Brad Raffensperger [00:00:00] "The numbers reflect the verdict of the people, not a decision by the secretary of state's office, or of courts, or of either campaigns.
Harry Litman [00:00:17] Welcome to Talking Feds, a round table 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. So spoke Brad Raffensperger, the Georgia Republican secretary of state, in certifying the election and the award of the state's 16 electoral votes for Joe Biden, whose path to the White House is certain, however many obstacles and mud pies the petulant child in the White House tries to throw on it. The president continues to make preposterous claims about the election, abetted by lackeys in the Senate and executive branch who indulge his mounting fictions about the results. He now has summoned Michigan legislators to the White House to pressure them to torpedo the result in Michigan, and their careers, by unilaterally substituting Trump electors for the Biden slate chosen by the voters.
As courts, and all occupants of the real world, increasingly shoot down his pernicious fantasies, Trump's bizarro world lawyers, who are the last of the palace guards, keep doubling down, most recently calling for electors in all swing states to just be certified for the president. Their record in court now stands at 1-32, and they've been forced into a series of humiliating concessions that in fact, they have no evidence whatsoever to sustain the president's grandiose claims. It would all be a sort of low comedy, with Rudy Giuliani's hair dye running down his cheek, except for the grave consequences: Trump continues to ignore the virus that has set daily records in new cases, spiking now to nearly 200,000 and hospitalizations and has killed 250,000 Americans. And he prevents the president elect and his incoming administration from a running start in containing the virus themselves, while he rids his own government of the few remaining truth tellers who by definition are disloyal.
To quote Mitt Romney, the one courageous senator from his own party, "it is difficult to imagine a worse, more undemocratic action by a sitting American president." Meanwhile, Biden has tried to maintain an air of confidence and unconcern. He's moving forward with basic transition steps, including the appointment of key advisers, but he and his team are increasingly rankled, and he warned Monday that the result of Trump's blockage is that more people will die. It's not clear, however, whether the Biden team has either the political or the legal levers to force matters. It's hard to foretell the exact time and outline of the end game, but the game, in fact, will end in no later than 10 weeks. Trump's position is hopeless, and the real question is how much damage he can do with his various tantrums on the way out.
To size up this and the whole state of play at Thanksgiving 2020, we have a terrific group of good friends and charter Feds. Starting with Frank Figliuzzi, a frequent national security contributor to NBC and MSNBC. Frank is the former FBI assistant director for counterintelligence and the author of The FBI Way: Inside the Bureau's Code of Excellence, set to be published early next year. Frank, good to see you.
Frank Figliuzzi [00:03:43] Always a pleasure, Harry. Thanks.
Harry Litman [00:03:45] Paul Fishman, currently a partner at Arnold and Porter. He is the former US attorney for the district of New Jersey, and prior to that held multiple senior positions, both at the district of New Jersey and in main justice. Paul, thanks for coming back.
Paul Fishman [00:04:01] Nice to be back Harry, thanks.
Harry Litman [00:04:02] And Amy Jeffress, also a partner of Paul's at the law firm of Arlen Porter. She served as the Justice Department attaché to the US embassy in London, and she was a former counselor to the attorney general, and a long time assistant US attorney in the District of Columbia. Amy, welcome as always.
Amy Jeffress [00:04:21] Thanks, Harry. Great to be here.
Harry Litman [00:04:23] All right, so let's start with the infant in chief, who actually has been mainly staying out of public view, but has surfaced with occasional lunatic tweets. I want to mainly set them to the side and focus on his actions, and inactions, and Trump's purging of people he perceives as disloyal at Department of Homeland Security and the Pentagon, including Chris Krebs, who ran the DHS's cybersecurity branch. Frank, let me focus on you first, is there a practical impact on national security? We know people change positions toward the end of an administration. Other than a new illustration of his pique and pettiness, are these things to worry about?
Frank Figliuzzi [00:05:04] The short answer is yes. These are not insignificant moves and there is something afoot here. If you look at the Pentagon and the replacement of folks who he's kicked out there, you find like minded people that might facilitate or enable, or at least not push back, if he were to suggest a military action on Iran, for example.
Harry Litman [00:05:27] Which he has discussed apparently, right?
Frank Figliuzzi [00:05:30] It's been reported that he has asked his people whether that's something he can do. And then if you look at pulling troops out of Afghanistan or other places in the Middle East, again, you find people that might be amenable to that. So people who think this is just merely bitter, vengeful firing of people need to understand that he's replacing those people with folks who might be able to help him action some pretty scary things in the remaining weeks. Similarly, with Chris Krebs and the resignation of Krebs' deputy at CISA, you see now a vacuum of leadership, not only with regard to what was done to protect our election, of which the half that story hasn't been told yet because it's highly classified.
