• Transcript
  • Show Notes

In this episode of CAFE Insider, “ The Judiciary Speaks,” Preet and Anne discuss the Supreme Court’s abortion decision, the Trump administration’s push to overturn Obamacare, the latest in the Michael Flynn saga, and the House Judiciary Committee hearing about the politicization of the Department of Justice. 

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

REFERENCES & SUPPLEMENTAL MATERIALS

ABORTION

June Medical Services v. Russo (2020)

Whole Woman’s Health v. Hellerstedt (2016)

Planned Parenthood v. Casey (1992)

Roe v. Wade (1973) 

“Roberts Isn’t a Liberal. He’s a Perfectionist Who Wants to Win,” Dahlia Lithwick, Slate, 6/29/20

AFFORDABLE CARE ACT 

White House’s Texas v. U.S. brief, 6/25/20

Kaiser Family Foundation’s explainer of the legal and legislative history of the ACA, 3/10/20

“Trump indefensible refusal to defend Obamacare,” Neal Katyal, Washington Post, 5/7/20

“GOP faces risks from push to repeal health law during pandemic,” New York Times, 6/22/20

FLYNN DC CIRCUIT DECISION

DC Circuit three-judge panel decision granting Flynn’s petition for writ of mandamus, 6/24/20

Rule 48(a) of the Federal Rules of Criminal Procedure 

Cheney v. United States (2004)

“The Deeply Concerning, Misguided D.C. Circuit Ruling in the Flynn Case,” Marty Lederman, Just Security, 6/24/20

POLITICIZATION OF DOJ 

CLIP: House Judiciary Committee’s hearing on possible political influence over AG Barr’s recent decisions, 6/24/20

Transcript of Assistant U.S. Attorney Aaron Zelinsky’s opening statement, 6/24/20

Transcript of Bill Barr’s NPR interview, 6/25/20

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

Anne Milgram:             I’m Anne Milgram.

Preet Bharara:              How are you doing, Anne?

Anne Milgram:             How are you, Preet?

Preet Bharara:              Up until very recently, I had a perfect day count of how long we’ve been on lockdown and now I can’t remember. It’s day 364, 321?

Anne Milgram:             I just know I read all the articles saying it was more than 100 days and that’s when I lost count, but, yes, it’s been a while.

Preet Bharara:              105 days last Thursday.

Anne Milgram:             Okay.

Preet Bharara:              We have a lot of things to discuss. The big news, we have a couple of Supreme Court things to talk about. We’ve got Michael Flynn to talk about. I guess what’s on at the top of people’s minds as we record this, on Tuesday morning with more Supreme Court decisions that could be handed down at any moment so apologize if they haven’t after we finished taping, but there was a big abortion decision that came down yesterday that you and I actually talked about after the oral argument. We checked the date. It’s very funny. We talked about how long we’ve been dealing with the pandemic. We talked about this case, June Medical Services, dealing with the right to abortion and restrictions on abortion on March 10th. It’s the last time we did a podcast-

Anne Milgram:             That was the last time we were together. Yeah.

Preet Bharara:              I’m not sure we were … I think you had been foreshadowing-

Anne Milgram:             I was still there. I was foreshadowing him.

Preet Bharara:              3/10, right?

Anne Milgram:             Yeah, but we agreed to do one-

Preet Bharara:              Did we record that in person?

Anne Milgram:             Yes. We were going to do one last one, and it was the only thing I did in person that week and then that was going to be our last one. We were going to go remote. That’s the day we got our microphones to bring them home and set up here.

Preet Bharara:              Here we are.

Anne Milgram:             Yeah.

Preet Bharara:              I went back, and I know you did too, and looked at what we said to see if we predicted fairly. I don’t think we did have a very strong prediction. Some people are surprised, 5-4 decision, Justice Roberts siding with the majority to strike down this restriction in the state of Louisiana, one of these so-called TRAP laws, TRAP standing for Targeted Restrictions on Abortion Providers. As we discussed in early March, this is one of those laws that on its face is supposed to be something that is in favor of the health of women seeking an abortion. In this particular case, a requirement that doctors were performing the abortion have admitting privileges to a hospital within 30 miles. As we talked about last time, it’s about the same issue, in fact some people call it the identical issue, that was considered in a prior Supreme Court case from just four year earlier called Whole Woman’s Health. It was the same restriction in Texas.

Justice Roberts, who dissented in the 2016 case, in other words came on the side of upholding the restriction in Texas, voted the opposite way this time. Why did he do that?

Anne Milgram:             First of all, I want to take issue a little with you saying that our predictions weren’t strong because I think our takeaway was basically that it was virtually the same law that was passed in Louisiana is virtually the same as the law that was passed in Texas and that was struck down by the Supreme Court. Obviously, Justice Kennedy was still on the court at that time, and so the balance between liberal and conservative was different, but all things considered, basically it’s almost an identical law in many ways. If anything, the impact that it would have in a place like Louisiana where you would basically have one abortion provider for an entire state and certain terms of a pregnancy where there could be no legalized abortion because of the way Louisiana is set up and that medical practice.

Basically, I think what we were saying is it should come out that it would be exactly the same. Actually-

Preet Bharara:              Did we predict that?

Anne Milgram:             I don’t know if we predicted it, but I think we basically said-

Preet Bharara:              I don’t want to pat ourselves on the back. Let’s pat ourselves on the back.

Anne Milgram:             No, I’m not patting ourselves on the back, but I would argue-

Preet Bharara:              No, we should.

Anne Milgram:             Here’s what I would argue. I would argue the court shouldn’t have taken this case. Right?

Preet Bharara:              Yes, exactly.

Anne Milgram:             I want to reframe this national conversation because the conversation is like, oh, Roberts has come to the center. Roberts has not come to the center. The court shouldn’t have even taken this case and we should go into a lot more detail about why it’s actually a very bad decision I think for the long term for women’s right to choose. I do want to just say on the merits on the law, and here’s why, basically for the reason Roberts says precedent and stare decisis, the rule is that the court follows prior rulings, that the court doesn’t change its position. We all know that there are times where the court does overturn prior positions, but as a general rule, it should follow precedent.

This is only four years old, and that’s what Roberts ultimately says, is that this law is very much the same as the other. He says, “I disagreed with that holding, the finding in the 2016 opinion in Whole Woman’s Health,” which was also authored by Justice Breyer, so was June Medical Services, but he basically says, “I disagree with it, but this is the way the law works, stare decisis. I’m going to go with you.”

Can we also just step back for a second, Preet, because I feel part of an understanding of this is just to do … Is it okay if we do two minutes on the history of Roe and the following cases or do we not have time?

Preet Bharara:              Yeah. Two minutes is more than sufficient to talk about the history of Roe.

Anne Milgram:             By the way, this is not what we do in law school.

Preet Bharara:              If you can do it in two minutes, I will pat you on the back.

Anne Milgram:             By the way, people should get continuing legal education credits for these overviews. Okay.

