Preet Bharara: Anne Milgram, welcome back to the show.

Anne Milgram: Hi. Thanks for having me.

Preet Bharara: You’re our first repeat guest, and only our second guest in 2018.

Anne Milgram: That’s exciting. Thank you.

Preet Bharara: It’s still unpaid.

Anne Milgram: Yes. Very much so.

Preet Bharara: So, we thought, since we had, I think, such a good time talking about the ups and downs of the Mueller investigation, the Russia investigation, as some people call it, a few months ago, as we begin the new year, there are a few people who have been charged. Those things have to proceed through the system. And sort of take stock and make, as we always do, educated guesses about the tea leaves mean and what they say.

Anne Milgram: Yes.

Preet Bharara: You know, how far along—this is the question you get more than anything else. When is this gonna happen—

Anne Milgram: Yes.

Preet Bharara: Or when is it gonna be done?

Anne Milgram: Yeah.

Preet Bharara: The president’s lawyers say on a regular basis, it’s done. It’ll be done tomorrow.

Anne Milgram: Yes.

Preet Bharara: And that never proves to be true. What’s your sense?

Anne Milgram: Well, the president’s lawyers have been saying it would be done at the end of 2017 since essentially the day that it began. And it’s obviously 2018, and it’s not done. So, we know that that’s not accurate. What I think is a little bit tough on this one is that I think you and I would both assume, being former prosecutors, having led big, complex cases, that usually the last thing you do is you interview the person at the top, right? You’re always working your way up. And so, the recent reports that the president is likely to be interviewed by Robert Mueller or his team soon could lead us to think that, okay, they really are nearing the end. What sort of cautions me a little bit against that is I think that there are still pieces out there and other parts potentially of the investigation that we haven’t answered the questions to. We haven’t answered the question to who is Papadopoulos cooperating against? Who is Flynn cooperating against? Does it just go to the Trump obstruction? Or what about the Kushner piece? I mean, you and I haven’t had a chance to talk about this, but Kushner is interviewed right before Flynn pleads guilty, his plea is announced. And it’s solely a 90-minute interview based on those conversations with Flynn. It has nothing to do with anything else.

And so, what does that mean? And so, to me, there are certain small indicators that there’s a lot we still don’t know that Mueller knows that we don’t. And so, what I would normally think is that they’re gonna interview Trump. That means that this is coming to an end. I’m not so sure that that’s right.

Preet Bharara: So, let’s talk about that a little bit, and what the fact of this reporting about a potential Trump interview means for where they are in the investigation. I agree with you. When we had significant targets and there was an overt investigation, meaning that we had engaged the lawyers and everyone knew about it, even when it was high profile people, that usually marked the end. However, I will say the first time there’s a conversation about the potential high profile target being interviewed doesn’t have to happen a week before the thing is over.

Anne Milgram: That’s a great point. Yeah.

Preet Bharara: That can happen some months beforehand. I don’t know how much to believe that. And I don’t know how far in advance that conversation would happen. I guess a lot of people have been asking the question, does Trump talk?

Anne Milgram: Right.

Preet Bharara: What do you think?

Anne Milgram: So, I think that’s a great question. So, first of all, you and I probably should just say that of course everyone in the country has a Fifth Amendment right to not self-incriminate themselves. So, anyone, including Trump, can say, look, I’m not talking, because if I talk, that would get me in trouble. I would be sort of admitting to a crime, and so, I’m not gonna do it. So—

Preet Bharara: Do you remember—have you read the Michael Wolff book yet?

Anne Milgram: I have not read the full book. I’ve read some of the excerpts.

Preet Bharara: But one thing in the book that was described was that somebody was briefing the president on the Constitution and he got bored by the Fourth Amendment.

Anne Milgram: So, he’s missed five.

Preet Bharara: So, I don’t know. I don’t know. I don’t know if that has some bearing on whether he understands the right against self-incrimination. He doesn’t seem to indicate that he has any knowledge of that, right?

Anne Milgram: Yeah, you gotta make it through the first ten amendments.

Preet Bharara: Right. Okay, I’m sorry. So, you were saying.

Anne Milgram: So, that’s the general right that every American has, that everyone in our country has, the Fifth Amendment.

Preet Bharara: So, in the category of voluntary interview, which often is a courtesy that’s afforded to people, and certainly someone like the president, before you have to go the route of grand jury subpoena and compelled testimony in front of 23 Americans, which you can always do later—

Anne Milgram: And I’m sure that’s how Mueller would do it, is the first foray would be to say, hey, would you come in?

Preet Bharara: Right.

Anne Milgram: And then the second would be, we’d be happy to issue you a subpoena if we need to, which—

Preet Bharara: So, they say, hey, you want to come in and talk to us? And the president says to his lawyers, no, go away. I’m busy. Then the question is, do you try to compel the testimony or not? And often, we would.