Harry Litman [00:06:14] It's a good story.
Frank Figliuzzi [00:06:15] Yeah, it's going to be an incredible story of a victory over sophisticated adversaries. But moving forward, we have the vacuum of leadership at an organization that's part of the larger team that that suppresses propaganda from foreign governments, that stops hacking from adversaries, and so it's all of that kind of propaganda machine that Trump needs right now to pump up his stupid, crazy theories about the election. So I am very concerned about, about him basically burning the house down before he leaves.
Harry Litman [00:06:47] Are serious observers, people you talk to, worried about actual military action?
Frank Figliuzzi [00:06:52] I think enough people around him, even those who might be new to the job, are telling him the timing is awful, that there are repercussions to that, that the simultaneous effort of pulling troops out of the Middle East while attacking Iran is a particularly bad idea. And I think reason is prevailing, but again, I don't know the degree to which anybody can control him.
Harry Litman [00:07:15] Yeah. All right, same question to Amy and Paul, but about the Department of Justice and Trump's stonewalling of the transition. Amy, I know you were directly involved in transition and Paul having done everything at the Department of Justice and been there even before me. As a practical matter, is this just a kind of a bother or does this have serious consequences as well?
Amy Jeffress [00:07:39] I would say that we don't know. The problem is that it could be a very serious national security problem if there is information in the threat briefing that is not reaching the right people now who are going to be in positions of power in just two months time and are going to be needing to make decisions and they are going to start making decisions as of January 20th, right? So if they don't have the lead time to get up to speed on the information that they need to know when they are in those positions, it's potentially very distressing. And this came out of the 9/11 report, right? The 9/11 report found that the delay in transition because of the Bush Gore election controversy was harmful, and didn't allow George Bush to have the right people up to speed and in place soon enough to catch the intelligence threats and the intelligence information that came through in the summer of 2001. So if you think about it, too, that was the summer of 2001 that they started getting those bits of intelligence, and the attacks, of course, were in September. That's months and months after January. So it takes a long time to get your team up to speed. And every day that the Trump administration delays a peaceful and effective transition could cause damage to national security. But we don't know now what we won't know next summer. That's the problem.
Harry Litman [00:08:53] What about the workaday world of the DOJ, the prosecutions, the defenses and the like? Can it basically function fine with a last minute handoff on the 20th, Paul, or is this really going to be hobbling the incoming folks?
Paul Fishman [00:09:10] It depends on the kinds of cases you're talking about now. So I, it's funny because when you become a United States attorney, which I did in October of 2009, there is no similar transition process. So I walked into my office having been just confirmed and gotten sworn in on October 14th of 2009, and there were lots of briefing books for me on all of the important cases that were going on in the office. But I couldn't read them all at the same time, and so it was up to my staff at that point to come into my office, say this is the thing you need to pay attention to right now. There's no startup time. The system in Washington is designed not to present that kind of problem to the president of the United States, the attorney general, United States, the secretary of state, the head of the CIA.
They're supposed to come in when there's supposed to be a staff there on day one that spent the last several weeks getting up to speed so that no balls get dropped on those first few days or in those first several weeks and months. And what's happening now is the people who are on these agency review teams, called ARTs, are trying to interview, would like to interview, people who are currently in place to find out what's going on. What do we have to be worried about? What money has to get spent, what hasn't been spent yet, what intelligence are you getting, what decisions have to be made in what cases, and they're going to get nothing. And so, you wouldn't run a business this way, and you can't possibly run a government with people's lives at stake this way.
Harry Litman [00:10:32] And U.S. attorney is different. As we know, any boob can be U.S. attorney because there is a whole career staff there to take care of things. I can tell you, the day I first arrived, before I knew where the bathroom was, I was handed a piece of paper and told I had to go to a press conference and announce that the department was turning down a huge civil rights case. There nevertheless had been stewards all the way through, here we're not talking just about the top person, but everyone below. What about, and Amy, what Paul's talking about, he's talking about the things they do, you have a sense, a concrete sense of what they are, right? I mean, what tangible conduct is not going on now because they can't get in the door?
