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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning again, everyone. With us now, Preet Bharara, former US Attorney during the Obama administration for the Southern District of New York, which is a fancy way of saying Manhattan and the Bronx and the Northern suburbs and up into the Catskills and up to Poughkeepsie. It's the fact that it has jurisdiction over Manhattan that makes the Southern District US Attorney such an important office for justice on the national and even international level, as well as in New York.

In fact, Preet Bharara's Twitter bio, those couple of lines at the top of all our Twitter feeds, his includes the words "Banned by Putin, fired by Trump". We have plenty to talk about right there. In addition, Preet Bharara was a high-profile endorser of the New Manhattan DA, Alvin Bragg, controversial in his first months in office for some of his progressive prosecutor reforms.

Bharara's corruption investigations included at least one of Governor Andrew Cuomo that ended with no charges filed, but still, Cuomo uses Bharara as a foil sometimes in claiming the sexual harassment report about him from the New York State Attorney General's office is political. We've got a few things to talk about.

Also, coming up on March 31st, Preet will be doing his podcast called 'Stay Tuned' live at the Town Hall in Midtown, where he'll be talking to guests, Ben Stiller and Garry Kasparov, less about acting or chess, I'm sure, than about Stiller's role as an advocate for refugees and Kasparov's role as a Russian critic of Putin. Preet, we always appreciate when you come on, welcome back to WNYC.

Preet Bharara: Thank you, Brian. It's good to be here. I miss being in the studio with you though.

Brian Lehrer: It's great to have you even this way and I miss you too.

Preet Bharara: Even this way. [chuckles]

Preet Bharara: Usually, guests get to plug their events at the end. I'm going to let you plug yours at the beginning and ask you what you think the importance of dissidents like Garry Kasparov might be to stopping Putin from the war crimes he's engaging in right now. A court may have not called them war crimes, but I'll call them war crimes.

Preet Bharara: Well, Joe Biden has called them war crimes and other members of the administration have called them war crimes, so you're in a pretty good, semi-official company. Thanks for having me on, Brian, and thanks for asking me about the show.

There's a lot going on in the world and Garry Kasparov in particular, in addition to being perhaps the most brilliant chess player we've ever seen, has been an incredibly smart, insightful, keen observer of Vladimir Putin and the rise of autocracy, and he's been giving warnings, year after year after year, about how, if the west doesn't do more to stop, not just the rise of Putin, but the aggrandizing of other land and provoking the west, then we're in big trouble.

He has been saying a lot of things recently because a lot of his predictions have come true. There is a debate going on among reasonable people of good faith, with respect to how much the west should do. A lot of people think that setting up a no-fly zone is a recipe for World War III. Some people think that it can be done in a particular way and in a modest way. Other people think in retort that that's silly and Garry Kasparov is on the more aggressive side of some of this discussion, even though he's not an officer, I think he's taken it very seriously. We're going to talk about all of that whatever the case may be in a couple of weeks, it will still be probably the most important story in the world and so we'll get his perspective on that.

Brian Lehrer: No doubt. That phrase in your Twitter bio "Banned by Putin", can you tell our listeners that story?

Preet Bharara: Yes. I was banned by Putin before it was as hip as it is now. A number of years ago, this happens from time to time, there's a contretemps between the Russian government and the US government because of various actions.

The reason that I and I think 16 others were banned, about eight or nine years ago, was, we had prosecuted and I had overseen the prosecution of a very notorious arms dealer named Viktor Bout who was wanted for a long time, charged in my district. He said in the outset in the introduction that we do things all over the world and that's true.

A very ingenious sting operation was able to nab Viktor Bout in Thailand. It took a while for him to be ultimately brought to the United States for prosecution. He went to trial, he was convicted. He's a Russian national, and Putin and others took the view that he was mistreated. Viktor Bout made a lot of outlandish allegations about his treatment, none of which were held to be true.

In retaliation for some things that the US government had done, many of the prosecutors, at least one of the judges who were involved in the trial of that arms dealer, Viktor Bout, were banned from Russia. At the time, I thought this to be true, and I certainly think this to be true now, badge of honor.

Brian Lehrer: Interesting story. What role would your old office, the Southern District of New York US Attorney's Office be playing now, if any, in the enforcement of sanctions on Russian oligarchs in New York or anything else related if there is?

