• Transcript
  • Show Notes

On this week’s special episode of Stay Tuned, “Election Debrief,” Preet is joined by the CAFE host team to break down a stressful election night and discuss what we’re likely to see in the coming days and weeks. 

Anne Milgram, co-host of the CAFE Insider podcast, served as New Jersey’s Attorney General from 2007 to 2010. 

John Carlin, host of CAFE’s Cyber Space podcast, served as Assistant Attorney General of the Justice Department’s National Security Division during the Obama administration and as Chief of Staff to then-FBI Director Robert Mueller. 

Ken Wainstein, co-host with Lisa Monaco of CAFE’s United Security podcast, served as Homeland Security Adviser to President George W. Bush and as Assistant Attorney General for the Justice Department’s National Security Division.

Elie Honig, who writes the weekly Note from Elie for CAFE and host of the forthcoming CAFE podcast Mobbed Up , served as an Assistant U.S. Attorney and co-chief of the organized crime unit in the Southern District of New York and as Director of the Department of Law and Public Safety at New Jersey Division of Criminal Justice. 

Sign up to receive the CAFE Brief, a weekly newsletter featuring analysis by Elie Honig, a weekly roundup of politically charged legal news, and historical lookbacks that help inform our current political challenges.

As always, tweet your questions to @PreetBharara with hashtag #askpreet, email us at [email protected], or call 669-247-7338 to leave a voicemail.

Stay Tuned with Preet is produced by CAFE Studios. 

Executive Producer: Tamara Sepper; Senior Editorial Producer: Adam Waller; Senior Audio Producer: David Tatasciore; Audio Producer: Matthew Billy; Editorial Producers: Sam Ozer-Staton, Noa Azulai, David Kurlander. 

 

REFERENCES & SUPPLEMENTAL MATERIALS

 

COUNTING THE VOTE

  • Zack Budryk, “2020 presidential election had highest turnout rate in 120 years,” The Hill, 11/4/2020
  • Patrick Marley, “With a tight margin in Wisconsin, attention turns to a potential recount,” Milwaukee Journal-Sentinel, 11/4/2020
  • Election 2020 Coverage, Associated Press

TRUMP ADMINISTRATION

  • “Trump falsely asserts election fraud, claims a victory,” Washington Post, 11/4/2020
  • President Trump’s morning-after Tweet, Twitter, 11/4/2020
  • Murray Waas, “How Trump and Barr’s October Surprise Went Bust,” New York Magazine, 11/2/2020
  • Stephen Collinson, “Trump’s call to halt vote counts is his most brazen swipe at democracy yet,” CNN, 11/4/2020
  • Elie Honig, “Hatchet Man How Bill Barr Broke the Prosecutor’s Code and Corrupted the Justice Department,” HarperCollins Pre-order, 7/6/2021
  • Jonathan Swan and Alayna Treene, “Scoop: Trump’s post-election execution list,” Axios, 10/25/2020

ELECTION SECURITY

  • Maggie Miller, “US Cyber Command leader says election security is agency’s ‘top priority,’” The Hill, 3/20/2020
  • Kevin Collier, “Polls close on Election Day with no apparent cyber interference,” NBC News, 11/4/2020
  • Julian E. Barnes, “U.S. Cyber Command Expands Operations to Hunt Hackers From Russia, Iran and China,” New York Times, 11/2/2020
  • Ellen Nakashima, “U.S. undertook cyber operation against Iran as part of effort to secure the 2020 election,” Washington Post, 11/3/2020
  • “FBI Director Christopher Wray’s Remarks at Press Conference on Election Security,” FBI.gov, 10/21/2020
  • David Schaper and Melisa Peñaloza, “Election 2020: Cities And Businesses Prepare For Post-Election Unrest, Violence,” NPR, 11/2/2020 
  • Martin Well and Emily Davies, “Temporary security fence to enclose White House complex, Park Service says,” Washington Post, 11/2/2020

ELECTION LITIGATION

  • Brnovich v. Democratic National Committee, Oyez, 10/2/2020
  • Democratic National Committee v. Wisconsin State Legislature, SCOTUS Blog, 10/26/2020
  • Republican Party of Pennsylvania v. Boockvar, SCOTUS Blog, 10/19/2020
  • Jake Laperruque, “Will Bill Barr Place His Thumb on the Scale to Tip the Election to Trump?” Project on Government Oversight, 11/2/2020
  • Paul Cobler, “AG Barr’s claim of 1,700 fraudulent ballots in 2017 Dallas City Council race not true, prosecutor says,” Dallas News, 9/4/2020
  • Brian Naylor, “Court Denies GOP Request To Block Drive-Through Voting In Harris County, Texas,” Texas Tribune, 11/2/2020
  • Adam Liptak, “Supreme Court Allows Longer Deadlines for Absentee Ballots in Pennsylvania and North Carolina,” New York Times, 10/28/2020
  • Stephanie Saul, “Supreme Court Galvanizes Push for Early Voting by Wisconsin Democrats,” New York Times, 10/27/2020
  • Peter Beaumont, “Could Trump really settle US election result in the supreme court?” The Guardian, 11/4/2020
  • “Supreme Court, Split 5-4, Halts Florida Count in Blow to Gore,” New York Times, 12/10/2000
  • Jonathan Lai, “Could the election in Pennsylvania be decided by Amy Coney Barrett? Probably not. Here’s why,” Philadelphia Inquirer, 10/27/2020
  • Jeffrey Rosen, “John Roberts Is Just Who the Supreme Court Needed,” The Atlantic, 7/13/2020
  • Morgan Watkins, “Will Mitch McConnell still rule the Senate in 2021? Here are the possible scenarios,” Louisville Courier Journal, 11/4/2020

THE MEDIA

  • Bill Keveney, “TV election coverage: Some magic maps sport too much red and blue in a too-close-to-call presidential race,” USA Today, 11/3/2020
  • Michael M. Grynbaum and John Koblin, “Fox News Made a Big Call in Arizona, Buoying Biden and Angering Trump,” New York Times, 11/4/2020
  • Sarah Ellison, “Trump campaign was livid when Fox News called Arizona for Biden — and tensions boiled over on-air,” Washington Post, 11/4/2020
  • Margaret Sullivan, “We still don’t know much about this election — except that the media and pollsters blew it again,” Washington Post, 11/4/2020

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Preet Bharara:

Hey, folks, Preet here. As expected, this election has been chaotic and confusing. As of this taping on Wednesday morning, we don’t have a winner in the presidential election nor do we know for sure which party will hold the senate majority. It could take days before we learn the final results. To make sense of what we do know, the CAFE team is coming together for an election special. I’m joined by all the CAFE hosts.

Preet Bharara:

So as the vote counting continues, we’ll try to break down the election as best as we can. Here it goes.

Preet Bharara:

Hey, folks. It’s the CAFE post-election round table. I’m not sure what state of mind everyone is in. We’ll find out in a moment, but first, CAFE hosts, I’m going to do a quick roll call. Anne Milgram.

Anne Milgram:

Present.

Preet Bharara:

You say present, not here?

Anne Milgram:

There’s a lot happening in the world, Preet-

Preet Bharara:

Present? Present?

Anne Milgram:

Yeah, present.

Preet Bharara:

I feel like that’s a philosophical comment, not just-

Anne Milgram:

Okay, here.

Preet Bharara:

No, you can say present. Okay, Elie Honig.

Elie Honig:

Here. I’m feeling good. I actually got a little bit of sleep, ready to roll.

Preet Bharara:

Okay, you weren’t asked any of those questions yet, but thank you.

Anne Milgram:

Objection, I’m responsive.

Preet Bharara:

Ken Wainstein.