Amy Jeffress [00:11:15] What the transition would normally be able to do is send their teams, they're called landing teams, and they literally land in the agencies. Now, in the COVID times, people would not be getting keys to Department of Justice offices like they would in a normal transition, but you would be able to meet with the career people, and meet with the outgoing political appointees, and get briefed up on the issues that, as Paul gave some examples, that are hot and need to be the focus of the incoming teams. So you would be able to do those things. But I want to just add a little bit of levity to this discussion, because I would say that the vast majority of the work done by the Department of Justice is done at the career level, and the vast majority of the work doesn't rise up to the political leadership, and those career attorneys are day after day doing their work and trying to ignore the noise, and so I wouldn't be too alarmed about the day to day work and the effectiveness of government. But I am most concerned about national security because I think that's where the government uniquely possesses classified information that might be really necessary and depending, again, on events that might take place in the first couple of months of the administration. So, I'm more concerned about that than I am about DOJ, to be honest.
Harry Litman [00:12:29] And as Frank's already explained to me, it's also a time that adversaries, even had there been a smooth transition, look to for relative instability in the government, and may be doing mischief of which we might be unaware. So let's just focus on Biden. Does he have a move here? Can he go to court? Does he just basically have to wait, hope the political pressure from the likes of Romney increases and somehow that pierces through? What is he even contemplating now to try to get through the blockade?
Paul Fishman [00:13:02] Here's the problem, Harry. And this is an awful situation for this country to be in. Biden won the popular vote overwhelmingly. He won the electoral vote, and he even won enough of the swing states by a sufficiently large margin, that none of this should be in question. So what Trump and his lawyers are now resorting to, is basically asking public officials, like the county canvassers in Michigan, the Republican secretary of state in Georgia, the state canvasing board in Michigan, to basically stop doing their jobs. They're asking them to do something that nobody has ever done before in American history, which is from the White House, say to public officials, you have an oath to uphold the Constitution. You have an oath to uphold state law. The law imposes certain duties on you to certify the votes. They're basically asking people to say, no, I'm not going to do my job. I'm simply going to lay down and not vote to certify results that are demonstrably true. And after four years of a situation in which the White House has basically tried to destroy the free press, the Justice Department, and every other institution that is a bedrock of American democracy, including the career civil service. Now, the administration is now saying and by the way, the entire electoral system can no longer be trusted. And we're talking about what Frank was just talking about, what outside actors could do, what outside actors could do is exactly what the White House is now doing, which is trying to destroy our faith in the institutions that are exactly what this country needs to survive.
Amy Jeffress [00:14:37] That, I agree, is alarming, and Frank talked earlier about the house is on fire. I would say it goes beyond that. I would say that Trump is just fanning the flames of misinformation and bitterness across the entire country and trying to leave it in a forest fire, which is just so irresponsible and narcissistic as to be unpatriotic. I find it appalling.
Frank Figliuzzi [00:14:58] I made a reference a couple of Nicolle Wallace shows ago to Trump being a kind of barricaded subject in the White House. And this harkens back to my FBI days, by that, I mean I saw in the earliest days and still still today, I see Joe Biden taking the right approach, as if he were negotiating with a barricaded subject who has hostages and can do real damage. And what do I mean by that? I mean in the early aspects of a negotiation, you want to listen, you want to talk less than the subject is talking. You want to hear his demands. You want to ensure and preserve the safety of the hostages or the building he's in, right? So all of that's been done, and Biden's been extremely restrained, even as recently as today.
But at some point, the demands are going to become so outrageous that can never be complied with, and the hostages are going to start getting shot. By that, I mean people getting fired, like now maybe the FBI director or the CIA director, maybe some national security disaster is happening, and maybe coronavirus is getting even worse than we could possibly imagine, and he's burning up the plans to deploy the vaccine. Who knows? But at some point, you tell that barricaded subject, we can do this the easy way or we can do this the hard way. But you're coming out of that building. And so that point is going to get reached at some point, and maybe that's when they go to court and tell GSA you've got to ascertain a winner right now.
Paul Fishman [00:16:26] One of the things that bothers me, frankly scares me actually, about what you just said, to build on what Amy was saying, at the Justice Department, Amy's right and lots of places, it's the career civil servants who are doing the real work. But right now, the person who is responsible for making national security decisions is that guy barricaded in the White House who either believes that he won the election, which is crazy, or he doesn't believe he won the election, and he's doing everything to steal it anyway. And for the next 10 weeks, 9 weeks, our security is in the hands of that guy and the people he's now installing at the State Department and the Defense Department who aren't the people who were there, haven't been there for three years and haven't been, aren't people at the top who are people who are confirmed by the Senate. They are people who are willing to walk in and say, "sure, I'll take this job for 70 days. That seems great to me." That seems tremendously dangerous.
