[00:00:00] Harry Litman Hey, everybody, Harry here. Before we start today's episode, I wanted to give a quick nod to our sponsor, the California Fair Political Practices Commission. Would you like to know who's behind all the political ads you see? The FPPC can help. California's Fair Political Practices Commission is the state's political watchdog agency, and its new public service campaign will help you become a more informed voter. Visit fppc.ca.gov/learn/2020-election.html
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[00:02:02] Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman.
What would be the most memorable picture from another breathless week, one in which the news flashes arrived, and shortly after gave way to the next bombshell, all like a fireworks display? Would it be President Trump in his Mussolini moment, strutting on the balcony following his return from Walter Reed, not quite able to suppress his labored breathing? Maybe Vice President Pence and Kamala Harris twelve feet apart and separated by plexiglass panels during their debate, or perhaps the mug shots of 13 lowlifes for Michigan, who helped plot to kidnap Governor Whitmer and put her on trial for treason? The president returned to the White House with good tidings for the country, that the virus is nothing to fear and easily cured with medicines that everyone will get for free and that leave you feeling 20 years younger.
This, at a time when there are 30 known cases of the virus in the White House alone, and the number of cases per day in the country as a whole has increased by more than 25 percent in the last few weeks. In his few days back, in addition to some tweets and call-in interviews to Fox News, Trump has announced that he will not participate in a virtual debate with Joe Biden next week, and that he is pulling the plug on negotiations for stimulus relief that his fed chair and nearly all economic experts say we need acutely.
Meanwhile, in the wake of his boorish performance in the first debate, Trump has slipped to double digit deficits in the polls amid signs that Mitch McConnell and the party faithful are beginning to plan for a period in exile. The ghost of Rod Rosenstein visited the country with the revelation that he had been the driving force in DOJ’s insistence on a zero tolerance policy of its arrest of migrant families, no matter how young the children, including nursing infants. Meanwhile, the present day Department of Justice announced an amendment to its longstanding policy on interference in elections that seemed designed to dovetail with the president's strategy of hoping he’s ahead on November 3rd and can then resist the counting of remaining ballots on the grounds that they are fraudulent.
And Bill Barr quietly announced that there would be no Durham report before the election, and it seemed as if the air had completely leaked out of the tires of the Republican strategy to relitigate in 2020, the 2016 investigation of the Trump campaign and Russia. And finally, the week ended on the horrifying note of the news about the planned kidnap of Governor Wittmer, whom Trump proceeded to tweet, quote, ‘has done a terrible job.’ And all of this is not even to mention the first week of the Supreme Court term, the vice presidential debate, Biden's house divided Gettysburg's speech, and much more. To make sense of another whirlwind week of developments as the country's pace leading into the election seems to accelerate, we have a fantastic set of prominent commentators. They are:
Laura Jarrett, the co-anchor of CNN's Early Start with Christine Romans. Previously, she was a correspondent based in Washington covering the Justice Department and before that, a practicing lawyer in Chicago, Illinois. Welcome back to Talking Feds, Laura.
[00:05:29] Laura Jarrett Thanks so much, Harry. Always love doing this.
[00:05:31] Harry Litman Michael Steele, his first visit to Talking Feds, known to everyone (of this podcast nevertheless), he's a political commentator, attorney and former chair of the RNC. He served as the seventh lieutenant governor of Maryland from 2003 to 2011. And for the last four years, he's been a regular columnist for online magazine The Root, and a political analyst for MSNBC. Welcome, Mr. Chairman, to Talking Feds.
[00:05:59] Michael Steele It's great to be with you, Harry. For sure.
[00:06:01] Harry Litman And Steve Vladeck, an extremely good friend already to the show. And my go to colleague for discussing legal issues, Steve’s the Charles Allen Right chair in federal courts at the University of Texas School of Law, and an active litigant in cases around the country, including this week in the Texas Supreme Court. He's also the co-host of the popular and excellent National Security Law podcast. Welcome back to Talking Feds, Steve.
[00:06:26] Steve Vladeck Thanks, Harry.
[00:06:28] Harry Litman Alright, let's begin with the president's return to the White House. And I'd like to frame first a kind of general question. We have this president who often takes counter-intuitive action and the commentary that says, oh, he knows what he's doing, he's playing to the base etcetera, but he is way behind in a race with weeks to go and dwindling opportunity to make up ground. Yet this week alone, he said he'd boycott the debate next week. He canceled stimulus negotiations. One of the few opportunities to make up any ground in a race in which he is distinctly behind. What is the story about here? Is he crazy like a fox? Or is he actually being counter productive in his conduct?
