• Show Notes
  • Transcript

In this episode of CAFE Insider, “Losers & Suckers,” Preet and Anne break down allegations that Postmaster General Louis DeJoy carried out a straw-donor scheme prior to his tenure at the United States Postal Service, Attorney General Bill Barr’s CNN interview last week where he made dubious claims about voter fraud, among other election-related issues, Mississippi Attorney General’s dismissal of the case against Curtis Flowers, a Black man who spent 23 years in jail and was tried 6 times for allegedly murdering 4 people in 1996, and more.

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

REFERENCES & SUPPLEMENTAL MATERIALS

TRUMP & THE MILITARY

“Trump: Americans Who Died in War Are ‘Losers’ and ‘Suckers,’” The Atlantic, 9/3/20

“Former White House press secretary Sarah Huckabee Sanders: Former officials critical of Trump are ‘disgruntled employees,’” ABC News, 9/8/20

“John Bolton denies claim Trump disparaged fallen American soldiers in France: ‘Simply false,’” Fox News, 9/7/20

VIDEO: “Two former senior Trump administration officials confirm key details of Atlantic article,” Fox News, 9/5/20

POSTMASTER GENERAL LOUIS DEJOY

Federal Election Campaign Act Contribution Limits

52 USC §30145. Period of Limitations

North Carolina §163-278.14. No contributions in names of others; no anonymous contributions

“Louis DeJoy’s rise as GOP fundraiser was powered by contributions from company workers who were later reimbursed, former employees say,” WaPo, 9/6/20

“The legal lines Louis DeJoy’s alleged campaign contribution reimbursements may have crossed,” WaPo, 9/7/20

Rep. Carolyn Maloney tweet, 9/8/20

Dan Goldman tweet, 9/6/20

ATTORNEY GENERAL BILL BARR

Building Confidence in U.S. Elections, 9/2005

“Barr claims a man collected 1,700 ballots and filled them out as he pleased. Prosecutors say that’s not what happened,” WaPo, 9/3/20

“Carter Center Statement on Voting by Mail for 2020 U.S. Elections,” The Carter Center, 5/6/20

Charlie Savage tweets, 9/4/20

Attorney General Barr CNN interview: VIDEO PART 1, VIDEO PART 2, Full Interview Transcript, 9/2/20

“Ballot Battles (with Michael Waldman),” Stay Tuned with Preet, 4/23/20

CURTIS FLOWERS

Flowers v. Mississippi, U.S. Supreme Court, opinion, 6/21/19

“After 6 Murder Trials and Nearly 24 Years, Charges Dropped Against Curtis Flowers,” NYT, 9/4/20

Preet Bharara:

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

Anne Milgram:

I’m Anne Milgram.

Preet Bharara:

Hi, Anne. How are you?

Anne Milgram:

Hey, Preet. Happy day after Labor Day 2020.

Preet Bharara:

Happy day after Labor Day. We can’t wear white anymore. Is that right?

Anne Milgram:

I don’t know. I think that’s great.

Preet Bharara:

Is that still valid in the [crosstalk 00:00:20]?

Anne Milgram:

I don’t know. Yeah, it’s a good question.

Preet Bharara:

We have a lot to talk about. One thing happened since we last spoke. The President of the United States reportedly, not just by the Atlantic, but by CNN and a number of other outlets, reportedly called those who fell in battle to defend our country, he called them losers and suckers. You saw that?

Anne Milgram:

I did see that. I did see that. I noticed and this was reported last week in the Atlantic and then there’s been a lot of attacks made by the President and the President’s supporters on the Atlantic. This has been a sort of classic MO which is to attack the journalists, but it seems as though there’s been a lot of corroboration and a lot of sources who spoke to the Atlantic about it. Basically, what the Atlantic reports is that Trump had canceled the visit to the American Cemetery near Paris in 2018 and blamed rain for the last minute decision. It said the helicopter couldn’t fly. The Secret Service couldn’t drive but neither of those claims was true.

Anne Milgram:

What’s now been reported is that he rejected the idea, both because he feared his hair would become disheveled in the rain and because he did not, “believe it important to honor American war dead.” That’s the writing from the Atlantic who spoke with four people with firsthand knowledge of that conversation.

Preet Bharara:

There’s lots of other outlets including, by the way, a Fox News national security journalist who corroborated many of these details in her own reporting and what then happened? President Trump says, “She should be fired.” Anybody who would say something not nice about Donald Trump, true or not, is supposed to be canceled.

Anne Milgram:

The thing about this one in particular and the quote in the Atlantic is, “Why should I go to that cemetery? It’s filled with losers.” For any other president who didn’t have a track record of attacking fallen members of the US military, you might actually think, “Well, why would anyone or how could anyone say that for about men and women who gave their lives for our country?” Then, you look back at what Trump did with John McCain, he called him a loser and said, “We’re not going to support that loser’s funeral,” according to the Atlantic after he saw flags being lowered to half-staff. There are a number of ways which I think the president says he supports the military and then he turns around and calls fallen war heroes and men and women who sacrifice for our country losers.

Anne Milgram:

It’s just a really terrible thing to see. I don’t think it impacts policy in the way you and I have talked conversation sometimes about things where it’s going to literally change a policy but it just goes to his character and who he is and how he feels about people who give the ultimate sacrifice. It’s a really-

Preet Bharara:

Yeah, I think it’s even broader. The worldview of this president is about making money and about getting ahead and about getting attention. In the particulars of what he says about fallen soldiers and John McCain and others, there’s a lot to criticize, but it’s consistent with his overall philosophy in life and that is the whole purpose of doing anything that you do must be to make money. I mean, what’s the thing that was reported that he said, next to the grave of John Kelly’s son, what was in it for him?

Preet Bharara:

It’s actually a very telling window into Donald Trump’s psyche. Everything has to be done for some material gain to oneself. He doesn’t get. He literally doesn’t understand the mindset or heart of someone who does public service. He’s doing it now, I think, in part for self-aggrandizing reasons, including attention, but he made all his money. Now, he can do this. I still think that he’s using this office for purposes of making more money in the future.