Roe v. Wade finds that under the due process clause of the United States constitution under the 14th Amendment that there’s a right to privacy. The Supreme Court says in Roe it divides a woman’s pregnancy into trimesters. First trimester, previability, it allows the right to an abortion. Second trimester basically says a state can put regulations in place that basically go towards maternal health, the health of the mom. In the third trimester, a state can pass regulations that prohibit it for cases as long as there are exceptions for when an abortion is necessary to save the life or health of the mother. That’s Roe.

Then, you come to Casey, Planned Parenthood v. Casey, which upholds the right to privacy in the due process clause of the constitution. Basically also upholds Pennsylvania provisions that allow for restrictions on a woman’s pregnancy, and it gets rid of the trimester idea and creates this new standard of the question at any point in the pregnancy is whether the regulations pose an undue burden. The court defines it as an undue burden is a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability,” basically when the fetus could ostensibly live on its own outside of the womb. That opinion basically changes the standard really to this undue burden.

Then, you have Whole Woman’s Health in 2016 with the Texas law that we’re talking about. The court finds that law is unconstitutional. Again, that law required doctors performing abortions to have admitting privileges at local hospitals and for clinics to have hospital-grade facilities. The court in a Justice Breyer opinion basically says it strikes it down and it changes the test a little bit so it’s not just undue burden. It also looks at whether there are any health benefits for women and whether the law pose a substantial obstacle. It brings the benefits to women question and as well as the obstacles or something that is an undue burden, in part I think to look at is there any benefit to the women from these laws versus obstacles that are created by the laws?

Now we come to June Medical Services where Breyer essentially repeats that test where he’s looking at what are the benefits, what is the burden? The decision is ultimately I would call it 4-1-1, meaning Breyer and the liberal wing of the court vote in favor of overturning the Louisiana law. Roberts is the one that gives them the fifth vote so that there’s a majority. That’s his concurrence, it’s called. He ends up having what I would argue as the controlling opinion because he’s the one that puts them over the top. Without Roberts, it’s only four votes. Four votes, the conservatives on the court, including the newest appointment, Gorsuch and Kavanaugh are firmly in the camp of overturning Roe, I would argue, and overturning the … We can have a longer conversation about that at some point, but they would have upheld Louisiana law in this particular case and allowed these restrictions.

Now we I think come to the point of is Roberts a hero or a devil or something in between?

Preet Bharara:              I think Roberts … Look. I keep thinking back over the last few weeks to his confirmation hearing when, as I mentioned before, I was working on the senate judiciary committee and there’s a lot of debate among the entire democratic caucus, should you vote for or against him? 22 democratic senators voted for Justice Roberts to be the Chief Justice of the United States Supreme Court. He represented himself to be somebody who believes in the institution and is guided by principles rather than a safe vote for any particular social cause that comes before the court. There was some dubiousness about that. I think at least in the last couple of weeks, a decent argument can be made that he’s no liberal. He hasn’t come over to some progressive side, but he seems to be a little bit more honest about the principles to which he adheres.

This is a striking example of that. On the substance, we know that he thinks that the regulation is constitutional, is something that could be upheld and is reasonable under the prior tests. We know that because he voted that way. He has this very powerful vote in the 2016 Texas case to say exactly that. The only thing that’s changed since 2016 and 2020 in his mind is he lost the fight on the 2016 case, and having lost the fight and someone who has claimed that he subscribes to the principle of stare decisis and precedent, he felt he had no choice but to vote the other way on that ground.

I don’t think his view of doctors needing to have admitting privileges at nearby hospitals has changed. It’s that. Look, there are going to be future cases in which, I don’t have any off the top of my head, where that principle is going to cause him to vote the other way. It was not a liberal principle or a conservative principle with respect to ideology. It’s an institution principle that you adhere to stare decisis.

Now, the other political fallout of this is, if we can do politics for one second because a lot of it is at stake-

Anne Milgram:             I want to come back on the stare decisis after politics. Yeah.

Preet Bharara:              Susan Collins, moderate I guess senator, is very concerned [crosstalk].

Anne Milgram:             She didn’t know how Kavanaugh would vote.

Preet Bharara:              She voted for Brett Kavanaugh. She said one of the basis on which she voted for Brett Kavanaugh was to say that Brett Kavanaugh assured her that he would respect precedent when it came to abortion rights. I think he said that specifically.

Anne Milgram:             Guess what?

Preet Bharara:              He didn’t do that here.

Anne Milgram:             Yes.

Preet Bharara:              You know he didn’t do that here because there was another conservative justice, the Chief Justice who literally on that basis, not on the substance but on that basis said, “I got to vote this way.” I don’t know what that means for Susan Collins. I don’t know what it means for people’s other predictions about the court, but that’s not insignificant when we have an election coming up.

Anne Milgram:             Yeah, I agree with that. I also think that it defied logic that she really believed or that anyone really believed based on Kavanaugh’s prior writing as a judge even and his writings on abortion. It defied belief frankly that he was going to do anything other than join, in my view, with the conservative wing of the court on trying to overturn Roe. Collins I think should have been more skeptical at the time frankly and should not have believed it and clearly was looking for a hook, I think, to be able to say that she supported him.

I think that obviously she’s going to be a target of opposition in her senate race. I suspect that she will not reelection, but I don’t want to predict. I don’t know. Obviously, the people of the state get to decide, but there are a number of places where I think she’s been less than a leader and has just really shown herself to lack political courage.

Can we go back to stare decisis for a minute? Because I think there’s a really interesting article in Slate by Dahlia Lithwick and I think it’s worth reading for folks because she basically dispatches with this idea that Roberts is a moderate, that he’s a full institutional hero. She says he has a very good sense of the media. He has a very good sense of the institution itself having public confidence in the institution and also just having things done correctly. I think there’s a great line at the end of the article where she basically says like, look, the way that Louisiana did this is the equivalent to a kindergartner writing with green crayon on the wall. There’s a way and a process that you have to follow if you’re trying to do things like overturn Roe. Frankly, it was also true in the DACA opinion, the DREAMers case where Roberts didn’t-

Preet Bharara:              The census case.

Anne Milgram:             The census case where Roberts, he didn’t say you can’t do it. He said, “You did it in a sloppy and bad way. You can’t do it the way you tried to do it. You have to”-

Preet Bharara:              Not even sloppy. You have to be honest about your reasons.

Anne Milgram:             Yeah. You have to be able to give a legitimate reason.

Preet Bharara:              You can’t be pretextual.

Anne Milgram:             Exactly. Her read is a lot of this is him basically saying, look, Louisiana literally walked in on the exact same thing. It couldn’t have been more badly done in some ways. If you wanted to challenge, even with the change in the Supreme Court, but if you wanted to challenge the Texas, the Whole Woman’s Health opinion, the way to do it is probably not to come back on the exact same law. You can imagine Roberts taking a different position if it was a different law, if there was a different restriction that he could make a different argument.