Frank Figliuzzi [00:17:22] And to keep this barricaded subject theory going with what you just said, while the FBI is dealing with a barricaded subject behind the scenes, there's an intel unit that's desperately trying to figure out how bad is this guy? Like, can he really do what he's threatening? How much danger are we in? And they involve behavioral scientists and the whole thing. Well, what do we know about this guy who's barricaded? We know that he didn't even care about the health and safety of his family. They all got COVID. This is a guy who will hurt people, if it's in his own interest.
Harry Litman [00:17:58] Yeah. You know, in general, I found the detours over the last few years into what makes him tick to be both fruitless and hair tearing because he certainly is singular. It would be a tough job for a hostage negotiator. And back to Amy's image of a forest fire, because I don't see it going out January 20th, right? I mean, there are concrete costs to this. First his 70 million or whatever supporters aren't going away. So they are buoyed in their notion that will get more and more concrete that he was robbed. This will become, I think, the new "no collusion, no obstruction." It'll be like an article of faith that it was stolen from him, and then, I'll bet you guys have all had this experience of people asking you, you're a lawyer or you're on TV. You must know, isn't there some way he can pull it off? And that sophisticated engaged citizens actually are in grave doubt about the certainty of what you say, Frank, was a very decisive election. That's not healthy for the democracy.
Frank Figliuzzi [00:19:00] Well, look, I. I say this. I am extremely confident that on January 20th, we're going to have a guy called Joe Biden as president. That's not my actual concern. My concern is a shadow presidency moving forward. People ask me about the future of extremism, the future of QAnon, Proud Boys, violent militia groups, and I say this. We've got a president who's going to probably launch a digital media platform. 70 million people voted for him, 100,000,000 Twitter followers. He's going to simultaneously reportedly announce that he's a candidate immediately for 2024 for president.
Harry Litman [00:19:41] And he'll say anything at all.
Harry Litman [00:19:42] Yeah. And he'll be automatically be the front runner, and so any reasonable voice that might be left in the Republican Party who might challenge him is going to have to say, well, he is the front runner for the party. So we will have a shadow presidency and a kind of insurgency moving forward that's extremely dangerous.
Harry Litman [00:20:00] This raises two questions. First, Paul and Amy, are you guys at where Frank is? One hundred percent, January 21st, not the slightest doubt, Joe Biden is the president?
Amy Jeffress [00:20:10] Oh, I think Joe Biden will be president on January 21st, yes. So, and I also like to have some hope, and so I would say that once Trump is no longer president, his influence and his ability to influence the public diminishes considerably. Now, he still has millions of followers, I understand that, and they may believe what tweets out and continue to follow him, but he becomes much less powerful. And we see other institutions stepping up. So, for example, I have some hope because Congress, four members of the House are calling on Emily Murphy to come in on Monday and explain why she has not yet certified the election. So that to me, is one of the normal institutions responding as they should, to a problem with a particular GSA administrator who is evidently paralyzed by her fear of what Trump might do to her if she certifies the election, which it's obvious to everyone that has gone Biden's way. So that, maybe I'll be proven wrong and on Monday, she will not go in and she'll threaten contempt, but I do see people trying to exercise normal levers of power to facilitate a smooth transition. And let's hope that things get on a better path than they have been in this first week or so.
Paul Fishman [00:21:19] Let me add two things to that. I think one thing that I am worried about is that because Trump is not actually behaving like a president could or should, and probably won't for the next two months, stuff is going to get worse, right? The virus will continue to spread. I was heartened by the fact that Joe Biden had a call yesterday with all of the governors and that the readout from that was quite positive. But whatever happens to the economy, to national security, to the world order, to the health and safety of the American people over the next two months is going to be just an added catastrophe, but also a burden for Joe Biden, Kamala Harris and the rest of their administration to grapple with starting on January 20th. And that's a problem because we all know, we watched this election. What did you inherit from the previous administration? They asked Obama and Biden, what did you inherit? Donald Trump says the best economy ever. People will think about what it looked like on day one and try to cast blame one way or the other.
That's a problem. But, but here's what I do take a little hope. There is still massive civil litigation going on in which Donald Trump is a defendant all over the country. And while the Justice Department may have tried ineptly and without legal foundation to intervene and claim that he lied about a violent sexual encounter with a woman who did not consent while he was president, that somehow that's part of his presidential duties, that theory is gone on January 20th. His ability to stay discovery in those civil cases because he's the president, gone on January 20th. And so there will be civil litigation, his depositions definitely get taken somewhere in the southern district of New York, sometime in 2021 by some lawyers who really don't like him.