Anne Milgram:

Yes, I agree with that. I also think that his worldview is that, remember he called George HW Bush, also he called him a loser for being shot down during World War II when he was a Navy pilot. His plane was shot down by the Japanese. He called him a loser. He actually thinks that he was the right one to avoid the drafts and have bone spurs. He sort of sees it as like he’s the winner and people who walk into the arena to fight on behalf of the government are losers and people who are injured are even worse. There’s this really strange… I think it goes beyond even making money in his mind.

Anne Milgram:

Look, what’s also very interesting to me or jarring is that a lot of the president’s base are super pro military super pro law and order it we’ll talk about that I’m sure as the podcast goes on, but it feels to me like he’s really attacking men and women and their families who are an important part of America. They’re also, frankly, an important part of his base. It’s hard to understand that level of, I don’t want to say cruelty, but just such disregard for sacrifice and for people who are very loyal and brave.

Preet Bharara:

The one question people have is, well, how can sort of military-associated supporters of his still support him after this? It’s pretty simple. They don’t believe it. As a measure of how dangerous and harmful it could be to the president’s electoral prospects, boy, they have gone after the story with a vengeance, right? The president has spoken about it multiple times. He’s had a number of people, including John Bolton. Look, there is some grist on the other side.

Preet Bharara:

John Bolton and others say… Well, I was there, Sarah Huckabee Sanders, who is a documented liar, in connection with the Mueller report, for what it’s worth said, “Well, she was part of the discussion or at least one of the discussions and those comments weren’t made.” It’s hard to prove that, right? There are multiple conversations about it. The editor-in-chief of the Atlantic stands by the story. The other outlets stand by their story but so long as there’s not a tape and even if there were tape, people would say it’s doctored. People would say it’s a deep fake.

Anne Milgram:

I agree. I agree.

Preet Bharara:

They just persist in their belief that Donald Trump wouldn’t have said it. That is a recurring theme.

Anne Milgram:

You made a good point. There are four sources in the initial article and then there’s the Fox News journalist, the former national security analyst who also corroborates it. There’s a lot of corroboration of this. It’s not a sole anonymous source that we’re talking about. As far as supported stories go that this feels very, very much a supported story and a corroborated story, but again, it’s like what he does is attack the journalist as a way to deflect and then basically be able to argue to his base like I wouldn’t do that.

Anne Milgram:

Again, my point is, we know he would because he said things about George Herbert Walker Bush, he said things about McCain repeatedly. He didn’t go to McCain’s funeral. It’s like regardless what he says about the Atlantic, you know it’s true when you look at the way he’s behaved in the totality of his presidency and how he treats fallen members of the military. There’s no question in my mind that he’s trying to discredit the Atlantic because we’re in the midst of an election. It’s terrible for him to be shown, to be who he really is when it comes to the US military.

Preet Bharara:

Well, he has a fondness for generals, but doesn’t have an understanding of what sacrifices and public service is. Can I use that as a very awkward segue to the next topic?

Anne Milgram:

Yes and…

Preet Bharara:

Speaking of generals-

Anne Milgram:

… also speaking of loyalty and generals.

Preet Bharara:

I was going to say speaking of… Speaking of generals of the nonmilitary sort, the Postmaster General, Louis DeJoy is back in the news on an issue that is kind of interesting. There are some allegations set forth at some length, in a Washington Post article about the Postmaster General, about whom we’ve spoken a number of times. Remember, he comes from a private sector background, made a lot of money at a particular company. The reporting is that over time, again, and again and again, DeJoy and others put some amount of pressure on other people at his company to donate to republicans? There’s a lot of detail in the article.

Preet Bharara:

The allegation is that that pressure was brought to bear on people to make donations to republicans whom DeJoy favored, but they got the money back in the form of bonuses and other kinds of compensation later to make up for it and very specifically in the article alleges, to make up also for the tax implications.

Preet Bharara:

Now, the problem is and we should talk about what’s going to happen next, the problem is for someone who wants to hold DeJoy accountable, is at least according to the article, this conduct extended to about 2014 and the federal statute that applies to this kind of straw donor scheme, meaning you get someone to make a donation, then you reimburse them so you avoid the contribution limits under campaign finance laws, the statute of limitations for those kinds of crimes is five years and that would have expired. What’s supposed to happen, Anne?

Anne Milgram:

Well, there’s potential state charges, the state of North Carolina, where DeJoy’s company New Breed Logistics was located and where he lived. That state does not have a statute of limitations on felonies, meaning that he could be charged at any point in time. There can be a state investigation and there are campaign finance crimes that exist in the state of North Carolina that could apply here.

Anne Milgram:

I think it’s also important just to go back one step which is just so that people understand. I mean, in some ways, this is a fascinating story. In other ways, this is like the oldest campaign finance story in the book. Individuals, there’s campaign finance laws you have limits. In the US, when you put together personal contribution limits, you get to about like 150, 160,000 per person, which, of course, is a huge amount of money but for someone like DeJoy, he gave a million dollars. Remember, we’ve talked about this. I think he gave out a million dollars to the president.

Preet Bharara:

To be clear that’s because there are contribution limits that are very, very high with respect to parties and committees, but the campaign limit to an individual is much, much lower than the United States.

Anne Milgram:

Yeah. We should be clear. I don’t want anybody … Not that anyone is going to go out and write $150,000 check but there are different limits. It’s to 2,800 per election cycle can be given to a candidate, 5,000 a year to political action committee, 10,000 per year to combine state district or local party committee, 35,500 to the National Party committee, and then 106,500 per account per year to an additional National Party committee account.

