*Episode published 3/5/2021

Elie Honig:

Hi everyone. Every Friday on Third Degree, I talk with a rotating cast of some of the nation’s top law students about breaking legal news, compelling cases and what it means to lead a life in the law. Those Friday conversations will be part of the CAFE Insider membership starting next week. The Monday and Wednesday episodes will continue to be available for free in this feed. CAFE Insiders enjoy access to exclusive content, including the CAFE Insider podcast co-hosted by Preet Bharara and Anne Milgram, audio essays from CAFE’s slate of contributors, including me, bonus content from Stay Tuned and Doing Justice, live events and more. You can try out the membership free for two weeks and for a limited time get 50% off the usual price for an annual membership. Just head to café.com/insider. That’s café.com/insider. And use the code JUSTICE.

And now, on to the show.

From CAFE, this is Third Degree. I’m Elie Honig. Welcome back, everybody. Well, it is Friday and as you probably know by now, we like to change it up a little bit on Fridays. Mondays and Wednesdays, you get 10 minutes from me on whatever the biggest legal story of the day is, and Fridays we go a little longer and I’m joined by one of our superb cast of rotating law student co-hosts. And today we’ve got a new co-host to introduce. I got to tell you, this one is blowing my mind a little bit because our co-host today is Eli Nachmany. Now, I am confident saying this is the first time there’s ever been a show where both of the co-hosts have the first name Ellie. So, Eli Nachmany, welcome to Third Degree.

Eli Nachmany:

Well, other Elie, it is so wonderful to be on and thank you for having me.

Elie Honig:

And let me just draw out the comparison between us a little more if I could for our audience. You hail from what state?

Eli Nachmany:

The great state of New Jersey. Best state in the union.

Elie Honig:

As do I, of course. And you are currently a law student at what law school?

Eli Nachmany:

Harvard Law School.

Elie Honig:

Okay. That’s also where I went many, many moons ago. So, when I met you, my mind was a little bit blown. There is another Eli from New Jersey who goes to Harvard Law School. We’re going to need some way to differentiate between ourselves. I don’t want to diminish you in any way, but I’ll probably call you Young Eli or Eli Part Two or something. In fairness, I was here first. I mean, I came around in 1975. You probably didn’t roll around ’til the nineties or something, right?

Eli Nachmany:

Yes, absolutely. In fact, I’ll amend what I said earlier. I think I’m the other Eli.

Elie Honig:

Yes. I was going to make sure we were clear on that. No, I kid you, Eli. It’s great to have you here. So, I wanted to start today, Eli, by talking to you a bit about the Manhattan District Attorney’s ongoing investigation into the Trump organization. And it’s becoming clearer and clearer that this investigation is growing. We’ve seen a couple of important indicators. First of all, the Manhattan DA has hired an outside forensic firm to work on this case. And I’ll tell you, that’s unusual. That’s something that I never saw in my 14 years as a prosecutor, this idea of let’s hire an outside company to come in and do some of our analysis. I wonder, does that mean the DA does not have the capability or perhaps are they looking for some sort of cover?

Relatedly, we’ve learned that the Manhattan DA has hired a former SDNY federal prosecutor, a man named Mark Pomerantz. I didn’t know him. He was there before I was. But by all accounts, he’s a high powered attorney with a lot of real prosecutorial experience, including in the racketeering area. When I heard that, I had a similar question. That’s fairly unusual. Why are they bringing him in? Is it a question of capacity or is it a question of looking for perhaps political cover either way?

We know that the Manhattan DA now has the President’s tax returns and we know, and this is where I wanted to focus for today, that the Manhattan DA has been interviewing Michael Cohen. Yes, the Michael Cohen. We know that for sure because just a couple weeks ago, I was on CNN talking about Michael Cohen and I said that he could be, could be, the star witness in this case. And Michael Cohen then tweeted in response to what I said. He said, “Not could be. Will be the star witness.”

