Preet Bharara: From CAFE, welcome to CAFE Insider. I’m Preet Bharara.
Anne Milgram: And I’m Anne Milgram.
Preet Bharara: Hi, Anne. How are you?
Anne Milgram: Good. How you doing?
Preet Bharara: How is your weekend?
Anne Milgram: It’s great.
Preet Bharara: It is great. That’s the sign of somebody in an extended weekend. It’s Monday for the rest of us.
Anne Milgram: It’s family vacation week.
Preet Bharara: All right.
Anne Milgram: Yes, it’s family vacation week. We’re aquarium visiting-
Preet Bharara: Again.
Anne Milgram: … yes, in the northeast this time. We’re on an aquarium tour.
Preet Bharara: You’re doing a great aquarium tour of the United States of America?
Anne Milgram: Yeah. I cannot give you my final recommendation yet. It’s still going.
Preet Bharara: Okay. I saw a movie this weekend that people have been dying for me to see because they thought I would love it.
Anne Milgram: Yes, I’m dying to see it. Tell me.
Preet Bharara: Blinded by the Light, which is oddly, a movie about a young South Asian guy who was inspired deeply by Bruce Springsteen’s music in the ’80s. So really have no reason for that to be resonant with me at all. It’s great, especially if you love Springsteen, it’s great.
Anne Milgram: Oh, I have to see it.
Preet Bharara: There’s a lot of fun scenes. There’s a lot of joy, also some not-joy. By the way, this is not a paid announcement.
Anne Milgram: Yes. Neither is my aquarium pitch.
Preet Bharara: I’m not going to ask to pay … So people should go see it. Let us know what you think when you go see it. So we have a few things to talk about as always.
Preet Bharara: The Jeffrey Epstein story continues to make headlines. The chief medical examiner in New York City made some waves in the middle of last week because she did not make a final determination on the cause of death. There was a question about one of the bones in the neck that led a lot of people to continue with conspiracy theories because, according to the analysis that I saw and the reporting that I saw, if that particular neck bone … I think it’s called the hyoid bone, if that’s broken, that typically is a sign of strangulation, although it is not inconsistent with hanging.
Preet Bharara: Then she finally, just a couple of days ago, said that after an autopsy and a, quote, “Careful review of all investigative information,” she determined the cause of Mr. Epstein’s death was hanging and the manner was suicide. You satisfied with that?
Anne Milgram: Yeah. I think a couple of points are worth discussing. The first is that I don’t think there’s anything out of the ordinary about a medical examiner taking a little bit of time to make the determination, and it’s because of exactly what you just said. It’s not just the autopsy. It’s also reviewing all the investigative materials.
Anne Milgram: So she might want to know, for example, were there narcotics in his blood system? Was there alcohol in his blood system? So there are a lot of questions that could be important for the medical examiner to know.
Anne Milgram: So it’s clear to me that she waited until she felt she had a full enough picture to make the call. She did make a very clear call that his death was a suicide. We should talk about the conspiracy theories in a minute.
Anne Milgram: But the thing that’s interesting to me about all this is that Epstein’s lawyers had hired their own person, essentially, to be present at the autopsy. They hired a private pathologist, which is someone who is obviously familiar with the process, and that person watched the autopsy. And now Epstein’s lawyers have said that they’re not satisfied with the conclusions of the medical examiner.
Anne Milgram: So I think we’re going to hear more, but to your point about the breaking of the bones and the injuries sustained are consistent with suicide, I don’t think the medical examiner would’ve made that call if that wasn’t the case.
Anne Milgram: So I do feel comfortable and confident that the medical examiner, and you and I both know in government, people don’t go out on limbs as a rule. They tend to be more conservative, particularly with stuff like this. So I feel pretty confident that this is in fact the cause of death and I don’t know if you think differently, but-
Preet Bharara: No, I am. But I think it’s interesting is that these lawyers were well-known practitioners. I know some of them personally. They said they will have a more complete response in the coming days. So it’s not clear. I think it’s good that they had their own pathologist there, which will squelch, hopefully, the conspiracy theories a little bit.
Preet Bharara: I don’t what it is that they’re not satisfied with, but the other sort of odd part of all this, is that if the reporting is true, one of the reasons that Jeffrey Epstein was taken out of suicide watch was at the urging of his lawyers.
Anne Milgram: Right.
Preet Bharara: Presumably these lawyers. So on the one hand, they are the ones urging that he be removed from suicide watch and on the other hand are saying they doubt the conclusions, it seems, of the medical examiner.
Preet Bharara: I don’t know what there is to doubt, other than the binary conclusion, suicide or not suicide. I mean, are they saying and will they say that they think there was foul play? Or are they going to say there was some irregularities and they can’t be so certain of the conclusion? Those are pretty radically different things, one of which will be kind of a bombshell.
Anne Milgram: And what’s also interesting and to your point, which is a really important one, is that it was reported that the lawyers had asked for him to be taken off suicide watch. Now, if that’s true, those lawyers, either way, the lawyers need to be interviewed if they had involvement of whether or not Epstein was on suicide watch.
Anne Milgram: And if they are the people who asked for him to be taken off suicide watch, then frankly, other lawyers should be handling the question of the autopsy and Epstein’s death. I don’t know if it’s a legal conflict for them to handle it, but it doesn’t feel right to me and that was one of my reactions as I read it.
Anne Milgram: If there are actually witnesses and maybe were the ones who were asking for him to come off of suicide watch, and again, that’s what’s been reported and it hasn’t been verified I think publicly yet, so if that turns out to be the case, though, they definitely also have some vested interest probably in believing or wanting to have the outcome be that Epstein didn’t commit suicide.
Anne Milgram: So I think all of this is really important that it be done in a way that’s transparent and that we get to see the investigative reports and we get to know what’s happened.
Preet Bharara: Yeah. And everyone should remember you still have two separate parallel investigations that apparently are ongoing. One by the FBI, one by the Inspector General as to how this could’ve happened.