[00:07:13] Michael Steele I think what you're looking at is a bifurcated campaign. One is the campaign that Donald Trump wants to run, and the other is the campaign that his actual campaign is trying to run. And the reality of it is they are caught, both parties are caught in this vortex. The numbers every day are turning against the president. They're turning in a way that makes it harder and harder to overcome the inevitable outcome, which is the president will lose. And I'm not saying that is a fact. We don't know, votes are still just underway in many states and have been in place for a number of other states. Some five million Americans have already voted to this point this week and there's still a lot more ground to cover. But the reality of it is, I think for a lot of voters, it doesn't matter at this point which campaign is run on the Trump side of the equation. The president right now, even as recently as this conversation is talking about, oh, I'm going to have a physical exam on national television
[00:08:16] Harry Litman Right, in front of everybody, kind of like a world wide wrestling event.
[00:08:22] Michael Steele Right. Like we're actually going to believe this. And any doctor, quite honestly, who would participate in that, is a quack. I'm sorry. This is the same people who don't want to tell us when the president had his last negative test because of, quote, HIPAA regulations. Right. But I'm willing to put the president on national television for a physical exam. So folks understand what's happening here, I think a lot of Americans do. And so we'll see over the next three weeks how much of this gets baked in to move the numbers in favor of the president. I just don't see it happening. In fact, I think after the first debate, I think, folks had kind of made up their minds with respect to where this was going. The numbers are now showing that. And I think if this stunt takes place with the, with the doctors up, no one can look at this and go, yeah, this guy should be president. —
[00:09:11] Laura Jarrett The problem is that some of these stunts end up hurting other people. I agree with Michael that so much of this, we've seen this week has to be for show, right? The bravado to be climbing the South Portico and then get up there on the balcony and rip off the mask. So much of this we sort of sort of dismiss as made for TV, reality TV moments, but all I could help but think about is he goes back in there without a mask. What about all of the butlers, the valets, the housekeepers, people who are changing his coronavirus laden sheets? Those are the ones who get hurt. And we don't pay as much focus, I think, on that. And now they're talking, at least ABC is reporting about having an event at the White House again in person, even if it's outside. We know that the event for Judge Barrett became, in effect, a super spreader event, even if it was outside. And even if people you know, I didn't see too many masks, but even if a few people were wearing a mask, clearly shows this is not a safe environment. And so all of this show and bravado and everything he's doing sort of gets dismissed as silly season, except that people are actually getting hurt.
[00:10:24] Steve Vladeck I agree with everything Michael and Laura said, I do think that the trend is clearly against the president if all the votes are counted, and I think we really need to take into account just how much Republicans in every state that might matter are going to court, are doing everything they can to count as few votes as possible. And I don't mean to sort of litigate their legal arguments here, some are more convincing than others but we've had a rash of decisions already this week about potential late arriving absentee ballots. My fervent hope is that all of this stuff is going to push the election so far outside the margin, that none of this ends up mattering, that states like Pennsylvania and Nevada and Arizona don't come down to disputes over absentee ballots and things like that. But I am worried, especially the next three weeks, not about the polls moving that much towards the president again. But I'm worried about who's going to get hurt in the process. And I'm worried about whether the polls are going to actually reflect the voters if there is all this effort to restrict access to the franchise
[00:11:22] Michael Steele I think Steve is about to put his finger on the most important pulse in the next three weeks of this campaign, I noted five million Americans have voted, but we know hundreds of thousands of ballots have been thrown out through vote by mail because the signatures weren't right or they weren't in the right envelope. So the narrative for a lot of us, and I’ve been working in this space probably since early summer, trying to get folks to focus on exactly what Stephen just put on the table, that you've got to plan to vote. Folks, if you have not voted yet, you've got to plan to vote. So that means don't give the system or those who are trying to manipulate the system more importantly, a reason to throw your ballot out. Follow the instructions that come with your ballot. If you vote by mail and so forth, making sure that you cross all those T's, dot all those I’s. Even down to using the right instrument to do it. If requires a number two pencil, use a number two pencil. And so because right right now, there are a lot of efforts underway, in particular battleground states. And here's the irony, the man who's claiming about the system being rigged is the one who's trying to rig the system.
So we need to understand to be honest about that. I know how this works and looks from the inside, and I can tell you what these efforts look like when they, when they come up. And you've got to be smart about it and you've got to be prepared for it. And do not give them the runway to take your vote and put it in a trash can because they will.