Ken Wainstein:

I’m here. Good morning.

Preet Bharara:

Good morning. John Carlin.

John Carlin:

Present.

Preet Bharara:

You’re a little slow. You’re a little slow there, but hopefully, you’ll quicken up-

John Carlin:

Maybe not fully present.

Preet Bharara:

… as the hour progresses. Well, I’m certainly not. Lisa Monaco? Lisa Monaco? Do we think Lisa Monaco is still in bed?

Anne Milgram:

No.

Preet Bharara:

What do we think Lisa Monaco is doing?

Anne Milgram:

I think she’s probably up and working at one of her many jobs.

Preet Bharara:

All right. So we have to go forward and proceed without Lisa Monaco, the best among us. Before we talk about what’s going on and all of these is fluid, I should note, that we are all assembled at our microphones at about 10:15 in the morning on Wednesday. By the time folks hear this many things may have changed, so take what we say knowing that the time was early on Wednesday.

Preet Bharara:

Anybody get any sleep?

Ken Wainstein:

Very little.

Elie Honig:

I got about six hours. I made a smart decision at midnight-

Preet Bharara:

How did you do that?

Elie Honig:

Because I made a smart decision at midnight that we weren’t going to get anything decisive or sort of firm for at least until the next morning. So midnight to 6:00. And it was a wise decision, I will say.

Anne Milgram:

I tried to do the same thing, but I couldn’t sleep well. Not surprisingly.

Ken Wainstein:

Yeah, I didn’t even try. It was 3:30 before I knocked out. Still couldn’t sleep.

Preet Bharara:

Were many beverages consumed?

Ken Wainstein:

Oh, massive amount.

Anne Milgram:

Did you sleep, Preet?

Preet Bharara:

I slept some. I went to bed late. I went to hear the “president” speak and see how crazy his talk was going to be, and we’ll get to that. And then my kids were up early so there’s sound and commotion. So it wasn’t a ton, but I made it. I made it to this podcast recording.

Preet Bharara:

Maybe we should, for a brief second. Elie, you want to sort to tell us where we are? What is certainly the case with respect to the state at play in the various states, understanding that this is subject to change over the course of the day?

Elie Honig:

Yeah. Subject to all the legal disclaimers, votes still being counted. At this moment, it seems that things are trending fairly solidly towards Joe Biden. Basically, all the states that we sort of knew whether they would go red or blue have gone those way, and we had all the important states now. Michigan, Wisconsin, Pennsylvania, Arizona, Nevada, maybe to a lesser extent Georgia and North Carolina all seemed to either have Biden ahead or he’s pulling away or closing the gap quickly because what we’re seeing now is more of the mail-in ballots be counted and more of the urban area in-person votes be counted both of which really trend strongly in democrats and Biden’s favor.

Elie Honig:

So I’d say at this point, it looks likely, not certain, but likely that Biden will take this.

Preet Bharara:

Well, that’s assuming no interference going forward. That’s assuming legal challenges that don’t go anywhere and all of that, right?

Elie Honig:

That’s assuming an awful lot of things. Yeah, those would be top of the list.

Preet Bharara:

I mean, just quickly, the state of the race with respect to the senate, not great for democrats, right?

Elie Honig:

Yeah. It looks like the republicans are likely to hold on to perhaps a slightly diminished majority. It was 53 to 47. It looks like that may be down to 52 or 51 but democrats lost the Doug Jones seat in Alabama, picked up the seat in the Colorado with Hickenlooper taking out Cory Gardner. There still needs to be special elections-

Preet Bharara:

Arizona, let’s talk about the astronaut, Mark Kelly.

Elie Honig:

Yes, big win for democrats right there, Mark Kelly taking out Martha McSally, who now has lost to both Arizona senators in consecutive elections. I don’t know if that’s ever been done before. But it looks like the republicans will hold on barely to the senate majority, again, pending special elections in Georgia and some remaining vote counting.

Preet Bharara:

So, where do we go from here? And you were, before we started taping, giving some cautionary notes to the group.

Anne Milgram:

Yeah, I mean, I agree very strongly with Elie as to where the race is. I think Biden will win the presidency most likely and that the republicans will hold the senate. But the thing for people to remember, and I know it’s hard to put that aside for a minute, but the votes are still being counted. The actual election votes are still being counted. And you wouldn’t tell your child in the middle of a soccer game that his team is winning, and so don’t play the rest of the game.

Anne Milgram:

Same thing is true. You don’t stop a baseball game in the 7th inning. There are countless ways in which we all understand that the process has to play out. Every vote has to be counted.

Preet Bharara:

We can’t in the podcast right now?

Anne Milgram:

We can’t in the podcast right now. That should have been my example.

Preet Bharara:

… the podcast is over. The podcast is over.

Anne Milgram:

And the podcast on [inaudible 00:06:21] but the reality is that the votes are going to be counted. I think we’ll learn a lot more this afternoon by the time probably the podcast drops and then in the next couple of days, we’ll learn more. But people should also understand that the examples you gave about litigation are going to be true. There are going to be recounts. There are going to be efforts to litigate this. And people have to just understand like democracy is about voting. Voting is about counting ballots and it’s going to take time and probably some back and forth before all those ballots get counted.

Anne Milgram:

So we have to be really thoughtful about making sure people understand like you and I said it a couple of weeks ago. A lot of people have been saying it but it’s worth just reminding folks that every ballot, every vote has to get counted and that will take time and that it will probably be contested and litigated in the close states.

John Carlin:

And your note of caution is of course well taken, but I’ll say from a national security perspective and worrying about interference with this election that we should pause for a second on what went right and how American democracy so far has withstood an unprecedented test of not only voting in the midst of a pandemic and employing new methods in states to allow people to vote. Turnout looks like it’s going to break records. So more people are voting than ever before and the percentage of Americans who voted might be the highest in more than a hundred years.

John Carlin:

We did not see significant interference by foreign actors. We did not see the violence that I know some fear at polls despite a summer of civil unrest. And what looks like is going to happen is, to Anne’s point, we’re going to count votes. And that people were able to exercise the right to vote in many states, including one I know where I was involved litigation towards their paper ballots. So if there needs to be a recount, there’s something that we can trust in terms of what the recount is.

John Carlin:

And it looks like, trending, we’re going to have a relatively clear result. So I don’t know about you guys, but I had a lot of anxiety going in about our ability to pull off. I mean, let’s go back to the primaries and the disaster that some of the states were in terms of being able to pull off an effective vote. We made it past an important threshold.

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Preet Bharara:

We’re you also surprised? Maybe Ken you can address this. I mean, Anne and I talked on the show at the CAFE Insider over and over again, these threats that the president was issuing to send law enforcement agents to the polls and troops to the polls and we had to wonder was the Secretary of Defense going to play ball? None of that happened. Are you surprised by that?

Ken Wainstein:

Yeah, there was lots to talk about deploying federal agents and officers for this anticipated violence on the streets. And then you saw this week that this fence went up all around the perimeter of The White House, 10 feet higher or something in anticipation of a lot of violence.

Ken Wainstein:

My office is just three blocks from The White House and a month ago, they were sending out notices that they’re going to be boarding up the first and second floors of the building as of October 30th, which I think is a really sad commentary there, but he’s expecting this horrible violent reaction to the election.

Ken Wainstein:

It hasn’t really happened. I mean, there had been incidents but it hasn’t happened. We also didn’t see, as you said, the federal authorities getting too involved in law enforcement out on the streets as we saw with Seattle and Portland.

Ken Wainstein:

So far so good. Keep in mind, however, I mean this might well be a contested election where people will start getting riled up and look, you heard the president at 2:00 a.m. last night. First thing he said was that there’s voter fraud going on or there is effort to steal the election.