Anne Milgram: Yes.

Preet Bharara: Do you think that they would in this case?

Anne Milgram: I do. I do. I mean, I think what we’re seeing publicly reported—and again, we’re speculating and we don’t know the inside of this. And so, it’s very possible there are pieces we don’t know. But it’s really clear from what’s been publicly reported that Trump’s lawyers are trying to control or set parameters around what that would look like. And so, I don’t think there’s anything unusual about someone whose potential subject in a matter coming in or having their lawyers come in and say, hey, we’d like to just give you written answers.

Preet Bharara: Right.

Anne Milgram: Right.

Preet Bharara: So, the first question is, under oath or not under oath? And I think a lot of people don’t—naturally don’t understand why someone would not be put under oath. And as you point out, lying to the FBI under a statue called 18 U.S.C. 1001 is a crime. And that actually happens to be the crime with which two people in the Russian investigation have been charged.

Anne Milgram: It’s also common, in my experience, to have someone come in first for an interview with the prosecutors and the federal agents, and as you said, you can always do the grand jury subpoena later. The reason I think you would do a grand jury subpoena upfront and sort of eliminate that interview is that you think it’s so important that someone be formally under oath at that point in time. And I could see times when that would happen. I think the other reason why you might do that is if you think you will only get one bit of the apple. And that is very possibly the case here, that Mueller and his team are aware the Trump and his lawyers will push back very hard on having multiple sit-downs with the special counsel.

And so, if it’s one bite of the apple, I think this is a strategic question of do you do the grand jury so you have everything you might potentially need under oath? The grand jury’s the one that deliberates on potential charges against anyone. And so, let’s say you didn’t do a grand jury. You have a federal agent and a prosecutor interviewing a witness. At that point, the record of that conversation can still be put into the grand jury through the testimony of the FBI, through the federal agent.

Preet Bharara: Right.

Anne Milgram: So, it’s not like the grand jury—

Preet Bharara: It’s not thing.

Anne Milgram: It’s not nothing.

Preet Bharara: It’s a big deal.

Anne Milgram: It is.

Preet Bharara: Which leads me to the question that I think a lot of people have, I’ve seen over and over again. So, let me clarify this. Some people are outraged about witnesses coming in, either to congressional committees or to the special counsel, that they’re not under oath. Should we be outraged that they’re not under oath?

Anne Milgram: So, I think it’s really common.

Preet Bharara: Yeah. I mean, it is.

Anne Milgram: It really is. I mean, I—

Preet Bharara: Because it’s still a crime.

Anne Milgram: Yes. To lie.

Preet Bharara: To lie. It’s not the separate crime of perjury that it would be if you were under oath.

Anne Milgram: Right.

Preet Bharara: But it’s basically six of one, half a dozen of the other, right?

Anne Milgram: Yes. And I think it’s probably—I do understand why we all watch TV, and we see movies, and everyone’s always sworn before they testify, and so—

Preet Bharara: Very dramatic.

Anne Milgram: It is. And so, I think that’s probably our expectation as a rule. But you and I have probably both done hundreds if not thousands of interviews of people where they are not sworn in, where you can still potentially bring 1001 charges or obstruction charges. And that has happened. And so—

Preet Bharara: Yeah, and that has value. And as I said a second ago, the proof that that has a value, and that’s significant and can have consequences is that two people have pled guilty—

Anne Milgram: Yes.

Preet Bharara: To 1001 charges already. You know what? And let’s take a call from a listener on this very issue.

Max: Hi, Preet. This is Max from El Cerrito, California. And I’m wondering with the news coming out this week that Mueller and his team are seeking to interview Trump, what is the main question you would be trying to answer? I’m sure Mueller has a lot more information than we know publicly. But given what we know, what is the big question you would be trying to answer?

Preet Bharara: Max, great question from California. One small point before I put Anne on the hotspot. And that is, it’s pronounced Mueller. It’s Bob Mueller. I have a thing for the mispronunciation of last names, given my last name. And what do you think is the big question here?

Anne Milgram: So, I think that’s a great question. There are a few ways to think about this. The first is the core basis for the special counsel, which is this investigation into Russia, and whether or not the Trump campaign colluded with the Russians in hacking the election and releasing these emails. So, that’s one area of potential questioning. I think the areas that are more likely to be the focus of the conversation will be related to the obstruction questions, to the firing of Michael Flynn, to the firing of Jim Comey, to all the sort of pieces that we now know went around that. You’ve got more than two weeks when Flynn is in the White House after the White House has been told that Flynn is potentially compromised because he’s been untruthful in his reports about his conversation with the Russian ambassador. What happened during that time? You’ve got a number of known comments by Trump around did he or did he not have these conversations with Jim Comey asking for loyalty, asking him to go—to basically let Flynn go. Then the conversations with the Russians in the White House, about this Russian problem. So, you’ve got a lot of pieces where you’re gonna want to fill in, plus all the things that you and I don’t know sitting here because we don’t know what Flynn has said, and we don’t know what other folks like Papadopoulos and potentially others have said.