Anne Milgram:

There’s a way to bundle all your contributions and people do this to sort of be at the maximum but the other way, people like DeJoy do it, is that you get a lot of other people to write checks because you could only write checks up to a certain amount. DeJoy writes a lot of checks himself, but then he needs to be able to fundraise and it’s one of the way people gain stature in the party is to be able to hold these fundraisers where it was reported he helped multiple fundraisers for congressional officials and for the White House that netted $100,000 each. You need a series of people coming in and writing $1,000 checks or $2,000 checks to that individual campaign or to a State Committee.

Anne Milgram:

What ends up happening here is that it really is a very interesting thing in some ways, because it is so textbook. He gets people, they just so happen to work for him. That’s not always the case but then what’s fascinating is that he pays them back, according to the reporting, through these bonuses plus the tax. What’s interesting to me as a former prosecutor and investigator, and I’m sure do you is that there’s a paper trail so you’re going to be able to look at who got bonuses and who went to these events. If there are two similarly situated executives and one got a higher bonus than the other, is that does it appear to be connected to the event and also paying the taxes sort of kind of puts it over the top in terms of provability if it looks like the bonuses, the exact amount of what somebody put in plus the taxes.

Preet Bharara:

I suspect it won’t be that. I actually think I haven’t seen the documents and I haven’t seen the numbers and putting aside the statute of limitations issue for a moment, I think it’s actually a bit of a difficult case. I mean, the garden variety, straw-donor case like with respect to Dinesh D’Souza and others who get prosecuted in this country, is you tell your friend or your relative or whoever donate $2,800 and I’ll pay you back and it’s a very specific amount. Then, near in time, there’s a check or a wire transfer or something else for $2,800. It’s very clear what happened there.

Preet Bharara:

Here, there’s another step in the middle and you have to show the link between the bonus, which is supposed to be the proxy for the repayment or the reimbursement and the actual payment made. I’m guessing in a lot of instances, A, because it would be too clear and too obvious the numbers don’t match exactly and you have to just rely on testimony from people, maybe that can be very powerful but the defense can be and the defense is starting to be already, “Look, there’s nothing wrong with suggesting to people they donate to candidates. That’s fine and proper and not unlawful,” and separate and apart from that, there it is, separate and apart, separate and apart from that, people will do bonuses and you’re right, if you can show discrepancies, that’s a bit of evidence to help a prosecution case. Otherwise, if there’s a basis in the record for giving someone a bonus and the number is rounded up and it’s not quite the same amount, I think it’s much harder. It’s a little bit more circumstantial.

Anne Milgram:

Yeah. I guess… By the way, this is what Preet and I would do behind closed doors. We’re trying to decide whether or not to charge this case, because I think, there are five people who’ve come forward. I think a lot will depend on what they say.

Anne Milgram:

You’re right and the reason that these cases are things that you spend time working up is that you have this paper trail, but then if somebody says, “Look, I just thought it might be good for my career. I chose to do it and the company encouraged us to attend fundraisers at DeJoy’s house, that’s not illegal, right?” If you think the company can be encouraging and you can decide, “Maybe it’ll be good for me. I’ll get to see the boss, right. I never get to see the boss in the office,” but it’s where there’s this concerted quid pro quo, you come, you pay the check, and we’ll pay you back. It’s in the deal that we’re going to reimburse you. That’s the thing, because that makes it an illegal campaign contribution by DeJoy. That’s where it really depends on what people said. It’s clear that the conversations were both with DeJoy and with his executive assistant at the time, who’s now become his chief of staff at postal. What were those conversations? What was said?

Anne Milgram:

The other piece is when you look at those people, the people who gave those campaign contributions, most stop giving contributions after DeJoy left the company in 2014 and some continued to give but at much, much reduced amounts. There’s a lot of fodder here. These cases tend not to be simple to prove for the exact reason that we’re talking about but it really is, in some ways, how do people get additional money and push money into campaigns from people who don’t want to give? This is one of the unlawful ways that people do it. Whether or not it’s prosecuted or not, it is an end run in my view around the laws that are meant to basically say, “Look, people can give a certain amount. You can’t give more.” If DeJoy is using his company to push money into campaigns and reimbursing folks, it doesn’t matter if you don’t hand them the direct check and say like this $2,000 for the campaign contribution you just paid, if you basically say, “I’ll take care of it in your bonus,” DeJoy is paying for it. I agree, a lot more needs to be known. One other point, Preet, did you notice the statement put out by the postal press person?

Preet Bharara:

I did.

Anne Milgram:

What about the part at the end where they sort of deny a lot of it, but they do not deny that the bonuses were given to people to cover the… This is my reading of it that they don’t deny that the bonuses were given to people to cover the campaign expenditures. They basically say we believe we complied with all campaign laws. They don’t say we just gave people bonuses because they were great employees.

Preet Bharara:

No, it is interesting. Maybe I don’t want to overstate. It’s wiser to say less but the other remarkable thing about the whole story is, for those of you who haven’t read it in the Washington Post, is that it’s not anonymous sources. I mean, some of them are anonymous but a large portion of the story comes from the HR person at the company, who’s basically just talking about the description of a crime that was being committed. I think that’s a little bit more startling than people think.

Preet Bharara:

My question is, if you’re a federal prosecutor with jurisdiction here at the Justice Department and the report looks like, it ends with 2014, do you waste time, energy and effort to investigate? Some people might say, “Well, absolutely not,” and some people might say, “Well, absolutely, of course.” I think the answer is somewhere in the middle. You have to make a decision about what resources make sense to use and look and see if there’s some basis to believe that there was misconduct that goes past 2014 or if there’s some other basis to, as they say, in the logs toll the statute of limitations and then it becomes an odd thing. If there’s zero evidence at all that the conduct extended into the statute limitations period, meaning into 2015, it would be a viable charge to bring now, do you spend those resources or not? What do you think?

Anne Milgram:

Right, that’s a harder question. I think if you’re sitting in the state and I can read the North Carolina Law basically prohibits contributions in the name of others and says, “No individual political committee or other entities shall make any contribution anonymously or in the name of another, meaning, DeJoy can’t give additional money through other people, his employees. I think that’s a very viable state investigation. I would expect them to investigate this. I think they should investigate this. I think the thing about campaign finance violations is that they’re not always uncovered but it’s really important in my view, when they’re uncovered to look at them.