Donald Trump:

This is a fraud on the American public. This is an embarrassment to our country. We were getting ready to win this election. Frankly, we did win this election. We did win this election.

Ken Wainstein:

That was all intended to rile up his supporters, undermine confidence in the election, which I think that could result in people out in the streets in the coming days. So, authorities still need to be aware and be vigilant. But hopefully, as we’ve heard from the Secretary of Defense, Mark Esper, and other cooler heads in the administration, they’re going to be very loathed to use federal and particularly military personnel for law enforcement efforts out in the streets as it should be.

Preet Bharara:

It seems to me also it’s not just going to be about the legal battle. It’s going to be a little bit about for the hearts and minds in the persuasive dimension for the president. Elie, do you have … As we were getting ready to start taping, we understood that the president tweeted, and I’m sure there’ll be many tweets between now and the time folks listen to this. But he’s trying to make a record. Do you have that tweet?

Elie Honig:

So here’s what the president just tweeted. “Last night I was leading, often solidly, in many key states in almost all instances Democrat run and controlled. Then, one by one, they started to magically disappear as surprise ballot dumps were counted.” Whatever that means, that was my note. Back to the tweet. “Very strange, and the pollsters got it completely and historically wrong.”

Elie Honig:

Look, it’s consistent with what he came out and said at 2:30 in the morning last night. And I know we’ve gotten used to this. We’ve sort of gotten numb to the president’s rhetoric and I think there’s a tendency to roll their eyes and say, “That’s crazy talk,” and we know it is crazy talk. But I think if there’s one thing, at least the early results reminded us. And I think the margin in some of the states was better for Trump than a lot of us expected, Florida, other states like that.

Elie Honig:

There’s still a huge portion of this country that listens to and takes everything the president says very seriously. And so I think this kind of rhetoric is really dangerous in the ways that John was just talking about. And as much as I like to laugh at it and scoff at it and say that it’s ridiculous, it’s dangerous too.

Anne Milgram:

Yeah, I don’t think we can laugh at it all. I agree with that. I mean, I think we should also note that yesterday was a historic day. There were a lot of people who voted, and that what’s clear is that our country is deeply divided. We’re talking about waiting until this afternoon to hear the results from Michigan and Wisconsin but we’re talking about a race that’s that close that we’re waiting for additional polls.

Anne Milgram:

And I think the president exploits that. I think the delay frankly benefits the president. The longer it goes on because he’ll continue to send these tweets. And I think at this point, I mean, I wonder what you guys think about this, but I think at this point Biden needs to be out there speaking or Harris needs to be out there speaking and talking to the American public and saying, “This is what’s happening. We’re still counting votes. Here’s where we are.”

Anne Milgram:

But I think the president will continue to tweet, and I would guess that they get increasingly unhinged or sort of desperate as the day goes on. I mean, it’s in his advantage to … He’s been setting up the voter fraud argument for three or four months, I mean, longer but really in earnest for the past few months. And what he wants to be able to say is like, “Look, I won on election day and now, all these ballots are coming in that are taking me out of that winning position.” So he’s trying to play offense on that and I think we ought to be very careful at making sure that people understand that actually, the election is not called until all the votes have been counted and that’s not in the president’s interest.

John Carlin:

I think that’s right. And if you look at from a national security perspective again or cyber where General Nakasone just put out a statement from the perspective of the Cyber Command, what they are concerned about would be foreign nations trying to take advantage of a period of uncertainty. It’s not really in favor of one candidate or another, it’s just to undermine the world’s faith in democracy because some of our key adversaries overseas view democracy as an existential threat.

John Carlin:

And that’s why I do think it’s important to take stock for a second because there’s all this chatter and sports analogies. Look, actually, people voted. They voted successfully and peacefully that I don’t think it’s going to be a historic polling error. We’ll see. It seems like it’s going to be roughly around the 2016 in terms of where the polls are off and actually the way the votes are coming in now are roughly consistent with what was predicted as one of the possible scenarios of a closely run election.

John Carlin:

The amount of time it’s taking to count ballots was also predicted. And during this period of uncertainty, I think you’re going to see … I hope you’ll see that the career professionals in the military, in Cyber Command, in law enforcement and I would hope leaders from both parties calling for calm with the exception of our Commander-in-Chief unfortunately, but that others from both parties could call for calm, wait for votes to be counted and we just haven’t seen any significant irregularities. Well, clearly, I’ve been up too late since I can’t speak. But we haven’t seen anything that irregular.

Anne Milgram:

Can I ask a question of John or Ken on what you were just saying about the undermining of democracy? One of the things I noticed yesterday is that a lot of voters being interviewed and I’ve heard this for the past week were saying things like, “Trump lies. Biden lies. They’re all liars.” And that is one of the sort of core arguments that we sort of see coming out of like Putin in Russia, which is like everybody’s a liar or everybody cheats. Yeah, we cheat too but it’s no worse than the other guy.

Anne Milgram:

And it really does undercut democracy and it’s sort of like, I wonder if you guys feel like there’s any sense of that as an intentional effort here to really undermine democracy by saying, “Yeah, they’re …” and it was very much against, I thought in the last week, against Biden saying like, “Sure, the president lies sometimes but Biden lies too.” And throw up your hands and vote for the president. You know him.”

Anne Milgram:

And I wasn’t sure how close it came to that line, but when you were talking just now about undercutting democracy, it worries me a lot to have a significant number of the American voters saying, “Both candidates are total liars.” I don’t know whether I should be worried.

Ken Wainstein:

Yeah, actually, I think you definitely should be worried, and I think you raised a couple of good points. One is, look, at this point, I think we can step back and take some satisfaction that it doesn’t appear that there’s been much disruption of the voting process itself by our foreign adversaries. We haven’t seen any impact in the voting counts on the registration rules, this kind of thing, which is all very satisfying.

Ken Wainstein:

And as John said earlier, I think the country can really pat itself in the back that we’ve been able to pull off to vote with real challenges and headwinds. The pandemic situation allegations or voter fraud, concerns about the regularity of the mails and mail-in ballots and still have been able to do it. So, it might be that we haven’t seen much interference in the mechanics of the voting. But that doesn’t mean that the Russians and others haven’t been trying to mount an influence campaign and disinformation campaign with the idea of just sowing confusion and discord and that gets to your point.

Ken Wainstein:

I think the second point here is that the Russians are very adept at this. I mean, they’ve got a lot of practice. They’ve been working on and all around the world with their adversaries everywhere and even with some of their friends. They’re very good at this, and they’re very sophisticated. So to your point, I’m sure they’re thinking about that sort of line of attack.

Ken Wainstein:

Trump lies. It’s pretty well ascertainable on the record that he lies with some regularity. It’s good for the Russians to put out the narrative that, “Yeah, he’s not alone. All these politicians lie.” Simply to undermine our confidence in politicians, in the political process and to keep people from voting on merit basically. And that undermines the value of our vote, the value and perceived integrity of the democratic process which is exactly what Russia wants to do.

Ken Wainstein:

I think you’re getting on something because I know it’s the same thing that this sort of constant narrative about Biden being a liar, Biden being a liar. That might well have been put out by folks who are affiliated with the Trump campaign as a campaign tactic. I started suspecting however that it might have been intentional effort by the Russians as well.

John Carlin:

It definitely would be consistent with their trade craft as you say and that will be a particular hallmark of Russia versus some of the other regimes is that they make you doubt whether there is any objective truth. I feel like that’s an asset, it’s the way he governs in Russia to ensure his authoritarian regime and so he tries to attack democratic processes.