And let me pose the question to you this way. If you were a prosecutor, would you be comfortable resting a major case on the back of a star witness, Michael Cohen?

Eli Nachmany:

Well, I think it’s a hard question, but you have to look at the totality of the circumstances here. Right? There’s clearly a trade-off between the information that Michael Cohen has or purports to have and the bias that he’s exhibited and also a bit of a checkered past. I mean, this is somebody who pled guilty to lying to Congress at a point that was quite recent. So, if I were a prosecutor, I suppose I would want more. But Elie, let me turn it back on you and ask, if you’re a prosecutor and you’re pursuing an investigation into a very high profile target, somebody like a former President, do you need a higher standard here or is there something more that you are looking for than a run of the mill prosecution?

Elie Honig:

Yeah. So, that’s a great question. So, let me start with this. One thing that people misunderstand, I think, about prosecution in general is the extent to which prosecutors rely on cooperating witnesses, right? The TV shows don’t always show you this. In the TV shows, everything gets solved by some sort of lab magic, by blood spatters and profilers and things like that. But reality is most cases that get made, especially against organizations, are built on cooperating witnesses. When I used to do mob cases, the best cases we did came from former mobsters who had turned on their former colleagues.

And in a lot of respects, Michael Cohen is a typical cooperating witness. Like you said, Eli, he has baggage. He has admitted to crimes, including perjury. That’s naturally how these things work. Who’s going to be able to bring you into a corrupt organization or any organization better than a person who was once part of it? And so, the key question, really… And this gets to, I think, the key of… The heart of the question that you just asked me, is how strongly is Michael Cohen corroborated? Is he backed up by the things he’s said? If you’re looking at a case like this, if you’re looking at potentially charging a former President, do you need more proof as a matter of law? Of course not. You need to be able to satisfy a grand jury that you have what’s called a preponderance of the evidence, meaning more likely than not, 50.1%. But that’s not enough. Most prosecutors will tell you they won’t seek to indict a case unless and until they’re satisfied they can prove their case to a trial jury beyond a reasonable doubt.

Now, that’s all a minimum. You have to have that. You never can, you never should charge a case without that. But to your question, as a practical matter, do you need more? Do you want more if you’re going to charge a former President? And the answer, as a practical matter, is yes, you do. I’m not saying you have to have more, but I think any responsible prosecutor is going to say, “Before I stick my neck out and put my entire professional reputation on the line and bring a charge against Donald Trump or any other enormously powerful figure, you better be darn sure that you have the goods to prove it.”

And so, if you’re looking at Michael Cohen, you really have to ask is he backed up by other evidence, by other witnesses, by those documents? It’s part of the reason that documents are so important here, that the tax returns can be so important here. What do you make of that, Eli? Do you think it’s fair? Do you think it’s right that prosecutors, generally speaking, are going to need to make extra sure that they have a case they can prove if they’re looking at an extremely powerful person like Donald Trump?

Eli Nachmany:

I think it does, and particularly in the political context, when you have somebody who has millions upon millions of followers that… If you’re going to bring a case like this, there are probably two things that you’re thinking about. One is, of course, justice in the traditional criminal justice sense. But the second is legitimacy. And so, if you’re going to bring this in a way that it’s going to be seen by the general public as legitimate, I would think that you would, as a practical matter, want more. Now, how much that actually colors the prosecutor’s thinking is an open question and I imagine different prosecutors come out different ways on this. But at the same time, I think it demonstrates the way that the prosecutor’s office in New York is thinking about it, that they are devoting so much time and so many resources to other different avenues, whether it’s document review or bringing in other folks who have other kinds of expertise, that they may not be comfortable themselves hanging their hat in full on Michael Cohen.