The one thing I want to say about, two other quick points, is that what Roberts basically says in this concurrence is that he does not like the balancing test that Breyer has put out in Whole Woman’s Health and in June Medical that he thinks we should be going back to Casey where the only question is, is it an undue burden? Even if the law says it provides a benefit to women, whether or not that’s true doesn’t matter in Roberts’ mind. You can have a completely pretextual, completely political law. All Roberts wants to know is, is there an undue burden?

What he said in joining Alito’s dissent in the 2016 case, they basically were going to uphold the Texas law, and part of it is that they basically were arguing there’s no causation, no direct link between the Texas law and the closing of abortion clinics. Obviously, there’s a huge correlation, proving causation that one thing is directly causing the other. He was able to argue, Alito argued it could have been because of a cut in state funding. It could have been because of a decrease in abortion.

I think what we should look for is another case is going to come forward. It’s not going to be the same hospital admitting privileges law that we’ve now seen in Texas and Louisiana. It’s going to be different. It may be done by better, I mean more consistently, with the way that Roberts and others think about having a solid process and an argument for why it’s not a burden.

I think we should look to Roberts to basically go back at least to Casey, if not frankly to overturn Roe. I see this decision as a very bad decision. I think this is a bump where he just said let this one go. This isn’t the right one to take a stand on. I agree very much with this analysis of Dahlia Lithwick that not only is this not over, but it’s a setup for a longer term either going back to Casey and allowing all these restrictions to pop up that eventually gut Roe or just to fall overturning of Roe.

Preet Bharara:              Yeah. We see that there are a number of justices who are perfectly prepared to revisit something that was settled by a very recent court, their own court on the basis of the only change that’s happened, which is new members of the court, or at least it’s what it looks like. If these folks were prepared to grant cert, in other words agree to hear the case just three or four years after they have decided the exact same issue, it will happen again and again.

One thing, I guess we don’t have to spend a lot of time on because it didn’t become an issue, but the standing issue, which is a legal point and not a lot of people think about. Just because you have a law that says someone can’t do something or a law that protects a particular right, as you know if you went to law school, that only matters if there are actual human beings who the courts recognize have standing to bring the suit and to vindicate their rights. As we discussed last time, one of the arguments made that I think Alito really, really believed was correct, was that the abortion providers, these clinics did not have standing to vindicate the rights of the people, whose reproductive rights were arguably being infringed, the women.

There are arguments that are not crazy, I don’t buy them at the end of the day, that if you have an abortion provider able to bring a lawsuit on behalf of the person to whom they’re providing the abortion, they’re not exactly fully aligned. The law with respect to who has what’s called third party standing requires that there be a close relationship between the third party and the person who possess the right, in this case the woman who is seeking the abortion, free of conflicts of interest generally and that there’s some obstacle preventing the actual person who possesses the right from asserting it. There are lots of circumstances in which you can imagine that the abortion provider has an interest in not being regulated in a particular way that might be helpful for the women.

The weird thing about all this is ostensibly, these regulations are being passed that are supposed to make things safer for the women when we all know that’s a pretext and they don’t really do much of that at all. Imagine in circumstances where that is true. You could have an abortion provider taking a different view. Alito was very taken with this argument, I think with the oral argument, incensed about it like how can it be that they have the standing? Justice Breyer points out, this is another issue relating to precedent and stare decisis, he know fewer than eight cases I think in the Supreme Court where the providers sued on behalf of their patients and nobody had a problem with that. The other problem here is last [crosstalk].

Anne Milgram:             Women obviously have a right. Yes.

Preet Bharara:              Yeah. The last technical legal point is that the Louisiana authorities in connection with this litigation didn’t raise the standpoint point until very late in the process and so this [crosstalk].

Anne Milgram:             Right, which is huge. Yes. Also, I think, we talked about this before, but I think the fact that women are pregnant for nine months plus a few weeks. Obviously, courts don’t work that quickly, and so it’s very hard to imagine the ability of women to vindicate these rights easily. They could sue in advance of potentially saying that they might want to have an abortion. It’s a very unique set of circumstances in some ways because of the fact that-

Preet Bharara:              Time is of the essence.

Anne Milgram:             Exactly. If you don’t have … Particularly with some of the restrictions on later term abortions, these things have to be litigated now by the providers, otherwise it could restrict women’s rights.

One other point I just want to make in closing on this is that it’s not lost on me or on a lot of other legal commentators that the majority opinion is written by Justice Breyer, a man. He wrote the 2016 opinion. I think that makes sense in the sense of he’s sketched out this balancing test in Whole Woman’s Health. What benefit does it have to women? What undue burden does it place? What obstacles does it place? It’s very common in the Supreme Court that the person who wrote the prior opinion will write the subsequent one. In a lot of ways, that makes sense. Of course, the Roberts’ opinion and all the dissents, all the justices want their say and they dissent. Some of them joined one dissent, but they all want their own individual say on it. All these opinions are written by the men on the court.

It feels to me like there is a way in which we’re moving toward abortion being severely restricted or overturned in our country, and the voices are in my view not the right voices that should be speaking. Again, I defer to Justice Breyer on that because he wrote previously, but I do think there’s something about it that doesn’t feel right to me. I would just note that.

Preet Bharara:              I’m not enough of an expert to understand who writes what, and you raised an interesting point. People may forget that Ruth Bader Ginsburg came to the court with a particular expertise on these issues and it was one of the issues in her confirmation hearing that she had worked on issues relating to reproductive rights and abortion. I don’t know what it means that she didn’t write the majority in either of those cases.

Anne Milgram:             The piece that’s really interesting is the way it works is that the four liberal justices on the court, they need the fifth vote to be the majority opinion. There’s a back and forth probably with Roberts as to what he would join and what he wouldn’t join once he indicated that he would not rule that the law was unconstitutional. Who knows what the internal process is? It does feel off to me to just have it be men’s voices and not women’s voices as well.

Preet Bharara:              Yeah. While we’re on the subject of the Supreme Court and these very powerful nine individuals, should we briefly address another matter in a different area, although it still relates to health?

Anne Milgram:             Yes. Last Thursday, the Trump administration asked the Supreme Court to overturn the Affordable Care Act, which basically provides healthcare to 23 million Americans today. There are 18 states. They were led by Texas that had brought suit against Health and Human Services. There were initially 20 and two of them dropped out after the midterm elections when the states turned from Republican to Democratic. The 18 states are all Republican. Basically, the argument is that in 2017, the Republican controlled congress rendered … The arguments that they made, the Affordable Care Act is unconstitutional because they zeroed out the tax penalty that was in the original law for not buying insurance, which is the so-called individual mandate. Meaning, people were required to buy health insurance. If they didn’t, there was a tax penalty that could be put on them.

In 2017, the Republican congress basically said we’re going to zero that out. There is no tax penalty if you don’t have insurance. What they have now done, these 18 states, is they basically said that it’s not just the individual mandate that that is also connected to other parts of the ACA and that essentially once you zero that out, you’re rendering the whole law unconstitutional because all three key parts of the ACA were wired together so if you take one out, you’re essentially taking all three out.