Preet Bharara: And one other thing came to light in the last week, which told us something not directly, but I guess indirectly. That is people will remember that the cellmate of Jeffrey Epstein was a guy named Nicholas Tartaglione, who when I was a US attorney was charged with a quadruple homicide and he’s pending trial in that case.
Preet Bharara: There was a July 23rd incident at the MCC where Jeffrey Epstein apparently was found with bruising around his neck. The question that everyone had, and you and I had, was was that a suicide attempt or was it an assault by perhaps Nicholas Tartaglione. While that question was hanging, I thought that it was going to be hard to conclude how much malpractice there was or negligence there was in moving Jeffrey Epstein from suicide watch so quickly.
Preet Bharara: Because if the July 23rd thing was an assault, then there would not have been the clear mandate, I guess, to keep him on suicide watch because there had not been a prior suicide attempt. In other words, in a lot of people’s analysis of the decision making here depended on the July 23rd incident being attempted suicide.
Anne Milgram: Right.
Preet Bharara: We now known that Tartaglione’s lawyers have said that their client has been cleared of any wrongdoing, which leaves the only other possibility, I guess, was that in fact was a suicide attempt, not an assault. Which will, I think, then weigh heavily on the conclusions of any investigation with respect to the conduct of people at the MCC.
Anne Milgram: Completely. If it turns out to be correct that it was a suicide attempt, it is virtually impossible for me to understand how they could’ve taken him off suicide watch so quickly. I think we don’t know enough to draw that conclusion yet, but I do think it matters enormously.
Anne Milgram: One of the other things I noticed is Judge Berman, who is overseeing the Epstein case wrote a letter on August 12th to the warden basically saying one open question is exactly this: What happened on July 23rd? And the judge wrote, quote, “To my knowledge, it has never been definitely explained what the BOP concluded about that incident.”
Anne Milgram: That’s interesting because this was publicly reported. Epstein appeared in court shortly after that time and you remember didn’t appear to be injured. So the judge is saying, “I don’t even know what happened in that incident,” and the response from the warden is, “We can’t tell you about that now because it’s all part of these investigations by the FBI and the Inspector General.”
Anne Milgram: But it does feel to me like that’s also really slightly troubling piece, which is that none of us know what BOP concluded. Again, it’s just important for us to understand all those pieces.
Anne Milgram: In other news last week, there was a photograph that surfaced showing Epstein’s, she’s been referred to as Epstein’s madam, as a former girlfriend of Jeffrey Epstein, Ghislaine Maxwell. She hasn’t been in public view for some time. It’s been reported that for the past couple years she was living outside Boston.
Anne Milgram: But then all of a sudden, a picture surfaced last week in the New York Post of her in LA at an In-N-Out Burger in the San Fernando Valley. I just want to say, I did eat at In-N-Out Burger last week.
Preet Bharara: Did you see her? Did you see her?
Anne Milgram: I didn’t see her, but I was wondering if she had the animal sauce because it’s true. It is everything they say it is and more.
Preet Bharara: Is In-N-Out Burger, I mean, I think it’s pretty good, but I was in California over Christmas and we stopped to get gas at some point. There was a McDonald’s and a block away there was In-N-Out Burger and the McDonald’s was empty and the In-N-Out Burger had a line outside the door.
Anne Milgram: Yeah.
Preet Bharara: Is it that much better?
Anne Milgram: I mean, people in California, like our Twitter accounts are going to get a lot of hate mail if we say anything about In-N-Out Burger.
Preet Bharara: No, I like In-N-Out Burger.
Anne Milgram: I like it.
Preet Bharara: You know what I like better?
Anne Milgram: What?
Preet Bharara: I like the Shake Shack.
Anne Milgram: I like the Shake Shack too, but you know what I found? The thing about In-N-Out Burger is that if you just go regular In-N-Out, it’s just fine. If you go with the animal sauce and all the crazy different choices they have, it’s delicious. So I have to say you got to go all in on In-N-Out. You can’t just be like, “Yeah, I’ll have a cheeseburger.” No.
Preet Bharara: So what do you think all this says about Ms. Maxwell and her potential guilt?
Anne Milgram: I don’t think it says much of anything. I actually just think it says that she was at an In-N-Out Burger having burgers and a shake, really.
Preet Bharara: It was not a serious question, Anne. I’m glad you take even my humorous questions as serious.
Anne Milgram: No, but I mean, I have the same reaction as you probably had which is I think the question it raises for people is why hasn’t she been charged? I take the US attorney in the Southern District’s statement that the conspiracy count, that that investigation continues. I would think that she would be someone they were looking very strongly at charging. So I don’t think it’s over yet. The fact that she’s out there …
Anne Milgram: By the way, we should talk about this for one second. In the state system when a crime is committed and the police have probable cause to believe that they know who did it, they make an arrest. The process starts really fast.
Anne Milgram: In the federal system, it’s completely different. The agents do the investigation. They often indict someone before they’re placed under arrest and so this is a great example in the Southern District now.
Anne Milgram: This is an ongoing investigation. There’s grand jury work we already know has been done to charge Epstein. There’s other evidence, I’m sure, that they’ve already collected because the US attorney talked about the conspiracy count.
Anne Milgram: So she will be out and if they charge her, she’ll be arrested. But it’s not like, I think people sort of see someone like her who’s potentially someone who would be charged and they think why is she out. The short answer is that’s how the system works.
Anne Milgram: The government goes ahead and does their work and then if there’s sufficient evidence, she’ll be arrested. It’s just a different model than I think people are used to seeing in state court or in local cities.
Preet Bharara: We also don’t know how much more investigation has to be done. We don’t know the quality of the evidence is. Maybe it’ll be difficult to prosecute her. Maybe she won’t be. On the other hand, maybe she’s already talking with lawyers at the US attorney’s office.
Anne Milgram: Right.