Elie Honig:

Yeah. I think that’s a good read and that’s a read that I share as an experienced prosecutor. They’re not willing to bank a case on the word of Michael Cohen standing alone, and that’s why I think they’re being so thorough, so diligent and getting all the documents and trying to get to other witnesses. There’s new reporting this week that they’re focusing on Allen Weisselberg, who was sort of a financial gatekeeper for The Trump Organization. They want to make sure, I believe, that anything that they have Michael Cohen testify about, or as much as humanly possible, is backed up and corroborated by something else. That is a classic dilemma and a classic issue that prosecutors have to deal with.

Now, Eli, I want to talk a little more about this case, but before we do, I want to get a little bit more information on you. I already gave away that you’re from New Jersey and you’re a student at Harvard Law School. But tell us a little bit about your own work experience and what you can maybe see yourself doing somewhere down the line as an attorney.

Eli Nachmany:

Happy to. So, I hail originally from Closter, New Jersey, from Bergen County. I went to New York University and graduated from there in 2017 with a degree in sports management. After that, I spent two years working in the Trump administration. I was the speechwriter to the Secretary of the Interior for about a year and a half, and then after that, I was a domestic policy aide in The White House Office of American Innovation until I started Harvard in 2019. Here at Harvard, I’m now the incoming editor-in-chief of The Harvard Journal of Law and Public Policy, which is the premier forum for libertarian and conservative legal scholarship.

And you know, Elie, down the road, I think my interests now are moving more toward sports anti-trust law and also administrative law, government regulation and government regulatory litigation. So, my dream would be to be able to marry those two together in some sort of way, but we’ll see how it goes.

Elie Honig:

Sure. So, I have to notice. You have a conservative-leaning background. You are a student at Harvard Law School, which, generally speaking, I can tell you from my own experience and from knowing other people who work there and go there, tends to lean liberal. I don’t think that’s much of a controversial statement. How has it been for you to be a conservative, and I think a fairly outspoken conservative on the campus, where the majority of professors and students, I think, lean liberal?

Eli Nachmany:

You know, I think as an empirical matter, that’s right. But for me on a personal note, I’ve not really felt ostracized or a negative connotation with that. For me, it’s been more in classes that… The faculty, maybe they lean to the left, but they are scrupulous about making sure that all the different viewpoints are represented. And I think, Elie, one thing that I’ve found is that it’s maybe more about how you carry yourself, and so if you’re conservative and a jerk and people don’t like you, it maybe more the latter than the former.

Elie Honig:

Now, another important thing that people need to know about you. You are apparently a certified, in some fashion, barbeque judge. Do I have that right?

Eli Nachmany:

You have that exactly right. So, the Kansas City Barbeque Society is an organization that sanctions barbeque competitions across the country, and I did a class with them in July of 2019 and became certified as a barbeque judge. And actually, before COVID hit, got to judge a barbeque competition, which was a lot of fun. But that definitely makes it on the resume.

Elie Honig:

I love it. So, getting back to the Manhattan DA investigation, another interesting wrinkle here that I think has sort of been under-appreciated is Cy Vance’s situation. Now, Cy Vance is the current and longtime district attorney for Manhattan. But here’s the wrinkle. He’s not going to be for much longer. That office is up for election in 2021, this year, and all appearances are that Cy Vance will not be running again. The primary there is in June. Whoever wins the primary is, in all likelihood, going to get the position because Manhattan tends to lean so heavily Democratic. So, Cy Vance is really sort of a lame duck on his way out, and to me that creates some real complications, including first and foremost, does Cy Vance make a decision on this case, charge or no charge, before he leaves? Or does he leave it for whoever his successor will be?

And I wonder… And we talked about this at the beginning. Could this be part of the reason that Cy Vance has been bringing in outside experts? The outside accounting firm, the former federal prosecutor, Mark Pomerantz, to either give himself or give his successor some cover or to create some sort of continuity for if and when he moves along? Eli, do you have any reaction to Cy Vance’s situation and the sort of uncertainty of his situation and how that impacts the investigation?