This comes at this fascinating moment in time where there’s a global pandemic. All these states, Texas included, they’re seeing increasing cases of coronavirus, COVID-19, and they’re literally suing to basically ask the Supreme Court to say that the law is invalid.

Preet Bharara:              Yeah, look. The standard legal principle that usually applies is that if you have a big, complicated law with lots and lots of provisions, even if it is the case that one provision is deemed to be unconstitutional, of course you’ll do everything you can to preserve the rest of the law. Sometimes it’s an impossibility because of how interrelated things are, but here it’s not and doesn’t make a lot of sense. I think a lot of commentators think it would a drastic move as a legal and constitutional matter to invalidate the entire law.

Anne Milgram:             Yeah. Remember also that the Supreme Court and Justice Roberts was with the majority on this one as well, basically upheld the prior litigation over the attempt to invalidate the ACA. There’s already been a Supreme Court bite at this apple that was rejected. This is a very interesting argument. I agree with you. You would think that if anything, they would just take out that one narrow piece of the law and allow the rest of the ACA to go forward. When you talk about 23 million Americans, it just feels to me like we’re talking about just a huge number of people who rely on the ACA for healthcare. It feels to me like a very political move to say at this moment in time.

Really I think just, to me, it’s a deeply troubling move. I noted one of the Republican strategists, a guy named Joel White, said in a recent interview that, “He considered it pretty dumb to be talking about how we need to repeal Obamacare in the middle of a pandemic.” I don’t know if you had thoughts on that, but I saw the filing and I myself was also pretty surprised at this moment in time that this litigation is happening.

Preet Bharara:              It’s very peculiar how this administration deals with politics. On the one hand, depending on what the issue is, you could say there’s something to be said that’s positive about not caring about the polls, something is overwhelmingly popular, then maybe you’re pursing a particular course of action based on principle in some way. I don’t think Trump is doing that. There’s something to be said for the argument that if an administration is doing something that’s not so politically popular, maybe there’s some principle involved on this issue of whether or not people should wear masks, which I know is a very different issue, but it’s in the public consciousness at the moment.

The overwhelming majority of Americans believe that mask wearing is good and important and is helpful to stemming the pandemic. That may be an issue of weird vanity on the part of the President, or it’s the case, and you and I have discussed this before, that with respect to the ACA and mask wearing and whatever other issue that he is pushing, that’s not popular, he cares about its popularity only with respect to some subset of the American voter, and that is his base. No one beyond his base. Even if things are generally popular, he will push the position that most resonates with his base and that’s it. He’s never tried to be a president for anyone beyond his core voting base. I think that’s what’s playing out here as well. Even though it’s the case, as you point out, that the position he’s taking will help many members of his own base.

Anne Milgram:             Yeah.

Preet Bharara:              Will hurt many members of his based.

Anne Milgram:             Will hurt many, yes, I think will hurt. A number of the states that are in the litigation I think are states where we’re seeing upticks of the virus now.

One other point to make, which is there is an op-ed in the Washington Post by Neal Katyal that I thought he made a really important point that I just want to stress, which is Neal writes, “How could a congress that was unwilling to repeal the law have meant by removing one individual provision to undo its entire architecture from protection for individuals with preexisting conditions to the creation of healthcare marketplaces? Even scholars who argued against the Affordable Care Act during the Obama administration have savaged this position with one national review essay, calling it troubling, trivial and absurd.”

I think that’s a really important point. The congress didn’t overturn the ACA. Basically, all they were successful in doing is zeroing out one of the tax penalties. I think Neal Katyal’s point is a good one, which is congress didn’t repeal it. They basically removed one individual provision, so for the court to invalidate the whole act would be incorrect.

Preet Bharara:              It’s an end run around around congress.

Anne Milgram:             Yeah.

Preet Bharara:              It’s an attempted use of the court, one branch of government, to do an end run around a second branch of government, the congress. Let’s move on from the Supreme Court, but I guess we’re still going to talk about a court. This is the DC Circuit Court of Appeals in relation to the ongoing case and saga of former National Security Adviser Michael Flynn. I think we said before, I think we had an episode where we kept saying everything about this case is bonkers.

Anne Milgram:             Yes.

Preet Bharara:              Both the conduct, the lies, the fact that he was prosecuted, the fact that he pled guilty and then the unwinding and undoing of two guilty pleas basically at the direction of Bill Barr and over the objections of some of the line people. The judges come under attack by Michael Flynn’s lawyers. They have both said that he should be disqualified from the case and the case should be reassigned, and also he should be forced to grant the motion to dismiss that’s been brought by the Department of Justice.

That’s under this Rule 48(a) that we’ve talked about before. The Department of Justice says they don’t think the lies were material. If they were lies, they can’t prove it beyond reasonable doubt. They have done this extraordinary thing and said even though they have obtained two guilty pleas and other statements indicting guilt from Michael Flynn that the case should be dismissed. They can’t do it on their own. There actually is this rule that says you can only dismiss a case with leave of the court. Judge Emmet Sullivan in the District Court said, “Hey. You know what? Not so fast. I want to get some more information on this.” As is his right under the rule, he can conduct some inquiry.

You and I speculated how long will that take? I have said throughout that at the end of the day, I think he has little choice but to accept the dismissal motion while still doing some inquiry. Well, in the meantime, Michael Flynn’s lawyers went to the DC Circuit Court of Appeals, one step up, it’s the court between the District Court and the United States Supreme Court, and filed what’s called a writ of mandamus, which basically is a thing that would cause the DC Circuit Court to force the judge to dismiss the case, even though he has not reached a decision yet. Based on our understanding of the rules, our experience in the courtroom and how the oral argument went, we thought there was really no chance that that would happen, that the DC Circuit Court would say, “Let’s let Judge Sullivan go about his business, and when there is something to appeal like an adverse decision you don’t like, then you come back to us.” That’s now what happened.

By a two to one vote on that panel, they said basically that the District Court was getting way over its skis and had to dismiss the case. I guess the basic argument was, and we should talk about it, although Rule 48(a) requires permission from the court for the Department of Justice to dismiss a case, any inquiry you do in connection with that is supposed to be circumscribed because the executive branch has all the basic authority in this area. The majority opinion said, “Well, everything that Judge Sullivan is doing is not very circumscribed. He’s asked for amicus briefs from basically everyone. He appointed Judge Gleeson who may have a bias about what should happen here, and it looked like he was going to engage in a very broad searching scorched-earth inquiry that’s way out of bounds. We should shut him down.” What do you think?

Anne Milgram:             Yeah. First of all, we were completely wrong on I think where this one ended up, but I think we were right on the substance, which is that this should never have been done in the way it was done. I think this is a horrible opinion. I think you and I probably both have these moments where we think we really are worried for the rule of law. This was one of those moments for me because it’s a very political opinion. I think we should talk our way through it.

