Harry Litman [00:01:16] 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. The case, as the lawyers say, is submitted. With the final debate in the rearview mirror, the two candidates for president have done what they can to persuade voters to stay the course, or make a change. Absent some Halloween surprise, the election now focuses on the get out the vote ground game and, of course, the flying hordes of lawyers on both sides whose work can be fairly summarized as follows: Republicans trying every stratagem to reduce the number of voters, especially minorities, and Democrats pairing with efforts to increase them.
The third debate actually seemed debate-like, with Biden and Trump both displaying overall restraint and even substance, though in Trump's case, the substance consisted in large part of claims that were already shown to be false before he left the stage. As CNN's fact checker put it, quote, "It was an absolute avalanche of lying," close quote. Biden seemed to land the bigger blows, in particular on Trump's record on the virus and immigration policy. And he was able to swat away Trump's efforts to dirty up Hunter Biden and the Biden brand, which came across as confusing and conjectural. To analyze that candidate's final case to the American people and give a preview of the quickly shortening horizon between now and December 3rd. We have an all star gang of expert commentators, all returning guests to Talking Feds. And they are:
Vanita Gupta, president and chief executive officer of the Leadership Conference of Civil and Human Rights. Prior to this, Vanita served as the acting assistant attorney general and head of the U.S. Department's Civil Rights Division. Welcome back, Vanita.
Vanita Gupta [00:03:26] Great to be here.
Harry Litman [00:03:27] Matt Miller, very, very well-known to everybody on this show. He is a partner at the strategic advisory firm of Vianovo, and the former director of the Office of Public Affairs for the Department of Justice. Thanks for being here, Matt.
Matt Miller [00:03:44] Thank you Harry, as always.
Harry Litman [00:03:46] And finally, Congressman Jamie Raskin, who represents the 8th District of Maryland, is a member of the Judiciary Committee and the Oversight and Reform Committee, and he is vice chair of both the House Administration Committee and the Judiciary Subcommittee on the Constitution, which is fitting because for more than 25 years, he's been a professor of constitutional law at American University's Washington College of Law. Thank you very much. I'll hazard Jamie, can I call Congressman Jamie for being here on Talking Feds?
Jamie Raskin [00:04:20] I'm delighted to be with you.
Harry Litman [00:04:22] So, look, lots to say about the debate, though. I want to leave room for the coming week. But let's start with Trump himself, leaving the substance aside, which, as I mentioned, was completely mendacious. Somebody got to him, right? I mean, he actually was a different and more effective debater. Aggressive, but not asinine, as in the first debate. And all the 'let Trump be Trump and you can't control him' seemed maybe contradicted, right? He actually showed some discipline.
Jamie Raskin [00:04:56] Well, that's certainly my perspective. I mean, it wasn't the Lincoln Douglas debates, but it was not a complete barroom brawl. He seemed slightly disciplined as Trump goes. I mean, still, when you compare him to anybody else who's ever been in a presidential debate, he was an absolute wild man. But on Trump's own terms, he seemed to be slightly more disciplined and focused and he had a couple of themes, like when he was calling Biden a politician, a typical politician. That clearly was his marching order.
Harry Litman [00:05:25] Yeah. I mean, he got sobered up somehow, right? He really seemed to have been chastened and, you know, thinking he couldn't be the same old nasty guy.
Jamie Raskin [00:05:33] But, he was lying compulsively the entire time.
Harry Litman [00:05:35] Lying compulsively, yeah.
Vanita Gupta [00:05:37] That's always the thing, though, is that the bar was so low yesterday and clearly his advisers said, like, shape it up. That was a terrible first debate for yourself. The lying is so kind of beyond the pale of when anyone should accept from a president, so we overread into the stylistic stuff because of where we started from with this first debate. But it's like the substance and the lying is the thing that actually should be the most germane take away from a debate. And there you have it. Sometimes I feel like he's the beneficiary of the incredibly low expectations that are unique to Trump alone, that don't apply to anyone else. And and so the commentators after can kind of go in and look at the style and say, oh, look, he's like more presidential when the lying itself and the constant lying about all the substance, which is what the American people need amid a pandemic and they need to understand, you know, what that forward-leaning vision and policies are actually going to be that affect our lives. That stuff can get brushed aside.
