk about Roe, there is something about … I think the president wants the deciding vote on Roe, which this will now be to be coming from a woman. In some ways, right? I think that there’s … I don’t know if you agree, but I suspect in some ways he’s now replacing the justice who had built the foundation for equality in the United States for women. He’s going to replace her with someone who will cast I think the deciding vote to restrict womens’ ability to chose and in a variety of other ways, sort of step back, roll back some of the actions that Justice Ginsberg took as a litigator and as a supreme court justice.

Preet Bharara:

Yeah, I think that’s right. So on some other issues that are more immediate, like the Affordable Care Act, and I think the democrats both as a matter of substance and as a matter of strategy are rightly focused on this. And how her confirmation would likely mean the end of the ACA as we know it. One of the reasons we can believe that to be true is back in 2017 just three years ago before she ascended to the bench, she made a statement critical of Chief Justice John Roberts and how he decided an important case in the Supreme Court on the Affordable Care Act back in 2012. She writes, “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” And without getting into too much detail, I think that suggests that she would not push in the same way. And even though the circumstances and the posture is a little bit different in this new ACA case coming up in a few weeks, that she’s a pretty reliable vote against the ACA. Agree?

Anne Milgram:

Yes. I do agree. I think that one of the things that I was just thinking as you were talking is that in the past, she has said a lot. Your point is, “Well, maybe she never thought she’d be on the supreme court.” But in some ways, all of these statements are what has propelled her in Donald Trump’s universe to go on the court, right? For him to put her on the court. Because we know what she’s going to do. What Trump is betting is that the confirmation process that Americans don’t care, the public won’t object, they won’t push republican senators to vote against her based on it. He’s counting on this being rubber stamped. He’s intentionally gone with the person who’s said, “I’m going to overturn the ACA, I don’t agree with Justice Roberts’ reading of it.” So yes, I completely agree.

Preet Bharara:

Move on to guns quickly. And we’ll come back to some of these issues as the hearings get underway. On the issue of guns and gun regulation, which is probably, almost certainly a very reliable, conservative vote on any issue relating to the second amendment. There’s a particular case and issue that she’s ruled upon during her brief time as a judge. And that relates to the right of felons to possess firearms. There’s a federal law that prohibits felons, people who have been convicted of a felony from possessing a firearm. Now you can like or not like that law. But it’s had bipartisan support for a long time.

Preet Bharara:

I’m not aware of any significant material effort to change that law. Even though there’s a republican senate and there have been republican congresses in the past. She ruled in dissent with respect to a person who had been convicted of fraud, saying that the statute is constitutionally over broad and violates the second amendment. That there may be a reason for a person who is deemed to be dangerous not to be able to possess a firearm for the rest of his life, but that a mere conviction for fraud isn’t it.

Preet Bharara:

You can have a view about whether or not that makes sense. But in my experience, prosecuting these kinds of cases, and given how many times a constitutionality of that gun regulation has been challenged. And in every case that I’m aware of that rose up to any significant level in the appellate courts, always struck down. She’s an outlier on the gun issue as well.

Anne Milgram:

Yeah, and I think it is an extreme view, and I think it’s important to note that again, when you talk about precedent, it’s extremely well established that this has been allowed. She basically in this case, where she’s the lone dissenter, she’s basically finding a violation of the second amendment. She goes on to be questioning congress’ ability to place limits on the second amendment, right? She’s questioning whether or not congress can have a restriction that’s this broad when the second amendment guarantees the right. She’s arguing the second amendment allows individuals, all Americans, all individuals to keep and bear arms.

Anne Milgram:

In my mind, she’s basically saying that congress can’t put restrictions on this, in the second amendment space when it comes to guns. But if we think about abortion, what she is basically going to get on the court and do is basically say, “It’s fine for states to put numerous restrictions.” To me, she’s going to go back and say, “Well, my philosophy is the original text of the constitution. The second amendment explicitly says, the right to keep and bear arms.” That’s going to be her argument. But I think we should be very clear that the way she’s approaching these two things, the constitutional right of course for Roe was read into the constitution. It’s not explicitly written there. She’s going to argue they’re different. But in fact, she’s going to restrict congress’ ability to put regulations on gun ownership while giving the right to restrict abortion. It’s incompatible in my view.

Preet Bharara:

We should talk about how this is going to play out. The bottom line is, based on our discussion, if Amy Coney Barrett is confirmed, she’s going to alter the trajectory of the court in a right wing, and rightward way for a long time. Someone put it this way. If she serves to the same age as Ruth Bader Ginsberg, do you know how long she’ll be on the bench? Until 2059.

Anne Milgram:

Wow.