Preet Bharara: So, let’s talk about the danger and risk, then, to Trump, either in a grand jury setting or in a voluntary interview with agents to not being truthful. So, let’s say he’s asked the question, did you ask Jim Comey for loyalty, and did you ask Jim Comey to let go of the Flynn investigation? And Trump says, no, I never did that. I never said that. If there is, on the other hand, on the other side of that, Jim Comey’s potential testimony, his contemporaneous notes of that, other reasons to believe that Comey’s telling the truth, it’s kind of a “he said, he said,” is that a viable case of making a false statement?

Anne Milgram: So, yeah. I mean, I think the question when it comes down to this is always, can you prove that the statement was false? And so, we have Comey making this contemporaneous writing. We also have some evidence from conversations that have been reported with then Chief of Staff Priebus about him making notes about conversations when the president had called Comey and asked him to say publicly that Trump wasn’t a subject of the investigation.

Preet Bharara: Right.

Anne Milgram: And so, the question I sort of would have is, is there other evidence like that out there related to these conversations? Because I think you and I both would feel in 1001, if it’s a “he said, he said” question, we’d want a little bit more than just—it’s not that we wouldn’t find one of the individuals, particularly Jim Comey, to be credible. I mean, he’s made a contemporaneous statement, and he’s publicly stated it. But it would be really important, I think, when you think about the 1001, you have to be absolutely assured that it’s correct. And again, the devil’s a little bit in the detail on the language. And so, as reported, it’s a statement essentially asking the head of the FBI to not investigate someone. And so, the words, I think, there specifically matter a lot. And you would also pull in all the folks Comey spoke to, right?

Preet Bharara: Right.

Anne Milgram: Immediately afterwards when he walked out. What did he tell people? Did he say, hey, the president just told me to drop the Flynn case? What does that look like? And so, if you could prove—if you could get that kind of corroboration, which is what prosecutors always look for, which is what some evidence that what someone like Jim Comey is saying is true independent evidence, then you can bring, I think, the 1001. If Trump were to say, we never had that conversation. I didn’t even mention Flynn.

Preet Bharara: That’s when the lack of a recording of the conversation between—that’s when, oh lordy, I hope there are tapes comes in handy, right? Because the phraseology matters. Now, the other thing about how those questions are answered is this: In the hypothetical I posed, I was talking about Donald Trump making a flat statement of fact, a flat denial of something.

Anne Milgram: A categorical denial, yeah.

Preet Bharara: Right. Which most lawyers will tell their clients, maybe that’s not the best thing to do when the interview is fraught with peril for you, which is back to a false statement charge. And that’s why, as you and I both know, one of the most common phrases you hear—and people see this in congressional testimony all the time, because that’s public, but also in private depositions and in interviews, it is the three words, the middle word being a contraction. I don’t recall.

Anne Milgram: Yes.

Preet Bharara: Do you think Trump is gonna use weasel words, or not?

Anne Milgram: I think we have both probably heard that a million times—

Preet Bharara: Yes.

Anne Milgram: In testimony from other—from criminal defendants. But I have also heard it many times from my own witnesses, particularly law enforcement witnesses.

Preet Bharara: Right.

Anne Milgram: And so, completely that that is a very real possibility. I think what else is a real possibility is the sort of admit what you can’t deny, deny what you can’t admit. And so, the—yeah, I had a conversation with—for example, it could be something like, yeah, I had a conversation with Comey. And I said Flynn was a good guy, but I never asked him to do anything related to an investigation, and I don’t know why he would have—you know, some admission of, yeah, there was some conversation, but it wasn’t a request to drop a case. And so, I see that as possible as well.

Preet Bharara: Let’s take another call.

Andre: This is Andre from Concord, California. Just curious, I was reading the New York Times article, which it appears [?to relate] to Attorney General Jeff Sessions was trying to get dirt on Mr. Comey. Obviously, they undermined him. I’m just curious if that implies that the USAG was complicit in attempting to obstruct justice. It seems like an odd combination. Just curious what your impressions of that might be. Thanks.

Preet Bharara: Thanks, Andre. So, why don’t we—Anne, why don’t we spend a few minutes talking about the role or non-role of the Attorney General of the United States, who was recused. The president’s upset that he recused. There’s also in that article that was referred to in the call, the suggestion that the White House counsel Don McGahn tried to get Sessions not to recuse. But then there’s a little bit about purportedly that Sessions asked someone for dirt on Jim Comey. My initial quick reaction over here is I don’t know what that means. I don’t know why there would have been any assumption that there was dirt, what kind of dirt we’re talking about, why somebody in one branch of government, the executive branch, would go out of his way to ask a staffer in another branch in the Congress for dirt.