Matt Miller [00:06:34] Yeah, I think all that's true. I think we also learned a valuable lesson that one of the best ways to deal with Donald Trump is to turn off the microphone. It has an impact, and I'm being serious. I think he very much knew that trying to interrupt Joe Biden when his microphone was off was going to look pretty silly. I also think people convinced him that the hour is late and what he did last time didn't work. It had a noticeable impact on his polling last time. And I would say one of the things about his lying is that he does have the ability, because the bar has been lowered so much for him, to lie and be an effective communicator in lying, to lie and get away with it. And he lied last night, and to the extent he got to, he gets away with it, I still don't think it's going to matter. I don't think it mattered in his presentation last night, because I still think his fundamental problem, which is, number one, he doesn't have a message that's compelling on the most important issue facing the country. And number two, he's out of touch on the most important issue facing the country. That still came through loud and clear last night, even despite all his line about the underlying substance.
Harry Litman [00:07:36] You know, I think that's true. But we could turn around and take it from Biden's point of view. It's kind of a challenge, he knows he's against a guy who's gonna lie all the time. He could either call him on it, then it is a barroom brawl, he could let it all pass. He had a sort of middle ground strategy, it seemed to me. He called out the most important ones, though, as you say, Matt, he stuck to his own themes: No plan, no plan. But then those continual interjections of not true. Not true. Not true. And I think he was himself adroitly prepared to not make it seem like a factual match between the two of them and to stick to his themes. But still, you have to remind people that he's not telling the truth. I mean, the imponderable of this whole thing is the sliver, if it's even that, of still undecided voters, how are they hearing the lies?
Vanita Gupta [00:08:29] First of all, I kept asking myself, who the hell is undecided at this point of the election? I'm so curious about that. There was a really interesting moment, though, where there was a back and forth, and Biden at some point, I think Kristen Welker said, you know, do you want to respond, Mr. Vice President? He was like, no. Like, he just kind of shut it down, because there had been like a back and forth twice about the lie and the truth and whatever. And he just, I thought that was actually smart, even though my impulse was like, you've got to correct that lie for the fourth time! It was actually just smart to be like, I'm done, like I've spoken. The truth is out there, people will assess this how they will.
Yeah there are different kinds of lies. When the president says I'm going to protect preexisting conditions, Biden needs to jump in and give an answer and contradict that, because the average American voter may not know the details of Trump's health care plan. Well, he doesn't have one, but to the extent it says he has one versus Biden's. But there are other lies that the president can tell if he can't get away with. Like, for example, when the president says we're rounded the corner on the virus, Biden doesn't need to correct that, the American people know we're not rounding the corner. It's absurd on its face, so that's what I said when I meant that there are some lies that he can tell don't work with the substantive record because they're issues that the American public knows so much about. And that's that's that's the biggest one by far. It's the most important issue, he came out last night, said this absurdly out of touch line, that we're turning the corner. And I think it's the fundamental reason for all his political problems.
Jamie Raskin [00:09:54] I think the most effective lies that Trump told and that he tells are when he calculates what the criticism of him is going to be, and then he immediately turns it into a completely fictitious attack on his opponent. So he knows, of course, he's totally compromised by his relationship with Putin. He's allowed Putin to run amok in our elections, he's allowed Putin to help us tear asunder our relationships with our allies, put a bounty on the heads of American soldiers and did nothing. So he preempts Biden by saying, 'you're getting paid by Russia, you're working for China,' you know. And so you get this kind of just rhetorical quicksand and fog and nobody can understand what's going on. You know, and that's where the lying just becomes part of the culture. It just permeates everything. The other thing I thought that was kind of effective that Trump did and I wish Biden had been able to punch back harder, but when Biden spoke very effectively, I thought the things he wanted to do, like the public option, adding that to the ACA or dealing with climate change, then Trump clearly had been told or had worked it out, he was going to say, 'how come you didn't do it? You've been in politics for 97 years and you didn't do any of this stuff.' Well, the answer, of course, is we were getting other things done. Then we have a whole new agenda we need to get done now. The real question is, why aren't you doing anything in office today? You've been in office for four years, you've given us no healthcare plan, even though you keep talking about it. You've got no strategy to defeat the disease. And so I think Biden was very disciplined and focused and controlled, but I wish he'd gotten upset at least once or twice about being taunted about why hadn't he done things in the past? Because he did a lot of stuff before with Obama, and this is all about the future and a lot of it is just trying to rectify the damage of the Trump administration.