John Carlin:

I don’t know though. I’ve seen the anecdotal kind of man on the street interviews and it’s definitely something to be concerned about. But again, we’re in a moment where hopefully other institutions rise up. They give assurance to the American people and I’m not sure in terms of the trustworthiness of candidates. I’d be interested to see what the polling data shows because it seems like actually there’s a greater liking to Biden whether he wins or loses and there has been, for instance, for either Clinton or Trump in the 2016 election.

Preet Bharara:

Right. Does anybody think that with respect to what you just said, John, that the attorney general, although he’s a controversial figure, or at least the director of the FBI should make some official statement about the degree to which there was not interference in the election and how smoothly they went. I mean, one thing that Anne and I have discussed a number of times was the concern that … Forget about foreign interference for a moment but small irregularities or a one-off case in Pennsylvania or some other state with somebody doing something funny with ballots would be exaggerated beyond all proportion by the president and his allies so he could more readily make the argument that there was widespread fraud.

Preet Bharara:

I haven’t seen any anecdotal stories of even that. These other institutions, do you think Chris Wray should address the public?

John Carlin:

Again, General Nakasone and this is unprecedented, gave an on-the-record interview with Ellen Nakashima of The Washington Post that I read. I’m not sure if he otherwise put out the statement to say that they were seeing fewer signs of election interference than they’ve seen in 2018. So we’ve already had one official put it out and he was focused on foreign adversaries as befits the legal roles and authorities of Cyber Command.

John Carlin:

I do think that that would be helpful in terms of a statement from Director Wray. Again, no politics, but just from intelligence/law enforcement perspective, have they seen interference with this election on scale? And if you recall the last minute press conference that was held in regard to the Iranian interference in bizarre plot to imitate Proud Boys to leave intimidating messages for potential democratic voters in Florida. You did see such a statement by Director Wray.

John Carlin:

And I thought the focus of his statement was exactly along the lines that you suggest, Preet, where he was trying to assure folks that although there had been an attempt, that in fact, that he was feeling confident about the integrity of our electoral process and votes cast. So a similar statement taking stock or report to congress, that could be a public report, would be helpful and would help thwart our adversaries from trying to make mischief.

Preet Bharara:

Hey, Elie, can I call on you for a second?

Elie Honig:

Yeah, sure.

Preet Bharara:

Not everyone may know, but you are deep in the middle of writing a book which you didn’t ask me to plug but I will anyway.

Elie Honig:

Thank you.

Preet Bharara:

About our notorious Attorney General Bill Barr. We’ve spent a lot of time also talking about all the ways in which Bill Barr might help the president, might order law enforcement agents to go do various things or file suit on behalf of the president. What do you think he’s up to? Why do you think he’s been so absent from the public scene? And going forward, I imagine the president is calling among other people, Bill Barr, and saying, “Do something here.” What do you think he can do or will do?

Elie Honig:

Preet, I’m starting to wonder if Bill Bar perhaps has run out of tricks here at the very end. God knows he has been completely in the bag for Donald Trump since the moment he took office and specifically with respect to this election. I mean, we saw Barr out there desperately trying to gin up this October surprise. He tried it with the Durham report. He tried it with the unmasking probe that he gave to a different US attorney. But both of those things turned up duds.

Elie Honig:

Barr has also tried it with some of his rhetoric about election fraud, mail-in ballot fraud, about other issues that had been almost echoes of what Trump has been saying. But the problem is, look, you can twist facts. You can … I’m not saying you should, but Bill Barr has shown a willingness to twist facts, to distort the law but he’s not a wizard. He’s not a genie. He can’t just conjure evidence of something where there is absolutely none. So he may have sort of reached the end point of his meddling powers.

Elie Honig:

The other big question, I think it’s related to this is, are we going to end up this vote count within the range of litigation? Because there is the possibility that DOJ and Bill Barr weigh in, in favor of efforts by the Trump campaign to try to get votes thrown out. But you have to be in a pretty close range for that to go anywhere. I mean, Anne mentioned the possibility of recounts. Absolutely in play. I have no problem with that. They’re all prescribed by law. They depend on how wide the margin is in various states.

Elie Honig:

But to me, the more problematic, the more insidious possibility is if the Trump campaign is close enough, in enough states, few enough states that they can move to throw out ballots and claim that there is fraud. And that’s where Barr may be able to lend a hand, A, in backing this fraud narrative. I don’t know how they’re going to do it. There’s just no evidence. And B, in supporting the sort of legal positions that, well, this ballot deadline in Pennsylvania, for example, was unconstitutionally extended.

Elie Honig:

And we can talk more about sort of the nuances of that. But one of the important things here is going to be how close is this because if Biden wins, and it’s really close, I think we’re in the litigation zone. But if he wins by a certain margin that I can’t really define, then litigation is just going to be fruitless.

Anne Milgram:

Can I take just a slight issue, Elie, with …

Elie Honig:

Yeah.

Anne Milgram:

-I think you’re being very optimistic on Bill Barr. I mean, my feeling is that-

Elie Honig:

Uncharacteristic.

Anne Milgram:

Uncharacteristically so. And I think you’re right. He has disappeared, which feels odd. And it feels odd to me as well. But I also feel that there are a couple of points here. One is that elections are state, are run by the states and the way that they get to federal courts is because state courts rule and there is an issue that gets brought to a federal court.

Anne Milgram:

But the primary focus of elections, there’s 50 plus divisions of elections in states in US territories and that’s how the process goes. And so Barr hasn’t really had much of a role to play yet. But I do think that there are a number of ways in which he can get involved and can try to interfere and can try to throw the weight of the Department of Justice and the local US attorneys behind Trump. And I’m not saying he’s going to do it, but I personally feel like it’s certainly on the table in my view that this could come up.

Anne Milgram:

The other point, which is worth making just so people understand, is that yes, the president is out there alleging voter fraud. But as I’ve said before, I ran a state division of elections and a lot of where the litigation is going to come is that can’t have anything to do with fraud. It’s going to have to do with provisional ballots, people who couldn’t be found in the voting books that day and maybe they actually lived in another district or they moved.

Anne Milgram:

Were they voting in the right place? Should that ballot be counted? People who didn’t fully mark ballots, absentee ballots, people who’s … Like there’s going to be a ton of ways in which that’s what a lot of the litigation and the recount will revolve around. I don’t think it will revolve as much around people illegally voting twice or another way engaging in fraud.

Anne Milgram:

But anyway, I hope you’re right on Bill Barr, Elie, and that I’m wrong.

Elie Honig:

Look, I don’t have a lot of faith in him. I’m not exactly sure what he can do like specifically, I’m interested. What could you imagine him doing with respect to US attorneys that could aid the Trump camp here other than taking a litigation position that there is fraud or this vote deadline in Pennsylvania for example, was unconstitutionally extended. That I can see.

Anne Milgram:

Yeah, that’s what I think he could do. He could basically say to local US attorney in Pennsylvania, “I want you to litigate this issue.” Again, that’s not to say that they agree. That’s not to say that there’s a claim that can legitimately be made but I think we should expect from Bill Barr that he’ll play every trick he can. I just go back to him announcing the state local Dallas election fraud case, talking about it as hundreds or thousands of fraudulent ballots when it turned out to be a handful and not a federal case.

Anne Milgram:

He presented it as though there was some federal involvement and he really didn’t know the facts, and again, also announcing the Pennsylvania election fraud case. I think he’s setting this up to be engaged. I don’t know what. We’ll see.

Preet Bharara:

Can we talk about the courts for a second? That’s an institution among other institutions that usually provides some kind of a check. And I got to say, by and large, in the lead up to the election especially in the days before November 3rd, the courts had been pretty good. There was a lot of speculation about what would happen in this case in Texas where 127,000 people relying upon local officials pronouncements to cast their ballots if it’s drive-by, drive-through, drive-in and was so much referred to a drive-in movie within as a drive-through movie, which would be a very poor film experience.

