PARDON ME.

Harry Litman [00:00:07] [Music] Welcome to Talking Feds, a prosecutors' roundtable that brings together some of the best known former Department of Justice officials for a dynamic discussion of the most pressing legal topics of the day, including the Mueller probe and related investigations. 

 

Harry Litman [00:00:22] I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and also Assistant United States Attorney, or line prosecutor. We are here in Washington D.C. with three very experienced and knowledgeable and charming former Department of Justice officials, Elliot Williams, Julie Zebrak, and Elie Honig. Elliot was formerly a Deputy Assistant Attorney General for Legislative Affairs at the Justice Department. He is now a principal at the Raben Group, [End Music] a national public affairs firm based in Washington. But you had other jobs in government as well, Elliot, didn't you? 

 

Elliot Williams [00:01:04]Yeah, I was a trial attorney at the Justice Department, and I was head of Legislative Affairs at ICE. And I also worked at the Senate Judiciary. I just work for government, basically. I was with the Senate Judiciary Committee under Senator Schumer for a while. 

 

Harry Litman [00:01:15] How long were you a line prosecutor? 

 

Elliot Williams [00:01:16]Two and a half years as a line prosecutor, and then another three and a half at main Justice at the end of the administration. 

 

Harry Litman [00:01:22] That would be-. 

 

Elliot Williams [00:01:22]Obama. 

 

Harry Litman [00:01:24] Obama. Julie Zebrak, who you can find at twitter at @YesMomsCan, served in the Department of Justice for some 18 years in many roles including Deputy Chief of Staff to the Deputy Attorney General. Also Agency Counsel for the Criminal Division. From 2015-16, she worked especially in the Financial Crimes Enforcement Network. And that was at DOJ, or another agency-? 

 

Julie Zebrak [00:01:55] That was FinCEN, which is part of Treasury. 

 

Harry Litman [00:01:56] What is FinCEN stand for? 

 

Julie Zebrak [00:01:58] Financial Crimes Enforcement Network. FinCEN have become a hot new agency under the Trump administration because they go after money laundering and they're providing information to the Special Counsel's office, or any members of the FBI who are requesting information regarding suspicious activity reports or other financial intelligence.

 

Harry Litman [00:02:19] Got it. So the new terrorist strategy of follow the money, that's anchored in FinCEN, is that right? 

 

Julie Zebrak [00:02:23] Hmm-hmm.

 

Harry Litman [00:02:24] And Elie Honig. He's served as director of the Department of Law and Public Safety in the New Jersey Division of Criminal Justice. But before that, he worked for many years in a sleepy U.S. Attorney's office on the East Coast. Where were you working? 

 

Elie Honig [00:02:41] We were at a small office called the Southern District of New York. We have no self-regard. 

 

Harry Litman [00:02:45] The Southern District of New York. And tell us a little bit about your work there. 

 

Elie Honig [00:02:48] I spent eight and a half years there. Did the usual sort of rotations through the junior units, and then ended up doing my last six years in organized crime and co-chief of organized crime, so mafia and any other type of organized crime you can think of. 

 

Harry Litman [00:03:02] And how do you feel everything's going in the SDNY, are you guys kind of coming back, coming back up to a to a kind of professional respectability, would you say? 

 

Elie Honig [00:03:11] They're rolling along. Yeah. It was, I think they got big things ahead. 

 

Harry Litman [00:03:15] All right. We have. Well we know they have big things ahead, or they've got big things in the hopper. And we'll be talking some about them. We're going to, we're going to discuss two topics today, starting with activity in New York prosecutor's office yesterday, but not the SDNY, rather the New York D.A. Down the street, literally, is the District Attorney for Manhattan, or the City of New York, I should say, Cy Vance Junior. And some 50 minutes after Paul Manafort was sentenced by Judge Amy Berman Jackson, Vance came out and announced charges in the state system that somewhat, but not completely, paralleled the charges to which he had been found- adjudged guilty in the Eastern District of Virginia, before the case before Judge Ellis. So that was a very interesting development, potentially a game changer. 