Harry Litman [00:11:48] You know, I agree. I mean, there was even one moment where he seemed to kind of put distance between him and Obama and say, well, I was vice president then, now I'm going to be present. And it wasn't his his strongest, but I want to focus again on the virus and the point that Matt just made. It sure seems like pretty empty at this point to say 'rounding the corner, vaccine in a couple weeks, we're one of the best in the world, spikes all go down.' But is it clear that that, in fact, rings hollow to everybody now or, you know, is it the sort of thing that Trump can somehow persuade people of?
Vanita Gupta [00:12:26] Well, it wasn't clear to me that anyone moved or changed their mind after yesterday's debate. And so for those that are convinced that they're rounding the corner or that COVID is not a big deal, maybe they continue to believe that based on what Trump was saying for anyone else, hard to look at the evidence and the facts. I think the calling Dr. Fauci an idiot, I thought it was effective for Biden to reraise that. But because I just feel like people are pretty entrenched in their views on this right now, it wasn't clear to me that the statements that were being made at yesterday's debate actually changed anyone's mind about how they view both of these people and whether they think they can lead us all out of this pandemic.
Harry Litman [00:13:05] It was one time of many that he did something specific and obviously thought through in advance, which has turned to the camera and talked about the kitchen table issues, as if he is actually looking at people at the kitchen table, the sort of 'not his family, my family, it's your family.' He really, I thought, effectively brought it home to people's lived lives.
Jamie Raskin [00:13:30] I liked when Joe said, 'come on, let's just cut through the nonsense, you know his character and you know my character.' And that just sort of woke people up. I mean, we're not dealing with any kind of conventional electoral debate here where people are scoring points and stuff like that. We can continue down the road of a failed state that fails to deliver the basic goods of existence like protection against disease, protection against gun violence, protection against climate change. I mean, it's a broken social contract with just smoke and mirrors and just increasingly cannibalistic circuses that they're providing the Fox News audience. Or we can get back on the road of democratic reconstruction and progress. And I wish Joe had spoken a little bit more about Kamala Harris, because I think that she's so much just the vision of the future in this race. But I thought he was super presidential and reassuring to the country.
Matt Miller [00:14:28] Yeah. And, Harry, I think that the moment when Biden did talk directly to the country and talked about the losses that so many families have have suffered was important for two reasons. One, because that's always went, Ben, when Biden has been at his best. He's just a deeply empathetic person. He connects with people and partly because of the on the tragedies he's gone through in his own life. Partly it's just who he is, but also because it's such a contrast with Trump. It's the thing that Donald Trump can't do. Donald Trump can never show any connection with anyone but himself, not even really with his own family. And it's in some ways a metaphor for the entire campaign.
I think the problem with the entire campaign is love him or hate him, in 2016, he had a message. He had a message about where the country was and how the people in the middle of the country had been forgotten by the elites and that they had seen their jobs taken away by immigrants. His message this time is all about me, me, me, me, me. I've done more for African-Americans than anyone since Abraham Lincoln. I have been so mistreated by the media. The deep state has been out to get me. His entire message is always about him, it was about him all through the debate last night, he never has that ability to kind of look into the camera and tell voters what he's going to do for their life, because he is just kind of gone down this rabbit hole of self-absorption, even more so now than when he first got into politics four or five years ago.
Vanita Gupta [00:15:47] What was so interesting is when Biden actually did that and looked at the camera and talked about struggling families, Trump got irate. Like he just it was like, how dare you? That's such a politician's move to talk about caring about other people and struggling families amid this pandemic. And it's like, no, actually, that's what I do want my elected official to care about is my family. But it was like it really got under his skin. But I mean, I know as part of his playbook to just keep going back to this line of Biden, your a politician. The other thing that I thought was really galling is he didn't say during the COVID conversation, like, what were you doing Biden? What were you doing? And it's like, well, who was the president of the United States at that time? And it's just this bizarre kind of trying to make an equivalent like the role that Biden played in January on the pandemic versus like being the president of the United States and the obligation that that should carry amid the pandemic.
But I just have to raise this thing because it was just galling to me, and when we're talking about lies. I mean, he kept repeating, 'I'm the least racist person in this room.' Anyone who has to say that repeatedly, like, it just speaks for itself. But also everything about his record and the emboldening of white supremacists. It was both infuriating and comical at the same time. Again, do I think that he convinced anyone on either side of that? No, I don't. But it did, I think, really, I thought it was such a telling moment for anyone who, like, might have been at all confused. The lying and the narcissism is astonishing, and it's really, the record where he kept trying to bring up criminal justice reform. I have something to say about that. And the kind of the Obama Justice Department wasn't perfect, but the systematic undoing of everything that we did to lower the federal prison rate, to incentivize states to have a clemency project. It's just it's incredible and galling.