Preet Bharara: It depends on who the targets are. I think it's common knowledge that there are Russian oligarchs who have property and other assets within the Southern District of New York. The announcement that was made by the Attorney General of the United States in the last number of days, also reportedly comes with the appointment of an assistant US Attorney in the Southern district who will be one of the people running point on this task force against the oligarch.

Both in connection with the running of the task force, from what I understand from the New York times, and also logically New York is a place where oligarchs can buy serious properties and invest in properties and perhaps engage in money laundering. I would expect that the Southern District would play a pretty important role.

Brian Lehrer: Can you explain a little bit about the law regarding sanctions? I don't fully understand it. We've had listeners' phone calls like this, too, from people who don't understand, no matter what we think of Putin's dirty war, how can the US government take away apartments or any other property that rich Russians happen to have bought with their own money in New York City?

Preet Bharara: There's a couple of things. First, there are some criminal laws that may have been broken, whether or not there are sanctions imposed and that those things just have not been the topmost priority and haven't been pursued maybe as aggressively as they might be because of lack of resources or anything else. You're not allowed to engage in money laundering, whether there are sanctions against your country of origin or not.

It is probably the case. This is one of the things the task force, I presume, will look at to see if people who have engaged in illegal activity and have ill-gotten gains have tried to launder the proceeds of that illegal activity into boats, yachts, apartments, other properties in New York, in Paris, and other places around the world. That's criminal conduct separate apart from the sanctions, then with respect to sanctions as an ongoing matter.

We saw this with sanctions against Iran and we brought an enormous case against [unintelligible 00:07:35] for evading sanctions. If there are people who are doing business with Russians, oligarchs or otherwise, and, obviously, the oligarchs are the main target for various reasons, legal and political, then it's not allowed. You investigate, sometimes there are processes by which individuals from sanctioned countries try to evade those sanctions by using certain kinds of bank accounts, payment processors, and the like.

There's a story that I just skimmed right before we started taping this segment about how Iran was able to evade some sanctions by having an alternative banking system. That's the kind of thing that will be looked at as well.

Brian Lehrer: By the way, listeners, we're not on tape today. We are live.

Preet Bharara: That's what I meant. I'm used to being on a podcast, Brian, that's always taped so they can cut out my idiotic comments.

Brian Lehrer: In fact, listeners, if there's anything you always wanted to ask Preet Bharara but you never had him over to dinner, you can call us live at 212-433-WNYC with your question. 212-433-9692, or tweet that question @BrianLehrer.

"Banned by Putin, fired by Trump." How is the Justice Department doing, in your opinion so far, in holding people accountable for the events of January 6th, 2021?

Preet Bharara: That's a good question. Obviously, I'm an outsider now. I don't have any inside information. I don't know what other investigations are ongoing, but from what we know publicly, at least with respect to the people who are on the scene, there have been hundreds of prosecutions. I keep losing track of the number, it's in the seven hundreds, and a good number of those folks have pleaded guilty, pled guilty as I prefer to say.

There was the first conviction at trial of someone who decided to contest the charges, Guy Reffitt, he faces a substantial prison sentence. That's an important consequence of the investigations being done by the Justice Department.

There was this very serious seditious conspiracy charge that was brought against a number of folks. With respect to the low level of people and even through the higher-level people who were active in the lead up to January 6, I think the Justice Department has a very good track record to show for their work.

Remains to be seen and known as to what extent the Justice Department is investigating and may prosecute people even higher up, people in the White House orbit up to and including the former president of the United States. With respect to that, it's hard to tell. The January 6th Committee clearly is doing a lot of work. It's being very exhaustive.

Every time they seek testimony from someone in connection with their investigation of the big lie in the lead up to January 6th, you hear about it because there's litigation with respect to subpoenas. You're not hearing about that kind of litigation and back and forth and debate with respect to anything the Justice Department is doing related to people like Mark Meadows and Donald Trump and Steve Bannon and people of that type.

I don't know what that exactly means. Does it mean that the Justice Department is looking very seriously, but in a covert way, they're gathering communications by subpoena? Could be. They're waiting to approach these witnesses in a direct way for some reason that's not clear to me. It's been a long time.

I think the jury is out with respect to the Trump orbit because they don't know what's going on. Maybe they're waiting for some referral from the January 6th Committee, but I'll remind folks that's not required unlike the situation you have with Mark Meadows and Steve Bannon, who have been referred to the Justice Department for contempt of Congress for disobeying subpoenas, which does require a particular kind of referral according to procedure in the Congress.