 

Harry Litman [00:04:16] And I want to start us out by asking, What's the import both for Manafort, but just for the overall dynamic of the whole probe of the entry into the field of a state prosecutor bringing charges against a member of Trump's inner circle, who may potentially have been angling for a pardon strategy? And just to completely set the table, the president's pardon power is very broad but doesn't of course reach the ability to pardon state crimes. So Elie, let's start with you and ask in general, what you see as either the take away or the basic change in dynamic that the D.A. charges work? 

 

Elie Honig [00:05:02] So it's clear people are now playing the pardon, game right. You saw, first of all you saw Manafort's lawyer, Downing, come out of the hearing yesterday and boldly and baldly mischaracterize what the judge had said, and put out this garbage of, "Look, no collusion, once again, no collusion was found," which the president picked up on about a half hour later-

 

Harry Litman [00:05:19] And the judge specifically remonstrated him for in court-. 

 

Elie Honig [00:05:23] It was outrageous, really. The judge went out of her way, she didn't want to have her words twisted the same way Judge Ellis's words were twisted the prior week. So, start with that. Now, this move by Cy Vance I think is obviously intended to be a countermove because the president cannot pardon a state crime. But I am not at all a fan of this move by Cy Vance. I don't like it. It doesn't sit well with me as a prosecutor for a couple of reasons. 

 

Elie Honig [00:05:46] First of all, it's a serial prosecution with the S kind of serial, S-E-R-I-A-L. [Laughter] I don't know how he would do the other kind of cereal prosecution, but it's the kind of, it's just the one after the other after the other. He didn't even wait an hour until Manafort's sentencing was over-. 

 

Harry Litman [00:06:01] Did you see that as pointed on his part? 

 

Elie Honig [00:06:02] Pointed in a bad way. And that gets me to my second point was, it's nakedly political. It's overtly political by Cy Vance. You are not supposed to sit there as a prosecutor and test the political waters and decide, "Do I, do I like this defendant or not like this defendant? Do I like this defendant's benefactors, do I not like this defendant's benefactors?" And I don't see any way around the conclusion that this was an overtly political move by Cy Vance. 

 

Julie Zebrak [00:06:26] I have a question though. So I'm not familiar with New York politics. Is this typical of Cy Vance?

 

Elie Honig [00:06:31] I don't know what's typical of Cy Vance. He's been all over the map. Look, he took a lot of heat because there's been reporting after the fact that years ago he had a pretty clean-cut fraud case on the Trump children. Ivanka and one of the sons, and chose not to bring it. Now it turns out he took campaign donations from their lawyers, which got him in a lot of trouble. Similar fact pattern with Harvey Weinstein, then later on when he took too much heat he decided to take another look at that case. So I don't know what Cy Vance's exact agenda is here, but he seems to be, along with the New York Attorney General on this, "Me too! I want to be part of this I attack Trump train!" 

 

Elliot Williams [00:07:05]So Elie- it's weird saying the name Elie with, having the name Elliot, but we got to work this out. But the interesting thing about when prosecutors are seen to have politicized something, even the appearance of politics is problematic. Now we saw this with the recusal questions that came up at the beginning of the Mueller inquiry and so on, where even if you don't have a political problem, looking like you have a political problem, as a prosecutor, is a problem. And it just smells fishy. Now, two things can equally be true, right. They might be righteous charges that a grand jury could support that you know that you could convict an individual on and so on, and the prosecutor is behaving in a political or media-savvy kind of way. And I just think the fact that it looks so fishy just isn't good for- and particularly given how political this climate is. The president has already attacked other prosecutors and will certainly go after Vance, and New York, and 'the liberals in New York who are part of a deep state conspiracy that's now you know filtered down to the states.' But it doesn't help to have dropped the charges minutes after, because it was clearly deliberate. So, regardless of what we think about it, it's just, it just looks bad. 