Jamie Raskin [00:17:36] I mean, we're witnessing really this spectacular collapse of American political tradition where you have a presidential candidate, an incumbent president, no less, running on literally no platform. The Republican National Convention created no platform, they decided not to do one for the first time in many, many decades. If you're a Republican, what are you supporting? Basically, you support whatever words come out of Trump's mouth. So the deep structure of it really is racism. I mean, that's really the only unifying thread of the whole thing.
Matt Miller [00:18:12] I thought it was fairly amazing how the president said he was the least racist person in the room.
Harry Litman [00:18:16] Whatever that means, yeah.
Matt Miller [00:18:17] Five minutes before, he said the only immigrants that show up for their court appointments are the ones with low IQs.
Harry Litman [00:18:22] And he said one percent, when it's closer to ninety nine. I actually want to stick with immigration for a moment, because Jamie's comment put this in mind to me. I mean, I thought it was a very effective moment for Biden just because the facts are so strong. The separation of the 545 migrant children you cannot find their parents. And Trump's response was, I've seen them, and the facilities are so clean. That, to me was the most sort of cringing moment of the entire debate, and it seemed to me if there are votes left to lose, he must have lost a few dozen there.
Jamie Raskin [00:18:59] Well, yeah, I think, as Matt was saying, there's no empathy. There's no sense of human connection. And ultimately, COIVID-19 has not only destroyed now 225,000 lives and all of the families that have been devastated by that and brought the economy to its knees with more unemployed people than we've had ever in American history. But it's been this massive attack on family life and social life, community life. I mean, people can see their nuclear family. Maybe people in their nuclear families have gotten a little bit closer because everybody's in one place. But extended families, people's uncles and aunts and cousins and grandparents, peoples' neighbors, the ability to socialize. It's been an absolute nightmare, total destruction, but it means nothing to Donald Trump.
And he wants to convoke the crowd only as kind of a circus audience for him. I mean, everybody has got to be reduced to a TV audience for him, for his reality show. Now we're getting back from the hospital. Everybody crowd together. No masks, because that's too much of an intrusion of reality. I just don't think the country can take it anymore. His whole approach is so farcical and absurd, that I think that Biden ultimately dealt with it in the right way, just said, 'let's get back to reality. We got some really serious problems that we've got to deal with.' I mean, it's going to be a very long walk back to try to rebuild the country after this nightmare.
Harry Litman [00:20:26] One quick question on Biden, Trump seemed triumphant when Biden spoke about the oil industry and the need to move away from it. Did that give anybody heartburn here, about what Biden had to say about the oil industry?
So as the probably the only Texan on this Zoom, although I know Vanita spent a fair amount of time there, my first reaction was, hmm, I don't know, I wonder how that's going to play in Houston. I mean, usually we wouldn't care about what a presidential candidate said in Texas, but this year, Texas is very much in play. But, you know, it's been a while since I lived there. I woke up this morning and called all my Texas partners, and they said that everyone in Houston believes the exact same thing, that we're transitioning out of the oil industry. This isn't 1970s, it's not even 20 years ago, the oil industry is changing, the state of the economy and Texas is changing. And it's not the kind of remark that's going to hurt him there, and I think even if you look at that kind of comment outside of just that one state, it's the type of comment that vast majorities of the American public actually agree with.
Harry Litman [00:21:24] So much more to say about the debate. But I want to leave time for other things. I just want to give props to my Talking Feds co-pilot Matt, because months ago, he said what Biden really needs to do is just kind of lie low and let this be all about Trump, all about Trump, all about Trump. And the more it is, the better it's going to be. And just these last 20 minutes, it's all we've been saying, but it really has been true that he's in pole position that he is because the focus has been so relentlessly on the president and his record.
OK, 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. We have a delightful sidebar reader today, Will Shortz. Will is an American puzzle creator and editor and the crossword puzzle editor for The New York Times. He is the founder of both the American Crossword Puzzle Tournament and the World Puzzle Championship, a director of the U.S. puzzle team and a participant on many TV shows, as well as the 2006 documentary Wordplay, which focuses on Shortz and the American Crossword Puzzle Tournament. Will made his Sidebar choice based on certain words that have or have not appeared in puzzles, a topic about which he seems to have encyclopedic knowledge. So he will be telling us about the elements of a criminal offense.