Anne Milgram: I think also, there’s a question as to whether it was directed by Sessions. The—

Preet Bharara: Yeah. So, are you underwhelmed, by that report?

Anne Milgram: Well, I think a lot of the reporting is very interesting on the question of Trump lobbying to not have Sessions recuse himself, because—and the implication is that he wanted the protection of Sessions there to not allow these investigations to go forward. We know the devil’s in the details on that too. But I think that is something that the special counsel’s office will look at and want to understand, and what was said, and what the intent behind that was—why he wanted Sessions in place. The piece about the staffer, I think it feels a little strange to me. I mean, it feels strange to me to have the Attorney General of the United States have a member of his staff go out and look for dirt on the sitting head of the FBI, right?

Preet Bharara: That’s bad, right? If that’s true—

Anne Milgram: It’s terrible.

Preet Bharara: I think I said if that’s true, then he should go.

Anne Milgram: It’s completely outrageous.

Preet Bharara: Not because it’s a crime.

Anne Milgram: Yes.

Preet Bharara: Because it’s unprofessional. But there’s another aspect of that that wasn’t mentioned in the call. Again, I don’t know if it’s true. It was defined during Jim Comey—and that Sessions—again, according to the article, said, “I want a negative article or a derogatory article on Jim Comey every day.”

Anne Milgram: Yes, which is—would be also stunning if it were true.

Preet Bharara: Right.

Anne Milgram: And I think the way that I’ve seen the United States Department of Justice work, and the way I think you probably have as well, is it’s hard to imagine a senior aide to the United States Attorney General freelancing like that.

Preet Bharara: Right.

Anne Milgram: That being said, there’s no evidence at this point that it was directed by Sessions or by a senior member of Sessions’ team. But I would want to understand more about that. I certainly would want to know more about it. But it does feel incredibly strange to me also. And Jim Comey is not the guy who you think—when you think about getting dirt on somebody, it’s not Jim Comey. At that point, if Sessions was already recusing—

Preet Bharara: His mistakes have been public.

Anne Milgram: Yes. Yes. And at that point, if Sessions is already recusing, then the dirt on Comey, is it to set it up so Trump can fire him? Is it to set it up so Comey resigns? It’s a little bit unclear to me what the endgame there is. If it’s true, and it may be true, we just—I feel like we don’t have enough to know whether that’s accurate.

Preet Bharara: Also, just as an overall how your government works kind of issue, they’re on the same team. The FBI Director, the Attorney General.

Anne Milgram: That’s a good point, yeah.

Preet Bharara: They’re in the same family.

Anne Milgram: The FBI Director works for the Attorney General.

Preet Bharara: Yeah. I mean—

Anne Milgram: As independent, but—

Preet Bharara: To an extent.

Anne Milgram: But technically, right? But technically, he’s within the department.

Preet Bharara: Right, but like in any institution, there are fights. There are turf fights.

Anne Milgram: All the time.

Preet Bharara: I had—we had fights, arguments, rivalries. And there’s a robust exchange of opinions, and some people don’t agree. But you keep that within the department. And the idea you go outside to try to sully someone is something you see in politics; you don’t see in the department.

Anne Milgram: Yeah, and to put it in the front page of the newspaper, for sure.

Preet Bharara: Correct. So, if Sessions did something like that, given all the caveats, and we’ve kind of—maybe not everyone will agree with how dismissive we’ve been of the report because it just doesn’t seem so logical and credible, what does it do to the obstruction analysis?

Anne Milgram: This is a little bit tricky. And a lot of times, when you think about crime, you think about a single act, right? So, a shooting, or a stabbing, or a theft of something. And there’s a single act where if you can prove that it was this person who committed that act, you have a completed crime. Obstruction can be more complicated, because it’s often not one single thing. It may be multiple things. And so, here, as we talk about it, we talk about, for example, statements by Trump to Jim Comey, the firing of Jim Comey, conversations with Comey about Flynn. And then, in the context of all of this, this conversation about I don’t want Sessions to recuse himself. And what, if anything, Sessions was doing, if he did anything, to stop the investigation from going forward. And so, those are the kind of questions that I do think are relevant to Mueller’s inquiry when it comes to the obstruction side of were people trying to stop the investigation on Russia and associations with the Trump campaign? Were they trying to stop that from going forward? And were they doing it with the necessary corrupt intent to do that, and were they trying to stop either by getting people to lie, not tell the truth, by destroying evidence? I mean, whatever sort of examples of that, or just to not prosecute a case, to basically sort of throw a case. That presumes, by the way, that there was a case to throw. For the purposes of obstruction—

Preet Bharara: There need not have been, right?