Preet Bharara:

But 127,000 votes, it ends up going to what people described as a very conservative judge. People didn’t have a lot of hope that the case would go the way it should go. And that judge basically said, “No, I’m not touching this. The people who sue have no standing.” How comfortable do people feel? I mean, obviously, it’s case by case depending on a particular judge and a particular circuit. But how confident do people feel that judges are going to see through somebody’s last ditch efforts to save the vote for Trump?

Elie Honig:

Preet, I agree with that. I think the courts have been an important check here so far up to and including the US Supreme Court which approved either procedurally or substantively extended voter deadlines in Pennsylvania and in North Carolina although not in Wisconsin, which is a little bit hard to sort of wrap your head around.

Elie Honig:

But another factor here, just a practical factor is it’s late for all these challenges. Justice Kavanaugh even talked about it in one of his opinions, this idea of reliance. Meaning, we’ve told people, let’s take Texas, for example. I know it was based on standing but it’s a perfect example. Actual duly elected officials have told people, “You can vote by drive-through. That’s okay.” And then they did it. It’s hard to pull the rug out after that, and say, “Actually, no.”

Elie Honig:

There’s a legal dimension to that, but it’s also just a practical dimension of fairness. So I do not expect our courts to do anything precipitous especially now, especially as late as we are in the game. But I want to carve out one little exception. Here’s the one thing that I can see happening. If this all comes down to Pennsylvania, if Pennsylvania is the Florida from 2000 of 2020, there is this extra batch of mail-in votes that will arrive between November 3rd and November 6th. The Pennsylvania Supreme Court extended the deadline itself.

Elie Honig:

So the Pennsylvania legislators said, “All votes have to be in by November 3rd.” The Pennsylvania Supreme Court said, “That’s not enough time because of COVID. You have until November 6th.” The US Supreme Court then declined to intervene, but three justices dissented from that very strongly, not to sound like Donald Trump, very strongly. And they said, “It is not up to the Supreme Court. It’s up to the legislature.” Brett Kavanaugh can easily join that group.

Elie Honig:

And then you had Amy Coney Barrett, who was not part of that ruling because she was two or three days into the court. I can see a coalition of five justices getting together to say, “We’re throwing out Pennsylvania ballots that arrived between November 3rd and November 6th.” If it comes down to Pennsylvania and if the vote count is really close, watch for that.

Anne Milgram:

Yeah, I think the question is would those votes potentially sway that election? And if that’s the case, I totally agree with you, Elie, that that is one of the things I would watch for. Again, I think some of how much litigation goes forward will depend on how the votes turn out and how many states are in play, because litigation goes beyond a recount, which is in some states, it’s actually automatic that if the election is close, that there’ll be a recount.

Anne Milgram:

And so, some of these, I think, will depend on courts. I do think there’s also the question of what goes to the Supreme Court. And just to your point, Elie, on Wisconsin, I think that the reason the Wisconsin decision was so startling is that it felt like it wasn’t giving the benefit of the doubt to the voter on the sort of reliance question. And I do think that courts as a rule, like it or not, the Pennsylvania is a great example where the courts told people that they had those extra three days.

Anne Milgram:

And so, that decision has been made. The Supreme Court could undo it and I agree with you they might, but it just feels unfair at this moment in time for a lot of those things to be done because voters relied on the information that they were given.

John Carlin:

I’ll say on the positive for institution’s front would be if a conservative Supreme Court upholds a victory for the democratic candidate. I would hope that would help heal the country and that many who might otherwise doubt institutions would feel that they get a fair shake from a conservative Supreme Court even though it’s not the outcome that they would have hoped for.

John Carlin:

And when you look at what the most likely scenario is, which would be the 270s achieved off Wisconsin, Nevada, Arizona and Michigan, then Pennsylvania doesn’t actually swing the ultimate results of the election. And we might know, subject to the recount revisions relatively soon, doesn’t mean there wouldn’t still be a court challenge but then if the Supreme Court follow the applicable law, you’d have the Supreme Court ruling in a way that upheld the results of the election that although close is ultimately clear.

Preet Bharara:

I mean I think it’s true what Elie and others have said about judges, right? Judges follow the law but they’re also human beings and they understand that it’s important for people to have faith in what they’re doing. And it’s one thing to stop a count and to prevent a result from being digested like largely what happened in Florida in Bush v. Gore in 2000, but it is quite a different thing even if there are plausible legal arguments on the side of doing so to undo a called election in a state.

Preet Bharara:

I just think it’s very nearly a bridge too far. If it’s the case, the multiple credible media outlets call Michigan, call Wisconsin, perhaps call Pennsylvania and the expectation sets in among reasonable people that that state went to Biden to then engage in indulgent legal machinations to undo that. I think that’s different no matter what the legal arguments are, don’t you agree?

Ken Wainstein:

Look, I think John makes a very good point looking at this from a perspective of the Supreme Court, they would be loathed to do what you just said, to reverse what seems to be the vote from a particular state. I mean they’re still smarting and their credibility is still suffering from 2000 and if Biden came back around and did something similar or as you pointed out, more of a perceived overreach by some in this election on behalf of the republican candidate, then I think the institution itself will be forever tarnished and the politicization of the Supreme Court that we’re seeing through the confirmation process, through the way it’s perceived generally is going to be on steroids.

Ken Wainstein:

And so I think it’s very high stakes for the Supreme Court as an institution here. So, hopefully, it doesn’t get to that and I’m pretty confident that Chief Justice Roberts and the others are very aware of that concern.

Anne Milgram:

I join your confidence on Chief Justice Roberts. I think if we’ve seen one thing about him, we’ve seen that he is an institutionalist and that he very much wants to protect the institution. I don’t share that confidence for the other justices. I mean, we just don’t know. And so if anything, I think that my fear is that they bend towards partisan and ideological in their decisions in some instances and that that means here, that if Barrett joins that, this sort of four existing folks outside of Justice Roberts, that’s the fifth vote.

Anne Milgram:

And so it would be a terrible thing for our institutions, and I think the pressure will be on her. She did not sit in the Pennsylvania matter and so it’s a really interesting question, I think, of whether she just takes a pass on the election cases. But if she doesn’t, I really worry. And then the question is can Roberts convince the republican justices on the court? And there shouldn’t be a republican or democratic justices but I do think increasingly in those terms, can he convince them that the overall health of our country and the institution matters more than one presidential election?

Anne Milgram:

And I think then we’ll see the outcome. But I would be very worried about the justices outside of Roberts on this particular question.

Preet Bharara:

Stay tuned for more discussion. We’ll be right back after a short break.

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Preet Bharara:

Can we talk about the media for a moment? I was a little surprised yesterday as the voting was unfolding or the counting was unfolding, not knowing what to expect from media outlets. And there was a bit of a race. It’s funny, I was texting with some number of you and I’m sure everyone was texting and emailing with friends and colleagues all through the evening.

Preet Bharara:

But a lot of people are watching Fox and people have a certain perception of Fox. And Trump was getting really angry at Fox News because they were calling certain races pretty quickly. I mean I remember at some point Fox called Virginia, which I think everyone expected to be solidly in the Biden column, but nobody else called Virginia. And then I saw a lot of people on the internet talking about how Fox has lost its mind and then you got a second outlet at some point later in the evening calling Virginia.

