TF 19: No Hope
Harry Litman [00:00:07] Welcome back to Talking Feds prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. Today we're talking about absolute immunity. What is it? Does it even exist? And what can Congress do in the face of the White House's assertions of it?
Harry Litman [00:00:38] Then we'll turn to discussion of one of the Supreme Court cases that have issued in the court's end of term flurry. We've got Feds in Boston New York and Washington D.C. to talk about it. I'm joined here in Manhattan by Paul Fishman. He's well known to this podcast and also he's the immediate past United States attorney for the District of New Jersey. But before that Paul was the mighty PADAG, the principal associate deputy attorney general meaning he oversaw and got involved with nearly every issue at Main Justice which he managed to do by talking twice as fast as anyone else. Thanks for returning Paul.
Paul Fishman [00:01:20] Happy to be here Harry always.
Harry Litman [00:01:21] We're also joined by talking Fed's regular Matt Miller, who served as the director of the Office of Public Affairs for the Department of Justice. He's worked also in leadership positions in both the U.S. House and Senate and is now a partner at Strategic Advisory Firm Vianovo. Matt, welcome.
Matt Miller [00:01:39] Thanks, Harry.
Harry Litman [00:01:39] And finally, we're extremely pleased to welcome to the program the honorable Nancy Gertner. Judge Gertner is a former U.S. district judge appointed to the federal bench of the U.S. District Court of Massachusetts in 1994. She retired from the bench in 2011 and now teaches at Harvard Law School and is a regular commentator on MSNBC. She's been a champion of individual rights and liberties throughout her career and was only the second woman after Justice Ruth Bader Ginsburg to receive the Thurgood Marshall Award from the American Bar Association Section of Individual Rights and Responsibilities. Thank you so much judge for joining us on Talking Feds.
Hon. Nancy Gertner [00:02:23] Good to be here.
Harry Litman [00:02:24] OK so let's dive in. The Judiciary Committee has just released the transcript of the closed door testimony that Hope Hicks who served as White House communications director in 2017 and 18 provided in her testimony earlier this week. There are many aspects of her testimony that bear discussion. But let's start first with the number one hundred fifty five. That's how many objections to questions were lodged by government counsel. Three from the White House and one from the Department of Justice and her own, who accompanied Hicks and argued she was quote, absolutely immune, close quote, for answering any question about or that came up for her service in government. So let's start first with this possibly new fangled concept of absolute immunity. Is that even a thing. Matt?
Matt Miller [00:03:21] You know, It's a thing in terms of something the administrations have claimed in the past including the Obama administration, to prevent White House staffers from being hauled before Congress and forced to ask questions about their time in the White House. It's not a thing in the sense that it's never been recognized by a court. In fact the one time a court did take up the question in the Bush administration, a district judge in D.C. rejected the Bush White House's attempt to claim absolute you know, absolute immunity prevent, I think it was Harriet Miers and Karl Rove from testifying before–
Harry Litman [00:03:52] And that settled that case settled out right? So it didn't go to the Court of Appeals.
Matt Miller [00:03:56] Yeah.
Harry Litman [00:03:57] But what is it even, what are they talking about, anybody, about when they say what what puts the absolute and–
Matt Miller [00:04:03] So the idea is that because you know a president cannot be subpoenaed to testify before Congress, that his aides have the same immunity of being forced to testify before Congress. But I think what it really is in effect is a delaying tactic White House would use.
Harry Litman [00:04:17] Any aides, just anybody who works in the White House you know cafeteria?
Matt Miller [00:04:22] I'm sure you wouldn't see a claim of someone in the White House cafeteria although who knows there is someone in the White House cafeteria who was advising the president maybe they would.
Paul Fishman [00:04:29] Well, really maybe not even that Matt. I could easily see a situation with this White House in which for example somebody from the- maybe not the White House cafeteria but some of the White House staff was subpoenaed to talk about the president's behavior in some way or something they overheard.
Hon. Nancy Gertner [00:04:43] Or the White House chauffeur.
Harry Litman [00:04:44] Right. I mean who exactly is Hope Hicks that she should be absolutely immune.
Paul Fishman [00:04:50] But Matt's right. It's not- the words absolute immunity are sort of a weird way to couch it right, because immunity usually is a word that's used to describe liability as opposed to whether someone is available as a witness or not. We talk about in the criminal context, we talk about it I mean when people are sued when they have immunity from liability because they were acting in their official capacity in some ways. There are those- that's the ordinary course in which that term comes up in the legal world. What I think they mean is that there are certain people in the White House, at least the way they're describing it, who simply can't be asked anything about conversations they had with the president, where maybe things they saw the president doing. I don't really know what that means but as Matt is exactly right, no court has ever said that that's true. What the courts have been much more careful to talk about is what the purpose of executive privilege actually is and the terms under which it can be asserted and what it can be overridden.