General overall investigation of criminal activity, including obstruction of an official proceeding or seditious conspiracy, or anything else, does not require a referral. That's my answer, unsatisfactory to some.

Brian Lehrer: I'm going to ask you one follow-up question on Trump himself, but let me take a little language detour first because you threw in that--

Preet Bharara: I love language detours.

Brian Lehrer: Yes, you threw in that as a former prosecutor, you prefer the word pled to the word pleaded. Now, other than that, you can use pled in Wordle and you can't use pleaded. Why is that?

Preet Bharara: That's what I have used. That's what I've seen the Attorney General use. I think the usage guides actually suggest that they're both appropriate. Language changes over time. The past tense of read is not readed. It's read. No smaller an expert than Benjamin Dreyer who is a copy editor and has written a very popular book about language and syntax and grammar agrees with me. I concede that it's still a minority view, a substantial minority view, but it's more elegant. I like it better, and that's what Ben Dreyer does.

Brian Lehrer: All right. Now you're on the record.

Preet Bharara: I am.

Brian Lehrer: Do you think there's a criminal case against Trump himself, and if not, how high up the chain do you think criminal responsibility goes for January 6th from what you know?

Preet Bharara: Again, it's hard to say. It's difficult to be in the position of not having direct access to the evidence and the testimony and the communications and the emails and the text. You see some of it because it gets disclosed in other litigations in connection with the process. What I can say for sure is that given what we know publicly, what's been reported, and what we've seen with our own eyes and heard with our own ears, is that there's sufficient basis to open up a serious investigation.

The threshold for opening an investigation is much lower, as you might imagine, than the threshold for actually bringing a criminal case and proving it beyond a reasonable doubt. If that was the standard to open up an investigation, very few investigations would be open because sometimes you don't even know who the perpetrators are at the time you believe that a crime may have been committed. That's why I think people are somewhat perplexed about not seeing real concrete evidence of a serious investigation by the Justice Department because we're not hearing about that thing.

Now, how difficult will it be to bring a case against Donald Trump? I think that depends on what other people are saying. It depends on what cooperation there is. I think key to a lot of this, as the select committee has made clear in the way it's approaching this, is Mike Pence. There's a question about whether or not Mike Pence will ultimately testify. My view is he should testify. That's his duty as an American. He's a central witness to all of this.

It's not clear to me you absolutely need it because he's had-- I think his chief of staff and I think his chief counsel also, but I'm not positive, come and testify before the committee, provide documents. We keep hearing all this news about the fighting with respect to some of these witnesses, but there are hundreds and hundreds of witnesses who have come forward. Sometimes you can fill in the blanks, not with the particular person, but the people around that person, whether they're staffers or secretaries or you get documents from third parties.

I don't know if Donald Trump will ultimately be charged with something. You have not just January 6th, but you have things related to the overturning of the election or the attempt to overturn the election.

In Georgia, there's a Fulton County DA who's been looking at these things. It's hard to say, but I think we'll have a much better picture when we see the live hearings from the January 6th Committee, and at least the January 6th Committee believes there's a pretty decent amount of evidence that Donald Trump and his lawyer John Eastman, who was also in battle over documents, were engaged together in a potential crime, obstruction of a criminal proceeding and that's not-- [crosstalk]

Brian Lehrer: It's interesting that you bring up the Georgia case. Maybe that's really where we should keep our eyes, that phone call to Republican-elected Georgia Secretary of State by Trump, asking him to "find enough votes to change the result of the election". I want to take a phone call because Jim in Brick Township in New Jersey wants to ask you about a different local prosecution of Trump that you may have some knowledge of. Hi, Jim. You're on WNYC.

Jim: Hi, Brian. Thank you for taking my call. The recent two resignations Dunne and Pomerantz, why is Bragg not pursuing the prosecution? I remember way back when the two Trump children were under investigation and it was reported that there was a donation made to the office and Cy Vance's underlings-- [crosstalk]

Brian Lehrer: When Cy Vance was the Manhattan DA. Of course, he said on this show and elsewhere that there was no relationship between that donation and his decision that there was no there, there to prosecute the Trump children in that case. In this case Preet, and let me give our listeners just a little bit more background.