Preet Bharara:

But there’s a back and forth between and among media outlets to call races. And as everyone knows, the media doesn’t call a race. It has no official value whatsoever. They don’t certify. They have nothing to do with the official process of an election being over and deciding who the victor is. But they have persuasive power because we’re used to media outlets particularly the AP, which I think probably has a longest track record of making good, incredible calls even in events of official certification.

Preet Bharara:

We’re kind of trained in this country to buy a call when multiple media outlets say, “Michigan win a certain way or Arizona went a certain way.” And there’s not a lot that the president can do to attack that interestingly if those media calls are made. Is anybody else surprised given the context of this election in how the battle was going to be so intense that they retain that power of credibility and persuasion?

John Carlin:

I was watching Fox for results primarily and noticed what you said about Virginia, although the AP actually called Virginia relatively early, but more notably was Arizona. And it was interesting watching it because they made the call relatively early and then they were discussing on air that they were getting furious calls from the Trump campaign.

Speaker 8:

Did we finish where we started on Arizona? You’re 100% sure?

Arnon:

Yes.

Speaker 8:

And so all this pushback, you’re going to say, “We made the right call when we made it?”

Arnon:

We made the correct call, and that’s why we made the correct call when we made it. I’m sorry.

Speaker 8:

No, you don’t have to be sorry. We just want to be [crosstalk 00:41:57]

Arnon:

The president is not happy.

Speaker 8:

Well, thank you very much, Arnon. We appreciate your time.

Arnon:

Thank you for having me.

Speaker 8:

Get back in there so we can make some more calls.

Arnon:

Yes, chief.

Speaker 8:

Thanks, Arnon.

John Carlin:

They’re transparently reporting the pressure they were under to withdraw the call and have their numbers guy on who … They run a pretty good numbers shop. I think he raised a good point. It was something I was wondering about. I’m curious of other people’s thoughts. In this age where we know that our greatest period of vulnerability is the period after, well, first would be meddling with the vote and then our second greatest period of vulnerability and the one that people were most anxious about in the national security law enforcement community is the period between when people have voted and when a victor is declared.

John Carlin:

And that’s always been an issue. It’s something I think we worried about post-September 11th in terms of undermining the strength of a commander-in-chief if we end up in an adversarial situation with a foreign nation. And I’m wondering with this change in vote that was probably due to pandemic but now may permanently change the way we vote, what can we do to try to reduce that time period and reduce the uncertainty, and what role the media should play? It seems like one obvious correction would be, I don’t understand why states would have rules that prohibit starting to count votes prior to the polls closing. That just seems to slow down the process and I don’t understand what you gain on the backend to that, so that would be one.

John Carlin:

But to your point, Preet, what are other folks thinking? What should the media do? Should there be some new practices to when they declare or is it helpful to have them out and declaring, and it’s transparent and it has its own power?

Anne Milgram:

Doesn’t the issue also go back to just the way the media has handled the race before election day? I think its right to raise issues about the way that the media handled even election day because even though they were repeatedly saying, “The race isn’t over. There’s still our ballots that have to be counted,” we all know. I mean there’s plenty of research about how hard it is to sort of get your mind around that when you’re watching a horse race on TV and they’re sort of reporting results as though they are results.

Anne Milgram:

And so I think there’s a lot of fair criticisms but I think also, I mean, and I don’t really want to get into the debate about why pollsters are so bad and why they’re sort of very unreliable as we’ve seen in multiple elections. But what the media does is they tend to treat a lot of those polls as true. And I think that ultimately ends up impacting election like the actual results and the way people vote.

Anne Milgram:

And so if you watch almost any of the cable news shows recently, they were all about the multiple paths that Biden had to the election, a lot of which were going to be first time path for someone to have won and so not well-tread. And there wasn’t a lot of caution in how that was being reported. It was being reported as truth. And so I don’t know what we do about it in a world that we’re hyper-polarized. The media really does drive a lot of the conversation.

Anne Milgram:

Look, Trump was out barnstorming the last week. They spent a lot of time covering him, which you would. He’s the President of the United States and he’s out there the week before the election. But there was a way in which like the media … I don’t know. I feel uncomfortable in many ways with how the media treats the election in just sort of steps back and says, “Well, we’re just calling the balls and strikes and the facts,” when it feels like they’re actually sort of impacting in some ways how voters see the election. Who’s up? Who’s down? Who’s the underdog?

Anne Milgram:

And then on election night, look, I think all the caveats notwithstanding, it’s hard for people not to sort of be impacted by it. And then just finally, I would say to John’s point, I agree completely. Early voting is such an important thing. Counting the mail-in ballot before election day feels to me also like a no-brainer. And there are just a lot of ways to make sure that people have the ability to vote and that those votes can be counted upfront. And so we do generally get results election night or at the latest the next day because I think that’s a reasonable expectation to have them within 48 hours. I think once you start talking about potentially weeks or months, that’s a really, really problematic thing for American democracy.

Ken Wainstein:

And I think your point again about polls is a very good one. They’ve been around for a long time. Gallup and his buddies perfected the science of polling and they’ve been using campaigns for generations. But now, I do get the sense that the media starts counting the polls, citing the polls as fact, that that is the depiction of the American voter.

Ken Wainstein:

And I think that has real life implications. I mean I think in the run up to this election, I imagine that the Biden folks are thinking, “We need a little more urgency in the message to our people. We want people feeling like, ‘uh-oh, it’s really close. Our guy isn’t that far up.'” Aversely, I think Trump actually used it to his benefit. He used the fact that there was this narrative out there in the press that Biden was ahead to get out and rally his people to come out to the poll. I think it actually has real life implications and I think here to the extent somebody benefited, it was Trump.

Elie Honig:

I think also with regard to Preet’s original question about the media, it’s almost impossible to impose legal restrictions on the media from the outside. That’s our first amendment. The media has adopted some self-impositions over the years. For example, the idea that they will not call any state until the polls close, right? I mean they could have called New York state or Kentucky two months ago.

Elie Honig:

So, I think the media has, it seems to me, got much more cautious this year, certainly learning from the lesson of 2000. But it seemed to me this year that the media was really careful. Fox News, I think, was more aggressive but we’re watching CNN for the most part was being very cautious, very careful, very reticent and that continues now to stress that this is ongoing.

Elie Honig:

And I agree with all that was just said by Ken and John and Anne. The narrative is so important. Look, we as human beings, we just love the story. We love the narrative. We love the horse race. It’s part of our nature. And if you think back through any of our past elections, there was a sports-like horse race flow to it. 2000 was this sort of back and forth, that overtime thriller. You had other years that were just blowouts from the start, easy wins, that kind of thing.

Elie Honig:

And it’s almost interesting to think about what if all the states had come in, in reverse order from what they came in? I mean the narrative of this one is shaping up to be Trump jumped out to an unexpectedly big lead that then got slowly whittled away and perhaps Biden sort of nipped them in the end. But if you reverse that, what if all the states came in the opposite? Biden jumps out to a big lead. Trump has this furious comeback and falls just short. I mean-

Preet Bharara:

I would have had a much more pleasant evening, Elie.

Elie Honig:

Yeah, Preet would have slept better and perhaps drank less as well.

Ken Wainstein:

One less bottle of bourbon.

Elie Honig:

Exactly. But I did of this moment, this interesting moment when my kids who are 15 and 13 were watching but I realized they’re watching this like a football game. The way you would glance up at a screen and go, “Okay, it’s the third quarter and the Eagles were up 21-10, I know where that stands.” They were just looking at the count going, “Okay, it’s 142 to 110,” but that means nothing. Without context, that means nothing. I do think the media did a good job of explaining that context and stressing it but, boy, we just loved that horse race.