[00:13:00] Harry Litman And it seems like I'm as Steve says, I mean, the efforts are underway, although I think they're being joined by armies on both sides. But one does get the impression that the Trump campaign may be down to sort of one Hail Mary strategy, which is to hope that he's got some small lead on Election Day itself and then try to prevent and bully the rest of the votes being counted on some kind of fraud ground. The DOJ, which we'll talk about in a minute, has maybe made a move in that direction. And maybe this is easy to say as a, you know, someone who roots against Trump, but you have to think just for the good of the country, a decisive result would be really vital. I do want to return to the politics just briefly, though, and what Michael said about the two campaigns being run. So, again, back to Trump. We have this Hail Mary strategy. They are doing everything they can, kind of quietly, because exactly as all three of you said, when you look at every state, there are over forty five now, the common refrain is Republicans trying to shrink the franchise. They are doing that, but what the heck is up with the president seeming to cut off the limbs of his few remaining chances to gain any ground? Is it some sort of psychological effort here to just set things up for, I could have won, but, kinds of arguments? Why is he running away from the debate? Why is he running away from a stimulus package with Donald Trump signed checks?
He's actually taking from himself the very few remaining arguments he could try to prosecute in the next three weeks.
[00:14:43] Michael Steele I think a lot of it has to do with, and revolves around the president's emotionalization of his situation. His ego, his emotions, his reactions are all tied together. And so when any one of those gets touched or bruised at all, alarm bells go off. So this is a man who doesn't like to be told what he can't do or must do. And when you do that, such as the debate commission saying, hey, we're now doing a viral debate, his immediate reaction is, I'm not doing that. I don't want to do that, irrespective of his own health and the health and safety of others around him. His emotional, egomaniacal response.
[00:15:27] Harry Litman It's just Donald Trump's Id or whatever.
[00:15:29] Michael Steele It’s his Id, I mean, the listeners I'm trying to be a pejorative and all that about Trump. I'm just, I don't need to do it. You see it. You hear it. You're smart people. You kind of assess when someone is leading with their emotion versus their logic, particularly in this health space.
And I think that's something that can't get lost here, that what we're seeing in that first campaign versus the second, which is his actual campaign, emotionally moving from point to point. So he wanted to do the Il Duce kind of, you know, balcony scene because in his head, that's a symbol of power and stamina and all of that.
So it has an emotional lift to him. The rest of us are looking at and going, well, that was dumb because you take the mask off and you go back into the family residence, to Laura's point, and you're engaging with everyday people who you now put at risk with your COVID self.
[00:16:26] Harry Litman Get down with your COVID self.
[00:16:30] Michael Steele So, yeah, I think I think that that's part of what you see playing out here.
[00:16:33] Harry Litman Others I mean, we can't focus exactly on the virus. Here's a guy who's getting clobbered now among older voters. He won them by nine points against Hillary Clinton. He's down by 21, a 30 point swing. And it seems like it's all about the virus, and he's out there saying, oh, nothing to worry about. Everything's good, and older U.S. citizens are petrified of the virus.
[00:16:56] Steve Vladeck Well, I would just add. I mean, I think part of the story also here is how few folks are undecided that, yeah. Right. That, to me, is the biggest difference numerically between this election and 2016, which is even if something dramatic happened in the next 20 some odd days, whose minds are already made up. And yes, there are millions and millions and millions of people who are going to vote for the president no matter how irresponsibly he acts. The question is, are there folks who are still making up their mind where the next three weeks are going to matter? And my reading of the polls, which is I'll confess is an amateur’s reading of the polls, is that there are far fewer voters identifying themselves as undecided in this cycle and therefore far less chance of a, you know, Hillary email like scandal or positive development that's really going to move the needle enough between now and then. And so it may be that nothing that the Trump campaign or the Biden campaign does is actually going to matter.
[00:17:48] Laura Jarrett But all the people who are, let's call it sort of soft Trump supporters or maybe undecideds, I mean, all of the actions that he's taken just even in the last month are not doing him any favors. That debate didn't do him any favors. I mean if he, if he thinks that going out there, ripping off his mask on the balcony is helping him with suburban women who are trying to figure out, like, is this safe?
It's not doing him any favors at all. And I think he engages in a lot of seemingly self-defeating actions and behaviors. But to Michael's point, there, there may just be something emotional there that is unexplainable. And, you know, not to get to armchair psychology here, but to me to speak to Bob Woodward. And this is weeks ago now. But to speak to Bob Woodward, one of the most famous journalist in the world, for what?
Taking down a U.S. president? And saying to Bob Woodward, all of those things. I mean, just think about that for a minute. Right. He knows that this virus could be the tipping point for him even months ago. He had to know that because he was warned back in January, this is going to be the most serious thing for your presidency in terms of national security.