Harry Litman [00:05:43] Yeah well so I mean judge if this came before you how would you even approach the White House claim here?
Hon. Nancy Gertner [00:05:49] Well absolute immunity is almost like saying anything I say in this room you can't ask me about. Anything I said during the course of my you know my tenure you can't ask me about and that simply makes no sense. It's one thing to say. I mean as any trial lawyer would know all the setup questions who was in the room when this conversation took place? What time did it take place? This is saying that even sort of anodyne questions like that are not in the zone, that anything that takes place during their tenure in the room that you can't be asked about which is ridiculous. I mean I can't imagine that that would succeed. Executive privilege, like attorney client privilege, like other privileges is a question by question analysis. So the issue is not, I can't ask you about anything, it is, let me ask you about "x" does that fit within executive privilege, let me ask you about "y" and I think that that's the real reason why Hicks was called before Congress so there could be a record of questions and when they go into court, when Congress goes into court, they can say clearly this question is not privileged in any way.
Harry Litman [00:06:58] Yeah I mean that's an excellent point it's got a sort of a dual function, it's for court also. But of course if you read the transcript which was released recently, you have this whole flurry, this litany of we object we object it does seem ridiculous. Now it would have been I think favorable, the committee would have liked something like that to actually occur on camera so you could see the sort of stiffness and over-the-top stance of the White House. But as it is you just have it on paper and it looks bad if you're reading it but who after all is going to read it. Why did they agree to let Hicks be behind closed doors and they did the same thing that Trump Jr. Isn't the whole game here to try to have a sort of you know public TV moment?
Matt Miller [00:07:46] It's a really great question. Look I think that the purpose of Congressional investigations they serve two functions: One is fact finding two is public illumination. And the fact finding in this case is basically done. Hope Hicks has testified twice before Congress already to many of the same things she was asked about in her appearance this week. And of course she's testified to Mueller including about the things that she would not testify to before the House which is her time in the White House. And we've already seen that testimony released in the Mueller Report. So the idea that they were going to do any more fact finding in this investigation I think is is kind of fanciful.
Matt Miller [00:08:23] What about fact presenting? What what is the TV moment they wanted to get.
Matt Miller [00:08:27] That's my point about illumination. If this had been public it would have been illuminating to the people watching on television that you know the White House is making these ridiculous claims, preventing Hope Hicks from even answering questions about where her office was in the White House. Now what Nadler's people will say, is that this was strategic on their part. They wanted to get her in front of the committee, even behind closed doors so the White House is very aggressive, I would say ridiculous claims, could be set down in a transcript and they could use that transcript to then go to court for their bigger target which is their subpoena against Don McGahn. And so they want to go to the court and say look- look at how ridiculous the White House's claims are about absolute immunity and use that because I don't think they care much about Hope Hicks there's not much more that Hope Hicks has to say.
Harry Litman [00:09:12] [CROSS TALK] Right. Well she is, she's really there on the plane-.
Hon. Nancy Gertner [00:09:17] They needed to do that question by question. That's why. They had to- they needed sort of an object example of what they were concerned about. Otherwise it wouldn't have made any sense. So I think that's the reason. And they do this closed door, precisely because you know because they got nowhere. So this is actually an exercise that was useful for a subsequent court proceeding and not necessarily political theater.
Matt Miller [00:09:40] May I say one more thing though, I think you're right it's useful to the subsequent court proceeding but there's no reason why they couldn't have done this in public. She didn't have a right to not appear to answer questions about the campaign in public. So you know, the purpose of this absolute immunity claim, the political purpose by White Houses, is to keep aides from appearing in public testimony and having to just not take questions over and over again and look like they're hiding something. But she didn't have a right to to not appear, to talk about the campaign. So I don't know why they couldn't achieved the same purpose that they did this week by having her come before a public hearing.
Harry Litman [00:10:15] Although she might have refused it-.
Hon. Nancy Gertner [00:10:16] She was going to reject it and they were going to have to litigate it.
Matt Miller [00:10:19] You she didn't have any substantive reason on which to object appearing in public. That's the problem, there's no there's no privilege claim she could have made.
Paul Fishman [00:10:26] But Matt that's never stopped them before. That's never stopped them before. Right, the idea that- you're totally right. As you know from the issues involving her being on the plane and whatever she learned during the campaign, there's a lot of stuff that she can't refuse to appear. But that hasn't stopped them from doing that, and making the Congress jump through the hoops of going to court to force people to show up and then, and so the advantage I think this time of having her do it this way is that they don't do it. They have to go to court twice. Right? At least she showed up this time and so first they'd have to go to court to get her show up, then they'd have to go to court to ask her the questions and that's-
Hon. Nancy Gertner [00:11:07] But not only that, the administration is banking on delay here.