Will Shortz [00:22:58] What are the basic elements of a criminal offense? In a criminal prosecution, the government has the burden of proof under the Constitution to establish every component of the charged crime beyond a reasonable doubt. Most criminal offenses involve three basic components or elements: first, the wrongful act itself. Second, the perpetrator's wrongful mental state. And third, sufficient causation between the act and its harmful or prohibited effect. This basic elemental structure ensures that in general, neither unintended acts nor mere thoughts are criminally punishable. Taking each element in turn, the criminal act known in legal circles by its Latin name, actus reus, is, roughly speaking, the physical conduct in the world. For example, shooting a gun.
In attempt crimes, the government carries its burden with regard to the act element by proving a substantial step toward the completion of a crime. The second component, the perpetrator's mental state is called the mens rea, or guilty mind element. It's defined in terms of the specific harm the law is trying to prevent, such as a victim's death. There are four main mens rea standards. From most to least culpable, these are: acting purposely or having the purpose in mind of causing a specific harm (for example, a victim's death), acting knowingly or being aware that the conduct will cause the harm, acting recklessly or consciously disregarding as substantial and unjustified risk of the harm, and acting with negligence or acting or failing to act when a reasonable person would have known the risk of the harm. Higher levels of blameworthiness typically correlate with more severe liability and harsher sentencing.
Some crimes, called strict liability crimes, lack a mens rea element, meaning one can be convicted of them without any proof of mental state. Drunk driving is an example. Finally, causation must also be proved beyond a reasonable doubt. In some cases, this element is straightforward, such as where a defendant fired a gun at a victim and caused immediate death. But proving causation can be complex in certain situations. For example, where intervening events occur between the defendants guilty act and the harm at issue. For Talking Feds, I'm Will Shortz.
Harry Litman [00:25:17] Thank you very much, Will Shortz, for explaining the basic elements of a criminal offense.
I'd like to just look ahead now at the next week, the days are clicking by so rapidly, and have a have a sense of you would normally think that at this time in a campaign, there's you know, both candidates are just saying their tag lines and trying to get out the vote. But this has not been a usual campaign and the president is not a usual candidate. Let's start with this Hunter Biden fixation that he tried to bring up in the debate last night, I thought to very poor effect, no one really could follow what he was talking about. Is that something you expect him to try to kick up dirt about over the next week, or is that all pretty much done?
Jamie Raskin [00:27:10] Psychologically, it seems important to Trump because it does allow him to project outwards all of his consciousness of guilt in terms of the rampant money making and profiteering that's taken place in his administration. But politically, it's a complete dead end, because if there's anybody out there who really cares about corruption, they're voting for Biden, Donald Trump is the most corrupt president of our lifetime by far, and everybody knows that. He said he was going to drain the swamp. He moved into the swamp deep to the hotel on it. He started renting out rooms to Saudi Arabia and Turkey and Azerbaijan.
Harry Litman [00:27:47] The swamp c'est moi, right. He is the swamp!
Jamie Raskin [00:27:51] So in other words, I don't, does he think he's going to pull over some common cause members at this point? I just don't know where that goes. The public has made the judgment, and I think that Biden appealed to this in an expert way. The public has made the judgment that he is a decent and honorable man. You know, Cicero said 'nothing is more popular than goodness.' I think people have made the judgment, he's a good guy, and Trump is absolutely satanic and sinister and evil. That's what some people love about him, but he's, you're not going to vote for him because you want the clean government candidate.
Matt Miller [00:28:26] You know, I agree with the congressman. Look, I don't think he's going to drop it, he's been at this for over a year. It's what got him impeached in the first place, remember, was him trying to raise all this Hunter Biden stuff. And I think he also won't drop it because he doesn't have anything else. I mean, I think it is a overlooked fact that in addition to Trump not having a message about his tenure and why he deserves four more years, he's never landed on a compelling message about Biden. I mean he's never had a message, you've seen him bounce around, at times it's been about Hunter Biden, at times it's been about he can't leave his basement, at times it's been about he's going to be the captive of the left. None of those messages interplay with each other in any real way. They're all kind of disparate themes and none of them stitched together to an overall narrative about why Biden can't be president.