Preet Bharara: And maybe there’s cooperation going on and maybe she’s trying to figure out a way to negotiate a deal. Sometimes that happens too, by the way. That someone is not arrested. I mean, it’s unusual, but someone is not arrested, not charged, and is being investigated and it’s a publicly known thing. So lawyers begin to negotiate either to try to get the prosecutor’s office to back off altogether or negotiate a resolution even before the time of the charging.
Preet Bharara: In some rare cases, it happens, but it’s rare, you’ll find out that there was a guilty plea at the same time that there was a charge. That’s always a possibility as well.
Anne Milgram: Yeah.
Preet Bharara: But I guess we’re going to continue to be talking about the Jeffrey Epstein case in the weeks to come.
Preet Bharara: So as we talk about shootings around the country with innocent lives lost, there are times when people forget how risky the jobs of police officers are. We had an incident in Philadelphia in the last week where six Philadelphia police officers were shot. They’re all, I think, okay, out of the hospital and all will survive, so no fatal shootings.
Preet Bharara: There was an armed man with a long criminal history who basically when a narcotics warrant was being served, he didn’t like it very much. He engaged in sort of a stand-off with police for a long time.
Preet Bharara: Now the reason we’re mentioning it, apart from the fact that we’re glad that the police officers are well and thank them for their bravery in enforcing the law, but the US attorney who I do not know … Do you know him? Willie McSwain in Philadelphia?
Anne Milgram: I do not know him. No.
Preet Bharara: So he issued an extraordinary statement and you and I got a lot of questions on Twitter asking how unusual this is and what we make of it. Among the things that the US Attorney McSwain has said about the Philadelphia DA, Larry Krasner, who styles himself as a progressive DA, are some pretty jarring criticisms. So he talked about the heroism of the Philadelphia police. Then he says, he says something kind of dramatic.
Anne Milgram: Yep.
Preet Bharara: He says, sitting Senate-confirmed United States attorney, saying, “But the crisis was precipitated by a stunning disrespect for law enforcement, a disrespect so flagrant and so reckless that the suspect immediately opened fire on every single officer within shooting distance. Where does such disrespect come from?”
Preet Bharara: Then McSwain says, “There is a new culture of disrespect for law enforcement in this city that is promoted and championed by District Attorney Larry Krasner and I am fed up with it.”
Anne Milgram: The US attorney went on to say, “It started with chants at the DA’s victory party, chants of, quote, ‘F*** the police,’ and, quote, ‘No, good cops in racist system.'”
Anne Milgram: Then McSwain goes on to say it’s been a year and a half of the worst kind of slander against law enforcement and says that the DA routinely calls police and prosecutors corrupt and racist and ultimately argues that it puts all people in the city at harm.
Anne Milgram: He basically is also sort of arguing that the city is less safe. I think it’s important for us to talk about this. He’s arguing his office, the US attorney’s office, is doing all they can. They’re prosecuting more violent crime. But the DA is not being held accountable and they’re making excuses for criminals.
Anne Milgram: And it says, bull … I mean, I don’t know if you’ve statement like this. I’ve never seen it.
Audio: But there’s a certain amount of distrust, I think, in the public of what Mr. Krasner might do. So I would say what my office is going to be doing is we’re going to be looking very carefully at what the DA’s office is doing and what Mr. Krasner’s doing and we are going to be providing some adult supervision.
Preet Bharara: So a couple things to say. Law enforcement agencies, including DA’s offices and US attorneys’ offices do not always get along. They have fights. The feds and the locals, it happens. There were times when I had disagreements, not only with the NYPD, not only with the DA’s offices and there are five in New York City, but also with the State Attorney General’s office and sometimes with the FBI itself.
Preet Bharara: The one thing that we made sure never to do was to openly air internal grievances. If we thought someone was being too tough or we thought someone was being too light, we dealt with those internally. I don’t think it serves the public well at all for those kinds of quote/unquote, “feuds” or disagreements to be aired on the public airwaves.
Preet Bharara: I think it causes people to lose a lot of trust in the overall mission of law enforcement. People are supposed to get along, whether you’re having a turf fight or you have a disagreement with someone’s philosophy. Those kinds of things you want to keep behind closed doors and work them out as best as you can.
Preet Bharara: Because the other thing that happens is, I’m not sure how far you get because everyone then goes to their own corner and gets upset and has to save face. So I find it extraordinary. I mean, you must’ve had disagreements and issues when you were the attorney general with the US attorney’s office, no?
Anne Milgram: I mean, I had disagreements. And first of all, I completely agree with your view that you try to work it out, that you don’t air your dirty laundry. I also felt very strongly that ultimately the jobs are in the public good and that you sit in those chairs in the public good and your job is public safety. So you have to do what you have to do and sometimes it means you have to fight with other agencies. And sometimes it means you have to step back because you ultimately have to do what’s the right thing.
Anne Milgram: But I will tell you, so when I was AG, remember I also ran the Camden, New Jersey police department, which at the time was the most dangerous city in America. So we had fights in Camden with the police unions, who didn’t like that we were making a lot of changes. We had conflicts over homeland security issues sometimes with our federal partners because we also had relationships with the NYPD, who as you know are very aggressive in the anti-terrorism space.
Anne Milgram: So we were connected with both them and with the Bureau. There were times where the PD would call us and not the Bureau and we would immediately call the Bureau, and then the Bureau would yell at us. I’d be like, “Wait a minute.” It’s like when you sit in church and the priest yells about people who don’t show up and you’re like, “Wait, I’m here.” So I remember a number of times feeling like I can’t believe it.
Anne Milgram: Then there’s just the plain competition that happens between law enforcement agencies. I think at least I’ve told you this story before where we had a very important political corruption case and our witness was on the way to meet with our investigators and was stopped by the Bureau. The grand jury materials that we had prepared were taken.
Anne Milgram: So we ended up having a lot of conversations about … And by the way, everyone was trying to ultimately bring cases against people they thought had done the wrong thing. People came at these situations, in my view, trying to do the right thing. They just didn’t always do it the right way.