Preet Bharara:

Can I ask a question about sort of a larger non-legal issue? At the end of the day, I believe that Joe Biden will be inaugurated as the next president based on a lot of things that smart people are saying and the way things are trending. However, it is also true by any predictive measure, Donald Trump over-performed. And the over-perform, and may still become the president, I think it’s unlikely but he may still become the president.

Preet Bharara:

Even though he has botched the pandemic response, even though he’s a serial liar, even though he’s a narcissist, even though he’s an all these terrible things that have caused an unprecedented number of republicans and not just any kind of republicans, people like Ken Weinstein and others who have served at high levels in republican administrations including members of the military say this man is unfit for office. So, to the extent that the people on this call are pleased that Joe Biden will become the next president, how mortified are you that it’s this close?

Ken Wainstein:

I’ll take the first crack of that. I was very hopeful that this election will be a repudiation of Trumpism and what he stands for, and Trump the man but really what he stands for and the way he conducts politics in such a divisive way and the damage he’s inflicted on our country. This isn’t 2016 where really his governing style was unknowable. He was a businessman. We didn’t know what to expect. We thought maybe they’ll moderate once he is inaugurated.

Ken Wainstein:

This is four years later. We’ve seen, the country has seen the way this man leads and the way he undermines our institutions, the way he assaults our institutions, our norms, the way that he goes after segments of our population, tries to set one part of the population against the other, the way he undermines our friendships and alliances with foreign countries. And then in the basically amoral way he conducts himself.

Ken Wainstein:

And yet, with that all played out in living color for the last four years, the American people … I’m not repudiating him. I mean, this is going to be a razor-thin margin if Joe Biden wins. And I think that’s very disappointing. I was hoping that the American people would show its character by stepping up and saying regardless of my policy preferences, I cannot be led by a man like this who conducts himself in a way that makes me less proud to be an American. And so I’m going to either not vote for him or vote for Joe Biden. And millions and millions of Americans did not make that choice, and that’s very disappointing.

Anne Milgram:

That’s well said, Ken. I mean I think a lot of people expected particularly because of the efforts of Project Lincoln, which I think has done a pretty remarkable job of marshaling together a group of never Trump republicans and sort of generally conservative folks who agree that the president has had a terrible job in the pandemic and in countless other ways.

Anne Milgram:

So, I felt that that would have some sway and yet, I think what we saw here is the president leaned hard into his base and into the divisive rhetoric that he’s used. I mean I wonder and I don’t know what you guys think about this but there’s also … And he did get the advantage because of the polls of saying he was the underdog and really getting his supporters out. And I think you can’t underestimate how important that is that when people think that their candidate is ahead, they don’t always go. When they think their candidate is behind, they often believed that their vote matters more.

Anne Milgram:

But I also wonder just a little bit of whether when it comes to the coronavirus response, the COVID-19 response, whether some of it isn’t also just magical thinking in the sense that we all want this to be over. We all want the world to go back to normal and Trump is pedaling a reality that he could not deliver on, that there is no possible way that is true as we know from the science and the researchers and all the experts who’ve been telling us this. But it is a much more palatable view of the world, which is the economy has to get started. The virus isn’t that dangerous. We’re going to get back to normal. We want things the way that they were and that maybe people are buying that a little bit.

Anne Milgram:

I don’t know. I just sort of wondered a little bit about, it’s hard for me. And then I think also obviously the president really exploited this sort of argument about law and order and that communities are not safe, which I completely reject. But I thought the president really, he did go pretty far. He did go pretty far with that as well.

Preet Bharara:

I’m left feeling a bit sad because like Ken and others, I hoped and wanted the repudiation also because as Garry Kasparov said in Stay Tuned last week, it was not just about defeating Trump. It’s about defeating Trumpism, whatever that is. And this election even if Biden becomes the next president, in no way shape or form defeated Trumpism.

Preet Bharara:

Let me tell you something else that I’m both sad about and worried about, which we could maybe address and that is, now, supposed Biden is the president but Mitch McConnell remains the senate majority leader because not enough democrats win in the senate races. You now have divided government, and I’ll throw out the particularly controversial, hypothetical to this group. Supposed in January if Mitch McConnell still a leader of the senate, Joe Biden president and Justice Breyer retires in the summer, a year and a half before the midterms and three and a half years before the end of the Biden first term, does Mitch McConnell allow a vote on a substitute?

Preet Bharara:

And maybe even change to hypothetical. Let’s say for some reason that we can’t foresee Justice Thomas leaves the court. So, there would be a big swing in the makeup of the court and the balance of the court if Joe Biden were able to pick Justice Thomas’ replacement. What kind of hypocrisy will we see then?

Elie Honig:

It is a great question. It’s one I’ve thought about too. I mean how far can McConnell go with respect to obviously Supreme Court justices but also just in the natural course of life, we will have dozens of openings occurring at the District Court and Court of Appeals level? Does Mitch McConnell really have the, for lack of a better term, the hutzpah to say, “I’m just not putting any of your nominees through until the …”

Elie Honig:

I mean on the one hand, I think how could he possibly? On the other hand, if he does get that extreme, if he does say, “I’m going to hold the Supreme Court seat open for three and a half years or I’m going to approve none of your nominees,” what mechanisms are there to remove him or to overcome that short of him being voted out of office or taken out of a leadership position by his own party in the senate? There really is no way to do that.

Preet Bharara:

He also got over that hurdle yesterday. That race was called pretty early.

Elie Honig:

Right, exactly. I’m saying next time, to punish him next time.

Anne Milgram:

But also remember, this is exactly what he did with Obama. I mean he helped countless federal judicial seats open and refuse to let Obama seat them. And so I expect completely, Preet, that we will see this scenario or some version of it where McConnell will try to get the votes to stop the court if Vice President Biden becomes President Biden to stop any Supreme Court nominees going or to control significantly the federal judiciary.

Anne Milgram:

And we should be clear that Trump has already done that with McConnell in the last four years that the judiciary has like they’ve literally filled every seat that they can fill. And so I worry a lot about what happens when we are governed in large part or restricted in large part by a minority of the country that’s really controlling the courts. And also, we should be clear on this. The senate is an enormous consequence of this election. When you think about the ACA, about healthcare, when you think about getting through a COVID stimulus bill, when you think about countless other things, environmental protections, anything that has to be done legislatively, McConnell will basically … He’ll put his hand on the scale on.

Anne Milgram:

And so that’s part of the political process generally, but McConnell plays at a different level. And we’ve seen the level he plays at. And so I think we should expect that he will do everything he can to control and to limit Biden’s ability to be influential. And I think the question that Elie asked is the right one, which is, so what can be done? What are the options that exist? And I think we all need to think about this a little bit more but I have a feeling that this reality could face us.

Elie Honig:

I think the best answer I have to that is, if McConnell just goes full McConnell. And keep in mind, if Biden wins and McConnell remains the senate majority leader, he will be by far the most powerful republican office holder in the country and he’ll be alone. He will be what Nancy Pelosi has been the last couple of years in fighting Donald Trump.

Elie Honig:

I think the only real solution is that members of the republican caucus on the senate, the Mitt Romneys, maybe one or two others need to say, “I’m not onboard with this. I’m not.” And it depends if we come out at 51 or 52 or whatever, but Mitt Romney plus maybe one plus, maybe two say, “I’m not willing to block a judicial nominee for a year and a half or three and a half years,” or whatever. That’s really the only practical solution I can think of.

Preet Bharara:

We’re running out of time, but I want to ask a final question. I want to ask everyone to make a prediction. Assume that Joe Biden will soon be seen to be the next president of the United States. We have a number of days before power changes. Can people offer up to what they think President Trump will do on the crazy side in terms of pardons or firings or any other kinds of policy decisions during this precarious transition period? What should we be looking for and what should we be worried about?