And I think it just goes back to this problem he has, which, you know, I talked about how he didn't have a message, he also is kind of a captive of this Fox News universe that he lives in. And for much of his tenure, having that right wing ecosystem has been a valuable tool for him because it's provided him a floor under which he can't sink, somewhere around 40, 42 percent, and he can't go below that. But what we found out over the course of this campaign is that the ceiling is also very close to the floor in this room in which he lives. The floor may be 42, but the ceiling is somewhere around 43 or 44, it's not far off. And so when he's operating in this narrow band here and can't seem to find a way to stretch outside of it, what you find as you get closer to the election is, it's given him nowhere to grow.
Vanita Gupta [00:29:52] I also think he's in his comfort zone to be a bully or to like pick the bogeyman, fixate on an individual and try to rake them through the coals, and it gives him an out to not have to articulate and put forth an actual plan on anything. But this is his comfort zone is to rest in this place of doing ad hominem attacks and trying to get folks galvanized around that narrative.
Jamie Raskin [00:30:13] If I could say one thing about Hunter Biden, I think to the extent that the public has any real consciousness of him, people see him as somebody who suffered from serious alcohol and drug problems. And there are so many families across the country who can identify with that, and are not going to pounce on Joe Biden, who's a good guy because of the health problems that one of his kids has suffered, especially after all the tragedy experienced by the Biden family.
Harry Litman [00:30:38] Completely. I mean, even more, actually, the emails that came out showed Biden as this caring father with a, you know, difficult child. And obviously, it's another place where, comparatively speaking, Trump stacks up not very well. But I think he's also miscalculated the point that Matt made, I did post an analysis on Fox last night and they, y'know everyone was completely marinated in this Bo Belinsky different stuff. And I just had to say these, it was just these, you know, stray talking points that had no connection, sheets and pillows and laptop from hell. And really no, it's just, it's just I think too late to have any purchase.
Jamie Raskin [00:31:22] Turning on Fox News is like wandering into the meeting of a religious cult at this point, you can't understand most of the references and the words. It's totally bizarre, and it doesn't touch anybody else's reality. That's the problem with that kind of politics, I mean, that and the fact that that sort of sinking leads you to Jonestown, too. I mean that's how you end up at a Rose Garden event where nobody's wearing a mask and there's no social distancing, and it's for a Supreme Court nominee, in the middle of a plague and a pandemic, largely circulated in advance by the lethal negligence of the president.
Vanita Gupta [00:31:58] But I do think that we have to acknowledge that there are a lot of people in this country who are consuming all of this and are in that space of the kind of conspiracy theories are eating it up, and they've had four years of this. And so, you know, this is part of what gets built back, this is you know, this is going to be one of our our challenges. When I think about, you know, people are always asking me, like, what's the biggest thing that's going to be the hardest part to rebuild? And we talk about the rule of law. We talk about all these concepts, like I, you know it is, we're in this incredibly polarized time. What do we do about this? What do we do about the fact that there are a lot of people that are in that space kind of consuming this and have accepted the politicization of mask wearing, have you know, the emboldening of white supremacy and the kind of the outing of this like these are some of the forces that I think we have to... these are not easy things that we can just dismiss out of hand as being something that Trump brought, and so I think these are gonna be some of our biggest challenges, is to figure out how we work through this, how we rebuild our institutions, but also what are we doing about how toxic our media is, how toxic and polarized our country has become, and I don't mean to be Pollyanna about it, because I think it actually carries very serious consequences for people in this country to to be where we are at this very moment. And so that'll be the podcast, Harry, that you will do depending on the outcome of this election, over and over again. But, you know, these are some really serious questions to tackle.
Harry Litman [00:33:29] Look, you're right. Mainly, I think about this now as, we should have such problems, but there they are, extreme and the partisan in me thinks like, you know this if Biden wins, all appropriate spits over the shoulder, et cetera, it'll be the second time in a row that Democrats have come into office having been dealt such a huge mess to try to clean up. Vanita, you've been pretty focused on something that seems perhaps to be a teeny problem, but seems perhaps to be not so small, which is the concern about kind of disruption during the election on the part of, you know, nationalist domestic terrorist groups.