Harry Litman [00:11:12] Well that's my question. So how do we think this actually even plays out? So this is a strategic call they go to court, they win. I say I mean we can return to that but I think everyone thinks that the- that this absolute immunity claim will be struck down. Now it's what, if we're lucky if they're lucky, four months, six months away that they they seek cert and the court doesn't grant it is there appetite any more for now calling Hope Hicks, to you know put up a right hand in public or does at that point it just seem like you know, old news we thought they did that already and people have moved on to the campaign.
Hon. Nancy Gertner [00:11:50] I think unlikely actually. I think that this was a ceremony to set up exactly how ridiculous the scope of executive privilege is and if there were a decision for example that came out of the Hicks case that says absolute immunity is not a thing. Executive privilege the metes and bounds of executive privileges are X, Y and Z. They then as you said before can use it with respect to other witnesses.
Harry Litman [00:12:13] So you think the big quarry here is McGahn. What do you what do you think?
Paul Fishman [00:12:16] I don't think that that's a great strategy for them because first of all McGahn is a lawyer. So to the extent that there are privileges that apply to his conversations with the president, the things he thought about, the things he saw, Hope Hicks is not going to be enormously terrific precedent for them. And if it turns out that what they're doing, as Matt described it, is trying to set up a precedent so that when McGahn gets call he can't make the same claims. You still have the same problem you identified Harry, where we're months and months down the road because if this gets litigated it's not getting litigated until the fall probably.
Hon. Nancy Gertner [00:12:48] Which raises a question that you're not raising in this which is whether or not the Congress begins opening an impeachment inquiry. I just want to suggest that that's actually an interesting thing to do, if only to justify the need for expedition in the court.
Harry Litman [00:13:04] So it's your sense. I mean we hear about this judge and you would know best that it would somehow expedite things.
[00:13:11] I'm not aware of any legal reason that it would but you just think the courts would be likely to to saddle up and gallop away if they knew that the "I" word was actually in play?
Hon. Nancy Gertner [00:13:22] I think that's right. I think that you know the Nixon tape issue sort of skyrocketed to the Supreme Court. You're right, there's no absolute rule that says if there's an impeachment inquiry you have this amount of time to get to the Supreme Court or up through the appellate process. But clearly that would be helpful. That would be I mean that would be sort of adding another arrow to their quiver.
Paul Fishman [00:13:45] I do wonder Nancy, because you know the Nixon case when it went to the Supreme Court went in the context of a grand jury subpoena and the urgency of a criminal investigation has some real appeal I think to the courts particularly once a grand jury subpoena, that's been that's effectively issued under the aegis of the court. And I think that that might have been sort of a real, very serious reason why the court moved so quickly in that case and so I'm not sure that the impeachment thing has much precedent for that in the impeachment context.
Harry Litman [00:14:15] Yeah. What play does Congress have then at this point? So they had with Hicks and McGahn we think they've got to go through a round at least of litigation and we have the somewhat tricky question of what things look like when the litigation is over, though I think everyone sees their their odds as quite good for prevailing. But what do they do in July of 2019 to move the ball forward? Not simply because as Matt says they- the facts are out there but moving the ball forward at engaging the American people in the seriousness of the conduct that they're looking into. Can they, should they call fact witnesses who didn't even work in the White House like Lewandowksi or Felix Sater or what are the plays that are on the table. Matt you probably have the best sense of this.