Anne Milgram: But, yes. I think people would be surprised how much turf you can see in these situations. But your job, whether you’re the US attorney or the AG or the chief of police or the DA, your job is to get your job done and to work with others. That’s number one.
Anne Milgram: So what happened here, it’s extraordinary to me for a number of reasons. One, in my view, he did not do the right thing by the people of the Eastern District of Pennsylvania, right? His job … And we should also note that US attorneys, the feds, work with local cops all the time.
Preet Bharara: Yeah.
Anne Milgram: So the US attorney’s office, they work with the FBI, ATF, ICE and with the local police. Also for Krasner, the DA, it’s important to have a decent relationship with the feds, because I’ll tell you what. In Camden, and I’m sure this is true in Philly, which is right across the water from Camden, there were people who had multiple state-level convictions.
Anne Milgram: And the only thing that they didn’t want was to go federal because of the length of sentences in the federal system, particularly some of the gun possession enhancements. So one of the first questions we would sometimes get asked when we’d pick someone up is, “Are you state or federal? Are you Camden PD or are you Bureau?” It’s really important to understand that Krasner needs, they both need each other. Everybody needs to be able to work together.
Anne Milgram: So the first thing my reaction was, “I can’t believe he did that.” Like my jaw dropped, literally, and I think he crossed the line. Second, he made a lot of allegations that from what I can tell are not supported. I haven’t been able to find a record of Krasner saying many of the things he said Krasner said.
Anne Milgram: Krasner’s definitely progressive. He’s been open about being very progressive, about wanting to stop cash bail, about wanting to reduce incarceration. But the sort of explicitly anti-police rhetoric, I haven’t seen. It may be out there, but I don’t think that McSwain put any evidence forward.
Anne Milgram: The other thing I think is really important, which is kind of to the side of this, but is worth just talking about for a couple minutes is that this situation, this individual, I mean, he is to blame. He not only shot six officers. There were two officers who were essentially trapped upstairs near the residence when he was shooting. There were three civilians, three regular people, in the city of Philadelphia who were also caught up in this and were there. This was an eight-hour standoff.
Anne Milgram: So this situation, Larry Krasner did not create that. It’s important to understand that what that individual did was a terrible thing and we’re lucky that the officers, and they were heroic and amazing, we’re lucky that they all came out safe and that the three civilians came out safe. So to draw that line directly to Krasner just feels to me just absolutely wrong.
Preet Bharara: That seems to be the worst thing that he said. I mean, he uses particular verbs. This was an official statement. It was not something that he blurted out with a microphone in his face. “The crisis was precipitated by,” that’s a powerful verb, by “a stunning disrespect for law enforcement.” And then says, “Where does that disrespect come from?” And he draws a direct line as you’ve said to a culture “championed by District Attorney Larry Krasner.” And he says, “I am fed up with it.”
Anne Milgram: Yep.
Preet Bharara: One question I have is people keep saying, “Well, the US attorney position is not a political position,” which is correct, “and it sounded like this was politics.” I don’t know if that is true. I don’t know if McSwain is engaging in really strident rhetoric because he’s trying to make a name for himself to do some future thing. Or if he in good faith, and you might disagree, if he in good faith is in fact fed up and angry and has a different philosophy of law enforcement.
Preet Bharara: So people are saying a lot about how it’s not a political office. My complaint is not that it sounds like politics. My complaint that it doesn’t sound like it’s good for the city of Philadelphia. It doesn’t look like it’s good for police, DA, US attorney relations and it’s not good for public confidence.
Anne Milgram: Well, you’re completely right that it’s terrible and all those things. I do read it as fairly political. And in part, I read it as fairly political because McSwain went on Fox News and went after Krasner on Fox News.
Audio: Hey, Krasner has been in office for about a year and a half, funded by Mr. Soros.
Anne Milgram: So he almost was doubling down and likely getting a lot of feedback about his original appearance going on TV.
Audio: He wants to implement his radical agenda and he realizes that he can’t do that through the normal democratic process. Normally, if you’re going to try to get criminal justice reform, you have to do it through the legislature. You have to get broad public support for the kind of changes that you want to institute. He’s taking what I would describe as an illegitimate anti-democratic shortcut by trying to purchase DA elections and then once the DA is in place, he or she doesn’t enforce the law. And presto, you’ve got criminal justice reform.
Anne Milgram: He sort of started this media barrage against Krasner in a way. In the middle of this right now, Krasner and the police should be deciding how they charge this individual. They should be focused on that, not on what is really an attack on Krasner and on progressive DAs generally, which we should talk about.
Anne Milgram: To me it felt political and it just also … These are the moments where I think if the US attorneys and the DAs can’t stand above this type of turf battle. And look, I’m sure there are officers who’ve grumbled about this. Krasner has made a lot of changes in the system.
Anne Milgram: You and I both know the criminal justice system pushes back against change for a variety of reasons. So there’s definitely, I’m sure there’s grumbling, but to let it get to this point and to be overt is just, it’s in my view, sincerely bad judgment. It really does not help the people of Philadelphia.
Anne Milgram: And for what it’s worth, by the way, I don’t know Ross well, the Philly chief, but I’ve met him, I think, once or twice. Once at the police department and once I think at the major city chiefs. He came up in community policing. He’s somebody who works with everyone and seems to me like someone who would work hard to have a good relationship, both with the US attorney and with the DA. So this doesn’t strike me as Ross, the current chief, was driving at. It strikes me more this is McSwain basically really pushing back against progressive prosecution and Larry Krasner.
Anne Milgram: And just in that vein, I mean, you and I both saw a question from Michael, one of our listeners who wrote, “Preet and Anne, have you followed the recent attacks by Bill Barr and the US attorney in Philadelphia on criminal justice reform-minded DAs? Do you have any thoughts on the substance or the propriety of their statements? Michael.” I do think it’s important to note that this isn’t just McSwain. That this has been coming out of DC and DOJ and Bill Barr has been attacking the progressive DAs.