Amy Jeffress [00:22:53] Maybe multiple times.
Paul Fishman [00:22:54] Maybe multiple times. It may well be that Joe Biden decides to pardon Donald Trump, I find it very hard to believe at the moment that that's going to be the course this president takes. But even so, the district attorney's office in Manhattan, not going away. The state attorney general of New York, not going away. And so there's going to be a lot, there are going to be a lot of things are going to happen that are going to start to be more than nicks on his armor, I think, the way he's been able to avoid stuff for the last four years. Maybe that IRS audit one day will actually end. Who really knows? But I do think that there are going to be other forces that are going to be counterweights to some of the stuff that we've been talking about.
Harry Litman [00:23:33] So this raises a couple of questions. I want to double back quickly to Amy's optimism, maybe counterposed with some darker thoughts, because okay, four members of the House of Representatives. But what the hell is going on with the Republican Party now that Trump is out, now that they don't have to worry, as we always heard, about primary challenges or whatever, with the exception of Mitt Romney, everybody is kind of abetting this tantrum. People say Mitch McConnell could shut it down tomorrow, I don't know. But it looks as if they want to retain the stamp of Trump, even after Trump is gone. Does seem to augur for increased power from the grave of the ex-president.
Frank Figliuzzi [00:24:19] So I, by the way, I really hope Amy is right, and I love optimism, and I think her scenario is not only possible, but there's a decent likelihood that the president will have diminished influence, particularly if he's spending time in criminal and civil courtrooms. However, I think, again, this is probably the career FBI agent where we got paid to think worst case scenario and prepare for that, to compare this to kind of a cult mentality, cult of personality. The good news about cults is they eventually die off when the leader disappears or is taken out. This guy isn't disappearing. He is going to have that digital media platform. He is going to run for office, and he does have people in the House and Senate who view his base as their base. There's a lot of votes to be had out there. Those people are going away, and so you see an almost living martyrdom in cult leaders who are harassed, harangued, the government's coming after them, and they become almost hero status, like even in a mob case or a drug cartel. It's part of your bona fides to do your time, get indicted, you're even better in their eyes than before. So my concern is there's a possibility he increases stature, and the House and Senate folks who are with him, afraid of losing their base, they stick with that.
Harry Litman [00:25:35] And then Paul gave the teaser. I also have been flummoxed by this talk of will Biden pardon him? You know, I can't imagine why, but it's a very different question. Will Biden or the attorney general indict him? And I'm just throwing it back again to our DOJ veterans. Do you have views as to whether Biden and the attorney general are going to stay their hand rather than actually filing criminal charges by the United States?
Amy Jeffress [00:26:07] This is a great question, and I think that there is going to be a very significant debate in the incoming administration as to whether Trump should be held accountable in a criminal process. And the initial signals that I read from what President elect Biden is saying, is that he wants to move forward and to not entertain that and to get beyond the Trump era. And that's my personal view, but I know that there are a lot of people who think that Trump needs to be held accountable. I think that if there are charges, it would be best if they related to the Trump organization's financial dealings, and be as far from politics and his administration as possible, because that's where, if there's any relation to his presidency, people are going to view it as political and that is not going to be healthy for the country. You know, I do a lot of international work, and I'm familiar with countries where it's routine for the party that comes into power to prosecute the party that just left. And I don't want to be those countries, I would like to have a peaceful transition. Trump is not participating in a peaceful transition right now, so a lot of people who think he's going to get what he deserves, but I like the high road. I think I am totally in line with where President elect Biden is on this.
Harry Litman [00:27:18] Especially given the New York off ramp, not just criminal stuff, but the financial shenanigans that the attorney general of New York, I think, will be going after.
Paul Fishman [00:27:27] I just want to talk about one thing that you said, Harry, which, as you said, Biden's making decisions, whether Trump gets indicted or not. I think the only decision that President elect Biden will get to make, is whether to pardon him or not. If he decides not to pardon him, then he should not, will not be involved in any decision by the Department of Justice to indict or not indict. And that is as it should be.
Harry Litman [00:27:48] Everybody's nodding their head. But really, the attorney general, Sally Yates, decides to indict him. They call the White House, right?
Amy Jeffress [00:27:54] Harry, it's a great point. Isn't that a conversation that President Biden is going to have with the attorney general candidates? I would think so, before they get nominated.