Anne Milgram: Right, exactly. And that’s an important point too, right? I mean, at the time that people may be obstructing justice, they may not know, actually, whether or not the case could be charged, and they could still be taking steps to prevent law enforcement and prosecutors from understanding what happened. And so, I think this Sessions piece is a part of the puzzle. On its own, I don’t think that constitutes obstruction. But again, I think obstruction can be a number of things. And when it comes to proving intent, there are a lot of conversations that you’re gonna want access to to understand what was driving somebody to do the things that they did.

Preet Bharara: You and I understand that, having been in law enforcement, that if you lie or obstruct in some way an investigation, even if, ultimately, as you just said, there was no case to be mad in the underlying investigation, it’s still a crime, and it’s still an important crime. I think you and I both agree, because it’s like throwing sand in the eyes of the umpire. And if you don’t make it a point to prosecute and hold accountable people who will just willy-nilly lie to investigators, you can’t uncover the truth. You can’t hold people accountable. It sets a terrible precedent. It’s bad for deterrents. All those other good law enforcement, I think, and justice-delivering reasons why you prosecute such a person.

Anne Milgram: Also, I mean, it’s often the cover-up, not the crime.

Preet Bharara: Correct.

Anne Milgram: And so, I can’t tell you how many juries I’ve had where what really gets them is the attempt to cover up, even if it’s not—

Preet Bharara: It’s the lie. Yeah.

Anne Milgram: It’s the lie. It’s not often—sometimes the initial is not such a big deal or not even charged, but it’s the cover-up that really sort of galls people.

Preet Bharara: So, as a principle, we agree with that, and in practice, as you mentioned, you’ve seen that unfold in that way in court, and it resonates with juries. But here’s my question. This is not a garden variety case. And much of it is in the court of public opinion. Maybe it’ll be in Congress, if there’s ultimately a case to be brought. But what do you think will be—fast-forwarding a little bit, what do you think will be the reaction, politically and in terms of acceptance of what Mueller does and the credibility of the Mueller team, if at the end of the day, it is clear that there was no underlying crime that could be proved, but the president and/or other people obstructed because they didn’t want an investigation to go forward. But that investigation, if allowed to go unfettered, would not have resulted in a charge. How do you think people are gonna react to that?

Anne Milgram: Well, it’s a great question. But I do think—

Preet Bharara: And Trump will react.

Anne Milgram: Yes.

Preet Bharara: Will say, I don’t understand.

Anne Milgram: There will immediately be claims that the investigation’s not legitimate because the underlying allegations were not proven. And if you listen to Trump’s lawyers, they always talk about there’s no evidence of collusion. They never talk about whether there’s evidence of obstruction, really. I mean, the conversation is often about this collusion question. And so, maybe that is part of a setup, that if it comes down to that there’s only evidence of obstruction, to basically say that that’s not legitimate. So, I think there are a few points. One, as you and I both know, this is done very frequently in the American criminal justice system at the state, local, at the federal level, and it is to ensure the integrity of investigations. And it’s critically important that we be able to understand whether or not crimes were committed, and that people be forthright in those conversations. Whether it’s with an FBI agent or sitting in a grand jury, I think that there are core values around that. What I think is the more political side of this question of how people will take it, my first job was in the Manhattan DA’s office with Robert Morgenthau. And we saw no politics. I mean, he saw his job, and I love him for this, to basically have the assistants do their jobs without fear or favor, without any concern about politics.

Now, I don’t know whether he was getting calls from politicians, and you and I can talk about this just for a second, having both done a lot of political corruption work. When I was AG in New Jersey, we did a lot of political corruption work. We prosecuted Democrats and Republicans. I similarly saw it as my job to protect the lawyers and the investigators on our team—we had a pretty large statewide team—from any politics. But I did field calls all the time from people in elected office who didn’t want us to do investigations, right? I mean, some of it is—

Preet Bharara: Did you hang up on them?

Anne Milgram: I did hang up on them.

Preet Bharara: Good.

Anne Milgram: But some of it is stunning, and I think the importance of not having fear or favor or politics color the criminal prosecution space is so critically important to me. And it’s how I was raised and how I was trained. And so, the obstruction piece matters so much to me. And it matters so much, I think, particularly in corruption cases, where we have to make sure that there’s a way that we can understand what’s happened. You’re often dealing with people who have extraordinary amounts of influence and power, and they want to put their thumb on the scales of justice and convince people not to cooperate, or not to come forward, or not to be forthright, or not supply evidence. And that is extremely problematic.

Preet Bharara: So, here’s another thing that happens sometimes in investigations, particularly ones that are a big deal, and the stakes are high. And there’s nothing that’s higher stakes that I’ve seen in recent memory than this one, because it involves a sitting president of the United States of America. So, you get pushback, not only from the president’s lawyers, but also from political allies and others. And so, one of the others of pushback I want to talk about—it’s not absurd—is this idea that the investigation is tainted and there is bias on the prosecution team that includes FBI agents. And most notably, the revelation that there was an FBI agent who was assigned to the special counsel’s office who was sending texts to someone suggesting that he didn’t like the president. This was before the election. My understanding is that as soon as that became known to Bob Mueller, you and I are probably right in guessing that Mueller would have been very angry about that, to be put in that spot.