Preet Bharara: Yeah. I saw that. But here’s my view, divorcing it from the particular statements of this US attorney or Bill Barr. That is and you and I have struggled with this and we both have now some perspective going back a few years from having been in office. And we both teach. There are certainly things that need to be reformed.
Preet Bharara: The particular things that some of these progressive DAs are trying to do actually I have no problem with, including figuring out ways of doing better with cash bail, not prosecuting certain kinds of very low-level, small quantities of possession of marijuana. That doesn’t give me heartburn. So I think it’ll be better if people focus on particular policies that particular DAs are trying to propose. That’s point one.
Preet Bharara: Point two. I also do believe that one needs to be careful about encouraging disrespect for law enforcement. There are a lot of people are very angry for a lot of good reasons and there’s a lot of racism in the system.
Preet Bharara: But I worry when I hear people, and I’m not saying that Larry Krasner’s said any of these things, who basically say that all cops are terrible and that all cops are bad and that law enforcement is horrible and that prosecutors don’t do a public service.
Preet Bharara: Because most of the ones that I know and most of the cops that I know put themselves in harm’s way and they sacrifice a lot and they in good faith are trying to protect the public. That’s what I thought about my office. I’m sure that’s what you thought about your office.
Preet Bharara: So I don’t love, and that’s putting it mildly, I don’t love some of the rhetoric that I hear about police officers, understanding that there are bad police officers and understanding that there are bad prosecutors. But the overall generic rhetoric is not good and I don’t like it.
Anne Milgram: I agree with that and I think these are important conversations because I do think that Krasner’s elected in the city of Philadelphia and he was elected and he ran on a very transparent reform agenda. He’s elected because there’s a significant portion of the population that does not want policing and prosecution to happen as usual. They want change in the system.
Anne Milgram: So I think it’s important to note that he’s democratically elected. He can lose his next election or future elections. I think it’s important to note this sometimes. He’s elected because of deeper questions and issues in the system. He’s the outcome of that. He’s not the cause of those deeper issues and questions that I think people have raised.
Anne Milgram: So I think that there are huge challenges in the criminal justice system. Chief among them is the fact that we do things virtually the same as we’ve done for the past 60 years.
Preet Bharara: Mm-hmm (affirmative).
Anne Milgram: And the world has changed enormously around us. Quite frankly, I think if I were to blame the criminal justice system, and some of it, it’s that we haven’t been smart enough about understanding how you make communities safe. To me, public safety is the single most important thing. I believe very much in police officers and prosecutors, that they’re there because they want to do the right thing.
Anne Milgram: Now of course there are bad people in every job and every place. But I very much believe that law enforcement is critical in communities. So like you, the rhetoric on policing generally, I think is very problematic. I also think that we have a crisis of trust in our communities where there are challenges that we have to be open and transparent about addressing.
Anne Milgram: Krasner gets elected because of some of those fears and concerns about how the system works and things like mass incarceration. So I think if Krasner said those things, anti-police, that McSwain reported he said, I would be absolutely outraged by that and I would take Krasner to task. I haven’t been able to find that he said those. But look, it’s possible he did.
Anne Milgram: But the bigger point is if we really care about public safety, and we believe as, by the way, Democrats and Republicans in a bipartisan way do believe that we could have less crime and less incarceration, then we have to willing to open up the system to reforms like eliminating cash bail for low-level misdemeanors, things like that. So some of this, in my view, it could be specific to Krasner, but some of it also is just the system pushing back against change.
Anne Milgram: I’ve told the story before, but the state police in New Jersey was under a consent decree and one of the consent decree reforms was that they had to have cameras in their cars. Now if you ask any state trooper today about the cameras in their cars, they love them. They would never go on the road without them. But when they first went online, they miraculously broke every day. All the troopers would come back and they weren’t working.
Anne Milgram: Then I think John Farmer was AG at the time, someone, basically had to put in place a policy that said, “Okay, if you go out with a broken camera, or if it breaks and you keep working, you get docked a day’s pay,” or something. There was some pretty strong pushback to say, “No, this is part of your job. This is what you have to have.” And within a day, all the cameras were miraculously working again.
Preet Bharara: Right.
Anne Milgram: So the system pushes back against change, even when those changes turn out to be … and I would argue cameras on cars are one of the most extraordinarily pro-law enforcement things out there. They protect officers in an enormous way. But the initial reaction of the system is to push back.
Preet Bharara: Oh, yeah. That’s true of a number of things. The most conservative place, not ideologically but small-c conservative, is law enforcement and prosecutors offices. Any bit of change whether you’re talking about innovation or you’re talking about doing something even slightly differently meets, as you say, with a lot of opposition.
Preet Bharara: There was a lot of opposition on the issue in lots of law enforcement agencies on the issue of taping interrogations. That also was something that I think a lot of people have come around to believe is good for the law enforcement folks too.
Preet Bharara: Many years ago, people didn’t like the Miranda warning. I haven’t seen any surveys lately, but my sense from law enforcement is they like it. It’s a rule. They follow it. It preserves the ability to use evidence in court. They like to be able to give the warning.
Preet Bharara: And sometimes it is something that, contrary to what some people think, is a show of respect that causes a suspect to continue talking, because you develop a rapport and a bit of trust for the law enforcement officer. So lots of things that are seen, as you’ve been pointing out and as you’ve written about and spoken about, that seem like they’re not great for law enforcement just because they’re different turn out to be good for everyone.
Anne Milgram: So maybe we should talk just very briefly about one last thing. Which is that when Barr was AG before for George Herbert Walker Bush, he wrote a report called The Case for More Incarceration, arguing for longer sentences of people in the federal system who’ve been convicted and for very aggressive policing. I think it’s just worth noting that Barr, philosophically is very much at odds with people like Krasner and the other progressive DAs who are seeking less incarceration.
Anne Milgram: It’s just worth, I think, putting it in that context that there is sort of a bigger battle that’s going on, that is being waged over how much incarceration is the right amount of incarceration. As you and I both know, the US leads the world in our rate of incarceration. It’s not that we have more crime. It’s that we’ve made choices in many instances to be more punitive and to have longer terms of incarceration.