Anne Milgram:

The Federal question, I think, is harder because you’re right, you have to show that something extended, even if it extended, let’s say, there were yearend bonuses paid at the of 2014 or beginning of 2015, let’s say somebody was paid in January or March of 2015, that statute has already run. It’s kind of hard to imagine, especially if DeJoy is already gone. It’s hard to imagine being able to build that case. I think you would look quickly and you would not spend a lot of time. You would just basically review witness statements, maybe take some statements, but it’s a lot of work.

Preet Bharara:

The other thing you would look at is people sometimes make the mistake in thinking that what’s reported in that Washington Post, it’s an extensive article, it’s very well sourced on the record and off the record that that’s the sum total of the conduct, right? Sometimes it’s the case that that’s the tip of the iceberg. Somebody who engaged in this kind of conduct, probably engaged in it before and probably figured out a way to engage in it after. Now, I don’t have off the top of my head when he left that company.

Anne Milgram:

2014 he sold, which I think is why it stopped.

Preet Bharara:

That particular course of conduct maybe ends there but I’m prepared to believe that in some other way or fashion, maybe even in a more direct way, where there are no bonuses to be repaid, that he engaged in this kind of activity in 2016 and maybe 2018 because why not? People don’t just reform themselves without being caught in this way. The focus of an investigation wouldn’t only be about that statute of limitations issue with respect to the company going to 2014 but you’d also take a look at more recent campaign contributions, because people tend to be recidivists.

Anne Milgram:

And fundraisers and he was obviously a bundler, meaning, there’s a small group of people in both the democratic and republican parties where they raise 50,000, 100,000. They make these commitments and then they hold a lot of fundraisers. She’s obviously one of those. To look at sort of who was on those lists for him for after 2014, would be also helpful. Look, I think it’s it warrants further investigation for certain on the state level. I think, also, you’re making a compelling case to do a little bit of looking on the federal level. It doesn’t feel to me DOJ is going to do this. It feels to me more like a local US Attorney’s Office might look, but what do you think?

Preet Bharara:

Yeah, I don’t know that. The Justice Department will do anything and they can take the easy out and say, “Well, it’s a political thing. It’s sensitive. It’s close to the election.” Even on the face of the article, it looks like the conduct was over in 2014. They might not be as aggressive as I’ve described, I think. The good US Attorney’s office would think about it and put politics aside, then on the issue of the state, there’s some reporting that state election officials would look at it first. There’s an attorney general, I don’t know exactly what the parameters of an attorney general investigation are. The Attorney General in North Carolina, I believe, happens to be a democrat. Then, there’s the potential county DA’s.

Preet Bharara:

Lots of folks have the ability to take a look at this. I think it was Dan Goldman who said, “In the ordinary course, you’d expect a turf battle to emerge over who gets to investigate with respect to US Attorney’s offices,” because it seems to be a substantial case that not only will there not be a turf battle, I’m not sure that anybody’s going to want to take a look and I think that’s unfortunate. Do you have a view on the Attorney General versus the DA’s office in North Carolina?

Anne Milgram:

It’s interesting, I think, the AG is elected in North Carolina and as has I believe the DA. I think it’s an interesting question. I sort of and we could talk about it at some point some of the election campaign work that we did when I was AG. I think the AG is often politically insulated a little bit more than the local DA’s who feel more pressure from the local political folks, that may not be the case here because AG in North Carolina is a statewide office and politically elected. I don’t know what the AG’s jurisdiction is either, frankly. I think they have some criminal jurisdiction, but I’m not positive. My instinct is the DA will do it over the state AG, but I, again, New Jersey has full criminal jurisdiction, most AG’s don’t. They have fairly limited criminal jurisdiction. I don’t know off the top of my head what North Carolina has.

Anne Milgram:

I would expect that it would be sort of a local DA type of case and I’ll tell you one challenge is that they don’t do a lot of them. DOJ does a lot more campaign. They do the Federal Campaign Finance cases, the sort of local state folks, they do a handful, but again, I’m not saying they won’t be able to do this. It’s just it’s not going to be something… It’s not the bread and butter of what they do every day.

Preet Bharara:

Now, there’s Congress. What about Congress?

Anne Milgram:

Yeah, that’s what I was going to say. The House Oversight Committee Representative Carolyn Maloney said that, she wants to join to come testify. She wants to have hearings on this. She’s called for his resignation. It really does warrant, I think, looking at it particularly because this is it feels like he’s very much been given this job because, I mean, he ran a logistics company. He’s not unqualified under that sort of and when you start to think about that type of previous work experience, but it’s also very clear that he’s a Trump loyalist, that he gave huge amounts of money. This is potential criminal activity by somebody who then basically it looks like traded his fundraising and his ability to raise a lot of money for the president and his loyalty to the president into this very high level job.

Anne Milgram:

I think it warrants the congressional investigation and digging. I’m not expecting. I don’t know how you feel. I’m not expecting them to comply with a lot of requests for information, but we’ll see.

Preet Bharara:

We’ll see. I think it’s worth looking at. Obviously, it’s supercharged because of the election and the other issues that are going on, that we’ve been talking about on the show, but we’ll see. Overall, the thing has a very, very bad smell to it. That’s not proof in a court but that’s when investigations are warranted and leads are worth pursuing.

Preet Bharara:

Some of the reporting is that local election officials would be looking at this first, maybe North Carolina is different from New York or some other places but I’m not aware of anything that says that the process must be initially election officials or an election organization commission looks at it. Only then after referral, can prosecutors look at it. Sometimes you can do it simultaneously in parallel.

Preet Bharara:

For example, in the same way that the Federal Election Commission, I guess, could take a look at this if they had a proper quorum and enough members, that does not mean that DOJ can’t look at it at the same time or even first. I’m not sure I understand why some people seem to be suggesting that the sequence has to be election officials first, then prosecute. We never took that view. If we thought something was as serious, then they look at it on their own.