Matt Miller [00:15:09] Let me just back up and say that assumes that, that they actually want to go that hard. [00:15:14]Look I think there's a fundamental issue here that you know we can we can sometimes miss the forest talking about the trees and I think the forest is that this fight is basically over except for the shouting. [10.7s]
Harry Litman [00:15:26] [00:15:26]Wow. [0.0s]
Matt Miller [00:15:26] [00:15:26]It's been nine weeks since the Mueller Report was released. The House hasn't heard from a single fact witness until this week with Hope Hicks and she didn't talk to the most important facts that she's a witness for in the report- [10.7s]
Harry Litman [00:15:39] [00:15:39]Or any facts. The only fact she talked about was the weather. [1.1s]
Matt Miller [00:15:40] [00:15:40]Yeah that's right. They haven't gone to court to enforce a single subpoena yet after nine weeks, there is only 14 weeks left that the House is in session this year, and it's hard to see them doing I think an impeachment, a serious impeachment effort in 2020 when the country is in the midst of deciding who the next president is. [15.7s]
Matt Miller [00:15:57] [00:15:57]So I think the president has basically won here and he's won because you know there are few things but I think the Democrats made a big mistake at the beginning by deciding to frame - after the Mueller Report was released - to frame their inquiry as a fact finding mission. So you have one side here fighting saying the president did nothing wrong and you have the other side saying we're going to find out the facts. And in that type of a situation, the American people are left to believe the question is kind of an open one. And I think a lot of them do believe and I think that has taken the wind out of any sails towards impeachment. They may eventually do it, but if they do it after months of kind of dawdling and they do it after the emergence of zero new facts, that they didn't have an April when the report was released, I think it's going to look more political than it would have had they just started from the get go. [48.9s]
Hon. Nancy Gertner [00:16:46] I don't think it's completely true that they haven't done anything. They've been the third party subpoenas against Deutsche Bank, Capital One that has gone to court. Judge Mehta issued a decision about that, making it quite clear that the president had absolutely no grounds to object to these subpoenas. So I mean I think that's the House Oversight Committee I think that they're moving forward on on that and that's a different kind of fact finding, fact finding not with respect to obstruction of justice, that's fact finding about Trump's financial activities. So I think they're moving the ball with that. I agree with you though. You know it's interesting I always thought that the question.
Harry Litman [00:17:25] You agree with with Matt that it's basically game over here?
Hon. Nancy Gertner [00:17:28] No I don't think it's a game over, I think that they should have moved differently with respect to obstruction. And that at a certain point if they haven't gotten anywhere it will be it looks like they're just running in place. But I do think that that they I mean, for example with respect to Mueller, I think there are interesting questions of Mueller, not you know what did you mean by what you wrote in this report. But I'd love to hear questions about Barr's interference in the Mueller report. Things that, you know, that was so- the period of time between the time that Barr became attorney general and the time that the Mueller report was issued. What effect did he have on the conclusions of that report. That would be an end then to what degree is he taking his cues from the president.
Harry Litman [00:18:13] That would be remarkable though, wow it's hard to see Bob Mueller ever talking about that. But "Judge Fishman" What is it game over? That's a that's a pretty big contention from Matt are we- Is it Congress been checkmated?
Paul Fishman [00:18:28] Nobody's ever really checkmated in Washington I think in lots of ways ,.
Harry Litman [00:18:31] Well time.
Paul Fishman [00:18:32] But [00:18:32]I do think that Matt's analysis is spot on. I mean I haven't thought about it quite that way, but as usual he's very perceptive, and I do think that there. That's what I. What I feel like just the dialogue that people are engaged in has just deflated. And people are not talking about it as much. Even people we know people who are very very much anti-Trumpers, people who think the president's conduct is awful and entirely criminal. People are just not it's like everything else that happens with this Administration. It happens, we're outraged and then something else outrageous happens and we move on. And and I think that's the risk. [35.1s]
Hon. Nancy Gertner [00:19:08] I'm on the fence here because there's a pincer move going on in Congress. So there are the you know the inquiries which are tracking the obstruction of justice inquiry and the Mueller Report that's sort of one box. And then there are the other inquiries that are dealing with his financial activities and they're dealing with the president's- you know the emoluments issue the question not only of what happened before he became president but those things that continued into his presidency. And those are the inquiries that were the subject of third party bank subpoenas. So I think that I don't think that it's game over but there's certainly nothing fabulously revolutionary about what's going on now.
Matt Miller [00:19:49] Let me let me just say. Yeah I think those pincer moves are important. I just don't see them, any one of them as amounting to enough probably to impeach the president. Look I think there have been three big inflection points. The first was Mueller deciding not to say up or down whether whether the president committed a crime when I think it's. Clear he found evidence that the present did commit a crime. That was the first big one. It went against a move towards impeachment. The second was Barr's interference and public spin of the report that took even even the damaging information in the report. It colored it in the public's view. And the third was this decision by the Democrats not to come out right away and say as I said earlier this report shows crimes we need to hold the president accountable. But to say they need to pursue some kind of fact finding mission and I don't see what the big inflection point would be to change things the other way.
Matt Miller [00:20:40] I don't think Mueller's testimony would be it, because I just don't think he's going to say very much more than what's in the report. It's not going to be enough [00:20:47]and I think there's an underlying point that is is, I think a somewhat legal point and mainly a political one which is, when you go to you know when you go when you want to do something as big as impeaching the President. You have to fight like it's the biggest thing in the world that matters and the Republican Party and the Republican appointees including Barr have been fighting an all out war and the Democrats haven't. And that's not, you can say that's because they're weak. I think it's because the Speaker hasn't wanted to have that fight and you can't have. You can't have a half-hearted fight and execute pincer moves as important as they are and hope to get the ultimate objective. [35.4s]
Hon. Nancy Gertner [00:21:24] Well I think that they're running in place. I think that they're running in place you're quite right because there's a political mobilization. And what you're saying which is interesting I'm not sure I'm with you is that it's not likely to be a political mobilization if they continue in this very incremental way. But as I said if they get their hands on Deutsche Bank records or Capital One records who knows what will come out of that.