Anne Milgram: Yes, I believe so. Yeah.

Preet Bharara: And that person was removed. But on the basis of the fact that this person, this one agent out of many, was on the prosecution team, that the investigation should shut down, and it’s forever, absolutely, and permanently tainted, I have a view on that, which I’ll share in a minute. What’s your view on that?

Anne Milgram: It is the most high profile case that I can think of in recent memory. And obviously, it’s the most high profile case going right now. And in my view, it has become very politicized. I think, and we see this in both parties, but I think there’s a very strong effort right now to frame the conversation around Mueller and what he’s doing. And so, for someone like me, who thinks of Mueller as this unimpeachable person, to see him—these incredible efforts to impeach him on a daily basis, this strikes me as one of those many things. And I want to agree with you that this to me shows incredibly poor judgment on the part of the FBI agent, and is problematic, and say without question, Mueller did the right thing. The minute he found out about it, he fired the agent, the lawyer who was involved, and really, I think, tried to separate the investigation from it. I also agree with you that it would have caused him great distress to know that this was happening on his team.

I do want to put this in the context, a little bit, of the old law school adage that when you have the facts, pound the facts. When you have the law, pound the law. When you don’t have either, pound the table and yell really loudly. And we don’t even know sitting here whether Mueller has the facts or the law. What we do know is that the other side, the people who are Trump supporters, are very much trying to discredit Mueller and his team. And so, there’s a lot of pounding of the table about everything that could potentially raise issues. And so, again, trying to reframe this conversation not about the criminal prosecution and the criminal process, but about is Bob Mueller biased? Is his team biased? And so, I think a lot of this has to be seen through that lens.

Preet Bharara: Right. So, let’s actually pound the table on the legal point that I don’t know is fully appreciated by people who are thinking about this or talking about this in the public. And that is what the consequence is for a case, like this case or any other case, when you have an agent who looks like he may have been biased in some way or behaved inappropriately, or crossed some line. Because the dirty secret of life and humanity is people sometimes make mistakes, and sometimes people do bad things. And sometimes, a cop commits a crime, or an agent has too close a relationship with a witness, or has a beef with the victim, or some other thing that not only doesn’t look good, but requires them to be moved from a case. What I want to talk about for a minute is saying, first of all, there’s no excuse for what this agent did. It was terrible judgment. He should have been removed. That was the right thing. But what’s the consequence for the whole thing? And the analogy—you and I were talking about this recently—imagine there’s a person who goes into a house, and he kills an entire family, a four-person family. And there’s all sorts of evidence. There’s DNA evidence, there’s ballistic evidence, there’s witnesses. And it turns out, and it sometimes happens that one of the six agents or cops who’s investigating that murder did something bad, or had a bias, and needs to be removed from the case. And I’m not comparing these things, but just to use a hypothetical for the sake of discussion, it doesn’t mean that there wasn’t a murder. And it doesn’t mean that—

Anne Milgram: That’s correct.

Preet Bharara: The person who committed the murder gets a get out of jail free card and can go home to kill other people. Sometimes investigations can become tainted, and we hate it when it happens, and disciplinary action could be taken. People can be fired, removed, disbarred if it’s an attorney. There are all sorts of sanctions to be imposed on the bad-acting party. But it’s still gonna be true that you have to prove beyond a reasonable doubt your facts, based on corroboration and other witnesses. And once this tainted agent is taken off, that doesn’t mean, and courts will not hold, that the whole case has to be tanked.

Anne Milgram: That’s right. And if we think about this, take it even one step further, the grand jury still is called upon to decide whether or not a crime was committed. It’s more likely than not that a crime was committed by this specific person. And some of the complication, I think, with the investigation is so much of it has to be behind closed doors. Grand juries are secret. There’s a lot of reasons why we don’t know a lot of the pieces that are happening. But the moment a case is indicted, it becomes a very public and very transparent process, through which the government is required to prove beyond a reasonable doubt that someone is guilty. And so, certainly, the defense lawyers could raise charges of bias, or allegations that the indictment should be thrown out because it was politically motivated. All that would be heard by a judge. The government would have the opportunity to respond, and the case goes forward. And again, at the end of the day, the question is whether a crime was committed. And that can be proven beyond a reasonable doubt. And so, this is an example of bad judgment.

I agree with you. People are people, and we often see mistakes and problems, and that’s normal in the criminal justice system. But the cases, the way that they move forward, all of these things will be tested. And the defense lawyers will have the opportunity to challenge all of it in a court of law in front of the public. And so, there’ll be a real opportunity to vet these questions. And again, at the end of the day, it will be up to a jury to decide, are people guilty of the crimes.