 

Harry Litman [00:08:13] Well let me push back a little bit on that. And I understand the point that it was done immediately after, and there was a PR side to it. But look, what's wrong with a prosecutor's concluding that overall justice wasn't done in a neighbor sovereign and taking that into account in deciding whether to bring charges? Isn't that what the Civil Rights Division of the Department of Justice does every day, when they, when they decide whether to come and bring charges following a state acquittal, say in a, in a police brutality case, the Rodney King case, say, that I worked on, they're asking whether there was a demonstrable failure of justice in the state system. Now you can call that political in the sense that it's conscious of the overall sentence that was meted out to Manafort. But why is it improper for Vance to say the thing that the Civil Rights Division says, "Hey, so far justice hasn't been done. Moreover there's this real sword of Damocles hanging over us that that he could be pardoned and skate away totally. I'm going to step in and give an insurance policy here the way the Feds do in the Civil Rights area." 

 

Julie Zebrak [00:09:30] I mean one of the things that I noticed just on social media and hearing from folks respond outside of the legal world is how pleased they were with the charges coming out of the New York D.A.'s office. And I think that part of the appeal of the way it slid in, and this would only you know if this is from a lay perspective that I'm getting feedback, but part of the appeal is that we're not seeing folks getting off scot-free, and we're seeing that there is so much more that we haven't heard. And that it appears that folks don't want to, to the extent that they are disappointed in the sentence coming out from both EDVA and the D.C. Court, that it sort of satisfies this public need to see more going on. 

 

Harry Litman [00:10:18] OK. Now. But is that public need somehow illegitimate? And I take the general point, you wouldn't want the bedlam of every state suing everyone back and forth. But why should Vance, why is it quote unquote political in a bad way for Vance to take account of what happened already?

 

Elliot Williams [00:10:33]I'll tell you, I'm going to push back on your pushback. It's like a meta-pushback. But you know, it's not that the charges themselves are problematic. It is unlawful conduct that could be sustained by a grand jury and may be sustained by an actual jury if it reaches that point. It's the fact that minutes after the guy was sentenced in the federal court, they dropped the charges to have the biggest political or PR splash. Because, in the universe of moments at which they could have dropped these charges, why did they choose to piggy back on his other sentencing? And certainly it just looks more political. You can't deny that. 

 

Harry Litman [00:11:09] Your beef is just the PR aspect of it. Is that right? 

 

Elliot Williams [00:11:13]It all fits together, right. So, inherently-. 

 

Harry Litman [00:11:15] Well does it? Is your beef the charges, or is it the way-? 

 

Elliot Williams [00:11:17]I think all of the above. I think- Well, no, no-. 

 

Harry Litman [00:11:18] Well let's focus on the charges.

 

Elliot Williams [00:11:20]No, the charges would have would have been sustained either way, but you can't tell me that in a political process, which this is, they're not behaving as nakedly political actors.

 

Harry Litman [00:11:29] Well I'm positing in fact that charges would not have been brought in a vacuum, but for the suspicion or concern of the New York D.A. that otherwise full justice wouldn't have been done. I've looked into it and it's a complicated area, more than- I expected at first it would have been pretty sewn up by the New York D.A. In fact, I think a number of the charges, maybe even the main ones, are going to have real double jeopardy. There'll be a real fight and that'll take place right off the bat, before the actual trial begins to unfold. But there are at least one or two that ought to stand up, the sort of financial statements or lies on the financial forms I think will probably hold. But the double jeopardy issue is tricky. Not under the Constitution - the Constitution actually permits New York and the federal system to bring parallel charges, but New York law itself limits it and it looks like there will be some shadow cast here. 

 

Harry Litman [00:12:29] OK let's, we need to wrap this one up. So let's just go around the horn and give your sort of final or bottom line thoughts on this issue. 

 

Elliot Williams [00:12:37]This is not the end of the liability that Manafort could face around the country. He could face banking and tax charges in Virginia, Illinois and California. So this is the start of his state legal woes. I actually think this was a shot across the bow to the president of the United States and everyone that the states are going to get involved in these things that we thought of as just the domain of the Special Counsel. That they, they're outside of the pardon power, they're outside of this question of whether the DOJ can indict a sitting president or whatever, and I think this was a very public step in that sense. 