It's an investigation of Trump for, I guess you'd call it, real estate fraud in the Manhattan DA's office, overvaluing or undervaluing properties that he was selling, which the new DA, Alvin Bragg, who worked with you at the US Attorney's Office seems to have doubts enough so that he slowed up the grand jury process, it's been reported, and the two chief prosecutors who had been leading the case resigned.

That's the resignations that the caller referred to. Can you explain to our listeners as best you can what Bragg's issue is with the evidence in that case and that the other prosecutors seem to disagree about?

Preet Bharara: Sure. With the same caveat, then I'll repeat again that I don't know all the details. I haven't been in the discussions, but there's been some amount of reporting about it and if you credit it, I think you can conclude is the following. It was always going to be difficult for there to be that criminal case brought by the Manhattan DA against Donald Trump.

I think even the reporting that gives the perspective of the two departed very respected lawyers Pomerantz and Dunne suggest that they did not think it was a slam dunk. One of the reasons you can tell from, even as an outsider who has some experience in this kind of work that it was an uphill battle is Donald Trump doesn't text, Donald Trump doesn't send emails, and in a case where you have to prove intent that the inflation of these assets or the deflation of these assets as the case may be was done with the knowledge and willful intent of Donald Trump is sometimes harder to prove if you don't have those incriminating emails or texts.

Second, one surefire way to get at the criminal intent of someone is to have a person near that person flip and cooperate with the government. There may be a number of potential cooperators, but the two most prominent ones that we know of are Michael Cohen, Trump's former lawyer, who himself was never signed up to a cooperation agreement by my old office, the Southern District of New York, took a guilty plea. Among other things, pled guilty to lying to Congress, which makes him problematic from a credibility perspective.

The other is Allen Weisselberg who I think people might remember is the CFO of the Trump Organization, who clearly the Manhattan DA's office tried mightily to flip and they failed. They ended up charging Allen Weisselberg with this tax fraud scheme relating to fringe benefits from his work.

The absence of those two cooperators and the absence of texts and emails, I can see why it would be uphill. Maybe it's a makeable case. It appears that the two departed lawyers thought it was a makeable case. It's not crazy to me that there might be a difference of opinion among reasonable people, but I certainly agree that it seems unlikely now given their resignations and given the expiration of the grand jury coming up soon, it seems unlikely that Trump will be charged by the Manhattan DA. Whether or not that is a reasonable result, I don't know for sure.

Brian Lehrer: Boy, when you tie it together-- this is not a legal question. This is more of an impression, but when you tie together how he might not be prosecutable for January 6, and how we might not be prosecutable for real estate fraud. In both cases, it comes down to intent, and the difficulty of proving intent, intent to cause a riot, intent to deceive investors or banks with the IRS. Trump turns out to be a master of plausible deniability in his language.

Preet Bharara: That's actually a great way to put it, Brian. There's a couple of things that are ironic about Trump. One, he doesn't engage in communication. He has no emails in Texas we keep saying, that's also true of my bosses in the past who were very, very hard to prosecute until two things happened. Prosecutors were able to get wiretaps and hear incriminating things being said, or would get bugs in rooms, even more importantly, and more directly, and they got people to flip. You don't have either of those things in this case.

The other thing that's ironic that I've always said is Donald Trump has associated himself with crooks, with people who have criminal tendencies, who break the law, and to his benefit, in some ways, when those people around him end up getting caught up in the law like Roger Stone, or Michael Cohen and others, and there's a bunch of Paul Manafort, Trump is able to say, "You can't believe anything they say. They're crooks, and they're liars."

Prosecutors don't feel super comfortable with signing them up, because you know why? They're crooks, and they're liars. It's very dissatisfying, I understand from people's perspectives, but any criminal case has to be made on the facts of that particular case and the evidence you have. Donald Trump wouldn't be the first person to have plausible deniability in the history of criminal cases, but I agree, it's a very frustrating thing.

Brian Lehrer: We have a few minutes left with Preet Bharara, the former US Attorney in the Southern District of New York, now host of the podcast "Stay Tuned with Preet". He'll be doing a live appearance, a taping of that podcast March 31st at Town Hall in Midtown with Garry Kasparov and Ben Stiller.

How about Alvin Bragg and being a progressive prosecutor, nevermind not prosecuting Trump? He's already pulled back on his original plan not to prosecute illegal gun possession as an imprisonable offense if the gun wasn't used in a crime and some other things. You endorsed Alvin Bragg in his election campaign. You are one of his most well-known and prominent endorses. Do you want to defend him, criticize him, or both?