Harry Litman [00:28:03] All right. I don't want to spend too much time talking about Rudy Giuliani and Sydney Palin, Janet Ellis. But I think especially, again, Paul and Amy, you might have a vantage point on why the president has had to replace lawyers so consistently and why he's now at, objectively speaking, not the caliber of representation that you might think presidents would be having, or elections would be having. What's it like, say, within big firms who are considering as maybe, say, Jones Day or whatever would be, request to represent the president?
Paul Fishman [00:28:38] What I can say is this: the argument that the president is asking lawyers to make in court is an argument about voter fraud that has no evidentiary backing whatsoever, that anybody has been able to produce. And you see it in transcript after transcript that's been released of the various court proceedings in which the administration or the president and the campaign keeps losing, which is judges consistently say, what's the evidence of fraud? And the response by even Rudy Giuliani is, I'm not really alleging widespread fraud. And so the public pronouncements that they make at press conferences and in tweets and from the lectern in the White House are not the same words that they're speaking actually in courtrooms across the country. And so the problem for lawyers of real substance is, they're not going to be willing to make an argument to a judge, a state court judge or a federal judge, that they can't back up. Its sanctionable, it's not ethical to make that argument. So that's the first problem. But the thing that I was struck by, and I can't tell you how disappointing it was to me, you know, I grew up as an assistant U.S. attorney in an era where Rudy Giuliani was held up as kind of a model of what U.S. attorneys were supposed to be in a lot of ways.
There were things he did that I didn't like, including perp walks and that sort of stuff. But he was a hard-charging, disciplined, highly respected boss in the southern district of New York. And to see him at that press conference yesterday, I don't want to mock the man because he's doing his own hair dye and so it's running down his face. It did feel a lot to me, like a scene out of Airplane. Not My Cousin Vinny but, Airplane, where the sweat is pouring off the pilot's body. But what made me really sad is to see Rudy Giuliani and Joe DiGenova, two former United States attorneys, standing up on national television in the headquarters of the Republican National Committee, listing dozens of people in a conspiracy, one dead president of Venezuela, one not not actually the president anymore, but still the president of Venezuela, Maduro, Ukrainians, Democrats, people from other countries, and to watch that display made me really sad because so much has gone wrong in that way.
Amy Jeffress [00:30:52] Let me again pick up on the optimism, though. You know, Harry, you started by talking about how some of the lawyers, even really Rudy Giuliani as Paul said, have been careful about the representations they make in court and not outright lying to the court. So let's hear it for the most functional branch of government. I think the courts have showed very strong, and have been consistent. The courts are not perfect, but the judiciary has been a very consistent check in the way that it is supposed to be, and has functioned effectively. And these cases aren't going anywhere, so thankfully, we're not going to see this election get challenged up to the Supreme Court. But I do think President Trump sees the Supreme Court as something that he has bought off. He's so transactional about the way that he engages in public life that he feels like, I put Gorsuch and Kavanaugh and Coney Barrett on there, and then that means they're going to vote for me. And I don't think they necessarily see it that way. I think they view themselves as independent jurists who can call the shots the way that they think the law requires them to. So we're not going to get there, but I would put my money on the judges doing what they feel is the right thing.
Frank Figliuzzi [00:31:57] This theme of the fact that this has turned from any semblance of legitimate legal challenge to absolute theater, for me raises the much larger question I find fascinating from a behavioral standpoint, which is not just the lawyers, but everybody in Trump's orbit, whether it's Barr or Pompeo or Chad Wolf at DHS, that path that you take to sell - where your soul gets corrupted and then sold. This fascinates me, and Paul's reference to Rudy as a formerly respected leader is on the money. I don't pretend to have answers for it, but part of it's a search for relevancy, power, ego, cultlike adherence to a person, I don't know. But it's a sad state of affairs that we're in.
Harry Litman [00:32:43] All right. This is all a very good transition to our sidebar this week. We're going to do something a little bit different, focusing a bit on Rudy. The second to last time he registered an appearance in US federal court was in 1992. The most recent was last Tuesday, where at one point the judge asked him what level of scrutiny should apply to his case, and he replied, "the normal one." Now, that was a howler to the legal community, anybody who's argued in court knows that the level of scrutiny is question number one in a constitutional case. Well, we asked the man who argued against Giuliani in court on Tuesday, Mark Aronchick, to give him and our listeners a primer on levels of scrutiny. So, Mark Aronchick is a national trial and appellate attorney, past Chancellor of the Philadelphia bar, the lawyer currently arguing against Giuliani in court. And he is well known as one of the finest election lawyers in the country, which I can confirm having worked with him. And he also has a long list of high profile cases, and Mark was named 2019 attorney of the year. So thank you very much, Mark, for coming on Talking Feds to explain to Rudy Giuliani and our listeners, levels of constitutional scrutiny.