 

Julie Zebrak [00:13:11] I agree and I'm OK with that. I'm OK that it was a shot across the bow. And what I want to see is what they find out, what digging they can do what kind of discovery, and what they're able to come up with. Because it may lead to other issues that can take us down the road. 

 

Elie Honig [00:13:24] So, when I was with the Southern District of New York, I had the distinct honor of doing the fourth John Gotti Jr. trial. The fourth. And that jury hung and we talked to the jury afterwards and they basically said, the ones who didn't want to convict, said, "Enough's enough. Like, four times." And we talked to the judge afterwards, who was pro-us, pro-government, and he said the same thing. And I look, I have zero sympathy for Paul Manafort. I think he got off light. I think both judges came in under what they should have sentenced him to. But enough's enough at a certain point, the guy's been through two full cases. How much more do we need to pile on this person? And I think we have to honestly ask ourselves whether there's some political feeling behind that. 

 

Harry Litman [00:14:00] And he does certainly seem like a completely demolished and brought low individual with his you know gout and non-toupee and his wheeling in in the wheelchair.

 

Elie Honig [00:14:11] Listen, guys, guys need their hair- hair dye in prison is a big issue. 

 

Elliot Williams [00:14:15]I know we're we're almost out of- I, look, I just want to get out of this framework of feeling sorry for white collar defendants. And it's this, you know, this, there's this whole, "Oh I suffered so much on account of my status in society." And that's a lot of what we heard here. It's what we heard in Cohen. And we allow it because it's white collar defendants that you know, "I am humiliated," were the words he used. And I just, that framing, I understand you're 69 years old, but like all right. 

 

Harry Litman [00:14:41] All right fair. Fair enough. But I want to say, this discussion has actually influenced me and both in Elliot and Elie's point, but I'm I'm basically with Julie here. That is, I think that this is a game changer in a, in a righteous way. There was, there's something deeply galling about the overall attack on the rule of law in general from the Trump administration. But this, this final card, it's as if he had this countermove to nullify everything. Yes, as a matter of executive power. But given the way he's exploited it, it's, it feels righteous certainly, but I think also appropriate that there's a another voice to say you know, "Not so fast! We're here because in particular you're threatening a unlawful and abuse of the pardon power. And there's a final response, unexpected, that the system has to which you have no necessary countermove.". 

 

Harry Litman [00:15:50] Anyway I see both points and it's, it'll be very interesting how it plays out, not just legally but politically if there'll be that kind of blowback in the next few weeks and months. [Music] It's time once again for our palate cleansing segment we call Sidebar. 

 

Harry Litman [00:16:07] Today. Magician, actor and author Penn Jillette explains the sometimes misunderstood distinction between two tools prosecutors have at their disposal to obtain information, the subpoena and the search warrant.

 

Penn Jillette [00:16:24] When federal prosecutors are investigating a potential crime, there are two primary ways that can force someone to give them information. First, prosecutors may use grand jury subpoenas. These subpoenas require the recipients to give the grand jury testimony or documents. A prosecutor may subpoena non-privileged information with no judicial approval, so long as there is a reasonable possibility that that category of material will produce information relevant to the general subject of the grand jury's investigation. If a party objects to the subpoena, he or she can go before a judge and ask to have the subpoena ruled improper, or quashed. Subpoenas are often quashed if they seek privileged information, but rarely because the information they seek is not relevant. 