Anne Milgram:

It’s the opposite. Yeah and usually, it’s the opposite. You would tell the civil folks to hold until the criminal piece went first or ask them to hold.

Preet Bharara:

Look, I mean, sometimes the reason people think that’s a sequence is that just as a factual matter how the sequence unfolds.

Anne Milgram:

Yeah, a lot of times people put a complaint in to the Election Commission, they do work up and then it gets forwarded to the criminal authorities for potential prosecution.

Preet Bharara:

Just like the Securities and Exchange Commission. Sometimes it’s the case at the Commission because that’s their bread and butter, that’s what they do. They do an audit or some other kind of information comes into them and they make the referral to the criminal authorities and sometimes then, as you say, not always, and the law is changing on this, the criminal authorities say to the civil folks, “Hey, standby. Let us do our thing, and then you can go.”

Preet Bharara:

Also, last week, speaking of DOJ, the Attorney General United States, gave an interview, lengthy interview 30 minutes or so with our colleague, Wolf Blitzer at CNN. He said a lot of interesting things. I wrote about it a little bit in the CAFE Insider newsletter last week. They’ve said a couple other things about it on television. I responded the next hour on Wolf’s show. I don’t know that I’ve heard you talk about it yet. We haven’t talked about it. What did you make of the Bill Barr interview where he talked about all sorts of things including voting, foreign interference in the election being pressured by Trump, issues relating to the Blake case, reaction?

Anne Milgram:

Yeah, I mean, I guess I’ll give you my very high level reaction, which is that it’s really disheartening that he’s the Attorney General of the United States of America and just watching him and listening to the whole thing, and I’ll go through some of the specifics, but I’m an alum of DOJ, you’re an alum, all of us care deeply about the department and the integrity of the department. I think he’s really undercutting the work and the really good work of the men and women who’ve been there a long time. Let’s just sort of go through it.

Anne Milgram:

Let’s go through it sort of piece by piece. I thought, I would also say, I’m often pretty critical of the media. I thought Wolf Blitzer did a good job. I thought he did a nice job on following up and pushing. I think you’ve always got to ask the second and third question and you’ve got to repeat the same question sometimes. He did a good job of that. I want to sort of give credit there.

Preet Bharara:

The particular thing that I thought Wolf did a good job at and you have to deal with this Attorney General and this was one of the themes of my essay last week, is when the Attorney General says something or when anybody in public office says something, and doesn’t seem quite right, the question to ask is, “What is your evidence for that? What is that based on? What are you relying on? What is the support? That show is whether or not it’s a house of cards argument or not. Time after time in multiple areas, Bill Barr would not have something that he could provide as strong material evidentiary support. I thought that was good for him to do.

Anne Milgram:

That’s why I think it was so effective because Barr makes these really high level assertions and just sort of says it like it’s true. Then, every time, Wolf Blitzer sort of poked a little, it was like a balloon deflating like there’s just nothing there. Let’s talk about a few of these.

Preet Bharara:

Let’s talk about the voting because it’s not just that he said these things about voting, but it is a preview of how the Justice Department and Bill Barr himself might react…

Anne Milgram:

Completely, yes.

Preet Bharara:

… and oversee to the extent they’re supposed to or not this controversial election that’s coming up.

Anne Milgram:

Barr is talking a lot about voting and he, from the beginning to the end, is trying to cast out on mail-in voting. One of the things he says, I want to just highlight for a second is, he says-

Bill Barr:

Wolf, this is playing with fire. This is playing with fire. We’re a very closely divided country here. If people have to have confidence in the results of the election and the legitimacy of the government and people trying to change the rules to this methodology, which as a matter of logic, is very open to fraud and coercion, is reckless and dangerous and the people are playing with fire.

Anne Milgram:

Basically, in one fell swoop, he basically condemns all mail-in voting, essentially all absentee voting that people have been doing for years as well as, as Wolf points out, there are five states that have mail-in voting that only use mail-in voting but what I want to also go to is he really starts with the basis for the problem here is that we have a closely divided country, and the problem I have with that is that, that we are being divided by who? The President of United States, Donald Trump.

Anne Milgram:

The seeds of this sort of, if there is division, it’s being sowed increasingly by the President of the United States. The President of the United States is trying to pull people apart and then you want to actually benefit by that. It just really like from the beginning, when he starts talking, it rubs me the wrong way.

Anne Milgram:

Second, when Wolf pushes him on the evidence, he doesn’t name a single federal case. He names a State case from Texas, which at first he doesn’t identify as a State case. It’s just, I mean, it’s actually a lie as well. He says that there’s 1,700 ballots that were inaccurate, one man in Texas who filled out 1,700 ballots. It’s not true.

Preet Bharara:

He says it with great gravitas and certainty.

Anne Milgram:

Completely, completely.

Preet Bharara:

Because I remember thinking, “Oh, I don’t know about that case.” We’ve had Michael Waldman, who’s an expert on voting on the show and maybe we missed it. Sure enough, as you’re about to point out, it wasn’t that at all.

Anne Milgram:

Not at all. Not at all. Later, when he’s called on it, somebody from his office said, “Oh, the AG was briefed wrong. He was given misinformation,” but it’s like, it really is just one of those incredible things where there’s no evidence of it at all. Actually, they asked the DA, the local prosecutor, Texas who basically said, “That’s completely inaccurate. There was one individual I think maybe it was like 12 ballots a day that he was,” and by the way, I don’t want anyone to think for a moment I’m encouraging any voter fraud. I think one ballot is too many.

Anne Milgram:

The point is that the president and Bill Barr as his sort of associate and coconspirator is they’re basically out there making allegations that they can’t back up. The thing is, if Bill Barr was a politician, you and I would be like, “Ah,” or if it was Trump saying it, but he’s not. He’s the Chief Law Enforcement Officer of the United States of America and he’s playing fast and loose with facts that aren’t true and basically trying to marshal them to scare people about voting. He runs the Voting Section at the Department of Justice.