Elie Honig:

I’ll start off with that. I mean it’s going to be a pardon party like we’ve never seen before I mean, right? Michael Flynn is first in line. He’ll probably pardon Paul Manafort and George Papadopoulos even though they’ve already served their time just for kicks just to stick it to Robert Mueller. Look, his family members, Ivanka, Don Jr., not that they’re under any known federal investigation but state prosecutors in New York are looking at the Trump organization.

Elie Honig:

Now, a pardon does not apply to state crimes but Preet and Anne and everyone who’s been in the system knows that there are times when cases start off as state level investigations and then get sent across the street to the Feds. As a protective measure, he may do that and then the big question is will he attempt to pardon himself? We don’t know specifically whether that’s lawful because it’s never come up before. He may well try it and then the really wild scenario, which I do not think will happen but people asked me a lot is, well, couldn’t he resign and then have Pence pardon him? I mean the answer is yes, but I don’t think that will happen. But can he pardon himself? We may soon get some answers to some of these sort of law school hypotheticals.

Anne Milgram:

I mean he could resign the day before his tenure is over and have Pence do the pardon then.

Elie Honig:

Sure. I just don’t think his ego and … I just think it’s … Maybe I’ll be wrong. I’ll just think it’s too low of a move even for Donald Trump and Mike Pence.

Anne Milgram:

I don’t know that I think that. I mean every time I think, even with the president releasing the 60 Minutes tape beforehand, I mean my first reaction was, “Ugh, he couldn’t do that. He wouldn’t do that.” And my second reaction was of course he will, and he did.

Anne Milgram:

And so I always have to temper what I think is like the correct human response, which by the way has been the norm for both political parties for years. And so I think we have to be really clear that like again, it is Trumpism. It goes beyond Donald Trump, but there is something unique about this movement and this president that I think is inconsistent with how all of us were taught you do government and you interact with others in a way that’s fair and honorable.

Anne Milgram:

But I expect that Elie is right. There’ll be a pardon party. I am less sure about like the firings. I feel at this moment in time what the president want to do is keep his base riled up. What does that do for … If he fires Anthony Fauci, if he fires Chris Wray, I mean I don’t know that I think it helps him in a way. And this is how the president will think about it, “Does this help me in any way?” But I do think we should all buckle our seatbelts for what’s coming.

Preet Bharara:

Well, he doesn’t always care about something helping him. I mean I don’t think he fired Jim Comey. He just hated that guy.

Anne Milgram:

That’s true.

Preet Bharara:

He wanted that guy gone. Ken, John, do you think anyone is on the chopping block, Esper, Barr, anyone?

Ken Wainstein:

One thing I was focusing on in terms of sort of zaniness after the election. Once he does whatever firings he’s going to do, once he has his challenges to the Biden election and then takes care of all those pardons, one thing I was thinking about is does he show up at the inauguration? He just doesn’t strike me as the kind of guy who’s going to be willing to sit there and smile and then pass the mantle of leadership onto the duly elected successor.

Ken Wainstein:

And I could see him saying just packing up his toys and going home and not even appearing, which isn’t a big deal and I think I remember reading that one of the early presidents, maybe it was John Adams, said, “Okay, you didn’t elect me. I’m out of here,” and he just took off. But I could see him doing that, which is sort of all optical and is symbolic but it’s really important symbolism that a peaceful transfer, willing transfer of power from one president to the next, that scene we see every time there’s a change of party where the one president escorts the other president to the helicopter on the east lawn, that’s so important for the American people to see and for the world to see. I just wonder if he’s going to partake in that process.

John Carlin:

And then also if there’s a foreign policy or national security crisis during this interim period, I devoutly hope that when all is said and done in terms of votes being counted, courts have ruled if Biden as it looks like is the next president that current President Trump acknowledges the victory because I think in Ken’s scenario, it’s that he never acknowledges that there was a fair vote and that there should be a transfer of power.

John Carlin:

And that both creates longterm problems and exacerbates the divisions we already have where we want to be together as one America particularly against adversaries who do not share our values, but more pointedly, if there’s some crisis during that period and there’s not an acknowledgement of the transfer of power, I am concerned about how information is going to be shared, about how you would do a transition, about the pressure that’s going to put on career members of the military, law enforcement, diplomatic corps. So, that is the worst case scenario I’m recognizing but that’s the one that keeps me up at night.

Preet Bharara:

Well, Ken, I hadn’t thought about the inauguration and that tableau and I think before you mentioned it and I think you’re absolutely correct. Donald Trump cannot be in a room where someone else is the focus of attention, much less be in a room where someone else is the focus of attention because that person has beaten him. I just can’t see it.

Preet Bharara:

And we thought it was odd when he decided not to go to The White House Correspondents’ Dinner that he is the first president in generations not to throw a pitch at the baseball game. He doesn’t care about those things at all. And if he’s going to do what a lot of people think he’s going to do, remain on the scene in public and in the public square perhaps with his own network, he’s also not going to follow the general norm broken a little bit my Barack Obama in this election cycle but the general norm of a president not wading into politics and not criticizing his successor. He’s going to be the loudest voice criticizing Joe Biden every step of the way.

Preet Bharara:

And so I just have one amendment to what Elie was saying, yeah, Mitch McConnell will be the lone, most powerful republican in the country as an official matter. But Donald Trump will remain the head of the party and will remain the voice for tens and tens of millions of people who voted for him no matter what he’s done.

Preet Bharara:

Any final thoughts?

Elie Honig:

Preet, I think that’s such a great point. And I wonder to what extent are we going to keep listening to Donald Trump if he loses and is out of office? And I mean that we the public and we the media. Are we still going to sort of give a block consideration to every crazy tweet he sends in the year 2022? And at one point do you just sort of almost do like what we’ve done with Rudy Giuliani. I mean he’s nuts. We acknowledged him. He’s dangerous, but we also sort of push him off to the corner and take everything he says with a grain of salt.

Preet Bharara:

Except when he’s in the Borat movie, then we pay attention.

Elie Honig:

Except for … Right, exactly. But it will be interesting to see how we collectively respond to Donald Trump if he’s out of office because I agree. He ain’t going quietly.

Anne Milgram:

Yeah. And look, the difference is that the president … Remember his rallies were fully covered in 2016 from start to finish because he was good TV, because he does say what people don’t expect people to say, because he is over the top. And a lot of people have suggested maybe he would start his own media outfit, like I would not be surprised for any of that to happen. And so we’re not there yet obviously, but I’m not going to bet on anything really where the president is concerned.

Preet Bharara:

Thanks, folks. Thanks for getting up in the morning, popping Tylenol or whatever you needed to do. You guys were excellent. And Elie, Ken, John … Sorry, we missed Lisa. Actually, I’ll just end with one final caveat. Much of this conversation has assumed that Joe Biden becomes the next president. That is not certain yet. Based on a lot of things, I think that is true. I think most people on this call think it’s true. But just in case we are wrong, I wanted to put that caveat out there. We’ll know more in the coming days. Thanks, folks.

Preet Bharara:

If you like what we do, rate and review the show on Apple podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics and justice. Tweet them to me @PreetBharara with the hashtag, #askPreet, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET. Or you can send an email to [email protected]

Preet Bharara:

Stay Tuned is presented by CAFE Studios. Your host is Preet Bharara. 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, David Kurlander, Sam Ozer-Staton, Noa Azulai, Nat Wiener, Jake Kaplan, Calvin Lord, Geoff Isenman, Chris Boylan, Sean Walsh and Margot Malley. Our music is by Andrew Durst. I’m Preet Bharara. Stay tuned.

Preet Bharara:

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