 

Penn Jillette [00:17:09] Prosecutors also utilize search warrants when they want to search for and seize particular pieces of evidence from a target. A search warrant is usually issued by a magistrate judge. Because the target has no opportunity object until after the search and seizure, the standards for obtaining a search warrant are higher than for a subpoena. An application for a warrant must identify the particular person or property to be searched and seized, and must provide probable cause to believe that the objects that may be lawfully seized will be found at the identified location. If someone is subject to an improper search and seizure, he or she may challenge it after the fact, either by seeking to have the evidence excluded from the prosecution or by filing a suit against the government for damages or return of the property. This is Penn Jillette of Penn and Teller. [End music]

 

Harry Litman [00:18:01] Thanks very much, Penn Jillette. So in brief, a subpoena doesn't require any special judicial process, but a search warrant does. 

 

Harry Litman [00:18:10] OK, on to our second topic. We got word that CNN had in its possession e-mails sent to Michael Cohen from a lawyer who supposedly was sending them on behalf of Rudy Giuliani, that seemed to augur promise or a possibility of a pardon from the president. I'd like to approach this in kind of a prosecutorial mindset, that is, this evidence comes in the door or you now know that it is in the world. 

 

Harry Litman [00:18:44] And let me just summarize it. There were a couple emails sent last April and the first one had this lawyer, Robert Costello, who supposedly, but as this comes to you, you don't know that, worked with Rudy Giuliani, saying that Cohen could quote sleep well tonight because he had quote friends in high places. And then there was another e-mail that was similarly reassuring that basically said, 'I just spoke to Rudy Giuliani. He asked me to tell you that he knows how tough this is on you and your family and he will make sure to tell the president. He said thank you for opening this back channel of communication and asked me to keep in touch.' And then yet another e-mail Costello tells Cohen he had spoken to Giuliani and told Cohen that it was quote very very positive. 

 

Harry Litman [00:19:42] So OK, what do we have here? These are communications with lawyers. Does that mean they're protected? We don't know exactly that they go to Giuliani, we are just told this. Is it smoke or is it fire? What in general is your move, if you're on the Hill or at DOJ, to try to follow up on this particular evidence? You've got Costello, you've got Cohen, I guess you have Giuliani. Where's your first letter? 

 

Elliot Williams [00:20:14]I think Costello. Who is this guy? What is his proximity to the president? Why does he matter? Why is he trading information? Is he trading information or is it just you know another wink wink joke, what, you know it could be a sarcastic-. 

 

Harry Litman [00:20:27] Does he know Giuliani at all? 

 

Elliot Williams [00:20:29]Does he know Giuliani at all? Like, who is this guy? So I think that's when, you start with a letter, you know Congress has everything from letters, transcribed interviews, depositions, which is a term that lawyers know about. Then you start getting into the big boy stuff, the subpoenas, the decision not to subpoena. You could have a hearing. 

 

Harry Litman [00:20:46] Well let me stop you at depositions. How would that work? In Congress, you're going to notice a deposition of Costello? He's got to show up. Raise his right hand and and talk. 

 

Elliot Williams [00:20:56]Yeah. With and either with members of Congress there or not with members of Congress there, could be staff conducting the interview. But it's a deposition just like any other. And again it's, like I said, there's fewer rules in Congress. They're not held to what we as lawyers know the Federal Rules of Evidence, like there are things you can say and can't say, there are things you can ask and can't ask. The interesting thing about congressional proceedings is that everything can be negotiated. So when Costello's lawyer gets the letter, he can say, "I don't want to come in for a hearing. I don't, I will sit for a non-transcribed interview only with congressional staff." Or, "I only want to be with members of Congress." Or, "I will come for a hearing, but it's off the record," or whatever. All of these things can be worked out beforehand, and there's more latitude that people have, that litigants in federal proceedings don't. 

 

Harry Litman [00:21:43] All right. So meanwhile back in the SDNY, how are you approaching this when this lands on your desk?

 

Elie Honig [00:21:50] This is a tough one for a couple of reasons. First of all, I agree with Elliot, the first the first stop here is going to be this guy Costello. But I think he's made pretty clear he's not on board, right. He's already coming up with this story - I won't even call it a cover story because it's plausible, this story that those emails were not about a potential pardon, they were about Cohen was worried that Trump was angry with him after the search warrant on Cohen's property, and this was Costello just assuring Cohen, "Don't worry, the big man is not mad at you. He still loves you."