Harry Litman [00:21:47] [00:21:47]I'll just add one quick point which is that as sobering, as Matt's assessment is for the possibility of just a national kind of judgment of the behavior of Trump, there's also the whole aspect of just finding out what went on. Their strategy has not only succeeded in insulating Trump to date, but also there's the real possibility that this is going to be left as almost a mystery for historians to try to piece together that there's some basic things that we, in a huge national episode that are really going to be fundamentally unknown. [41.0s]
Harry Litman [00:22:33] Time now for our sidebar feature where we take a moment to explain some of the terms and relationships that you hear about in this podcast. And today we're really honored to have Lawrence Summers on the program to explain which federal crimes the Department of Treasury investigates. Summers is the perfect person to do this because he served as secretary of the Treasury Department. The top official in charge. Although that's just the beginning of his mind boggling distinguished career. He has served as director of the White House National Economic Council, chief economist of the World Bank, and President of Harvard University where he remains the Charles W. Eliot University Professor. So Lawrence Summers will explain the role of the Department of Treasury relative to the Department of Justice.
Lawrence Summers [00:23:27] Which federal crimes does the Department of Treasury investigate? Department of Treasury is charged with maintaining the wealth of the United States. This includes minting currency, making payments to contractors, and the American public collecting revenue and borrowing funds necessary to run the federal government. It also investigates and develops Civil and Administrative cases related to its areas of responsibility. Should these investigations uncover willful misconduct, Treasury will refer the matter to the Department of Justice for investigation and potential prosecution with Treasury Enforcement experts potentially assisting DOJ whose efforts. Financial Crimes Enforcement Network or FinCEN manages and enforces anti money laundering laws that require banks to record and report suspicious financial transactions. These laws are vital to the investigation and prosecution of money laundering, international smuggling and terrorism cases. FinCEN's recording requirements preserve financial trail for investigators to follow as they track criminals and their assets. Many different criminal cases are first discovered by reports of suspicious financial transactions required by FinCEN''s policies and regulations. The IRS Criminal Investigation (IRS CI) investigates tax and other financial crimes including identity theft. IRS CI is the only federal agency that can investigate criminal violations of the Internal Revenue Code. This includes investigation of fraud related to the filing of tax returns and misreporting of legal income, fraud associated with failure to accurately report income from criminal activity, narcotics related financial crimes, and financial and money laundering aspects of counterterrorism and espionage matters. The Alcohol and Tobacco Tax and Trade Bureau Office of Field Operations conducts audits and investigations related to the industries and specialized tax laws it oversees. Several federal investigatory agencies that investigate financial crime used to be part of the Treasury as well. In the early 1800's, the U.S. attorneys were overseen by the Department of the Treasury. In 2003 the Bureau of Alcohol Tobacco and Firearms was transferred from Treasury to the Department of Justice. And the U.S. Customs Service and Secret Service were transferred to the Department of Homeland Security. For Talking Feds, I'm Larry Summers.
Harry Litman [00:26:04] Thanks very much to Larry Summers for that explanation. OK we are now in the second half of June, when the Supreme Court annually issues a flurry of its most difficult and consequential decisions.
Harry Litman [00:26:19] I think by the way that the Nixon case another part of the timing there is that it was the very end of the term. So anyway, we thought for a little bit of a change of pace from the intractable and depressing White House-Congress battle, we would look at one of them that actually does relate to the overall topic and fortunes of the president. And that is Gamble versus United States, which the court issued earlier this week. I think we need to take a few minutes to explain the double jeopardy concepts that were at play there and we turn for that to as good an expert as you can have, which is Judge Gertner. Can you give us the quick skinny on what what was going on in Gamble?
Hon. Nancy Gertner [00:27:01] [00:27:01]OK so Gamble started as a very small case. It was a guy who was stopped for a broken tail light. And when they stopped him they found a gun. He is prosecuted in state court, as his typical. He pleads guilty and then at that point he's charged by the Alabama U.S. attorney for the same crime. This is something I saw rather regularly when I was on the bench because the federal government began to prosecute street crime and gun crime and in doing that began to be prosecuting the same people oftentimes for the same offenses as in state court. So the case goes up, he goes into federal court, he's convicted in federal court. He argues that essentially he's being prosecuted twice for the same crime, which offends the double jeopardy clause of the Constitution, you can't be prosecuted twice for the same offense. The government's answer which had been an answer that the courts have raised for 70 years is that it's not the same crime. The Alabama state charge is against one sovereign, namely Alabama state and the federal one is against a different sovereign, the United States government. This case would not have attracted very much attention but for the fact that it had implications for the parallel state and federal investigations of the president. [80.3s]
Harry Litman [00:28:22] And how so how does that work exactly, what's shadow does it cast on the president?