Anne Milgram: So I think that this is one example of it, but we will continue to see this fight between Barr and the progressive DAs in mostly cities across America, where they really have a fundamentally different view of the criminal justice system. By the way, I think Barr’s view is at odds with many Republicans who supported the First Step Act and who support sensible reforms that would reduce incarceration.
Preet Bharara: There’s other news about prosecutors too, allegedly misbehaving. This time, some people have asked about it. There’s a listener question about it, where the US attorney’s office in Kansas is being held in contempt of court by a judge for unlawfully listening to attorney-client conversations between people who are inmates in a facility and their lawyers.
Preet Bharara: The question comes from Luke [Massery 00:32:20] from Chicago, who asks, “Hi, Preet Bharara. Can you discuss on CAFE Insider what should be the punishment here and what actually will be? #askpreet.”
Preet Bharara: So this case arises from circumstances that some people might not be familiar with where in most jails, pretrial, there are recording devices that make sure that they record conversations between inmates and others. There’s a lot of investigative reasons, public safety reasons, why you want to have that.
Preet Bharara: In all circumstances that I’m aware of, there is some kind of warning, both next to the phone and also maybe in the preamble when you’re making an outgoing call that the phone call will be recorded. Those calls are not like when you call a service provider are not being recorded for quality control purposes but for public safety purposes.
Preet Bharara: Sometimes those calls, and I’ve had many cases like this, where there’s incriminating evidence that you get from somebody who’s plotting against a witness or trying to witness tamper or trying to do all sorts of things while they’re pending trial. That’s all fair and good.
Preet Bharara: The complication arises when there are calls between an inmate and his or her lawyer, which are covered by the attorney-client privilege, and the question is has that privilege been waived because of this little warning next to phone? In this case in Kansas, a judge has gotten very upset with the US attorney’s office that seems to be taking the position that they can listen to and use those recordings because of the warning.
Anne Milgram: Right. I think there are two issues here with the Kansas US attorney’s office and we should separate them into those two buckets. The first is this question, which I think is a fascinating question under the Sixth Amendment right to counsel. Which is is it enough to basically have a recording on a phone that says, “This call may be monitored”? We should just note that prosecutors across America listen to prison and jail calls all the time. It can be very helpful evidence.
Anne Milgram: Take the attorneys out of it for a second. It’s amazing what people actually say on calls to their loved ones and their friends. And some people, frankly, continue to run criminal organizations from inside jail or prison. So listening to the calls is really important from an investigative and law enforcement standpoint.
Anne Milgram: The attorney piece, though, is really I think different and it’s worth a conversation about how offices see this and what the practice is. The second piece of this, though, just to talk about Judge Robinson in Kansas and holding the US attorney’s office in contempt. There were two pieces, one of the contempt. One is that Judge Robinson found that the US attorney’s office was unlawfully listening to attorney-client conversations.
Anne Milgram: But the second is that she found that the office destroyed evidence to cover it up. There was a special master that had been appointed by the court to investigate, largely basically a neutral third party. It was someone, an AUSA from New York, and basically the US attorney’s office failed to cooperate and failed to preserve evidence.
Anne Milgram: So I think it’s worth talking about what the law is and also what the right thing is. But it’s also worth noting something that should trouble all of us, which is that the US attorney’s office, they’re the chief federal law enforcement agency in that community and they’re literally not following the law and not preserving evidence.
Anne Milgram: So when people start to think about that judge ordering the US attorney’s office to pay fines and fees to the public defender, that’s what this is going to come down to. Is basically the fact that they didn’t keep the evidence and that they didn’t cooperate with the investigation.
Preet Bharara: I think that’s all right and sometimes cases depend on the particular circumstances. I had some familiarity with how the warnings were given at the MCC because that’s the jail that we were dealing with. I don’t know exactly what happened at Leavenworth, but among other things, they did have a preamble and they had a notice next to the phone.
Preet Bharara: But there’s a process by which you’re an inmate. You don’t have a lot of facilities, you don’t have a lot of access to things. The process by which you could make an unmonitored or private phone call with an attorney was deemed to be so cumbersome and so difficult and not explained well, that it imposed an undue burden on these inmates.
Preet Bharara: The warning given, if I remember reading this correctly, was that your calls may be monitored. Didn’t even say they will be monitored. So a reasonable person might think, “Well, I’m talking to my lawyer. That’s why you have the ‘may’. Because if you’re talking to your lawyer, then they’re not going to be listened to by prosecutors.”
Preet Bharara: I also think that whether you’re in a law firm or at a prosecutor’s office or any other institution, you think about technically what the law allows and then also what the right thing to do is. I do think that there are federal prosecutor’s offices who take the general position, because they think the law may permit it, depending on the circumstances.
Preet Bharara: There’s some state courts also that have upheld the ability for prosecutors and law enforcement to listen to calls between inmates and defense lawyers if they had been sufficiently made aware that those are going to be listened to and if there is sufficient opportunity to make unmonitored calls.
Preet Bharara: However, and I believe this was always our practice and policy, however, if you come into possession in good faith of calls that were recorded by the prison facility, and you then realize that one or more of the calls is with an attorney, you take pains not to listen to it. You come up with a system so you can screen out those phone calls.
Preet Bharara: Because I don’t think it sends a good message to the public about the respect we have for the attorney-client privilege. And I also don’t think it’s good for how the courts view the office if you’re not taking that care. I know there are offices that have taken more aggressive positions on that.
Preet Bharara: One of the things that disturbed me about this report, again, I don’t know the facts, but when you have an issue that relates to something as sacrosanct as the attorney-client privilege, I think you have to have a really well-defined policy that can’t be figured out ad hoc. In one of the reports I read that one of the former prosecutors who used the calls testified she’d discussed the issue with other federal prosecutors during lunchtime conversations.