So he was warned back in January, and yet he still still sat down with Woodward and said all those things that were completely self-defeating that I agree with Harry, that that's not somebody to me who looks like they want to win this race. But it may just be that he can't help himself.
[00:19:15] Harry Litman I think we can all say on a nonpartisan basis, Trump supporters and detractors alike, this guy's some piece of work. I have one final question about the politics here. Do you discern that McConnell is now trying to put a little distance between him and the president and maybe even letting his guys free?
[00:19:34] Laura Jarrett Yes. Yes. One thousand percent.
[00:19:37] Steve Vladeck Yeah. And 1000 days too late.
[00:19:41] Laura Jarrett I don't know about that, Steve. Right. Like, he's he's doing it when he senses a shift, right? He is nothing if not strategic. And so there's something, there's something that’s giving him pause.
[00:19:54] Michael Steele Well, I can tell you what's giving him pause. It's the internal numbers of the NRSC, the National Republican Senatorial Committee, that shows that right now the Democrats could pick up six seats. That's what's giving him pause. In my estimation, what I know and what I've done in working with these guys. I've met with them every Tuesday in the Senate Republican caucus dining room to talk politics and let them know what is going on. And so I know the thinking, I know the rationale, particularly of the leader. He's looking at a situation in, you hit it, Steve. It's a thousand days too late where the price paid for the lack of distancing with Trump on big things that matter to the American people. And this is something that Republicans misunderstood. The American people weren't looking for McConnell and others to just dump the president by the roadside. Yeah, there was some people, the hardcore leftists, et cetera. That's what they expected and so forth. But what they were looking for, when the president refers to white nationalists, as good, fine people on both sides.
Can you can you help a brother out and say that's not where we are? You know, as a country? And so little examples like that, which turned out to be big moments, really started to add up for a lot of America.
[00:21:14] Steve Vladeck But but, Michael, I think I agree with all that. And, of course, I mean, you've been in the room. I think the Senate majority leader probably saw this writing on the wall a month or two ago. Right. And I think and I think he looks at, for example, the South Carolina Senate race with paroxysm of rage. To Laura's point about why now, I think the answer is not some 11th hour attempt to try to hold onto the Senate. I actually think it's something entirely different, which is an 11th hour attempt to make absolutely sure they finish the Barrett competition before November 3rd. I think McConnell has given up the Senate. I think he knows it's lost. I think he knows that if he waits until after November 3rd to vote on Barrett, he might lose Susan Collins, who will be a lame duck. They might lose Lisa Murkowski, who will be a very empowered, not lame duck. Mark Kelly would become the senator of Arizona by November 30th, I believe. And so I don't think this is about McConnell trying to save his majority, I think this is about McConnell making sure Barrett gets through before he loses it.
[00:22:11] Harry Litman And why is that? I mean, why does he need to separate out in order to make sure, I see that as his goal, but why does it, how does it connect?
[00:22:17] Steve Vladeck Because I think he has plausible reason to worry that even though there's a lame duck session where Republicans will still have no fewer than 52 seats in the Senate, there may be at least three Republican senators who won't vote to confirm Amy Coney Barrett after the Republicans have been kicked out of both the White House and the Senate, who will be perfectly happy to do so before then.
[00:22:35] Michael Steele Steve's analysis is straight on and I can't even add to it because that's exactly what I'm hearing and the conversations that are sort of floating in quiet spaces now. And you've seen it even reported by Robert Costa in The Washington Post that senators are beginning to distance themselves. That's just the frontal view of this. That's the distraction story, because the background story is exactly what Steve just said.
We're going to get Amy Coney Barrett done. We'll get her done by October 30th. And hands are washed. And the chips will fall where they may on the Senate.
[00:23:13] Harry Litman See you in four years. So you're not hearing whispers of, if we ram her through now as Trump wants, will we pay for it more?
[00:23:19] Michael Steele Yeah, that's like that's like you get hit with something and, you know, it leaves a bruise and you get hit again is like, okay, on the same spot as I still have the bruise, I cannot change anything.
So yeah. I mean doing this and the consequence is losing the Senate. Well to Steve's point, it's already gone, so.
[00:23:37] Steve Vladeck You know, I mean, it's classic McConnell, salvaging victory from the jaws of defeat.
[00:23:42] Laura Jarrett And doing anything to get judges through by any means necessary. I mean, it's the whole reason Trump in some ways is there. I mean, he's put up with everything for the judges.
[00:23:54] Harry Litman Right. That the people who you were surprised voted for him.
When you ask them, they say, oh, yeah, he's a terrible person, but A, taxes and B, judges.
[00:24:02] Steve Vladeck And it's distinctly possible that Amy Coney Barrert's going to be the last Republican judge confirmed of the federal judiciary for some time.