Eli Nachmany:

Yeah. I think it raises a potentially fascinating legal question. So, in the Second Circuit, the former President argued that the subpoena should be invalidated for a number of reasons, one of which that it was drafted and sent in bad faith. And the crux of this argument was that the bad faith of the subpoena is reflected by the fact that it mirrored or nearly mirrored the subpoena the former President got from Congress. And so, former President argued that there was too much of a political motive with this and it should be struck down.

Now, the Second Circuit didn’t accept that argument, but I do wonder if that, in the context of a campaign, if you do have somebody who is elected to the DA’s office on the basis of I’m really going to go after this person, does that start to make the argument a bit more colorable about the political motivation? And I think it may be an open question. But I’d be interested for your thoughts on that.

Elie Honig:

Yeah. So, that… That is a great question and what you’re talking about here, Eli, is the Manhattan DA’s subpoena to get Donald Trump’s tax returns, which has gone through this long journey up and down the courts, but now has been resolved and the Manhattan DA does have those tax returns. And the argument that Trump’s lawyers made was he’s being singled out for political reasons. That was one of the arguments they made. Now, as you said, the court rejected that, but we now have a slate of candidates, about eight to 10 candidates, all of whom are vying to replace Cy Vance as the Manhattan DA and to really take the reins of this investigation, and they are all naturally being asked about the Trump investigation and they’re all making comments publicly about how they would handle it. And I think some of them have crossed the line. And I want to disclose, one of the candidates, Alvin Bragg, is a friend of mine and I’ve publicly supported him. We were SDNY colleagues. So, I want to make sure people understand that.

But I do think some of the candidates here have gone over the line, have crossed the line, in terms of things they’ve said publicly about how they will handle the Trump investigation. I’ll give you a couple examples of things that various candidates have said that I think are inappropriate. One said, quote, about Cy Vance, “He could have stopped a Trump presidency. Next.” Another said, quote, “Who can hold President Trump accountable? Your next Manhattan DA.” And then another said, regarding Ivanka Trump, quote, “You won’t get off so easy when I’m Manhattan DA.”

I think all of those comments are over the line because they suggest or they say outright, “Elect me so I can go after this one particular person or this one particular family.” I think that’s inappropriate. That is not what prosecutors ought to be about. And, as you said, Eli, can provide fodder for what could ultimately become a defense. If you don’t like Trump, if you want to see him prosecuted, fine. But imagine somebody was running for the position of Attorney General of the state of Delaware and imagine that that candidate decided to try to appeal to voters by promising to go after Joe Biden or to go after Hunter Biden and announcing, before taking office, “Vote for me so I can go after this family.” Would you have a problem with that? You should. And it should not [inaudible 00:16:27]… It should not depend on whether you’re a Republican or a Democrat. It should have to do with your view for the law itself and the way our process works.

Eli, what do you make of this? What do you make of some of the comments that we’ve seen from candidates to replace Cy Vance as DA?

Eli Nachmany:

Yeah, I think it creates a quite fascinating juxtaposition in which the candidates who are the loudest and the most vocal about wanting to prosecute the former President may be the ones in practice who are the least able to do so. And so, the approach that you advocate, I think, would be smarter from the perspective of somebody who actually wants to get the job done. But I think you’re right. It’s difficult when you’re on the campaign trail, particularly trying to break through a very crowded field of a number of candidates who are trying to distinguish themselves, that there likely is a political benefit in a very Democratic-leaning district like New York.

Elie Honig:

Yeah. I think it’s a great example, Eli, of one of these areas where there’s no hard and fast rule on it. There’s no legal prohibition on a candidate making comments like this. It’s just not the right way to do the job and it’s one of many areas that we’ve seen over the past few years where a lot of the quality of our process, of our criminal justice process, of our prosecutorial process, just comes down to the sort of integrity and the principles of the people involved.