Preet Bharara: Okay. Why don’t we take another call?

Debbie: Hey, Preet. This is Debbie Clark from [?Shorterville], Alabama. My question is, with Trump, can he pardon himself, and do you feel that Mueller is going to give the cases to the state to go ahead and prosecute once and if Trump does pardon all these people? Thank you, sir. Have a great day.

Preet Bharara: Again with the Mueller.

Anne Milgram: Isn’t that the name of a spaghetti or something? Mueller.

Preet Bharara: I don’t know, but we have to be nice to people from Alabama these week.

Anne Milgram: Yes.

Preet Bharara: They have much to celebrate. Great questions. So, we spent all this time talking about what happens in the investigation, what evidence there might be, what charges could be brought, what referrals could be made for impeachment, if any. But of course, there are possibilities of all of this being short-circuited, and two categories of them, as I think about it. One is a lot of pardons, and the other is the shutdown of special counsel. So, this person was asking about pardons. Do you have, A, a prediction, and B, a thought on the propriety of such pardons, Anne?

Anne Milgram: I’m gonna stay away from predictions.

Preet Bharara: Very smart.

Anne Milgram: There’s, I think, a ton of things on 2017 none of us would have guessed. And I’m sure that will be true of 2018 too. So, I think the pardon question is a really important one. And there is an Office of Legal Counsel, which is an office in the Department of Justice. There’s an opinion that was written during the Nixon era, essentially saying that the president cannot pardon himself. Essentially, the same person can’t be judge and jury in the same case. And that’s a long-held established principle in American jurisprudence.

Preet Bharara: Can we just pause on that for a second?

Anne Milgram: Yeah.

Preet Bharara: And just explain to folks the significance of the Office of Legal Counsel and what that means?

Anne Milgram: So, the Office of Legal Counsel, they really are the ones who interpret the law for the United States Department of Justice and for the president when it comes to questions like this. It is an unbelievably important office, and generally has the last word. And so, when you look at who argues cases before the Supreme Court, it comes out of the Office of Legal Counsel. The Solicitor General’s Office works closely with them. But OLC, they’re really in charge of driving the policy and what the interpretation of the law is. And so, that—

Preet Bharara: It’s a big deal.

Anne Milgram: It’s a big deal. That’s a better way to say it. It’s a big deal.

Preet Bharara: Yeah. That’s a legal term.

Anne Milgram: Let’s cut the other stuff.

Preet Bharara: No, that was—look, because I don’t—and people—if the president just waits for people to get indicted and he pardons them, is that in any way possible to be brought into an obstruction case?

Anne Milgram: So—

Preet Bharara: It seems odd.

Anne Milgram: It seems very odd. I mean, I think the short answer’s probably no.

Preet Bharara: So, the second part of the question gets to a point that a lot of people have made. And it’s worth spending a minute or two on it. And that is, the president can pardon other people in connection with a federal charge, but we have a federal system here, so there are federal prosecutors, and federal laws, and also local and state laws. And so, if any member of Donald Trump’s administration, associates, or family members is charged by a state attorney general or a district attorney, the Constitution does not give him the right to do that. That has to be done by the governor of the state, if at all. And so, the theory has been circulating that Bob Mueller has made an arrangement with the New York Attorney General, Eric Schneiderman, with whom I worked when I was US Attorney, to ensure the inability of the president to derail accountability because there will also be these state charges. And that’s a beautiful and intelligent and crafty marriage that has taken place.

And I want to ask you about this in a moment, Anne, because you’re the attorney general. But my quick response to that is, I’m not sure that that’s true—that generally speaking, and I mean no offense to anyone, but Anne, you were a federal prosecutor and also a state prosecutor. Generally speaking, the feds, when they were investigating something, didn’t have that much interest in sharing things with the locals.

Anne Milgram: Completely. Yup.

Preet Bharara: Because they thought, we got this. On occasion, you felt the need to work with your counterparts in the DA’s office or the state attorney general’s office, because those people, who were independently elected and have independent mandate, themselves are looking at some of the stuff that you’re looking at. And you don’t want them to get in your way, and to a lesser extent, vice versa. And so, you do what adults do, and you collaborate with and you coordinate with the local prosecutor so you’re not screwing up each other’s cases. And if they—yeah.

Anne Milgram: And sometimes, even there are different laws. And so, the federal government may have one set of laws. The state has a different. And there can be all kinds of reasons why cases would go state or federal if both sides are looking at them. And so, I had regular meetings with the head of the FBI, with the US Attorney’s Office when I was AG, and for certain, this is Bob Mueller’s case. This is the special counsel’s case. I see no version of events in which he has come to any agreement with any state AG on this.

Preet Bharara: Including Eric Schneiderman.