[00:24:08] Michael Steele I agree with that. And the thinking and again, you know, my team, sometimes I tell them we were in the huddle, guys. This is not the play. It's not going to come out the way you think you're going to come out. And the thinking is that we stack the bench with all these judges. These conservative judges. And I put conservative in quotation marks. Some of them shouldn't even be in a courtroom, let alone sitting on a bench. OK. So let's let's be honest about that. When you put a 38 year old who's never tried a case.
[00:24:40] Steve Vladeck The question is, what are the Democrats going to do about it? This is the million dollar question that the vice president avoided at the debate, sorry, vice president Biden, are the Democrats going to pursue some kind of institutional reform to the courts? And there's a lot of blood spilled on the question of expanding the size of the Supreme Court. You don't hear any talk about expanding the size of the lower federal courts, which is nowhere near as controversial, which has done far more often, which would be at least one way of trying to dilute the influence of the Trump administration on the courts.
[00:25:05] Michael Steele I agree with you on that. And I think that that's why part of the question is not answered publicly, because they don't want to open up that particular narrative potentially and just kind of leave that as something that happens.
[00:25:18] Harry Litman Right. I mean, it'd be crazy politically for that, right?
[00:25:21] Michael Steele It just would be.
[00:25:22] Harry Litman Yeah. All right. Let's shift gears and talk a little bit about the Department of Justice, because we've defined a possible thread the needle strategy, remote though it may be, of hoping November 3rd to be slightly ahead and to shut everything down. And the department did something quiet but ominous this week when it said, oh, you know our general rules for not messing with elections, well they don't count if we think there's been fraud on the actual day. Of course, it only has to be if there's use of the mails in some way, which is to say, you know, it has the same breath as like the overall mail fraud statute.
So how afraid should we be that the department is kind of gearing up to be the soldiers for what seems like a very crazy ploy by the president?
[00:26:14] Laura Jarrett I think, once again, this is an example of the Justice Department under Attorney General Bill Barr making a pronouncement that on the face seems like he's doing the president's bidding, but in real action remains to be seen whether it has any teeth. I think these decisions are going to get left up to the U.S. attorney's offices by and large. He may weigh in if there is, in fact, a disputed election in a way that some may be unhappy with. But think about all those things that have happened over the past couple months that Barr has done, changes that have been made, speaking out on active investigations when that historically had never been done, at least in the way that he was doing it. I mean, all of this stuff, at least on the face of it, seems to help the president. But does it really in action?
[00:26:59] Harry Litman What are you thinking that maybe he's trying to mollify him personally, but actually not go in with a, you know, total upheaval?
[00:27:08] Laura Jarrett Yeah, I think it's worth thinking about that. I think that and well I'm sure we'll get to this. But the whole issue of what's happening with John Durham and his report.
[00:27:17] Harry Litman Right. Well, let's get to it now.
[00:27:19] Laura Jarrett Well, I think it's another example of him announcing an investigation instead of just doing it quietly. Right. So if he was really worried that there was something that had been very bad, that had happened back in 2016 at the FBI, you would think he would have done it quietly and taken care of it. Instead, he announces his very public investigation, he gets the right really ginned up about it, a lot of excitement. The chief of staff is going around saying indictments are coming. Turns out indictments aren't coming, at least before the election.
[00:27:48] Harry Litman Nothing's coming before the election. Right.
[00:27:50] Laura Jarrett And at least one GOP aide had like a what I consider this amazing party admission to say to Axios this morning. If you don't get anything before the election, it's virtually meaningless, which is to say, all of this all of this was just about affecting the election. None of this was real.
If it was real, it wouldn't matter when the timing was. If it was real, you would probably want the prosecutor to take his time and be methodical, as Durham is known to do. And he's known to do this on both sides. Bipartisan, both Democrats and Republicans have worked with him.
This is not somebody who's supposed to be a hack, but instead they wanted to politicize this investigation from jump. And now it turns out it was all for naught.
[00:28:34] Steve Vladeck I would just add to Laura's, I think, entirely justified ire at the Justice Department. Keep in mind, there is also this story about the nine stolen ballots that DOJ made a huge deal about and then pulled down.
[00:28:46] Harry Litman Throw that out for us a little bit. This is in my home state, right?
[00:28:50] Steve Vladeck There was this dramatic press release in this breathless announcement about these guys who had been found sort of mishandling nine Trump ballots in Pennsylvania,
[00:29:00] Harry Litman Seven as it turned out, but yeah, whatever.