Hon. Nancy Gertner [00:28:28] Well the question is, if there's a federal indictment let's say in New York for Manafort or for someone else and the President pardons that person. The question then is whether a state prosecution could follow a federal pardon. So whereas the president could sweep, you know, numbers of arguable Confederates under the rug with pardons, the question is whether the state can go afterwards and prosecute the very same people for similar or the same crimes.
Harry Litman [00:29:01] Including by the way himself, potentially. He could if he pardons himself with that.
Hon. Nancy Gertner [00:29:05] He could pardon himself, that's right.
Harry Litman [00:29:06] So how did so why did the court say?
Hon. Nancy Gertner [00:29:08] The court affirmed which in this court was sort of terrific, 70 year precedent that you know, that you can't that that essentially the federal prosecution following a state prosecution is okay, and by implication a state prosecution following a federal prosecution would also be OK, that these are crimes against two different sovereigns. The the fly in the ointment here is that individual states have more protections against double jeopardy than sometimes the Constitution requires. So in certain states you may not have a state prosecution following a federal one. But that's- and New York actually is one of them. But that's that's state by state issue.
Harry Litman [00:29:51] I think you said that this was great. Was it just that they actually affirmed a precedent rather than knocking it down or do you, do you agree with the decision?
Hon. Nancy Gertner [00:30:02] My answer is complicated. I was very troubled as a federal judge by the federalization of street crime and the extent to which the Feds sort of took over in you know with very dramatic penalties as you know, what had been essentially drug street crime. And although the federal government prosecutors have a policy against following a state prosecution with a federal one that's a policy called the Petite Policy and not a bar. I was certainly troubled by this. So I'm troubled by the sovereignty thing which seems like a contrivance.
Harry Litman [00:30:40] It does have a feel of double jeopardy. Paul when you were U.S. attorney did you do follow up prosecutions after state?
Paul Fishman [00:30:47] Only when we perceive that there was something unjust or not great about the way the state came out-
Harry Litman [00:30:50] Well that's a pretty big exception!
Paul Fishman [00:30:54] Right. Well that certainly, But there was in the worst cases in which you know particularly bad folks who we knew a lot about, who had gotten a particularly light sentence in state court where we thought that they were particularly dangerous. We didn't do it that much. We did it occasionally.
Harry Litman [00:31:07] Oh after even a guilty verdict.
Paul Fishman [00:31:09] It was a very occasionally but more often there were cases that look, the charge here in both cases in Alabama, was he that he was a felon in possession of a weapon. That's really that which violated both state and federal law. And I don't really know what the reason was that in this particular instance, the U.S. attorney's office in Alabama decided to pursue this case a second time. And in fact, what's interesting about Justice Alito's opinion for the majority is he really doesn't talk about that all that much. There's some very interesting things I think about the Gamble opinion.
Paul Fishman [00:31:37] I mean first of all, Judge Gertner is right that when this, when the court took this case people, commentators, like us, were all agog for two different reasons. One was everybody was really focused on what the implications of the court's decision about double jeopardy would be for people like Manafort and maybe the President and whether the New York attorney general or the New York district attorney would bring cases in state court that were follow on cases to the to the federal prosecutions and maybe try to prosecute the president that way for things that he couldn't get prosecuted for under federal law, or that he pardoned other people for a federal law. That was one reason.
Paul Fishman [00:32:12] The second was is you know this particular doctrine of dual sovereigns, states and federal government having different interests and being effectively two different governments has been around for 100 years. And so I think a lot of Supreme Court watchers were nervous about what this would portend for the court's respect of precedent not necessarily on the issue of double jeopardy but on things like Roe vs. Wade. What I think this means for for that latter one is actually very it for both existing. First of all it leaves intact the idea that you can in fact be prosecuted for something both federally and by the state, and it doesn't matter necessarily in which order although there are states like New Jersey where I mostly practice and New York where there's basically a state law bar although as Nancy just pointed out, New York is reconsidering that largely because of the current events that we that we're all observing paying attention to involving the administration. But there are still 25 or 30 states where you can't do this if you're, if the state goes second.