It’s a 2-1 decision. Judge Neomi Rao, we talked about her, she has worked in the White House, counsel’s office. She was the administrator of the Office of Information and Regulatory Affairs in the Trump administration. She was appointed in March 2019. I think we talked about her as being extremely political. From what we’ve seen, she writes the opinion here, and she’s joined by Karen Henderson, who is a George Herbert Walker Bush appointee. There’s a dissent written by Judge Wilkins, who was a Barack Obama appointment. It breaks down on party lines.

The actual reasoning of the opinion is in my view terrible, the majority opinion. It’s just incorrect. Part of that goes to, I think you and I both agree, ultimately, Judge Sullivan I think was going to allow the government to dismiss it. There is something really weird here because the government is asking to dismiss it and the request for mandamus is brought by Michael Flynn and his lawyers but-

Preet Bharara:              Not joined by the DOJ.

Anne Milgram:             Exactly.

Preet Bharara:              DOJ is not seeking the mandamus even though some of the injury that the District Court is-

Anne Milgram:             It’s there.

Preet Bharara:              It’s injury to the DOJ.

Anne Milgram:             I think this is an important point because what the court really is doing is arguing for DOJ’s power. They’re arguing for the power of the executive branch, which is really strange here because DOJ has not made this motion. It’s made by Michael Flynn. He has no basis to argue the harm to the Department of Justice and the institutional harm so it’s basically like DOJ deserves the power to decide who they prosecute and when they dismiss indictment. There’s something really profoundly wrong about that.

There’s also something profoundly wrong about using mandamus to get there. This is one of my favorite definitions. It’s an extraordinary remedy. The Cheney case makes it clear. You need, one, a clear and indisputable right to relief, meaning there’s no question that this is the outcome that should come. Two, there’s no other adequate means to attain the relief, which I think is really important to think about here because you just talked about the right to appeal when people get decisions against them, which happens every day in America. The normal course is to appeal. There has to be … Flynn had that here. Judge Sullivan, had he made a ruling that was adverse to Flynn, and I agree with you, I don’t think he would have at the end. I think he would have agreed to dismiss at the end. Had he made an adverse ruling, Flynn could have appealed.

Number three, the issuing court being satisfied that the writ is appropriate under the circumstances. It is a really, really high burden to get to mandamus. It is not something you use to shortcut or get out of uncomfortable court hearings that you don’t want to see, which is essentially how the majority opinion feels like to me.

I think it’s worth noting that one of the things the court has done here, and you and I have talked about this a couple of times. We’ve talked about it with the Republicans in congress not requiring the Trump administration to answer for subpoenas. Yes, they’re helping the Trump administration if they say you don’t have to answer for subpoenas. Ultimately, they’re hurting the institution that they belong to, congress. Here, you have basically a rule that says courts have to approve these dismissals and they have a right to inquire as to whether or not those dismissals are in the interest of justice.

Basically, what the DC Circuit has done is read that ability of courts to do that level of inquiry. You and I have talked about it before. It’s not often done, but there’s a decision where a court rejected deferred prosecution agreement. There’s a role for the courts to play in saying, “Is this in the interest of justice and is it fair,” and a hearing to be held to figure that out. Here, they basically said, “No hearings. No analysis. On its face, we’re going to agree with … The Department of Justice has made these arguments. It’s not material. There’s insufficient evidence.” Insufficient evidence is a classic reason why DOJ dismisses the majority rights. They basically bypass the existing process, the normal process in favor of just saying, “No. The case is going away and we’re doing it.”

I found this to be really, really disheartening, both because I think the opinion is wrong on the law and also because it feels to me like exactly the opposite of what should happen and that court should be the bulwark against these types of abuses and things happening.

Preet Bharara:              Yeah. Here’s the thing I think the other problem here, and we’re going to see this borne out in lots of cases in the future. The decision to take weird and extraordinary action on behalf of certain people who are associated to the president, when you’re talking about Stone or Flynn or Michael Cohen or others, or you’re talking about a politically motivated thing with respect to the ACA, is that these things the Department of Justice does or that they acquiesce in will cause a consequence. The consequence will be in other cases, a garden variety of cases where the Department of Justice has no interest in taking that kind of position, defense lawyers and other advocates will say, “Hey. Look what happened with respect to that mandamus in the Flynn case and lots more folks are going to seek mandamus now in circumstances where it would have been unthinkable before.”

Anytime you have a judge who looks like they’re going to rule against your client’s position, you don’t wait for the decision and then seek an appeal. You go straight to mandamus. You go straight to the Appeals Court and you say, “The judge is about to overstep his or her bounds and they should be directed to do the thing that we want.” You’ve now taken something that you’ve already described as defined as a drastic and extraordinary remedy, and almost by definition, by doing this, you’ve rendered it less extraordinary and less drastic, which will have a consequence for lots and lots of line attorneys in the Justice Department in other cases where they have no interest at all in giving any leniency to somebody who has been convicted by a guilty plea once, much less twice.

Anne Milgram:             I remember that here, you’re also letting the defendant basically raise the issue on mandamus, saying my case should be dismissed. The government again, what the court has allowed here is basically Michael Flynn to argue this is contrary to the Department of Justice’s powers. You’re totally changing the dynamic that normally exists.

To your point, and I think it’s worth just going back to this, mandamus is extraordinary, and it is used in times where you talked about a case where it’s a child pornography where the judge was going to instruct the jury on something. That’s a harm. If the judge makes that instruction, he was going to I think instruct on the sentences, you talked about Judge Lynch.

Preet Bharara:              Yes.

Anne Milgram:             Once that’s done, you can’t undo that. You can’t have a jury un-hear that the defendant could go to jail for X number of years because of child pornography. I’ve seen it done before where a case is moving forward to trial and the decision has to be made then because the harm that will result, you can’t undo it. You would have to have a whole new trial or, again, of course you and I know, if there’s an acquittal in a case, the government can’t bring charges again, the same charges.

When you see mandamus used, it’s really because this is the only chance you have to get review of something or else it goes away. Here, that’s not the case. Michael Flynn was waiting to be sentenced. He wanted his case dismissed. The judge was going to have a hearing. Michael Flynn is not incarcerated at this moment in time. There’s no harm that you could point to other than having to wait a little bit longer with this hearing and then an appellate process. It really is shifting the use of mandamus. Frankly for a court, the DC Circuit historically has not granted mandamus. I think-

Preet Bharara:              You know why that is.

Anne Milgram:             Why?

Preet Bharara:              Because it’s an extraordinary remedy.

Anne Milgram:             Yeah.

Preet Bharara:              I just wanted to say extraordinary again.

Anne Milgram:             This is an extraordinary episode.