Preet Bharara:

No, it says a lot about what’s going to happen going forward. Can we drill down on something that’s maybe small potatoes for other people, but it’s sitting in my head, something you just said?

Anne Milgram:

Yeah.

Preet Bharara:

The excuse that was given was that there was an internal memo at DOJ, which was incorrect and that is what Bill Barr relied upon. That’s fascinating to me, as someone who ran a significant prosecutor’s office because I got memos all the time. It’s fascinating on a number of levels. It just indulge me [crosstalk 00:32:06] for a second.

Anne Milgram:

Yeah, we should talk about this. Yes.

Preet Bharara:

Number one, I don’t know that I believe it because there are misleading statements that come out of the department and this appears to be throwing someone under the bus, which is an odd thing to do. Usually, the buck stops with the leader and you don’t blame sort of bad briefing material. That’s number one and I hate to say that I don’t necessarily credit it. Maybe the brief was written and the memo was written accurately and the Attorney General just misunderstood it, where there was some ambiguity and he was over his skis in how he described it. Maybe the blame really lies with the Attorney General.

Preet Bharara:

The other thing is, it’s also possible, depending on if it was a political staffer, that it was not a good faith, misrepresentation of the case. It was not a mistake but as you have with President Trump, there are people around them all the time who are filtering material and information that goes to him to support a point that the president wants to make and that may be what happened here. If that’s what’s going on, if people understand that there’s an agenda to discredit mail-in voting or certain kinds of absentee voting, and you know that that’s what the principal wants as opposed to giving the facts, then that has a skewing effect and distorting effect on the kinds of things that can analyze at the Justice Department.

Preet Bharara:

That little matter of have someone like the Attorney General gets something completely wrong on national television and they blame a staffer, what is the dynamic that’s going on? That’s not a small thing that happens like that.

Anne Milgram:

No, I agree and it’s completely implausible in my mind too. I’m with you on this. You and I both know, first of all, it’s a national TV appearance. There are lots of questions about voting. It’s an important thing and the AG is on TV a fair amount, but he’s not on TV every day and they take this seriously. They’re well-briefed.

Anne Milgram:

The second thing, I don’t believe that you and I would not have had somebody on our team who was not careful and thoughtful on briefing on this stuff. The second piece is that Bill Barr himself holds the ultimate responsibility and you and I both know this from having gotten briefing books. We do it even with our prep. We say, “How many people were charged? What were the charges? Can you send me the underlying statute?” I am always convinced before I say something, particularly say something publicly that I’ve confidence in the underlying information or if I don’t, sometimes you and I will say, “Look, we don’t have inside information. We’re just going to speculate on how it’s happened in the past,” but there’s something so reckless and so political it feels about the Attorney General of the United States, making up the facts around a local prosecution case that, first he states it like it’s a federal case, then he says, “Well, it’s a local case,” then he gives the wrong number.

Anne Milgram:

It all builds to the inevitable conclusion that he’s acting as a political agent for the President of the United States and not as the Chief Law Enforcement Officer and the chief sort of arbiter of what’s fair. The briefing memo, I don’t believe that either. My reaction to it was like, also, “That’s your excuse? You’re ultimately responsible and if you’re going to talk about a local case, you better ask to see the indictment, right?”

Preet Bharara:

There’s a second thing that he did, which is less blatant, but also significant, because he’s trying to come up with some support for this idea that the president wants to amplify. That is, mail-in voting, other than for him and some other people, and by the way, Bill Barr himself says he’s voted absentee, again, drawing this false distinction between someone who happens not to be in the state versus someone who’s in the state and wants to vote by mail, even though five states do all of their voting by mail but he relies on a report, the Jimmy Carter and James Baker had a bipartisan commission. First of all, he gets the year wrong, I believe. He says that was in 2009 that he said-

Bill Barr:

The bipartisan commission, chaired by Jimmy Carter and James Baker, said back in 2009, that mail-in voting is fraught with the risk of fraud and coercion.

Preet Bharara:

It was 2005, I believe. It’s a 15-year-old report that said only that mail-in voting has a higher chance of having problems, but did not say that problems with mail-in voting were widespread. Problems with voting and voter fraud is minuscule in every respect and it just happens to be the case that mail-in voting has maybe a slightly higher risk. It doesn’t mean it’s a substantial risk. It’s just slightly higher than the other.

Preet Bharara:

The other thing he doesn’t point out is that the Carter Center itself, which was part of that bipartisan commission, I believe, back in 2005, is very favorable towards mail-in voting. They put out a statement before this interview weeks ago on May 6th of 2020 saying, to address the threat of the pandemic, “The Carter Center urges federal and state governments to expand the access to vote by mail options and to provide adequate funding as quickly as possible.” They also make reference to the fact that in 2005, they found some issues or said something not wholly positive about mail-in voting, acknowledging that but then also said it’s important that the Carter-Baker commission found, “That were safeguards for ballot integrity are in place. For example, in Oregon, where the entire state has voted by mail since 1998, there was little evidence of voter fraud.”

Preet Bharara:

He twisted the case of the 1,700 ballots in Texas. He was somewhat misleading about what the Carter-Baker commission found, and didn’t update its findings and talk about what’s going on in the present day. That’s two examples of the Chief Federal Law Enforcement Officer in the United States looking like, again, he’s laundering talking points from the president for election favorability.

Anne Milgram:

I like that, laundering talking points, like money laundering.

Preet Bharara:

Like money laundering.

Anne Milgram:

Yeah, I like it. Yeah. Can I tell you my favorite part of the whole exchange? Wolf Blitzer says, they’re talking about the President of the United States goes out and says, again, outrageous, this is an outrageous thing, he basically says, “Well, people should vote twice. Just send in your mail-in ballot and then show up and vote, which is like, hard not to just listen to that and think, he’s crazy, right? Everybody understands this fundamental principle that in one election, every American should vote one time.