Anne Milgram: Including Eric Schneiderman. At the end of the case, if there was a reason that the special counsel’s office had reason to believe that a state crime was committed that could be proven, they could make a referral. They could have the grand jury make—

Preet Bharara: And you got those, right?

Anne Milgram: Yes.

Preet Bharara: Yes. And we made referrals like that too.

Anne Milgram: Yes. And that is a totally legitimate thing to do. But in the middle of an investigation, I find that to be completely not believable. If you and I are thinking about how this plays out—and I think there’s a lot of sort of strategic thinking and theories about how it can go, and we just—we’ve talked about a couple, some of which I think are potentially viable, and some of which I don’t. But let’s say, hypothetically, we get to the end of the investigation, and Mueller has found evidence of obstruction of justice.

Preet Bharara: On the part of?

Anne Milgram: On the part of the president.

Preet Bharara: Yeah.

Anne Milgram: Potentially other charges. But this is a deep hypothetical. But let’s say we get to that point. Does he charge him criminally? Does he refer him to the House? I had sort of—you and I have talked about this before, and I had sort of thought, well, it has to be a referral to the House. But I’ve since read more about it, and the plain language of the Constitution does not make the President of the United States immune from prosecution.

Preet Bharara: But there’s an OLC opinion on this too.

Anne Milgram: There’s an OLC opinion on it that was done by Bill Clinton’s Department of Justice that says you can’t do it.

Preet Bharara: That says a sitting president cannot be indicted criminally by the feds.

Anne Milgram: Yes.

Preet Bharara: So, I don’t know. The OLC, does that—

Anne Milgram: I don’t know. Does that bind it?

Preet Bharara: Does that govern or not?

Anne Milgram: And there’s never been an example of it having been done.

Preet Bharara: All right, look, I don’t know. But it seems to me, off the top of my head, that if you were in a position to decide something that is as weighty as bringing a federal criminal charge against a sitting president of the United States, that you want the authority to be able to do that to be crystal clear. And even if there’s a good argument—I think. And even if there’s a good argument—

Anne Milgram: And I think that’s who Bob Mueller is, too.

Preet Bharara: Yeah. And I think even if there’s—and even if there’s an argument that—by smart people, and a new OLC opinion that says, well, based on the structure of the Constitution, structure and language of the Constitution, etc., the arguments that lawyers, constitutional lawyers, make, a sitting president can be charged, given what a big deal it is and given the need for there to be credibility on the decisions made by the special counsel’s office, and given the faith that we want people to have in the process, it strikes me as not everyone’s gonna love this. It strikes me as not a good idea for the long-term faith and confidence in the rule of law. To hang your hat on that, I think, is not a great idea, and doesn’t strike me as the kind of person Bob Mueller is.

Anne Milgram: Yeah. No, I agree. I agree. I think it’s just a fascinating question, but at the end of the day, I think Mueller will be like he always is, which is straight down the middle of the road. He’ll stay within the confines of what’s established and reasonable.

Preet Bharara: Yeah. But my comment to that is—and this is not in the context of this particular case, because some of the allegations, obstruction could be serious, and conspiracy to undermine the election could be serious. But I could imagine a different circumstance. And again, I’m not talking about this administration. You could imagine a circumstance in which a special counsel uncovers deeply, deeply, deeply, even worse crimes. Conspiracy to murder, get aid to the enemy, all sorts of even worse things that everyone would agree there’s overwhelming evidence of.

Anne Milgram: That you should bring a criminal charge on—

Preet Bharara: You bring the criminal charge.

Anne Milgram: And go to the courts on it. Yup.

Preet Bharara: And go to the courts because it’s so dire.

Anne Milgram: Right.

Preet Bharara: And these are judgments that prosecutors have to make. And a little less clarity in the law can sometimes be counterbalanced by overwhelming clarity of bad conduct and harm. That’s my thought. Let’s take another call.

Noel: Hi, Preet. My name is Noel Rodgers. I’m calling from Tulsa, Oklahoma. I just want to know, are you a stable genius?

Anne Milgram: That’s a great question.

Preet Bharara: I believe the quote—I believe the quote from the president was a very stable genius. I am not. But I know someone who is. Her name is Anne Milgram.

Anne Milgram: I was gonna say, I think you are.

Preet Bharara: I’m neither stable nor a genius. Anne, it’s been like three hours talking about this. And I appreciate your coming in. I just want to say to people, I had ten more items on my list. What’s gonna become of Michael Flynn? How long it’s gonna take for the trial against Manafort to take place. Are there further shoes to drop with respect to some people we’ve been talking about, Carter Page and others? We can’t get to all of it, because it’s complicated, and it’s hard to sort of do an explanation of things and cover a lot of topics, like, you know, you sometimes see on TV, where people have three or four minutes to talk about it. So, we took a deep dive on a few issues, and hopefully we’ll see you back here and talk about this some more in the future.

Anne Milgram: Thanks for having me.

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