 

Harry Litman [00:22:17] Did you catch the country music aspect of this, Julie?

 

Julie Zebrak [00:22:22] I did not. 

 

Harry Litman [00:22:22] OK so, the story by Costello is when he said "friends in high places," it was just a cunning reference to Garth Brooks' "Friends in Low Places." Obvious, I don't know why people are so-. 

 

Julie Zebrak [00:22:33] The New York lawyer takes on country music excuse, great-

 

Harry Litman [00:22:34] Exactly, confused and was just trying to reassure-

 

Elliot Williams [00:22:38]When I show my roots, I showed up in wingtips and ruined your you know business casual affair. 

 

Elie Honig [00:22:43] This is the beauty of speaking in code, right. And it could be natural, right, like we were discussing before-. 

 

Julie Zebrak [00:22:49] Right. I mean that's the kind of thing that I would say to a girlfriend, "Don't worry about it. You know, just, I know you're stressed. Let's not worry about it. We got friends in high places." That's plausible. I don't know.

 

Harry Litman [00:23:00] And then you'd be saying what to your girlfriend then? That the President has your back, or just chill out-? 

 

Julie Zebrak [00:23:08] Don't worry about it, just chill out. 

 

Elliot Williams [00:23:08]I still think this is the- I just think it doesn't happen in a vacuum. And I still think when someone is saying, "Don't worry about it," to someone who might be facing federal charges with the President of the United States, who's willing to dangle pardons, you got at least ask the question. 

 

Harry Litman [00:23:25] All right. But so back to the prosecutorial mindset. What it what it is or isn't, we can continue to discuss, but Elie, it's on your desk. What do you want from Costello? Whom do you call? What about lawyer-client aspects? Tell me how you spend your week after you get this email. 

 

Elie Honig [00:23:43] So you have to go Costello first, I want to know is Costello really in communication with Rudy Giuliani, or is he just sort of play acting here? What's the relationship? How do these guys know each other-? 

 

Harry Littman [00:23:52] How do you find out? Who do you-. 

 

Elie Honig [00:23:53] Well, you got to flip. Really there's only a couple ways you can flip Costello,yYou can flip Rudy Giuliani-. 

 

Harry Litman [00:23:57] What's flipping? 

 

Elie Honig [00:23:58] Cooperating. Convince him that it's in his best interest to cooperate. Now that- 

 

Harry Litman [00:24:03] So you first step is to invite him in for a chat? 

 

Elie Honig [00:24:05] You could either start by calling his lawyer or calling him and say, "I'd like you to come in for a chat." Or if you wanted to sort of skip to the next level of seriousness, you can drop a subpoena on him. Now the difficulty here is it's much easier to flip someone when you've got him cold, and you don't have Costello cold. 

 

Harry Litman [00:24:21] What do you mean by cold? 

 

Elie Honig [00:24:22] Meaning if you had a devastatingly incriminating recording or e-mail, or something like that. Here we have an e-mail that I think is ambiguous. I think it's more likely they're talking about pardons. But who's to say? Maybe they are just using sort of friendly banter here. And the problem is you don't have something you could slide under Costello's nose and go, "You're screwed. You need to cooperate. You need to get in here and tell us the truth."

 

Julie Zebrak [00:24:42] Right. So here's I mean, here's what I'm thinking. I'm listening to Elliot and I'm listening to Elie, and I'm thinking, Isn't this going to take forever? I want to know now. Like when you talk about negotiating and you can have him come in for a deposition, and your- 

 

Elie Honig [00:24:55] You can do things quick. You can do it by the end of the week, and if not we'll subpoena you and then you're expected in the grand jury on Tuesday. 

 

Julie Zebrak [00:25:01] All right. 

 

Harry Litman [00:25:02] Is that right, you'd put him in the grand jury soon? What's your contemplated- that's my question, What is your contemplated second move depending on what he says? Tell us just a little bit about the early branches of the decision tree. 