[00:29:01] Steve Vladeck So so the way the story was pitched was see, see, mail-in ballots are ripe for fraud. And there was like six hours of right wing media frenzy over this. And then DOJ pulled the release down because I think they realized, one, they don't usually issue releases like that. Two, there's a bunch of the release that was wrong. Yeah. And three was sending the wrong message. So I think we should be very wary in the next couple weeks of confusing signal from DOJ with noise. There's only so much Barr can do on his own, he can't go out and do all these investigations himself. He might be freeing up U.S. attorneys to do things they wouldn't otherwise have been able to do in the three years before the election. I’m with Laura, I'm waiting to see any of that actually done.
[00:29:39] Michael Steele Look, this is this is all about politics, and as much as my friends and colleagues on the right have complained about the politicization of the Justice Department and the FBI and all these other government agencies, you have not seen a worse example of that than you have in this Trumpian era where president just yesterday and again this morning referred to the Justice Department again on the heels of the investigation into the assassination attempt of Governor Whitmer as my Justice Department. In America, that's all you need to know about how Donald Trump sees these things. And what makes it so problematic is that you have an attorney general that doesn't have a problem with a hyper executive power, let's put it that way, that looks at these constitutional norms and administrative systems as tools in the executive toolbox.
[00:30:42] Laura Jarrett But it's interesting, Michael, because he will give him just enough. Right. So he's not going to indict President Obama or Vice President Biden. That's ridiculous. And it's always been ridiculous.
[00:30:52] Harry Litman It's ridiculous. Although Trump calls into Fox yesterday and questions Barr’s entire legacy if he doesn't.
[00:30:59] Laura Jarrett So that was so weird. Bob Barr, you know, as one person put it to me today, he's almost created this Frankenstein or he can't control. So he sets up this dynamic where he gets the president all ginned up about the Durham report and everything that's gonna happen with it. Well, probably while knowing full well it's it's going to let him down. He's not going to indict Comey. He's not going to indict all of the people that the president has gone after for so long. But he gives them just enough charm by having it out there. That allows the president to speculate wildly for however many months about this. And you know, he gives him a talking point, but he's not giving him the ultimate big ticket item that he wants. It's just interesting that he thought he could control the situation, I think, more than obviously he's been able to.
[00:31:46] Steve Vladeck And in that regard, Barr may be like McConnell, right.
[00:31:49] Harry Litman Exactly. Yeah, right.
[00:31:50] Steve Vladeck Where where Barr may have been very late, but Barr is no dummy. He has to understand at this point that, yes, this is about his legacy because he's not going to be attorney general for that much longer. But does he want his legacy written by the president or does he want to see this written by people who are actually going to be in charge on the far side of this?
[00:32:07] Laura Jarrett Well, I don't know. As he said himself, he gave up on that a long time ago, or he would not have joined this administration.
[00:32:16] Michael Steele As one Republican put it to me recently, this whole investigation was just another Benghazi moment for the GOP, right. Republicans say I mean, after all the money spent, all the investigation, 11 hours of testimony by Hillary Clinton. Where does it get you? No indictments, no convictions, no, no nothing. And again, this is how this plays out, both in terms of politics, but more importantly, how it politicizes and demoralizes good public servants who don't want to be in the political space. That's why they're at DOJ and FBI.
[00:32:47] Harry Litman Which is so true. And it does seem like they're closing up shop. I can add one little detail as a former U.S. attorney, which is this revelation last week that Rod Rosenstein had insisted that the zero tolerance policy of migrant separation apply no matter how young the children in the family. There were reports of five good Trump U.S. attorneys who he was overriding and putting his boot on the neck of, who were like, oh, my God, don't make me do this. That kind of thing, that's a real hit within the department that maybe Barr has to try to reverse ground on when five different U.S. attorneys are saying this was way over the top.
It's now time to take a moment for our Sidebar feature, which explains some of the terms and relationships that are foundational to events that are typically in the news, but they're never really explained. We're going to talk today about the Voting Rights Act, a critical part of the legal landscape for elections, but a statute that the Supreme Court has weakened in recent years. And to explain it to us, we are happy to welcome Maggie Renzi. Renzi is an American film producer and actress. Her first film, Return of the Secaucus Seven, in which Renzi was the star, unit manager, editor and producer, won a best screenplay award from the Los Angeles Film Critics Association. Her distinguished career since includes production work on Lone Star, Girlfight, and a number of Bruce Springsteen music videos.