By the way, one other thing about the actual majority opinion. It basically adopts Michael Flynn’s arguments in a lot of ways that I found troubling also. I don’t know if you noticed this, but there was a lot of language from … We should go back to this and just the history of this. Michael Flynn, as you noted, he pleaded guilty twice in the court of law. He accepted responsibility. He was going to cooperate and testify against one of his colleagues. All this happened, then his case was put over for sentencing because the judge didn’t think the government had asked for basically a non-incarceratory sentence and Judge Sullivan was upset about that.

We end up in this place where Sidney Powell, who is a prominent lawyer, is on TV. She’s talking about all these things. She ends up representing Michael Flynn. She has five conversations with President Trump about this case. She writes a letter to Bill Barr that has just been released publicly but basically saying like, “Why don’t we have somebody? We think that this is an unjust prosecution. Why don’t you have somebody investigate?” Bill Barr, as we know, has a US attorney go out and do this investigation, dig up material that we’ve talked about the FBI does not disclose in the normal course, released that material, and then here we are at a point where the court is actually using the language of Sidney Powell’s motions to dismiss in terms of materiality and insufficient evidence.

This one made my blood boil because it felt super political, really not based in law, a terrible precedent to set with the use of mandamus. My personal view is that this whole Flynn thing needs to be investigated if the administration changes. It doesn’t have to be a criminal investigation into wrongdoing, but somebody needs to actually understand what was happening here and why because it feels so-

Preet Bharara:              You want to have investigators investigate the investigators, who are investigating the investigators.

Anne Milgram:             I do. I know it’s wrong. It’s wrong to have so many investigations, but this feels to me like there’s something here. It feels to me like when you get to the point where the judiciary feels compromised in this way, I don’t really know what else to do other than to basically say like … One of my other favorite parts, I think you’ll probably appreciate this too, is the majority opinion writes that they’re talking about Judge Sullivan and they’re upset that he’s appointed Judge Gleeson and he’s having these hearings and he’s allowing the public to have amici, to have people write opinions and provide information to the court. They say, “He relied on news stories, tweets and other facts outside the record to contrast the government’s grounds for dismissal here with its rationales for prosecution and other cases.”

The president is tweeting on the case and you’re not allowed to consider that feels just like they want this to be hermetically sealed to what Bill Barr wants to have happen.

Preet Bharara:              Yeah. Judge Wilkins makes the point in the dissent that it is true that there is a presumption of regularity as to how the Department of Justice conducts itself. As Judge Wilkins writes, the majority transformed the presumption of regularity into an impenetrable shield. There’s a lot of irregular stuff. You have a presumption, but what a presumption means in the law is, yeah, the default position is that things are regular. The default position is X, but the presumption can be overridden by other facts, and nothing about how the Department of Justice has conducted itself in this case and the undoing of the guilty plea and the undoing of the case seems regular. At a minimum, it’s not irrational to find that the presumption of regularity is tested here. Maybe it’s the case that the District Court judge by engaging in the hiring of counsel and the appointment of former Judge Gleeson angered the court because that was extraordinary. As we keep saying, every single irregular thing-

Anne Milgram:             Every part of this is. Yeah.

Preet Bharara:              Every irregular thing gets met with even more irregularity, and you get a spiraling set of circumstances with respect to irregularity. Now, we should point out to folks that this is not over, but there’s some confusion about this. The decision that we don’t like came out to 2-1 by a three-judge panel in the DC Circuit Court of Appeals. There is a right for the issue to be held by the full court. There are 11 current judges on the DC Circuit Court of Appeals. As I understand it, the District Court judge can ask for that vote and it would require six of the 11 judges to say, “Yeah. We need to hear the case as a whole body.” I think any of the individual judges on the court can ask for it as well. All the speculation in the immediate aftermath of this decision was that that would quickly happen.

Anne Milgram:             Yeah, all the legal people.

Preet Bharara:              I feel like I’m missing something. It hasn’t-

Anne Milgram:             Me too.

Preet Bharara:              It hasn’t happened yet.

Anne Milgram:             Yeah. Me too. Because almost all the legal folks that we listen to and follow and regard highly basically said the same thing, which is that there will be an en banc hearing. What’s interesting also is we just looked at the breakdown of the court, seven Democrats, four Republicans. This was a pretty party-wide decision. I don’t like to think about courts like this, but this decision has a lasting impact on the DC Circuit and on mandamus. The DC Circuit is really seen as the second highest court in the land after the Supreme Court so it’s an important ruling. Granted, it’s extraordinary in some ways but it’s also setting a precedent that I think, as you said, defense lawyers are going to be able to argue this and it’s going to change the way mandamus is used and viewed and, frankly, what authority the court has in overseeing …

By the way, we should just note this. The court also … This is a space where in terms of dismissals, there’s this law that basically says the court has the right to see if it’s in the interest of justice. The courts also oversee the acceptance of pleas and sometimes reject pleas. It is right now this narrow question of can the Department of Justice dismiss it, but there are repercussions for what involvement a court can have over decisions made by the executive branch. If the government decides to issue a plea and the court finds that it’s not supported by the facts or that there was coercion in the plea or that there’s a problem with it, as a rule, courts reject it.

We’re pushing down a slope that I think is a bad one and that has potential repercussions outside of this one narrow case. I would expect the DC Circuit to have taken it en banc, but I would have expected them to have done it already. That was last Wednesday. It’s almost a week gone by. What do you think it means?

Preet Bharara:              I think there’s still time. I don’t know.

Anne Milgram:             Yeah.

Preet Bharara:              Sometimes I’m happiest to proclaim ignorance because I don’t know.

Anne Milgram:             Yeah. I don’t know either.

Preet Bharara:              It could be that the District Court judge wants one of the other judges to do it. I don’t see what is lost by asking for en banc. Look, maybe there’s behind-the-scenes discussion, which I don’t think is inappropriate and it happens and maybe someone is whipping the vote. Just because you asked for en banc, it doesn’t mean you get it. A majority of the judges have to agree to hear it and then they hear the matter and then they vote on the matter. The rule of the court specifically says an en banc hearing or re-hearing is not favored and ordinarily will not be ordered unless, one, en banc consideration is necessary to secure or maintain uniformity of the courts’ decisions or, two, the proceeding involves a question of exceptional importance. I think you meet one or both of those criteria.

Here’s another example of a thing where each thing that’s happened in the case has been extraordinary and is not favored, moving to dismiss the case, the underlying conduct, the seeking the writ of mandamus. What now I think needs to happen is yet another unusual disfavored thing which is the hearing of the matter with respect to the entire court en banc. I think there are more cycles to go here. I agree with those who say that it must be true if the entire court hears it that it will go the other way. It will go in favor of the District Court judge.

Anne Milgram:             Yeah, agreed.

Preet Bharara:              You never know. There are lots of twists and turns here.

Anne Milgram:             Can I say two other things? I think one thing that we should really leave people with is the fact that what the DC Circuit is saying is that the District Court can’t even hold a hearing. I think there’s fair criticism against Judge Sullivan for picking Judge Gleeson, for having somebody come in. That is an unusual thing to look at whether Flynn should be charged with contempt. You and I talked about the Gleeson piece after he wrote the op-ed. It felt strange to then put somebody who had already made a public declaration of what they thought should happen in that role.