Preet Bharara: That seems pretty informal on something so important. There needs to be training and there needs to be a clear policy and it needs to be endorsed by the court.
Anne Milgram: Yeah. I agree with you. And one of the other things I noticed from the reporting was one of the prosecutors made a statement that they felt it was okay because the inmates know that they’re being recorded and because defense lawyers were stupid if they were willing to talk to their clients given the fact that they’re in an institution and to go forward with it. That just strikes me as completely wrong on so many levels.
Anne Milgram: I also think that, my view on the Sixth Amendment is that and as a matter of both practice and policy, I don’t think that you should listen to inmate calls. The bottom line on this is that we incarcerate you. And unless there is the simplest way for an inmate to basically say this is a call with an attorney, like you push a button when you’re picking up a call, unless it’s that simple, I just think that processes and hoops that we make inmates go through to talk to their attorney, it ultimately I think falls on us and on the government that we shouldn’t have the benefit of being able to listen to attorney-client calls.
Anne Milgram: Because it’s so to the core of having a fair system and it’s part of the Constitution, the right to counsel. Look, my view is that if a lawyer is committing a crime, that’s fair game. If something isn’t privileged, all of that is fair game. You can’t use your lawyer to try to hide that you’re committing crimes, to commit crimes on your behalf.
Anne Milgram: There are all kinds of exceptions to the attorney-client privilege that are really important. But if a call’s legitimately attorney-client privileged, then my view as a prosecutor is, my job is to go in and try that case based on the facts and the evidence. And that’s the defense lawyer’s job as well. They have to go in and try their case.
Anne Milgram: So it just doesn’t feel to me like the right thing to do, even if a state court says you’re allowed to listen because there’s this generic warning at the beginning of a call. It doesn’t feel to me like it’s the right thing to do.
Preet Bharara: Yeah, and there are ways to deal with it. Famously, a year and a half ago, we all talked about the search warrant executed at the home and office and other places owned by Michael Cohen, former lawyer to the President. Then famously, people joked about taint teams and all the rest. They always look at documents and materials and even phone calls if you need to, to make sure that someone’s not getting away with a crime.
Preet Bharara: But taking care that you’re not infecting the things that you’re looking at with attorney-client privilege. So you have teams of people who are walled off from the people who are actually doing the investigation or prosecuting the case. Some method like that can also be used when you’re talking about prison calls.
Anne Milgram: What do you think here, Preet? I mean, what should Barr do with the US attorney? I mean, I think there’s sort of a separate question. I mean, the judge has said that the public defender’s office should come back with a request for fees and costs of the US attorney’s office because the judge has held them in contempt. So that’s one piece that we’ll follow.
Anne Milgram: But I think there’s a bigger question in my mind, which is that it feels to me like there’s some serious leadership issues and I don’t know the US attorney. I don’t know if it’s the same US attorney or it’s somebody different. It looks like this practice was going on for years. How do you fix, particularly the part about not turning over evidence and not cooperating with the investigation?
Preet Bharara: Well, a couple things. One is there is some reporting that at least with respect to some of this stuff, the US attorney’s office blamed rogue prosecutors so that it wasn’t the overall practice of the office. They said there were a couple of people who were doing bad things. Now, I don’t know if that’s fully correct or it goes beyond that.
Preet Bharara: Second, I’m a little bit speculating here. But usually it’s the case when you have a judicial ruling like this that finds some bad conduct on the part of someone in the Justice Department, that essentially will automatically trigger an inquiry within the Justice Department with the Office of Professional Responsibility, which does a pretty thorough job.
Preet Bharara: Some criticize them for not engaging in enough discipline. But my experience with it over the years and given the things that they look at, is that they’re pretty meticulous and they’re pretty nonpartisan and politically independent. But they would be taking a look. So not knowing all the facts and not knowing who was responsible for what, and if it’s more of a failure of the prison or more of a failure of training or people actually acting in bad faith intentionally, I think that will dictate what the final results should be.
Preet Bharara: But look. If this becomes an issue, and this is how lots of policies get made and get clarified, because a judge somewhere says something or a lawsuit somewhere reveals something, that maybe it’s time for there to be an overall Justice Department practice.
Preet Bharara: By the way, people don’t also appreciate this. There’s lots and lots of things. People like to criticize the Justice Department and sometimes it deserves that and prosecutors and sometimes they deserve that. There are lots of things that prosecutors do that the law does not require, that prosecutors do that go well beyond what the law requires. They could get away with disclosing even fewer things. They can get away with disclosing things even later than they now do because the law doesn’t require it.
Preet Bharara: Most famously, we’d always talk about this provision in the law that says you only have to give certain kinds of impeachment material of your witness after the witness has testified. Meaning mid-trial, so that the defense counsel can take a look at that material and figure out how to do the best cross-examination of the witness.
Preet Bharara: That clearly is ludicrous and makes no sense. I’m not aware of any US attorney’s office that actually follows the law in that regard. In other words, they do much, much more for the defense than the law requires. And that material, which we used to call 3500 material, gets produced well in advance of trial, maybe not far enough in advance for the tastes of some defense lawyers, based on the complexity of the case, but more than what the law requires.
Preet Bharara: The point is that sometimes the law doesn’t do a good enough job of policing what is right and dictating proper conduct by law enforcement officials. And then good common sense-minded law enforcement officials have to come up with policies that are more fair than what the law says.
Anne Milgram: I agree. I also agree that this feels to me like an area where there should be a uniform policy and practice that the Department of Justice follows and that it’s not that hard to figure that out. Then send that out to the different offices. Because it’s a Constitutional question. It goes beyond sort of a local practice issue.
Preet Bharara: Yeah. And by impeachment, I don’t mean what people want to do to President Trump. Talking about information that allows you to effectively cross-examine someone that calls into question their credibility, prior witness statement, that sort of thing. The kind of material that every defense lawyer, I think, has a right to see in advance of the testimony of the witness.
Preet Bharara: Okay. Can we end on some that’s not quite in our wheelhouse, but we should talk about it anyway? The news that the President of the United States has talked to his advisors about buying Greenland.