Anne Milgram:

He’s asked Bill Barr. Wolf Blitzer’s asks him about it and Barr first says, “Well, I don’t know exactly what he was saying.” Then, Barr says, I mean, he’s going out of his way to try to protect the president but it seems to me what he’s saying is he’s trying to make the point that the ability to monitor the system is not good and then Blitzer says-

Wolf Blitzer:

That would be illegal if they did that. If somebody mailed in a ballot and then actually showed up to vote in person, that would be illegal.

Anne Milgram:

Bill Barr says-

Bill Barr:

Well, I don’t know what the law in the particular states says.

Anne Milgram:

To which Wolf Blitzer says, “You can’t vote twice.” I mean, does Wolf Blitzer-

Preet Bharara:

Wolf knows.

Anne Milgram:

Wolf knows. He’s a CNN anchor and he has to tell the Attorney General the United States, actually in one election, you can only vote once. That, to me, is also like there is no one that is at Bill Barr’s level, who oversees the voting rights section at the Department of Justice, who doesn’t understand that one person, one vote is the principle of law. When he’s talking about fraud, that’s what he’s talking about is people voting twice.

Anne Milgram:

The idea that he wouldn’t just sit there and basically say, “Of course, you can’t do that. You can’t vote twice.” That is just another sign of, I think to your point, of what he’s going to do in November. He’s going to bend over backwards to do anything he can in his power to basically make the election turn for the president. That’s, to the point, of not condemning… Basically, he’s now condemning mail-in ballots but he won’t condemn somebody voting twice. It makes zero sense.

Preet Bharara:

Well, there’s something else. It goes on and this is a little bit of what I wrote about in the note last week, kind of out of nowhere, he makes the claim and we should all be worried about bad things going on in the election, interference from within and interference from without outside the country, but he said he’s worried that a foreign country is going to send thousands and thousands, more than 1,700 presumably, of fake ballots. I don’t know how exactly they do that from abroad or you have agents planted in the United States but Blitzer says-

Wolf Blitzer:

You’ve said you were worried that a foreign country could send thousands of fake ballots, thousands of fake ballots to people that might be impossible to detect. What are you basing that on?

Bill Barr:

I’m basing it… As I’ve said, repeatedly, I’m basing that on logic.

Wolf Blitzer:

Pardon?

Bill Barr:

Logic.

Preet Bharara:

Logic is important. Logic is good, as I wrote, but it has to be tethered to something. It seems to me-

Anne Milgram:

Otherwise, it’s not really logic.

Preet Bharara:

Yeah, it’s not anything. It’s an astonishingly bizarre and irresponsible statement to be making when there’s all sorts of other reasons to think that there’s going to be manipulation and interference. It’s based on actual intel from the intelligence community that does this for a living and throw out there this idea.

Anne Milgram:

It’s even more nefarious.

Preet Bharara:

Yeah, because it’s going to cause millions of people to say, “Oh, obviously, it was foreigners.

Anne Milgram:

Exactly. Also, because the president can then go out and say, “Well, the Attorney General says.” His words, Bill Barr’s words can actually be used as fodder, as proof of this existing situation. Again, there’s zero proof and it’s beyond irresponsible. I mean, it’s hard for me to even put in words and I oversaw the State Division of Elections. I oversaw a lot of prosecutions. This is just, it feels to me so deeply irresponsible and so political. We talked about Bill Barr a lot and actually, Charlie Savage at the New York Times did a great job of pointing out all the times Barr has… I don’t know if you want to run through those for us Preet.

Preet Bharara:

You want to recap them?

Anne Milgram:

Yeah, let’s do it. Charlie Savage, great reporter, talks about how this instance of the mail-in ballot fraud incident in Texas and how that was exaggerated or just plain wrong is reminiscent of some other things. He writes, “Like that time in July when he said a surge of federal agents into Kansas City had made 200 arrests in two weeks, which was false.” “Like that time in June when he told the public that the US Attorney for the Southern District of New York, Jeffrey Berman had resigned, which was false.” “Like that time in April when he told Fox News an inspector general Trump had fired, Michael Atkinson, tried to send the Ukraine whistleblower complaint to Congress without exact branch review and ignore DOJ, which was false.”

Anne Milgram:

He also invokes the time that Barr told Fox News about the 2016 investigation of whether Trump campaign officials recording with Russia and he said, “That was done without any basis.” That was also false on top of obviously, the time that he made misleading statements and issued a misleading summary about the entire Mueller report, which one federal judge said was so, “Distorted and misleading.” But the judiciary could not trust his DOJ to be candid on that topic. One time, two times, it’s time after time after time.

Anne Milgram:

That’s a pretty compelling closing argument by Charlie Savage. It really is a very compelling list of things that he puts forth. It’s like you read that and you think, “Case closed.” I want to make one further point.

Preet Bharara:

Case closed.

Anne Milgram:

Case closed. One last point, which is that, to your point about influence from foreign governments in the election, we know that there have been intelligence briefings for Congress. Now, they’ve said they’re going to stop the in-person briefings, but we know that there have been briefings about the threat that Russia poses to the 2020 election and we know that it’s very clear and the Trump administration, their own folks have basically said that Russia, yes, is trying to interfere in the 2020 election. We also know that it is on behalf of President Trump.

Anne Milgram:

What’s really interesting and again, just sort of watching the setup of this in the interview between Blitzer and Barr is that Barr has asked about the countries that are trying to interfere with the election. He talks about China. He talks about Russia. He talks about, I believe, it’s Iran. Blitzer basically says, “What country are you most worried about?”