Preet Bharara:

Twenty-fifty-nine. Here’s the plan of ramming through this court pick. Lindsey Graham who once upon a time said he would never proceed with such a confirmation has announced that the confirmation hearings will begin on October 12. Holiday for some people. Opening statements. Two days of questioning, October 13 and 14. Then one day of outside witnesses which is something you typically have at these hearings. With a vote to closely follow. I think it’s called for the panel, the committee to approve her by October 26th, and on this schedule she will be confirmed before the election.

Preet Bharara:

And before people get too upset with me, we can talk about why this is, I think people should be aware that there is very little likelihood of stopping Amy Coney Barrett. That doesn’t mean that people shouldn’t argue about it, and fight about it, and draw pain about it, and cause it to harm the electoral prospects of both republican senators, and Donald Trump. But the fact of the matter is, if you have the votes, and it looks like McConnell has the votes. You not only have the votes to confirm, you have the votes to change rules, to get around obstacles that democrats can put in their path. The smart people I talked to and based on my own experience, the vast likelihood is, and I hate to say it, for a million different reasons, and it makes my blood boil, and it makes me angry too. Amy Coney Barrett will be confirmed.

Anne Milgram:

I agree in one part, which is that I think she will get seated on the court. I do think that there is a possibility of delaying this until after the election, which I feel very strongly about and should be done. And I also agree that-

Preet Bharara:

How is that?

Anne Milgram:

Well-

Preet Bharara:

Because I don’t see it.

Anne Milgram:

I think the problem is, look. This is a rocket rocket speed confirmation process that’s been laid out. I don’t know. We can talk about some of the procedural things that the democrats can do, but they can in fact make the senators stay in DC. They can basically call for a vote on virtually everything. They can refuse a lot of the unanimous consent that they do in the normal course of their business.

Preet Bharara:

But none of those things stops, not one of those things respectfully, stops Lindsey Graham from having the hearing on the day he wants to have the hearings. There is this gambit that people use sometimes where they can end committee hearings after two hours by raising an objection. All Lindsey Graham will do in that case is say, “Okay, great. We have two hours of hearings. That’s all you get. I’m still going to go for a vote when I say we’re going to go for a vote.”

Preet Bharara:

People have also talked about boycotting the hearings. I get it. There’s a rule in the judiciary committee that you can’t proceed and act on certain business without a quorum and without at least one or two members of the opposing party. Yeah, that’s a rule. But that’s a rule that’s able to be changed by the majority, by a majority vote without a quorum. Right? So it’s kind of meta.

Anne Milgram:

Right, look. I don’t disagree that there’s probably a republican countermove to every potential democratic move, but here’s my view. You give half your sandwich to the bully and they always eat the other half. This is nothing but an assertion of pure power by Donald Trump, Mitch McConnell, and Lindsey Graham, and the Democrats need to call it out. They need to let the American public see that the republicans are willing to change the rules and bend the rules and literally ram through the woman who will make the supreme court the most conservative for all our lifetime. Again, which I believe is out of the heartland of the United States, that they have to basically do this in front of everyone.

Anne Milgram:

And look, you may be right that it happens anyway, but I don’t feel good about this idea of, “Well, it’s just going to happen, so people should just show up and ask a few questions and feel sorry for themselves that they don’t have more power.”

Preet Bharara:

Do you think they should boycott? Do you think … First of all, Diane Feinstein never boycotts anything. That was suggested to her a number of times when I was on the committee and when you were in the senate. So putting that aside, because she has a view whether you like or not, and I think is a problematic questioner and was a problematic questioner of Amy Coney Barrett back in 2017. But you think democrats just don’t show up? The problem with that is, maybe that shows some solidarity. But then you don’t take any shots at Amy Coney Barrett. You then don’t have the possibility of maybe ferreting out some bad views that could, you never know, because life is strange, could turn the tide. That would just cause Lindsey Graham, I think to say, “Fine. Democrats don’t want to have a hearing, we won’t have a hearing at all. If they’re going to boycott, we’ll go straight to the floor and she gets confirmed more quickly.”

Anne Milgram:

I think that that’s a fair argument against boycotting it all together. I think you could boycott the vote. But I do, at this moment in time, I lean toward there being a process by which, look. It is reprehensible to me that they are going to rush through a lifetime appointment to the supreme court. It’s never been done this quickly. There’s just zero precedent for this type of speed happening. Again, it’s being done. And we should be clear it’s being done because there’s a risk that the president could lose one of the senate seats with Mark Kelly at the end of November, if he wins in Arizona. It also looks even worse if they wait until after the election. Also, the reason to rush it is that if we end up in litigation over the election, I think the president would like Barrett to be on that court. So would Mitch McConnell.