Anne Milgram: Yes. Did you know that Greenland was part of Denmark?
Preet Bharara: I’m going to say yeah. Of course I knew that. I’m certain I knew that.
Anne Milgram: Yeah, I did, yeah, I did not. I thought … yeah.
Preet Bharara: I’m well … No, I had … Here’s the funny thing. From time to time the President’s sort of crazy ideas cause you to learn something. I’m like I’m thinking-
Anne Milgram: That’s a silver lining.
Preet Bharara: … Who are you buying Greenland from? I mean, I just said …
Anne Milgram: Yeah.
Preet Bharara: My apologies to the mere 56,000 wonderful-
Anne Milgram: People of Greenland, yes.
Preet Bharara: … humans who live in Greenland. But I never gave a lot of thought to who Greenland was a part of.
Anne Milgram: I mean, I couldn’t believe it when I read it. It does feel like pure comedy. There are a few things I read about it that I really liked. I really liked, there’s an expert on Greenland at the Center for Military Studies at Copenhagen University, Henrik Breitenbauch, who stated, “Greenland could choose to become Puerto Rico with snow, but I doubt there’s much interest in that.” Basically referring to the fact that Puerto Rico is an unincorporated US territory, which is what Greenland would become.
Preet Bharara: I’m going to say something that is going to sound like it’s in defense of the President. It’s not meant to be other than to say look, I think the idea of buying Greenland is ridiculous. But it’s not as ridiculous as you think at first blush. It is totally ridiculous. But I also didn’t know and I think you would be more forgiven for not knowing the following fact, the United States of America has tried to purchase Greenland before.
Anne Milgram: Yes.
Preet Bharara: In 1946. We have researched this now for purposes of discussing it on the podcast. But Harry Truman offered Denmark $100 million to buy Greenland, when there were other things going on.
Anne Milgram: Which is the equivalent of a billion dollars today. Right? Yeah.
Preet Bharara: Yeah, like $1.2 billion. So maybe it was crazy and silly when Truman offered it or maybe it wasn’t. Maybe it’s crazy and silly now, but it’s not unprecedented.
Anne Milgram: Well, here’s the crazy part. No one is out selling Greenland. It’s not like there’s a For Sale sign on the front of the country. And Denmark doesn’t own it. It’s a territory of Denmark. But it’s like this whole idea that anything can be bought and sold, which is you’re right. There is some history of this. But there is something really absurd about just going out and saying like, “Hey, France has great food. Let’s go buy France.” Right? I mean, it is really hard to imagine that this is how the world works.
Anne Milgram: There are a couple of other really funny things that I saw on Twitter. Then there was a great piece in the New Yorker by Andy Borowitz, that said, quote, “After rebuffing Donald J. Trump’s hypothetical proposal to purchase Greenland, the government of Denmark has announced that it would be interested in buying the United States instead.”
Anne Milgram: Quote, “‘As we have stated, Greenland is not for sale,’ a spokesperson for the Danish government said on Friday. ‘We have noted, however, that during the Trump regime pretty much everything in the United States, including its government has most definitely been for sale. Denmark would be interested in purchasing the United States in its entirety, with the exception of its government.'”
Preet Bharara: Right.
Anne Milgram: Then he goes on to say, “A key provision would be the relocation of Donald Trump to another country yet to be determined.” Yes. But there’s one other-
Preet Bharara: There’s a line from The Princess Bride. It’s very famous. When the Sicilian turns to Andre the Giant and says, “Do you want me to send you back where you came from? Unemployed in Greenland.” That’s-
Anne Milgram: I forgot that. Yeah.
Audio: And you. Friendless, brainless, helpless, hopeless. Do you want me to send you back to where you were? Unemployed in Greenland?
Preet Bharara: Did you realize that Greenland had a population of only 56,000?
Anne Milgram: I did not.
Preet Bharara: So if you went to a Springsteen concert in the Meadowlands and you looked around, like that’s the entire population of Greenland.
Anne Milgram: The other funny thing I saw on Twitter were a couple people who basically saying were like, “If we buy Greenland, does that make us part of Denmark because we’re in for universal health care, high-quality education, great pay for teachers and outstanding public transportation.” So there’s been a fair amount, I think, of humor that’s come out of the Greenland conversation. But-
Preet Bharara: The best thing that I saw along these lines, it’s not the best thing, was that, “Does Donald Trump want to buy Greenland in part because he looks at the typical map and Greenland looks a lot larger than it really is?”
Anne Milgram: It does. It does. It looks …
Preet Bharara: Realize … Something else I learned. That that map projection is called Mercator projection and it distorts the sizes of countries and land masses as you get way north. So Greenland on a Mercator map looks like it’s the size of like South America.
Anne Milgram: It looks like it’s the size of Africa and larger than Australia. In reality, Australia is more than three and a half times as big as Greenland and Africa is 14 times bigger than Greenland. But maybe you’re right. He saw the map and thought, “Well, that looks big.” It’s also like he’s playing some sort of, I don’t know, US government international politics game of Risk. Wasn’t that the game where youwhere you try to take other countries? I don’t remember it fully, but it’s hard to believe
Preet Bharara: The really awkward thing is that the president is about to go to Denmark and meet with the leadership of Greenland. And so, you know, bring a check. . You want to talk about an awkward dinner.
Anne Milgram: Okay.
Preet Bharara: Okay, so that’s all the time we have for today for the insider. We’ll be back next Monday, so send us your questions to insider or cafe.com and we’ll do our best to answer them. See you next weekend.
Preet Bharara: This is the CAFE Insider podcast. Your hosts are Preet Bharara and Anne Milgram. The executive producer is Tamara Sepper. The senior producer is Aaron Dalton. The CAFE team is Carla Pierini, Julia Doyle, Calvin Lord, Vinay Basti, and Geoff Isenman. Our music is by Andrew Dost. Thank you for being a part of the CAFE Insider community.