So, we were talking about this and I want to talk about it more with you now. I know you prepared a question for me about sort of life as a real life, real world prosecutor in the Justice Department.

Eli Nachmany:

Yeah, absolutely. So, we’ve recently had a change in presidential administration, in particular, a change in the partisan valiance of the administration. I’m wondering for you, as somebody who’s a former federal prosecutor, does life change all that much for line prosecutors in the U.S. Attorney’s Offices when there is a change in presidential administration or the party in power and the U.S. Attorney in charge?

Elie Honig:

Yeah. That’s a great question that a lot of people have asked. And I’ll tell you, Eli, young Eli, the short answer is no, and that’s a really good thing. And I’m talking again about from the perspective, what I was, a line level prosecutor, meaning a prosecutor on the front lines appearing in court every day, doing indictments, doing trials, that kind of thing, which, by the way, is 99.5% or more percent of DOJ. I like to joke with Preet Bharara, who was my boss at a time, that I actually don’t remember the day he took over. And it’s true. I absolutely don’t. I think it’s because I was on trial at the time, so I was sort of very focused on that trial.

But I mean that as a compliment to him and as a statement about the way our system works in general. When we went from the Bush administration to the Obama administration, essentially right in the middle of my time as an AUSA, it made no difference to what I did or the vast majority of my colleagues did day to day. Now, as you say, there will be different priorities administration to administration, enforcement priorities, and I think that’s okay. That’s natural. For example, the Bush administration, when I started in 2004, was very focused on international terrorism. We weren’t that far removed from 9/11. And the Bush administration also had other policies, which I think weren’t super popular in the SDNY. For example, I remember very early on in my time, the Attorney General at the time was Alberto Gonzales and he came around. He was doing his tour of the U.S. Attorney’s Offices and he stood up in front of the entire personnel of the SDNY and he said, “We are going to crack down on obscenity cases.”

And if it wasn’t the Attorney General, I think the room would have probably erupted in laughter, but people were respectful enough to at least hold their laughter and wait ’til they got back to their desks to email each other about how ridiculous that is, to stand up in front of a bunch of mob prosecutors, terrorism prosecutors, corruption prosecutors, and say, “We’re going to focus on obscenity.” It didn’t really happen in the SDNY. Maybe it happened elsewhere.

But I guess the point is different administrations are entitled to have their own enforcement priorities. Under the Obama administration, there was a stronger focus on cyber crime, on financial fraud. I think the Biden and Merrick Garland DOJ is still in the process of figuring out what their exact policy and enforcement priorities will be. I see two coming through so far that I think are going to be big differences. One is Merrick Garland made a point at his hearing to talk about the dangers posed by domestic extremism, and I think that’s something that Donald Trump and Bill Barr were reluctant to acknowledge and take on directly. The other thing that I’m certain we’ll see a big change on is police, what’s called pattern and practice investigations. This was big under the Obama administration, where DOJ goes in and essentially monitors troubled police departments that have a demonstrated pattern or practice of racially disparate conduct. The Trump administration all but abandoned that and I think we can bet safely that that will be coming back under the Biden administration.

But I also want to say this, Eli, and I want to get your view on this. I think this transition is a little bit different than prior transitions that I’ve been part of because, in my view, and you know, I’m writing a book about this. Bill Barr, I believe, was so extreme in his malfeasance, in his abuse and misuse of power. I believe he lied to the public many times over on matters large and small, and I believe that he was a vehicle for and accelerated really unprecedented politicization of the Department of Justice. And so, will the change impact the nuts and bolts of the daily life for most AUSA’s? No. I don’t think it’ll be any different than prior transitions. But I do believe that this transition will have a bigger impact than normal on the morale of the department, the morale, the creditability of DOJ in the eyes of judges and the defense bar and the public and the way that really just those 99.5% of people who really have nothing to do with the politics feel about their jobs and about standing up in court to represent the United States.