Anne Milgram:

Now, remember, in 2016, there’s evidence that the Russians interfered with the election, both by seizing and releasing and hacking Hillary Clinton’s computers, releasing her emails of her sort of campaign members and also through social media accounts, false social media accounts, bots, that were basically pushing people in favor of Trump. We know that there’s a track record. We also know that the Russians are trying to do it again. What Barr says is of all those countries, he fears China and it’s important to understand that he’s arguing China for the sole reason we have not seen evidence related to China, like we’ve seen in Russia, but there’s one reason why he’s picking China over Russia in my view, which is who does China support? Not Trump, right?

Anne Milgram:

China has made it clear that they would not like to see Trump reelected. I’m not so sure they’re pro Biden. I think they’re anti-Trump but it is not clear at all that they’ve taken steps. Again, I don’t know the inside of the intel but I just think it’s like, again, such a political thing and such a false equivalency type of thing. What Barr is setting up is to be able to argue like, “Look, sure Russia is trying to help Trump, but China is trying to help Biden. China is a very powerful country, blah, blah, blah.”

Anne Milgram:

Again, the evidence just isn’t there to acquaint them at this moment in time. The evidence is really clear that we know the Russians have engaged in this activity. They’ve been charged with it criminally. It’s been public for a long time but again, it’s like the setup to these arguments come November.

Preet Bharara:

Yeah. Look on November 3rd, the President is going to say a number of things and he will expect the Attorney General, who’s supposed to be outside of politics, to sort of claim that he has some legal basis to say the same things as the president and that is because there’s going to be such a skew towards mail-in voting, the record shows on the part of democrats and in-person voting on the part of republicans who will vote for Donald Trump, that on election night, not only will we not have a winner in all likelihood on November 3rd, but Donald Trump will hold perhaps a very definitive lead, because most of the votes that will have been counted will have been the in-person voting and based on what Barr said in the Wolf interview and will say a number of other times what Trump has said, Trump is going to declare victory. He’s going to say, “I won the election,” based on the most reliable votes in his mind, the votes cast in-person on November 3rd. I’ve talked to some folks, it may be that Trump is leading by 10, 15 or more points, which is going to be bizarre since he lost the popular vote last time around.

Preet Bharara:

The only reason that will be true is because all sorts of votes, millions and millions and millions of votes cast by people who are supporting Joe Biden will not have been counted yet. Every day that it takes to count those ballots, Trump and his allies are going to rely on their own statements and also the foundation that they’ve laid before and also what Bill Barr has said and will say, to cast doubt on what will be happening in real time. That will be a narrowing of that margin with perhaps and eventual win by Joe Biden. They’ll say it’s all fraud. It’s all fraud. Foreign countries, 1,700 ballots in Texas, remember that case, again and again and again, and it’s going to cause a lot of strife, no matter how it turns out in November.

Preet Bharara:

Then, before we go, we should tell folks if they didn’t already see it in the news, there’s a good ending to a case, I think, a good and just ending to a case that you and I talked about some months ago, relating to an individual named Curtis Flowers, who has tried six times on homicide charges. After the most recent conviction and he actually was sentenced to death, the Supreme Court ruled that the prosecutor, the local prosecutor, Doug Evans, had unconstitutionally kept black people from serving on the jury.

Preet Bharara:

Prior shows we outlined at length, the pains that the prosecution went to exclude black people from the jury over the course of the multiple trials, I think 61 of the 72 jurors were white and then Supreme Court opinion, reversing the conviction and sending it back for retrial, the person who wrote the opinion was actually Justice Kavanaugh, Brett Kavanaugh. The good news is, why don’t you tell folks?

Anne Milgram:

The good news is that the charges have been dismissed. You remember the prosecutor who had overseen the six prosecutions recused himself from the case in January and the Mississippi AG’s office took over and they’ve just announced that they are dropping the case. Basically, the prosecutors stated “There’s no key prosecution witness that incriminates Mr. Flowers who is alive and available and has not had multiple conflicting statements in the record,” and also added that there were other possible suspects. It’s justice way too late, but it’s the right outcome for this matter, and Mr. Flowers has been out on bail, but this finally gives him peace of mind that he will not be prosecuted again and is a free man.

Preet Bharara:

It’s just important to point out that the case wasn’t dismissed based on the comments by the new prosecutor because of these problems with Batson, which is the case that governs the issue of preventing certain people from serving on the jury, in this case, black citizens. There are real doubts about the case, real doubts about the strength of the evidence, and real doubts about the guilt of Curtis Flowers.

Anne Milgram:

Yeah, we talked about this when we did a whole episode on the case, but one of the witnesses later, who basically claimed that Mr. Flowers had confessed to the crime while he was in jail, later admitted that he’d been lying. Another witness was convicted of tax fraud, was later convicted of tax fraud and now has died. There were a lot of issues with the case. You’re right, the case was bounced by the Supreme Court because the jury was selected in a way that discriminated against black people under the Batson case, but it was now dismissed because the government did not believe that the case was provable and that there were a lot of issues with the proof that initially had gone in at trial.

Preet Bharara:

All right, hang in there. I think I’m going to wear white on a continuing basis until there’s an executive order to the contrary.

Anne Milgram:

Maybe you should post a picture of you wearing your white beach pants. I don’t know. I don’t even know how to describe that.

Preet Bharara:

My white suit, my Mr. Work suit.

Anne Milgram:

Even better. I once had a witness show up for the grand jury in a white suit.

Preet Bharara:

I was once eating in a DC restaurant years ago when I was working in the Senate in an Italian restaurant that you probably know and a gentleman walked in wearing an immaculate white suit and it was not Ricardo Montalban. The only other person who could pull it off, you know who it was?

Anne Milgram:

Who?

Preet Bharara:

Michael Jordan.

Anne Milgram:

Wow. Amazing.

Preet Bharara:

Yeah, he got a lot of attention. Anyway, let’s keep paying attention to the news and I’ll catch you next weekend. In the meantime, send us your questions to [email protected]

Anne Milgram:

We’ll do our best to answer them. Take care.

Preet Bharara:

That’s it for this week’s Insider Podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The senior audio producer is David Tatasciore and the CAFE team is Matthew Billy, Matt 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.