I think Judge Sullivan has made some missteps, but it still feels to me there’s a huge problem without letting the process play out, without letting the inquiry play out, and seeing where it goes. Process is really important. This feels to me like a complete undercutting of that process in order to reach the desired end, and that’s wrong.

The last point, which I think is worth just bringing out is that Marty Lederman, he’s a professor at Georgetown, has made a really interesting argument. Basically it’s saying like this is all about the Mueller investigation and the effort by Bill Barr on the President’s attempt to whitewash it away. Lederman writes, “Finally, one can’t help but wonder whether this abrupt action, the dismissal in the DC Circuit, is intended to bolster the Attorney General’s campaign to undermine the legitimacy of the Russia investigation more broadly. Here not only be discrediting a perfectly legitimate component of the Special Counsel’s investigation but also by ratifying Attorney General Barr’s revisionist history that there was nothing for the law enforcement and intelligence communities to be concerned about in early 2017, after they learned of what Flynn said in his phone calls with Russian Ambassador Kislyak.”

I think it’s worth just nothing if you just look at it narrowly as a court decision, you can have the exact conversation we just had about why it’s wrong, but if you look at it more broadly and the overall impact that it has, is that again it’s an exoneration of Flynn. It’s lead to this point of basically finding FBI misconduct and lack of materiality. They shouldn’t have done this in the first place. It really goes to the heart of this argument that President Trump has repeatedly made that this was a witch hunt and that it should never have been looked at, which of course I know you and I both very strongly disagree with, but it’s I think important that Lederman focuses on it that way.

Preet Bharara:              That’s a good segue to something we should talk about briefly before we end, and that is overall politicization of various cases at DOJ. We had extraordinary testimony in the House Judiciary Committee last week by a couple of people who work in the Department of Justice. One of whom I think most extraordinarily, that will be the used word during this episode but I think appropriately so, Aaron Zelinsky, who is a sitting Assistant US Attorney in the district of Maryland, who is on the Special Counsel’s team, the Mueller team and then continued as a designated Special Assistant US Attorney in the district of Columbia to see through the end of the Roger Stone case. He is one of four people who withdrew from the case after Bill Barr imposed his view that the sentencing recommendation made the US Attorney’s Office in DC was too harsh.

You and I have talked about this at length. You can have an argument about whether or not the recommendation was too harsh or not. I tended to think that it was a little longer than maybe made sense under the circumstances. That’s a different question from whether or not the Attorney General of the United States imposes his own view in the circumstance that looks like favorable treatment to someone for what reason? Only because he’s an associate of the President of the United States. AUSA Zelinsky testified before congress that he heard from multiple people that the reason this was happening was that there was favorable treatment because of Roger Stone’s connection to the president.

You can like what he said or not like what he said, but I think it’s a pretty brave thing for someone who is within the department and knows he’s going to make angry the person, the head of the department to speak what he believed to be the truth. We’ll talk more about what he said, but until we know what other kinds of cases Bill Barr has interjected himself into or interceded in, the public record is what? That he has gotten involved on Roger Stone, associate of the president. He’s gotten involved with Michael Flynn, former staffer too and associate of the president. We now have a New York Times article that said, “Although it was too late to really undo, he made some efforts to rein the southern district of New York with respect to who?” Michael Cohen, associate of the President of the United States.

Maybe he is going around the country and there are a garden variety of drug cases that he’s also interceding in, but my hunch is that’s not true. It’s just odd to me why in the current climate you would go out of your way, your own reputation for independence, such as it was, on the line to keep interceding in a very dramatic and extraordinary way on behalf of people who are close to the president? Maybe it goes to what you were saying a minute ago.

Anne Milgram:             It’s not done yet. It’s also not done. Remember John Durham’s investigation into the whole Mueller … Yeah.

Preet Bharara:              Oh, yeah. Maybe the theme is not so much … Well, maybe the unifying principle is he just wants to undercut everything that went on with respect to the Russia investigation and all of its tentacles and all of its tributaries, and that’s what he’s doing, but it really smacks of something ugly and unfortunate in the Justice Department if you care about the appearance at least of equal application of the law. Right?

Anne Milgram:             Yeah. Look, Zelinsky was asked whether he agreed with the statement made by one of the other prosecutors, Jonathan Kravis. It was one of the Stone prosecutors who basically wrote in an op-ed-

Speaker 3:                    Mr. Zelinsky, your colleague, Jonathan Kravis, who was also assigned to the Roger Stone case, resigned from the department after 10 years because he said, “He believed the department had abandoned its responsibility to do justice in the Roger Stone case.” Mr. Zelinsky, do you agree with that assessment?

Aaron Zelinsky:             I do.

Anne Milgram:             Zelinsky basically says he agrees with it. He says that his supervisor, who he identified as J.P. Cooney, had said that the US Attorney had political reasons for his instructions and that the supervisor agreed it was unethical and wrong. Really, he’s road-mapping that the decisions that were being made … Look. You and I have both said this. You could agree or disagree on the level of sentences, on the number. People debate how many years someone should be sentenced to all the time, and that’s a legitimate debate. What’s not legitimate is if it’s done because of politics. What Zelinsky is saying here is that this was politics, and he was told by his supervisor that it was politics.

It’s exactly what I think we’ve all feared, but it feels … You and I have been saying, okay, well, here are the pieces of evidence that lead us to believe that this is what happened. Jessie Liu, the DC US Attorney, was pushed out. Tim Shea, one of Barr’s right hands in the Department of Justice who worked in the front office, Barr has put in to oversee the case. There was a lot of what I would almost call circumstantial evidence that this is what was happening. Then, I think it’s different to have someone like Aaron Zelinsky walk in and say, “This is what happened. Even as it was happening, I was being told we were doing it for political reasons.”

It’s all these things we knew, but to have the person inside say it, it changes it. I think it’s really important that it’s going to get lost a little bit and we’re in the middle of a national, global pandemic. We’re in the middle of all these other things happening, but it’s really important that he’s really calling a flag on the play and he was saying at the time this was political. I think that’s really important.

Preet Bharara:              You’ve got also at that hearing Don Ayer, who is the deputy attorney general under George Herbert Walker Bush, and a lifelong conservative as far as I know, who said the following.

Don Ayer:                     I am here because I believe that William Barr poses the greatest threat in my lifetime to our rule of law and to public trust in it.

Preet Bharara:              That’s not a small thing for a person like that to be saying. That’s the impression that Bill Barr is giving a lot of people.

Anne Milgram:             One question, Preet. I think you’re right to point out Donald Ayer with Zelinsky. Do you think that it’s going to make a difference? I think we’re moving towards this point in time where Bill Barr is about to go to the microphone with John Durham, the Connecticut US Attorney, and say the initiation, the beginning of the Mueller investigation, even though it’s been signed off on by the Inspector General, the Department of Justice, even though we’ve seen the full Mueller report come out, but Barr is going to question that. They’ve even talked about prosecuting people related to the beginning of the investigation of the President and the Trump campaign.