So, I think this transition is a little different. Give me your take, Eli, on Bill Barr and sort of the work he did as Attorney General for those two years that he held the position.

Eli Nachmany:

Yeah. Look, I was a fan of Bill Barr and I thought Attorney General Barr was one of the strongest defenders of the executive power in a long time that we’ve seen as the Attorney General. I think for a while, the President was looking for somebody as the Attorney General who shared his views, particularly on executive power, and I think that will be one of Attorney General Barr’s legacy. I know you’re writing a book on a different topic, but as somebody interested in Constitutional law and executive power, some of the things that he said during his time as Attorney General, a speech that he gave to the Federalist Society, stand out as something I think will stand the test of time as one of the clearest explications of one Constitutional theory, the unitary executive theory, of what Article Two means.

Bill Barr:

In reality, the idea of the unitary executive does not go so much to the breadth of presidential power. It goes… Rather, the idea is that whatever the executive power may be, those powers must be exercised under the President’s supervision. This is not new and it’s not a theory. It’s a description of what the Framers did in Article Two.

Elie Honig:

Yeah. It’s interesting because I do talk about this quite a bit in my book. Of course, Bill Barr, I agree, was a classic sort of Federalist Society legal view, which I say is not necessarily inherently a problem. I think he went too far in promoting the all powerful executive branch, including writing opinion memos or having opinion memos authored under his watch that endorsed theories, including this absolute immunity, the idea that the executive branch has absolute right to refuse to comply with any Congressional subpoena. I argue that that goes too far as a matter of law.

Elie Honig:

My bigger problem with Bill Barr is his fundamental dishonesty, and I argue that he lied to the public many, many times on everything from the Mueller Report to his firing of the U.S. Attorney in the Southern District of New York to, in the lead up to the election, he was playing up the risk of massive voter fraud. Later on, after the election, he did a 180 and he said there was no evidence of that. But in the lead up to it, he fanned those flames. So, I criticize him for that.

Another thing… I’ll give a little bit of a sneak preview of my book, is Bill Barr’s beliefs go beyond the sort of strong executive Federalist Society view of government. Bill Barr, it turns out, has and has long held and acted on what I call a culture warrior view of his role in the world and the world of law. I don’t want to give away too much, but Bill Barr brought a lot of his own personal religious beliefs into play in a way that I think slanted the way that he interpreted the law and handled his job as Attorney General.

But I think you’re absolutely right. One of his legacies that I think is fair play is he pushed for the very strong executive branch. It’ll be interesting to see whether Merrick Garland shares the same expansive view of the power of the executive branch. Any thoughts on that, Eli?

Eli Nachmany:

Yeah, and I’m interested to see what history does in terms of Bill Barr’s legacy because I think we’re very close to it right now, and so our perceptions are more affected by most recent conduct. But I think over his career, Attorney General Barr… He was Attorney General twice. So, taking the long view, I think there’s more to come and more to be said and more to be written about Attorney General Barr. As for the incoming Attorney General, Merrick Garland, he comes from a position on the federal bench. He was a judge on the D.C. Circuit Court of Appeals, where he had an extensive record, a long paper trail, and I think was somebody who was generally well-respected by both sides as a matter of jurisprudence. Of course, there was the Supreme Court debacle in 2016.

But I’m interested to see, as an executive branch official, where he goes and how he continues or moves away from what Attorney General Barr’s thoughts were on the power.

Elie Honig:

Yeah. I think that’ll be interesting to see. Eli, thank you for joining me today. It’s such a fortuitous time to have students like you involved in the conversation because there’s so many fascinating and important things happening with our legal system, with our Constitutional system. So, thanks for taking time to join me today.

Eli Nachmany:

Well, and Elie, thank you so much for having me on. I really do appreciate the opportunity and so enjoyed our conversation.

And please keep sending us your thoughts and questions and ideas at letters@cafe.com.

Elie Honig:

Third Degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Weiner and the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh and Margot Maley.