Mark Aronchick [00:34:02] On Tuesday, Rudy Giuliani argued to a federal judge in Pennsylvania that the court should invalidate up to 700,000 mail-in ballots cast in the state. During the hearing, Giuliani was asked by the judge what level of scrutiny should be applied, and he replied, "the normal one." Although perhaps not obvious to nonlawyers, the judge's question, 'what is the appropriate level of scrutiny to apply to this case?' Is the threshold fundamental question in constitutional cases. The Supreme Court has developed three different levels of scrutiny, basically hurdles of different heights, and these correspond to the importance of the constitutional interest at stake, and the government's reasons for wanting to burden it. The highest level of scrutiny is strict, sometimes called strict in theory, fatal in fact. It is reserved for situations in which the government burdens clear constitutional rights. Technically, the government can infringe on even clear constitutional commands, but it must have an excellent reason and no other way to do it.
For example, the infamous Japanese concentration camp case in World War II, which the court has since overruled, was an instance where the government's actions actually passed strict scrutiny. The court found that the government was discriminating on the basis of race, but that it had a compelling reason. Typically, however, the determination that the government has burdened a constitutional right, say the right to free speech, triggers strict scrutiny and dooms the government action. The second level of scrutiny is called intermediate. The technical test is whether the government action furthers an important government interest by means that are substantially related to that interest. Intermediate scrutiny applies to what the court calls quasi-suspect classes. Quasi-suspect classes include gender and illegitimacy. Some courts also treat sexual orientation as a quasi-suspect class. Gun control laws are also reviewed for compliance with the Second Amendment under intermediate scrutiny. Finally, the last level of scrutiny which applies to everything else, is called rational basis review.
It is used, for example, for ordinary economic regulation. A law evaluated under rational basis review must only bear a rational relationship to a legitimate governmental purpose. That's an easy test to satisfy. A court is supposed to uphold the law under rational basis review any time it can hypothesize a legitimate purpose for that law. There's nothing in the Constitution that stops Congress from enacting a stupid or ineffective law, but it's not unheard of for a court to strike down laws under a rational basis level of scrutiny. So if he had been properly prepared, Giuliani should have argued to the court that it should apply strict scrutiny, because the right to vote was at stake. I was prepared to argue rational basis, because there's no constitutional right to observe an election from 6 feet rather than 10 feet, which is what the Republicans were seeking. And as a practical matter of the courts choice, whether to apply strict scrutiny or a rational basis would have decided the case. For Talking Feds, I'm Mark Aronchick.
Harry Litman [00:37:52] All right, thanks again to Mark Aronchick. Let's try to end with a little bit of fresh air, taking up the Jeffress, more optimistic view, and talk a little bit more about the government to come. So the Biden transition, even hamstrung, goes forward. He's made several initial moves and appointments, a chief of staff just today, many different people in the White House. Among you Washingtonians, any kind of insight as to what sort of government he's thinking about running?
Frank Figliuzzi [00:38:27] As I think many of us on this discussion are, I'm an institutionalist in the sense that I believe our values as a democracy are wrapped up in our institutions, and in the career professionals who staff them. So I am breathing a welcome sign of relief when I see professionals, when I see resumes that are replete with years, if not decades of true substantive experience. I think not to call it a coalition government, but even rumors that he's reaching out to Republicans - phenomenal. I mean, the guy is trying to do the right thing, and so far appears to be selecting sane, seasoned, experienced veterans.
Amy Jeffress [00:39:04] Harry, the last time I was on this podcast was with Ron Klain, as you might remember, and there is just no better chief of staff for the president to have during a pandemic like this. I mean, Ron's got the experience with handling this very similar crisis, and knows exactly how to come in and handle it from the get go. And so I think that's a great appointment and really signals good, smart decisions from Biden and his team.
Harry Litman [00:39:28] What's the practical impact going to be if the Democrats don't take both seats in Georgia, and all nominations have to go through the aforementioned Mitch McConnell? Will that very much hamstring Biden's choices?
Amy Jeffress [00:39:44] I think it makes Mitt Romney and Susan Collins extremely powerful people, right? They can basically make or break Biden's nominations if the Republican Party continues to be sort of obstructionist. And actually, there's been some signaling that a lot of Republican senators don't intend to obstruct reasonable nominees, but we have a ways to go to see how that's going to play out. But the moderates are going to be very, very powerful.