Does this matter? Does the fact that there’s been this congressional hearing, is that going to change? Will Barr not go to the mic, or is this just-

Preet Bharara:              No. I don’t Bill Barr cares what anyone thinks. There’s a lot of words that have been used to describe him, and I was wrong about him when he was first nominated, but a word that has been used and should be used more often is arrogance. The arrogance of how he goes about doing his job, the arrogance of how he thought he was going to oust with a lie the Southern District of New York Attorney Geoff Berman, the arrogance with which he said at his confirmation hearing, “No, I’m going to accept what the ethics officials say about recusal. I’m going to make that decision.”

Everything through and through that he does is not only in some cases weird and/or unethical and/or misleading, but it’s fused with an extreme and I think in that position unprecedented arrogance. I know best. I know what I’m doing. I can second-guess you, and I actually don’t care if it looks like I’m doing the bidding of the President. I don’t care if it looks like I’m not independent because I know best. That’s one of the most terrible qualities in a leader. There’s no modesty. There’s no humility whatsoever in how he undertakes his job.

Anne Milgram:             Yeah. To that point, in an NPR interview recently, he was being questioned by Steve Inskeep about, “Look. Is it appropriate to intervene at the highest levels in these cases, what you’re doing?” Barr responds basically saying, “All the cases in the Department of Justice are subject to the supervision of the Attorney General. In fact, all the powers carried out by the Department are vested in the Attorney General, and it’s appropriate for the Attorney General to exercise supervisory authority.” Basically he’s saying in his world, the president is supreme, is number one, but the AG has full authority over any case.

He goes on to cloak what he’s doing in … This was just incredible to me, but he basically says, “It’s very important that the Attorney General makes sure that there’s no political influence at stake involved in any cases.” When that is exactly in my view what he’s doing, is he is exerting political influence on these cases, and he’s arguing, “Oh, my job is I have authority over everything and what I’m trying to do is make sure that there’s no politics in it,” when he’s actually doing the exact opposite. He’s putting politics into all of this.

If he just let the cases go on without interceding in them, that’s the surest way. You have line attorneys, line prosecutors, line agents, people who do this all the time. They follow rules and guidelines. They decide when cases should be brought based on fact and evidence without political intervention. That’s how you know that there isn’t political interference. When you have the Attorney General trying to question and undo the Cohen case, changing the sentence, recommendation for Stone, dismissing the case in Flynn, now also having John Durham do this investigation to the initiation despite other reports coming out. It all feels so political, and yet-

Preet Bharara:              Yeah, look. People should understand that some of what Bill Barr says is correct. It’s a correct statement of the hierarchy to some extent. In the same way that I had final authority on any case brought by the Southern District of New York, he has that authority as the Attorney General. That doesn’t mean though that I shouldn’t have been criticized if I decided, given that I have that authority that in a selective way, I’m going to reach down into cases at a lower level in my office that generally are not directly supervised by the US Attorney and only pick out the ones that had some political implication or might affect a friend of mine or some other person I’m associated with or a relative of mine and say, “Hey. What’s going on here? Are you sure you want to bring that case,” and putting the kibosh on one of those cases just because I have the overall authority. Sure. It doesn’t make it right. It doesn’t make it ethical. It doesn’t make it good.

In my experience as US Attorney, look, I got into altercations, verbal, with the Attorney General on a number of occasions. I won’t go into those here. There are times where we disagreed or it was a sensitive case to national security or related to foreign policy. That was true with the Russian spies case whose 10th anniversary, by the way, just came last week. It was true with respect to the Indian diplomat that we charged. It was true with respect to some of the international bank cases that we charged. There’s back and forth and there can be differences of opinion, and the Attorney General might have a view and wanted to know what we were doing and what was going on.

I will say though that with respect to political corruption cases we brought, high-profile Democrats in the state, also Republicans, I never got a call from either the Attorney General who served when I was United States Attorney. That’s how it should be because it looks like even if it’s in good faith, it looks like political meddling, “Hey. What are you doing with respect to Sheldon Silver?” Because maybe Sheldon Silver has some connection to the White House or some other prominent Democrat we were investigating. I can never understand why someone in a position like the Attorney General position wants to risk looking political by interfering or meddling in a local political case or some other kind of political case.

Anne Milgram:             Yeah. I think you said it perfectly. The Attorney General has the power to intervene, but that power should be used fairly and justly for the better good of the public and the people and not for political goals. It is astonishing I think to both you and I to think about anyone using their power in this way. If anything, you or I would think that the prosecutions, if we were sitting in Bill Barr’s chair, we would think that you should have less involvement with prosecutions of the President’s associates. The sign would be like let those cases be handled by the career people. Let them be overseen by the people who oversee them. Let me not touch them to make sure that there is no influence that’s unduly used.

Again, I think we’ve had this conversation a lot of times, even with the firing of Comey. Trump’s number one argument was I have the power to do it. The President can fire the FBI director. Yes, that’s true, but you can’t do it for the wrong reasons. You can’t do it to cover up an investigation. Bill Barr can call any US Attorney and ask them about a case. That’s true, but you can’t do it for the wrong reasons. You can’t do it to cover up an investigation or to kill a case.

Preet Bharara:              I use the extreme example in response to folks who say, well, the beginning and the end of the argument is, “The President has the authority to do something.” I say, “The President also has the authority to nuke Canada. It doesn’t mean it’s right. It doesn’t mean it’s proper.”

Anne Milgram:             Exactly.

Preet Bharara:              People who just make that argument are not thinking very deeply, and I don’t argue with them for very long.

Anne Milgram:             Yes, but I think it’s important just to acknowledge what’s happening and where we are, I don’t want to use the word extraordinary again-

Preet Bharara:              You can.

Anne Milgram:             I feel like what we’ve seen from Bill Barr … I worry a lot about this, Preet. You and I have talked about this a little bit. Whoever becomes the next AG is going to have an unbelievably Herculean task of trying to repair the department. You probably get the same calls I do. I have people I have known who have been there for their whole career who are among the best lawyers I have ever known, and they don’t want to be there. They don’t feel good about their work. It’s devastating for even the people who are carrying out the law, following the facts and the law where it takes them. To feel bad about working at the department, it’s a really, really sad day, and it’s a really, really terrible thing for the rule of law.

Preet Bharara:              That’s what we’ve got. We have a lot of issues to talk about, Supreme Court, Department of Justice. We’re still in the middle of a pandemic that raises issues. We have an election coming up. There are voting issues that we’re going to need to talk about. Get some rest, stay safe, and we’ll talk next weekend.

Anne Milgram:             Thank you. Talk to you soon. Take care.

Preet Bharara:              That’s it for this week’s Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior audio producer is David Tatasciore. The CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Calvin Lord, Noah Azulai, and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.