Preet Bharara: I wouldn't put it in those terms. Alvin Bragg can defend himself. Alvin Bragg has been touring Manhattan. His constituents, he's been speaking to them and explaining himself. Look, I can't say it any better than Alvin himself did. He said, over time, that that day one memo was a mistake. He was misinterpreted, in part. It was not drafted well, in part. It was an error, and essentially, took him some weeks. He, essentially, has withdrawn that memo.

He's trying to clarify what he thinks the right balance is based on consultation with police officials, the city, other constituencies in Manhattan. I think he's making the right moves towards, I think, being tough on the crimes that are right, and just to be tough on. Also, thinking about how to do things in a more fair and just way, because I don't think anybody would say that the way crime has been prosecuted at the local level has been as successful as it might otherwise be, both in terms of fairness, and in terms of public safety.

I think he's understanding now that he's in office that you have to do both. He said that on the campaign trail, that's one of the reasons I endorsed him. I think he got off to a not a great start with that memo. I think he was misunderstood, and also wasn't clear. I think he's gradually understanding what the right balance is. That people will not tolerate increases in crime, particularly violent crime. He's changed or at least, made clear that he's going to take a tough stance with respect to guns, as you mentioned.

Also, there was some confusion about his policy on resisting arrest. He's made very clear that that was misunderstood or at least not properly communicated. I think he's taken a number of steps to improve public safety in Manhattan, and I think he'll continue to do so.

Brian Lehrer: I want to get in a quick Andrew Cuomo question before you have to go.

Preet Bharara: I was trying to filibuster.

Brian Lehrer: He's trying to make a political comeback. He did a campaign-style appearance yesterday and documents seem to show that he argues the state Attorney General's investigation was biased against him, in part, because it was run partly by Joon Kim who used to work for you at the US Attorney's Office because Cuomo bad mouthed you to Donald Trump when Trump was president. Cuomo was arguing Joon Kim, as close to you, had reason to issue a political report on Cuomo instead of an honest report on sexual harassment. Can you give us your version of any of this? Did Cuomo play a role, in your opinion, in Trump deciding to fire you?

Preet Bharara: Is a lot of questions. Brian, as you stated that fact pattern, it struck me as even stupider than I thought of it before. It's ridiculous. Cuomo says a lot of ridiculous things. He and his people are also lying. They've lied about me. The idea that somebody who used to work with me who have to be my friend is trying to avenge me for some professional discrediting that Andrew Cuomo tried to do is just silly. It's not how it works.

I had nothing to do with the investigation. I had nothing to do with prompting the investigation. I'm not one of the victims whose testimony was set forth in the report. The report speaks for itself. If Andrew Cuomo wants to run for office again, it's his right to do so. It was his right not to resign in the first place. I'm not a political expert or a political consultant, maybe has a shot, maybe he doesn't, but the consensus of every elected Democrat basically, in the state of New York, was that he was not fit for office.

If he has money in the bank that he wants to use to put on gauzy ads to cause people to forget that and suggest that just because he wasn't charged with a crime that that's all that matters. That's not how we view people for public office. It's not how we view them before. It's not how-- [crosstalk]

Brian Lehrer: After you investigated Cuomo, do you think that what he said to Trump about you, as it's been reported, dissed you in various ways? We don't even need the details, helped convince Trump to fire you as US Attorney?

Preet Bharara: I don't know. It's hard to know. A lot of these questions are about things that I'm not privy to, but it could be. It's just not clear.

Brian Lehrer: Preet Bharara, former US Attorney, now host of the podcast "Stay Tuned with Preet". He'll be doing a live taping at Town Hall, March 31st, with Garry Kasparov, talking about Russia, obviously, more than chess, I'm sure. Ben Stiller, talking more about refugees than about acting, but maybe a little bit about acting.

Preet Bharara: A little bit of both.

Brian Lehrer: I saw your twitter on that.

Preet Bharara: Look, I think we're going to have a few laughs too. I think that's important even in times of seriousness to have a few laughs and to also speak seriously. For people who want to get tickets, it's cafe.com/events.

Brian Lehrer: We'll put a link to that on our episode page of this conversation, brianlehrer.org for the WNYC site. Thanks a lot, Preet. Always good to talk to you.

Preet Bharara: Thank you, Brian. Great to talk.

 

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