Preet Bharara:

Oh, 100%, yeah.

Anne Milgram:

Right. So we should all be very clear. The motives are for the worst reasons, right? The speed is not justified by proper motives. Look, I guess my point is this. I’m not sure exactly what tactics and what hands the democrats should play, but my view is they need to fight and they need to play those hands. Look, at this point, I think we would all agree that if they don’t do anything she’s going on anyway and she’s going on in the next two weeks.

Preet Bharara:

Look, I think they are fighting. We tend not to disagree about stuff. But it is … Trust me, the democrats, Senator Schumer, Feinstein and others are rip roaring mad and angry just like their constituents. I don’t want to be an apologist for the senate democrats in any way, shape, or form. But it is interesting, I see people hand wringing and saying, “Do more, do more, do more.” You and I both worked in the senate, right? So we have some knowledge. And if you and I cannot be specific about the thing that you can do that can bring doom to this nomination or even extend the nomination for some period of time, it’s just very facile and easy.

Preet Bharara:

Again, I’m not a defender and apologist for the senate democrats. It is a little facile for people to say, “Fight more! Do more! Do more!” Without saying specifically what those things are. There are very very smart tacticians on the democratic side, and it is unfortunate. This is a pure power play. I agree with all of that. But that doesn’t mean that they can do something in response that’s going to be deus ex machina or some solution from heaven.

Anne Milgram:

Yeah, I agree. I agree with that. Look, I think this raises the bigger question of it, and I’ve thought a lot about this. We live in a country where we pride ourselves on checks and balances and yet it feels like there really aren’t any on this particular question, right? The republicans right now are unchecked.

Preet Bharara:

As we said last week, look. Donald Trump said it best. If you have the votes, you can do whatever you want. Look, the way to get back at those folks for all of this is come January of 2021, to have the votes in the senate, in the house, and to have the presidency and we can fix a lot of this stuff. So Anne, we’ll obviously be talking about this in the days and weeks to come.

Preet Bharara:

Meanwhile, I don’t want to make any predictions about the debate. Some people will be listening to this before the first presidential debate tonight, some people will be listening to this perhaps Wednesday morning after the debate. I’m a little nervous about it. It’s the first time these two guys have been up against each other. Bizarrely, did you see this, bizarrely the President of the United States has asked that Biden take a drug test because he claims he has taken performance enhancing … by the way, I want to know what those performance enhancing drugs are. Maybe I could do a better podcast. I’d like to know, what is the drug that I can take to make us better at doing this performance. Did you see then-

Anne Milgram:

Have you also ever noticed that the president always accuses other people of the things that he himself has been accused of? People have raised questions about his performance in certain speeches. He obviously has appeared to stumble when he was walking down the ramp to Air Force One recently. Whatever he’s been attacked for or questioned for, he always seems to turn back against other folks.

Preet Bharara:

Yeah, so essentially the challenge was from the president that both men, both septuagenarians should pee into a cup. And maybe you want to read for folks, but let’s end on this note perhaps. The deputy campaign manager for Joe Biden, Kate Bettingfield, did you see this? Do you want to read the statement that she put out in response to the challenge?

Anne Milgram:

Yes. I think what’s so interesting to me is we’re now in a place where it’s just … we’re living in the world of crazy. I think there’s a really interesting question and we’re going to see it tonight, of how do you meet President Trump’s … his inaccuracies, his lies, the crazy things he says. Here’s what I think is a little foreshadowing of what’s going to come. The Biden campaign released a statement ahead of tonight’s debate saying, “Vice President Biden intends to deliver his debate answers in words. If the president thinks his best case is made in urine, he can have it. We’d expect nothing less from Donald Trump, who pissed away the chance to protect the lives of 200,000 Americans when he didn’t make a plan to stop COVID-19.” I think it’s fair to say the gloves are off and that it’s …

Preet Bharara:

That’s too much imagery.

Anne Milgram:

It is. It’s a lot.

Preet Bharara:

That I’m not really excited about.

Anne Milgram:

I feel the same. But it’s going to be a feisty debate I expect.

Preet Bharara:

So I’ll be watching, Anne? You’ll be watching? I bet it’ll be one of the most watched, if not the most watched debate in modern times I would think. We’ll be back next week.

Anne Milgram:

Yes. We’ll talk to you soon. Please send us your letters and questions to [email protected]

Preet Bharara:

By the way, make sure you sign up for the happy hour this Thursday at 6:30 p.m. Eastern time. Go to café.com/preet to sign up. Once you sign up, the Zoom information will be sent a few hours before the actual event. 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 Tatscioer. 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 Malley. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.