 

Elie Honig [00:25:13] Well then you're, then you're talking grand jury and then the countermove from Costello would be to take the Fifth potentially. He's got two choices, he can testify or he can take the Fifth, meaning he can say, right against self-incrimination. Then the ball is back on your side of the tennis court, as the prosecutor, and your decision is, Do I just accept the Fifth Amendment waiver and understand I'm not going to get his testimony, or do you go seek immunity from you guys at DOJ? 

 

Elliot Williams [00:25:35]All of this applies in congressional proceedings as well. The difference is you have a partisan makeup of Congress right. And so it's, particularly in something like this that implicates the president, and as a political matter, it might be a little more complicated to get everybody on board. So for instance, a vote on a subpoena has to be a vote of the whole committee. Now you know the Democrats in the House have the majority so they'd win and they get to authorize a subpoena. But you know there's still that political element to everything that happens there. Most of the time they can work this stuff out. But again it's the same thing, people plead the Fifth. The question is, Does he do it in a meeting beforehand, do you rely, or do you just embarrass him and call him in front of the cameras in the klieg lights? It just seems that-. 

 

Harry Litman [00:26:15] Why don't we use this as a sort of close-out question. Let's say you you learn from Costello, "Yep, it's everything you think it is. I was communicating with Cohen to stay quiet after- this was just after the search. Stay calm, stay quiet, he's got friends in high places. That's how I, that's what I took Rudy Giuliani to mean that I should pass along to Cohen." What do things look like at that point for Rudy Giuliani? Starting, let's go round the Horn on that starting with Elie. 

 

Elie Honig [00:26:48] It's very complicated because you're not going to flip Rudy Giuliani, and he's got attorney-client privilege up to the President. So-

 

Harry Litman [00:26:55] It's not a crime of fraud? 

 

Elie Honig [00:26:56] Well, it could be a crime of fraud. I guess we have to let-. 

 

Harry Littman [00:26:59] Let's actually, what's a crime fraud? 

 

Elie Honig [00:27:00] Well so, crime fraud means, normally conversations between an attorney and his client are privileged, meaning they're confidential, they can't, you don't have to talk about them publicly, unless you're talking about a crime, committing a crime together, furthering a crime together, then they're not privileged. So anything involving Rudy's conversations with Trump is extraordinarily difficult to get. It's complicated legally. And look, Rudy's not going to, I don't think will ever turn on Trump- 

 

Julie Zebrak [00:27:22] Why aren't we flipping him? Why aren't we going to flip him? 

 

Elie Honig [00:27:25] Why are we going to-

 

Julie Zebrak [00:27:25] Why are we not? 

 

Elie Honig [00:27:25] Are we not? 

 

Harry Litman [00:27:26] Or if he doesn't talk-

 

Julie Zebrak [00:27:27] Michael Cohen! 

 

Harry Litman [00:27:27] Why aren't we're going to charge him? In other words, is he looking at actual, chargeable conduct for obstruction?

 

Elie Honig [00:27:34] This brings me to sort of like my fundamental question, Do we agree, does everyone agree that dangling pardons in order to deter someone from cooperating is criminal obstruction-? 

 

Elliot Williams [00:27:44]Or just to get them to lie. All of the above. 

 

Elie Honig [00:27:46] Right. What do you think? 

 

Julie Zebrak [00:27:47] Yeah.

 

Elie Honig [00:27:48] Yeah. So yeah I mean you know Rudy's, look, it's all about loyalty. And I, look, I, I guess I would've said the same thing about Michael Cohen a year ago right now. But Rudy is so dyed in the wool, he's such a true believer. And by the way, imagine making Rudy your star witness as a prosecutor now, "We call to the stand Rudy Giuliani." I've called some bad boys, I've called some killers- actual killers- Rudy is not a killer, but boy would that be complicated. 

 

Harry Litman [00:28:10] Julie?

 

Julie Zebrak [00:28:11] I got to say, I think everything's on the table. I really do. I'm not convinced. 