[00:34:25] Maggie Renzi What is the Voting Rights Act and what does it do? The right to vote is perhaps the most fundamental and important right in democratic society. As the Supreme Court observed in 1886, voting preserves and protects all other rights. In the aftermath of the Civil War, Congress added the 15th Amendment to prohibit race based voting discrimination. But despite the constitutional prohibition, systematic disenfranchisement of black Americans continued, especially in the post reconstruction south. One hundred years later, Congress passed the Voting Rights Act, among the most successful pieces of federal civil rights legislation. The VRA became law in August 1965, five months after peaceful civil rights demonstrators were beaten, trampled and tear gassed in Selma, Alabama, during a voting rights march. John Lewis was among those demonstrators. The Voting Rights Act employs several mechanisms to combat disenfranchisement.
It prohibits literacy tests, poll taxes and other devices historically used to prevent Americans of color from voting. It authorizes federal supervision of registrations and elections, and it imposes civil and criminal penalties for preventing others from voting based on race, color or language minority status. The most powerful enforcement tool in the Voting Rights Act is the federal preclearance process contained in Section five. Under this process, states and localities that Congress determined had the worst records of voting discrimination must obtain DOJ approval for any voting changes, such as drawing new voting district lines. A proposed change will only be cleared if it has neither a discriminatory purpose nor effect. However, in a 2013 case called Shelby County vs. Holder, the Supreme Court dealt a serious blow to the Voting Rights Act. The Supreme Court held that the preclearance formula was unconstitutional because, not having been updated in 40 years, it was untethered from current conditions. The 2016 presidential election was the first to proceed without the preclearance protections. 14 states added new voting restrictions for that election, and post-election studies found that many thousands of minority voters in key districts were deterred from voting.
This voter suppression and disenfranchisement lends credence to Justice Ruth Bader Ginsburg's dissenting statement in Shelby County, that throwing out preclearance when it has worked and is continuing to work, is like throwing away your umbrella in a rainstorm because you are not getting wet. Importantly, Shelby County would permit the preclearance process if Congress revises the formula. But so far, Congress hasn't stepped up to the task. For Talking Feds, I'm Maggie Renzi.
[00:37:35] Harry Litman Thanks very much, Maggie Renzi. Renzi is now working with longtime companion John Sayles on a Western called I Passed this Way.
[00:38:45] Harry Litman All right. Everyone's been so startled by it, it's come up repeatedly just in our discussion so far this hour, and that is the announcement of the kidnap charges and other charges against six hardcore conspirators and seven helpers to try to kidnap and try for treason Governor Whitmer of Michigan. Let me just start here. You know, is this serious? You hear about threats like this, but they're kind of empty sometimes. Is that what this is? Or are we talking about some serious bad guys who might actually have grabbed her and taken her away?
[00:39:21] Laura Jarrett I think it's deadly serious because the president of the United States is telling them to stand by. This is deadly serious.
These are people who would under any other circumstance, the president would come out and say this is unacceptable. He would have privately called the governor to check on her, I mean, there is no universe in which this happens in any other situation, and that the president will go on Twitter and say, you should actually be thanking me because it was my FBI that catches these things. Right, you’re a terrible governor. And not only are you a terrible governor, you're a terrible governor pointing to her stay at home orders, which is the exact thing that this group of men pointed to for why that they were against her. Now, you can believe that or not, but I think it's worth noting that they're taking their cues from him. And I'm not trying to make a causal relationship here, but I do think that people are listening to him. And, you know, that old trope that the media was just kind of taking him literally and not seriously. Well, these people are taking him seriously and literally.
[00:40:21] Steve Vladeck If anything, I think it's even more serious than that, because if that to the two points I pick up on that Laura said, the end of the president's insane little tweet storm about it was basically demanding that she do exactly the things that the punitive kidnappers were going to do. That is just indefensible as a human, let alone as a president. But the second part, and this is the part that scares me, the part that I find most serious about this is the number of folks in right wing social media who are saying, well, you know, she was a tyrannical governor.
[00:40:56] Harry Litman You put it nicely. They call her a tyrant bitch on social media.
[00:40:59] Steve Vladeck As their evidence of her tyranny was the fact that she just lost , mind you, incredibly controversial four three decision in the state Supreme Court, which she is abiding by. And so the notion that an executive official who loses a close case in the state or federal Supreme Court, that that is proof of her tyrannical disposition sufficient to justify the use of violent force to overthrow her. We have a term for that in this country, the term is treason. It is not just that what they were doing was the alleged kidnapping and murder plot. They were going to commit treason against the state of Michigan. And I have been like the world's strongest defender of not overusing the T word to describe Trump to describe what Trump says happened to him. This was attempted treason against the state of Michigan. And there's a reason why that is one of our most infamous crimes.