Paul Fishman [00:33:10] The second thing though is is there was a very interesting debate that went on among the justices in the various opinions that were written in this case about the question of respect of precedent or as it's known in Latin, stare decisis, right? And Justice Alito said look, for the majority we believe that if we're going to overrule precedent even in cases in which we are the final word as arbiters of the Constitution there, really needs to be a special justification. I think that was his term, special justification for us to do that. And I don't see that in this case and neither did the rest of the rest of the the six the seven member majority.
Harry Litman [00:33:50] Except Ginsburg and Gorsuch apparently. .
[00:33:51] Well soThomas who concurred he agreed with the majority opinion said look this case comes out correctly. Thomas said, Yeah, case comes outright but I don't really like Justice Alito's formulation of stare decisis. For me,if we think it's wrong it's wrong and we don't need a special justification--
[00:34:13] [cross talk] - The Constitution-
[00:34:13] -to overrule precedent. Judge Justice Gorsuch, said exactly the same thing. He said look I would apply whether you say whether you use Justice Alito's special justification formulation or you use the one from Justice Thomas I'm overruling this. And I think that this is ridiculous and outrageous. Justice Ginsburg had sort of the most interesting and innovative take on this. She basically said look whatever was 225 years ago when the Fifth Amendment was enacted with this double jeopardy clause, we are now basically one country. And I just don't like the way this comes out. And so so she obviously agreed with the majority on on that you need a special justification to overrule precedent. But interestingly she found it in this case, and says just, things have changed.
Hon. Nancy Gertner [00:34:57] It's very interesting, there have been numbers of cases this term in which the last one was the Gundy decision this past week which was about the sex offender registry and the the authority of the attorney general to put people on the sex offender registry when the act was enacted, after they were convicted. But the interesting thing is that there is that discussion by Alito who's talking in the majority saying, I don't have a majority essentially to overrule this precedent about what the scope of the authority that can be delegated to the executive. And Gorsuch dissents and saying you know I think this would be, we should, this is precedent we should overturn. Kavanaugh had to be recused because he wasn't yet on the court at the time of oral argument. So there is a discussion among the conservative judges clearly going on about which precedent to respect and which precedent not to respect. And that's a dangerous discussion.
Paul Fishman [00:35:54] But what's really interesting is that Justice Gorsuch has staked out a position that if you're trying to characterize us on the political spectrum of left and right or liberal conservative is clearly farther to the right on Justice Alito, on these questions which I think is probably going to be a surprise to some, to some folks and we'll have- the other interesting thing about Justice Alito's majority opinion is as I said before he didn't actually try to say you know this is really a great criminal justice policy and it really makes complete sense. He had to pay lip service to the notion that Alabama and the federal government have separate interests here in in convicting Mr. Gamble.
Paul Fishman [00:36:33] But the examples he used were actually ones from international law, which was I thought a stunning thing for for for this court because they've there have been so many instances in which particular the late Justice Scalia was so disdainful of looking to foreign law. But here justice Alito said look, if for example if an American gets killed overseas and gets prosecuted by whatever and the person who did it gets prosecuted by whatever country it is in which the crime was committed that's fine. But we have a separate interest here in prosecuting that same case. That's undoubtedly true. And it's a particularly great justification for the dual sovereign notion and to get there to get to to the to that point he has to also acknowledge that the states that have their own separate interests although Justice Ginsburg I think disagrees with that. But what I was struck by the fact that he looked to to an example in which we and a foreign government might have overlapping interests at the same time that were separate and distinct.
Harry Litman [00:37:32] Right. I mean so the basic idea here is New York following on the heels of the federal government or vice versa. I think of the Rodney King case that I worked on and people sometimes point to as a righteous prosecution, is really no different from say the federal government following on the heels of you know, Peru. And it's that kind of unreality I think that Ginsburg was reacting to. One more quick point about that this battle over precedent. You're totally right what Gorsuch and Thomas are essentially saying is when it comes to the Constitution if we think that something's wrong sort of 51-49 why shouldn't we overrule. It's not like a statute that Congress can correct. So that's something that'll be played out over the next terms. And you know very, I think, dynamic and contentious fashion. What about so so Matt what what if anything does it actually portend for Trump and Manafort etc. Is it really plausible that state charges against Trump or Manafort could proceed and when and how would it work. Is this actually something that should matter to them.
Matt Miller [00:38:40] You know, I don't know. I mean, look with respect to Manafort I think they've made clear they're already going to make a double jeopardy challenge and under New York's law that his lawyers have signaled that from the beginning. And you know they are making I think as much of a claim under New York law as they are a constitutional claim. With respect to Trump, I mean look you haven't. He's not got a double jeopardy problem right now because he's not been charged in federal court partly because you know I think he's the President of the United States. So I think we'd have to be looking at him as a non-sitting president as the next president who has been charged in federal court something that is hard to see but not off the table obviously before you even got into a question of double jeopardy.