 

Elliot Williams [00:28:16]I just I mean, I'm a naysayer, you just need more. And I just I'm not convinced that- because if you're talking about flipping Rudy Giuliani, you're talking about criminal conduct-. 

 

Harry Litman [00:28:26] Actually, I'm talking about charging Rudy Giuliani. 

 

Elliot Williams [00:28:28]Well what's the-? I mean-. 

 

Elie Honig [00:28:29] Obstruction.

 

Elliot Williams [00:28:31]We're a little bit a ways from that. Again, it's an e-mail between a couple jokers who are prone to exaggeration and lying. I, I'm just, I'm not there. 

 

Elie Honig [00:28:40] I totally agree. You would need a huge break. You would need this Costello guy to say, "OK guys, prosecutors, like, this is what you think it is. And I'm ready to flip." Barring that, this is-

 

Julie Zebrak [00:28:50] Right. And just to be clear, I think everything is on the table, I don't mean we're flipping Giuliani over this alone. I just think there's enough out there that we can find some other things. 

 

Harry Litman [00:29:00] You do keep waiting for a state bar authorities to be actually you know knocking on Rudy Giuliani's door in those of several layers. 

 

Julie Zebrak [00:29:08] Yeah. Kevin Downing. 

 

Harry Litman [00:29:09] Yeah. So I think we're out of time for this segment and for the episode, except for our final feature of five words or less, where we take a question from a listener, and each of the Feds has to answer it in five words or less. Our question today comes from [00:29:28]Marie Brennan, [0.8s] from a Twitter account, who asks, "Which witness should the administration be most worried about?" Let's start with you Elliot. 

 

Elliot Williams [00:29:39]Rhona Graff. 

 

Julie Zebrak [00:29:40] Oh stop. Rhona Graff is the queen. You stole me. 

 

Elie Honig [00:29:46] That's your answer too? 

 

Julie Zebrak [00:29:47] Yeah!

 

Elie Honig [00:29:47] Rhona Graff, the secretary, right? 

 

Julie Zebrak [00:29:49] Yeah, yeah. 

 

Harry Litman [00:29:50] It's always the secretary. 

 

Elie Honig [00:29:51] Well so listen, we have five words, but that means I can get two people in here. 

 

Julie Zebrak [00:29:55] Do it! 

 

Harry Litman [00:29:58] It also means you're already hopelessly over. Do you want to answer the question, or not? 

 

Elliot Williams [00:30:01]You are a fraud, and you are cheating. 

 

Elie Honig [00:30:03] Count my words. Julian Assange, and Don Junior. 

 

Julie Zebrak [00:30:08] Harry?

 

Harry Litman [00:30:11] Graff. Weisellberg. Hicks. And Prince. 

 

Harry Litman [00:30:14] Thank you very much Elliot, Julie and Eli. [Music] And thank you very much listeners for tuning into our second episode of Talking Feds. If you liked what you heard, please subscribe to us on iTunes, Spotify and Stitcher. You can follow us on Twitter at @TalkingFedsPodcast, or @TalkingFedsPod, whichever gets you there to find out about future episodes and other Feds-related content. And you can also check us out on the web at Talking Feds dot com. And don't forget to submit any questions to Questions at Talking Feds dot com - whether it's for five words or less, or general questions about the inner workings of the legal system for our sidebar segment. 

 

Harry Litman [00:30:59] Thanks for tuning in, and don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by [00:31:13]Joel Olicker, Dave Moldavon and Rebecca Jackson production assistance by Sarah Phillipoom and Amanda Zolten. [6.3s] Graphic design by [00:31:21]Alexandra Honess, [0.7s] the incredible [00:31:24]Philip Glass [0.4s] graciously let us use his music. Special thanks to [00:31:28]Diane Seamus, Steve Lichtenberg and Andy and Holly Clubock. [4.1s] Talking Feds is a production of [00:31:34]Delito LLC. [0.5s] I'm Harry Litman. See you next time. [End music]