Vanita Gupta [00:34:12] So we are a lot of us in the civil rights community, in the voting rights community are really engaged on this, and there's been a lot of great work done around the country to educate and brief and work with law enforcement right now about the duties, like what's lawful, what isn't around armed militias, and Mary McCord, we've been working together on these. You know, look, I think one thing is there's a lot of heightened anxiety about this because of what we've seen in Michigan and other places. I will say right now, we are, we're in the middle of early voting around the country while there's been like some anecdotes here and there, it's by and large been going well so far and there hasn't been heightened reasons to be overly concerned. But we have to make sure that we are all aware and understand that in a lot of cases where people talk about armed militia, there's actually, it isn't like the First and Second Amendment gives them the right to do some of what they're doing, there's a lot that is unlawful about how they have organized themselves and they can't be, you know voter intimidation laws are very, very clear. But I am right about after the election, to the extent there's going to be a lot of anxiety, the election is going to take time to call, at least in many states we may know results in Florida, North Carolina, because they do pre-canvassing of ballots and there'll be probably greater ability to determine the election, perhaps in some states, the anxiety and the prolonged kind of indecision could certainly give rise to more manifestations of armed militia, of chaos. And there's been a lot of conversation about all kinds of threats, both legal, constitutional, armed militia and the like. Right now, folks are voting. Voters need to have maximum confidence that they can vote...
Harry Litman [00:35:49] 60 million, right? we've had 60 million votes already.
Vanita Gupta [00:35:51] Yeah. And so we've got high voter turnout, and voters need to have confidence in our democracy. High voter turnout is going to be the best inoculation against all of this, it will create more certainty in our election results, and people need to have confidence that our votes will be counted. And so that's where I am really focused on, even while we're kind of working behind the scenes to avert any threats.
Harry Litman [00:36:11] Where's the DOJ going to be here? There's, you know, it passed pretty quietly, but the attorney general amended regulations to give them the possibility of having a pretty aggressive role on Election Day itself. Is that something that you think's a concrete worry?
Matt Miller [00:36:27] I think it's a real concern. Look, the thing that worries me the most is that Vanita is basically going to have to do her old job from the outside. Vanita used to run the civil rights department, the civil rights department, along with the US attorney's offices around the country, actually have a job in fighting voter suppression. And I don't have a lot of faith that the Justice Department under Bill Barr is going to do that. I hope there's some U.S. attorneys who will do their job, certainly the career people, I think, will try to, but I don't...
Harry Litman [00:36:52] Well they have license to do the opposite. They can come in and say there's been voter fraud afoot.
Matt Miller [00:36:57] That's what I was about to say that, that in addition to not doing the job they're supposed to, I have a real concern that, probably not on Election Day, but if we are in a scenario where the election isn't called on election night and votes are being counted after the fact that you're going to see the Justice Department basically come in as an arm of the Trump campaign and move to try to stop the counts because they claim fraud is underway and they have loosened the rules to make it easier for them to talk about those things publicly, and I think it's a very, very real concern.
Harry Litman [00:37:25] And there'll be, there'll be a new member of the Supreme Court.
Vanita Gupta [00:37:28] Just a really important point to make, which is I totally agree. I mean, I think Barr at every turn has shown himself basically to be Trump's defense lawyer, not the lawyer protecting the American people and enforcing our laws. That said, he doesn't get to count the ballots, and the president doesn't get to count the ballots. The ballots will be in the custody of local election officials, and I think there's been you know, he's done two things that have alarmed people recently. One is he made this announcement about an incomplete investigation into voter fraud in Luzerne County with these nine ballots. That was an unprecedented announcement that really to me was a messaging thing to spook folks and to be like, look, the Justice Department is watching all of this. The Justice Department never announces incomplete voting investigations. But the other thing they did is very typically, every election cycle, the Justice Department has a non-interference policy into elections. And they announced very, it was caught by ProPublica, but an exception that was announced a few weeks ago to this non-interference policy. Again, I think a lot of this is largely messaging, but the problem is his narrative actually really matters in these instances. So what I could see is Barr on November 3rd making an announcement about, you know, a series of ballot fraud investigations in some key states, but it is still important for the American public to know that the Justice Department doesn't get to impound ballots, like the ballots stay in the custody of local election officials that will be doing the counting, and the president is actually firewalled off of a lot of this for good reason. The system wouldn't survive, you'd have the incumbent winning every single time if that was the case. So, but I agree that we're going to have to be really mindful of all of this. And there is a whole ecosystem outside of the Justice Department that is, as Matt said, trying to act as the kind of NGO Justice Department, because we really don't have one that is protecting voters right now.
Jamie Raskin [00:39:21] We've got the civil rights community, and Vanita and great lawyers who know election law...
Harry Litman [00:39:27] Thousands of them, yeah.