[00:41:48] Michael Steele Both Laura and Steve have put this exactly where we need to see it and how we need to focus on it. Because, you know, as a former elected official, I understand very well the dynamics and the complexities of the decision process, how at times it can rile up people in the state and certainly even people on, on supposedly on your side of the fence. But when you cross that line, which, as Stephen put it, was crossed here where you're committing treason against the state, particularly under the circumstances and for the reasons that were stated, it should send alarm bells across the country, because Michigan is the tip of a very, very long spear. And I think it's important for us to understand that going back to 2015, there has been a systematic stoking of this element within our culture and within our communities. Steve Bannon was part of that very early on. The president himself has picked up and continued that narrative. Going back to what I said before, when you look at these situations and you see fine people on both sides, you have to understand what that says to the people on that side. When you see the response by Proud Boys at the debate with the president, you know, stand back and stand by. That becomes their slogan, their logo on their arm pad. So, yeah, every governor, every elected official needs to be wary of where this will go and the impact it could have on their states.
[00:43:24] Harry Litman Yeah, I agree with that. And something in particular that sort of separated this out for me and reminded me more of your genuinely dangerous episodes like Waco or Jim Jones. They weren't just like random angry folks wanting to grab her.
They're this, they live in this whole bizarre, alternate universe. Remember, they were gonna try her for treason. These are people who have this elaborate world view under which they're just not they're not just pissed that she did this or that, they believe in some deep, doctrinaire way in some kind of illegitimacy of her and the whole government. And, of course, this grows.
[00:44:04] This flourishes, you go immediately to the tweets and the social media and you find the comments like the ones I cited is one of the lessons you take from this, that we've gotta reform social media more and point the finger at them? Or is there nothing that can really be done about such crazies as far as that regulation is concerned?
[00:44:27] Laura Jarrett I think that ship has sailed. I think the idea of putting these fact checks and tags on tweets and Facebook posts, I think the research shows that the lies are out there and actually even just doing, something I think about in my own reporting when we repeat people lies. Even if we say ‘falsely claims’ or explain after we explain the lie why it's wrong, people hear the lie. I think it is the constant fact checking all day long I think people get a tin ear to it.
[00:44:56] Michael Steele I agree with Laura there for sure. Let’s call the thing what it is. All right. So these are domestic terrorist organizations, and should be treated as such by our judicial system, by our criminal justice system and by the executive leadership of this country, starting with the president of the United States. If you engage in this kind of behavior, we cannot identify and will not identify the KKK as a domestic terrorist organization to this day. Why not? Seriously? You've got to be kidding me. And then white nationalism in all of its forms and manifestations. You can do social media, you can put a tag on whatever the hell you want. At the end of the day, if you don't recognize a thing for what it actually is, the tag means nothing. And no one takes it seriously because there is always room to say, oh, there are fine people on both sides.
[00:45:53] Harry Litman Boy, you know, I don't see a better end than that. OK, we have just a few minutes left. Let's do our Five Words or Fewer. I've changed around a little because I was on Australian TV, they said they would ask me a few questions from viewers and I proceeded to field the most elaborate series of law school hypotheticals — and I just kept thinking, I wish Steve Vladeck were here. I wish Steve Vladeck were here — about what could happen here, and they were going to take one of them from Miles from Australia and ask each of us to even a harder job, which is do it in Five Words or Fewer. Miles asks, what if there is a tie in the Electoral College vote and then a tie in the House delegations vote for president? There's our question, Feds, in five words or fewer. And I think it has to be Steve who starts.
[00:46:45] Steve Vladeck Party like it’s 1801.
[00:46:50] Harry Litman Alright, anyone?
[00:46:51] Michael Steele Stay calm and drink.
[00:46:55] Laura Jarrett Gonna be a hot mess.
[00:46:57] Harry Litman Boy, I'm just I just feel so prosaic, but I got to pick up on the 1801. Jefferson, Burr, Hamilton. Redux. Ending with a fancy word.
[00:47:14] Harry Litman Thank you very much to Laura, Michael and Steve, and thank you very much, listeners, for tuning in to Talking Feds. 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. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other feds related content. You can check us out on the web, talkingfeds.com , where we have full episode transcripts. And you can look to see our latest offerings on Patreon where we post discussions about special topics exclusively for supporters. Submit your questions to questions@talkingfeds.com , whether it's for Five Words or Fewer or general questions about the inner workings of the legal system for our sidebar segment. Thanks for tuning in, and don’t worry: as long as you need answers, the Feds will keep talking.
Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wright. David Lieberman and Rosie Don Griffin are our contributing writers. Production assistance by Matt McArdle. Our consulting producer is Andrea Carla Michaels. Thanks very much toMaggie Renzi for explaining the voting rights act. Our gratitude as always to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I'm Harry Litman, see you next time.