Harry Litman [00:39:22] Yeah and boy a state prosecution of even a prior president I think would have some constitutional, there'd be a constitutional bramble bush, both in terms of the overall battle about precedent and it's portents for Trump. I think this will be a really interesting case for the next couple terms.
Paul Fishman [00:39:41] Yeah yeah yeah there's one interesting twist the Manafort thing that I know of anybody who's been paying attention to. He's in federal prison because he's serving a federal prison sentence in Pennsylvania, at the at the federal institution called Loretto. He's now supposed to be tried in New York State. And ordinarily he would then be moved to Rikers Island.
Harry Litman [00:39:59] Or like ordinarily with that routinely.
Paul Fishman [00:40:02] Right. And his lawyers wrote a letter say basically to say he shouldn't be moved for health reasons. And before the Justice Department did anything the new Deputy Attorney General Jeff Rosen wrote to Cy Vance, the Manhattan district attorney and said, give me a good reason why he should go to Rikers. And so that's an a that's a slightly unusual thing for the federal government to do under those circumstances. And Vance, basically said, fine if you want to leave him in Pennsylvania, leave him in Pennsylvania. What that means though is every time he has to appear in New York in court, they're putting him on a bus with other prisoners, which will not be a pleasant experience.
Harry Litman [00:40:36] Although he is happy not to be at Rikers. Somebody wrote a really brilliant op-ed about that I think a few days ago in the Washinton Post.
Paul Fishman [00:40:43] Would that be?
Matt Miller [00:40:43] Harry, Harry I was going to plug your piece for you if you'd just given me a second to jump in. [LAUGHTER]
Paul Fishman [00:40:49] He's not he's not. We've known for a long time that he's not that patient that's coming from me!
Harry Litman [00:40:53] He who toots no- as Justice Marshall would say he, he who toots not his own horn, will find his horn untooted.
Harry Litman [00:41:00] All right. It's time for our final segment, five words or fewer, where we take a question from a listener and each of the Feds has to answer in five words or fewer. Today's question comes from Ms. Fisher from Twitter and it's a personal question for each of us. How much of your time do you spend reading about tracking, researching, and discussing current cases or potential cases brought about solely by this President or his administration. Matt.
Matt Miller [00:41:35] As Willie Nelson would say Always On My Mind.
Harry Litman [00:41:40] Excellent.
Paul Fishman [00:41:41] That's more that five.
Harry Litman [00:41:42] We now know we now need food a song title. Oh my God. I'm thinking I'm thinking OK, Paul.
Paul Fishman [00:41:50] You know there are so many great country songs we could do. I'm just going to go with the Eagles. There's gonna be a - THERE'S GONNA BE A Heartache Tonight. Judge you wore a robe. You don't have to. You don't have to have a song.
Hon. Nancy Gertner [00:42:06] I don't I don't I don't have a song. I think that it's a question of how obsessed I am and the obsession ebbs and flows. There may be a song that goes along with that but I can't think of one.
Paul Fishman [00:42:18] We're going to write one for you.
Harry Litman [00:42:19] Yeah exactly. The obsession ebbs and flows.
Jennie Josephson [00:42:22] [off-mic] Time after Time.
Harry Litman [00:42:22] Yes, oh that's a good one more cup of coffee I'll do that.
Harry Litman [00:42:27] Yeah but that's nah that won''t work. Forever in My Life. By Prince.
Harry Litman [00:42:35] Thank you very much to Paul, Matt and Judge Gertner. And thank you very much listeners for tuning in to Talking Fed. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review this podcast.
Harry Litman [00:42:56] You can follow us on Twitter @Talking Feds pod to find out about future episodes and other Feds related content. And you can also check us out on the web at talking fed dot com where we have full episode transcripts.
Harry Litman [00:43:12] Submit your questions to questions at talking feds dot com whether it's for five words or fewer or general questions about the inner workings of the legal system for our sidebar segment but actually please take a moment to think about the five words or fewer questions we do the ones that come from you and we want to replenish the supply regularly. So think about anything you'd like us to actually answer.
Harry Litman [00:43:40] Thanks for tuning in and don't worry as long as you need answers, the feds will keep talking.
[00:43:51] Talking Feds is produced by Jennie Josephson. Dave Moldavon, Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer. This episode was recorded by Adeline Sire. Production assistance by Sarah Philipoom. Transcripts by Kassandra Sunt. Special thanks to Lawrence Summers for his sidebar today on the Department of Treasury. And thanks to the incredible Philip Glass who graciously lets us to use his music. Talking Feds is a production of Dalito LLC. I'm Harry Litman. See you next time.