Jamie Raskin [00:39:29] Who are all over the country, and are gonna be fighting this at every level where Republicans are up to their old tricks. Remember, this is the first election in decades where the Republican National Committee is not governed by a consent decree where they agree not to send their so-called election observers to the polls. So people are aware of that, but we know that we could see cyber-interference coming from Russia, you know, against election boards. We could see attempts to hack into the media to change the reportage of events. I mean, there's a lot of things going on, but we're, this time we're aware and we're out there trying to stop it, so that's an important thing. But I hope everybody appreciates the extraordinary irony of what Vanita was just saying, because Donald Trump's whole attack on so-called fraud, or scam, or whatever he's calling elections these days, is an attack on American federalism. It's an attack on state governments and their ability to count the ballots. So the people who parade around and advertise themselves as defenders of federalism actually are doing everything they can to trash it. And there's never been a better argument for American federalism and state governments than those that have been fighting against this remarkable right-wing authoritarian seizure of the federal government.
Harry Litman [00:40:53] Jamie, what's your number one concern about Election Day if we haven't named it already?
Jamie Raskin [00:40:58] I suppose, you know that the president has been dog-whistling through his bullhorn, as Joe Biden put it last night, to white supremacists and, you know, violent people to go to the polls, I'm not quite sure exactly what that means. Nobody needs them at the polls, but we did see that some of them showed up in Virginia when early voting started. For me, look, I'll put my cards on the table. Remember when Ben Franklin said, 'a republic, if you can keep it.' I think at this point there's going to be a landslide if we can keep it. I think we are going to win the popular vote and Electoral College votes overwhelmingly. The question is, are we actually going to win the election, because there are so many levers of mischief and strategic corruption that the Republicans may decide to deploy if the election is close enough, which is why our best antidote to all of this is a landslide where you get everybody, including Republican senators and governors and state legislators, just saying, OK, let's just put this behind us and try to rebuild our party if they can.
But if it's at all close, you know, we really could see tricks like Republican legislatures in swing states like Pennsylvania deciding to try to nullify the popular vote, overthrow and repeal the prior election law, and just pass a law that institutes electors for Trump or splitting them 50/50 or awarding them to somebody else. And they're going to face a lot of, I think, insurmountable legal problems in doing that. One is that they're not going to follow the legal and constitutional process of the state. The laws that they're purporting to nullify are laws that were passed and signed into law by the governor, which means the governor can veto what they want to do now. They think that somehow they've got this magic wand from Article two of the Constitution that allows them to do whatever they want to do without going through a state constitutional process, I think it's wrong.
Two, they're going up against the electoral count act of 1887, which says that there's a presumption that electors sent in this year by December 14th are valid. If they are produced in accordance with the prior election law. That is, an election law that took place before the casting of ballots, not a new one, improvised after. And then finally, you know, even if they were to somehow send a phony slate to Washington and the Senate president, who is Vice President Pence, reads them when we are assembled in Congress to receive the electors, and the vice president decides to pick a phony slate. We in the House side can object. The Senate can object, or one senator can object, and we go back to our own chambers to resolve it. And the House is going to stand by the popular vote, and by the Electoral College vote as it really is, in the Senate, if it's Democratic-run at that point, we'll also do it. And if it's not, if there's a split between the two, at that point, it's the certificates of ascertainment that are issued by the governors that count. And even though the Republicans do control the legislatures in a number of swing states like Wisconsin, North Carolina and PA, there are Democratic governors there, and I think that their word will be final as to which electors are the valid ones.
Harry Litman [00:44:13] All right. I'm going to make it a point to listen to that about six times because everything was in there that could happen. We are out of time, we only have a couple seconds left for our final feature of Five Words or Fewer, and it dovetails with what Jamie is talking about. It comes from Matt Kegel, and it's five words itself, he says, 'for extra panache:' is the Electoral College broken?
Jamie Raskin [00:44:36] Yes. But let's make it work in 2020.
Harry Litman [00:44:40] Vanita? Matt?
Matt Miller [00:44:41] Yes, it always has been.
Vanita Gupta [00:44:43] Yes, it is.
Harry Litman [00:44:44] Yes, but carefully consider alternatives.
[00:44:53] Thank you very much to Jamie, Matt and Vanita, 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. And these aren't outtakes or simply add free episodes, though we do have those there, but really original, one on one discussions with national experts. Just in the last couple days, we've posted a long interview with Peter Strzokabout his new book, Compromise, and a one on one with Phil Halpern explaining why he left the Department of Justice.
[00:46:00] 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 segments. 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, and our consulting producer is Andrea Carla Michaels. Thanks very much to Will Shortz for teaching us today about the elements of a criminal offense. Our gratitude, as always, goes out 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.