Harry Litman [00:40:07] It's a good point. And my sense is, for all of McConnell's intransigence, he'll have to play ball somewhat, at least starting out on a some kind of stimulus, no? We have 12 million people about to lose unemployment insurance, they confirm a bunch of conservative judges and leave town. But I don't see his being able to sit on his hands indefinitely about that, even if he's majority leader. Frank, you're agreeing?
Frank Figliuzzi [00:40:31] Yeah, I mean, look, we've got word that Steve Mnuchin, secretary of Treasury, is going to allow all of this to expire December 31st, and it's a disaster. And again, it's part of what looks like a scorched-earth, let's burn the place down strategy, and make it so much harder for Biden to effectively lead. So, yeah, it's going to be look, you've got Corona, number one. But right behind it, and closely related to Corona, is going to be the financial crisis on our hands on a personal level.
Harry Litman [00:40:58] Yeah.
Paul Fishman [00:40:58] The problem, Harry, is a simple one, right? Even if Congress, if the House passes a bill that McConnell can live with, that's not going to happen until January. Trump is the president until January 20th. So maybe he doesn't sign it, we don't really know what the White House even thinks anymore because Steve Mnuchin is not the president of the United States, so we don't know how that's going to work. And so we're going to lose another two months during which a lot of people are going to die, and a lot of people are going to lose their jobs. There are a number of states in which eviction moratoria may expire, and then states are going to start to run out of money too, one of the stumbling blocks in the last round of negotiations was that the House was insisting that there be a bunch of money for state governments who are trying to carry their share of the load during the last eight to 10 months. And the Senate didn't want to go along with those kind of payments to states, particularly blue states. And that's going to be a problem if they can't resolve that question. And because it's been very expensive for states to try to fill the gaps here.
Harry Litman [00:41:58] And I think it's just not easy when things run out to instantly try to reanimate them. And we've lost more jobs already. Permanently, people going into permanent unemployment than in the 2008 terrible recession. And of course, they're disproportionately in the service industry, and what's that mean? They disproportionately fall on women. And what's that mean? They disproportionately fall on minority women. And if a big enough cohort actually become permanently unemployed, that's a kind of problem that you just can't fix overnight. One specific point, he seems determined even in his transition moves, on being the so called 'climate president.' So are there things he can do, even with McConnell's lack of cooperation, to move forward there? What kind of progressive policies can he try to pursue if he doesn't have the Senate with him?
Frank Figliuzzi [00:42:54] I mean, I think across the board you're going to see the use of executive order. He's already said he's going to reenter treaties, whether it's Kyoto, the Paris accord. On the health front, he's going to rejoin the World Health Organization. He's going to do what he can unilaterally. And it's funny because I'm not a huge fan of executive order, but I think if you need to restore order, you've got to do what you've got to do.
Harry Litman [00:43:15] You know who else isn't a big fan of executive orders is a lot of the current crop of conservative Trump judges, including the justices on the Supreme Court. Justice Kavanaugh, among others, has showed an interest in paring back on executive agencies. So if, in fact, he's blocked a lot in the Senate route, he may find it not so easy as previous presidents have to try to do executive orders that will be immediately challenged in court, and maybe work themselves up to a Supreme Court ready to cut back on those things.
Amy Jeffress [00:43:52] I would just add to that climate change is a global problem and it has to be addressed globally. I see this as a diplomatic issue as much as anything. I mean, executive orders can help the United States get in line and adapt better, more climate friendly policies. But we were in the Obama administration, a global leader on the efforts to combat climate change. And we are now a global loser on climate change. And so I do think that the Biden administration will try to step back into the role of global leader, and try to work with other nations leaders to adopt policies around the world that are effective and help address this problem. And I see this as a real generational shift, too, I have two teenage kids and they both see climate change as a big issue. The next couple of generations are really the ones who are going to suffer from this, and they get that. They're going to vote on it. It's going to be a different issue 10 years from now than it even is today.
Harry Litman [00:44:48] That also doubles back, I guess, to what we were saying before, because it will become increasingly untenable for Trump to maintain this charade, not only as the Mitt Romneys of the world and maybe a few senators, but more and more international leaders are going to be congratulating Biden, and treating him as the president elect and making Trump all the more marginal. It's funny when he'll arrive at a point that he just can't handle it anymore, back to your hostage analogy, Frank.
Frank Figliuzzi [00:45:16] Yeah, I think there's going to be a great honeymoon period for Biden globally, where the embrace of world leaders who are so grateful to have some semblance of normalcy returned. I think you'll see some consensus built in the areas, as Amy was saying, of environment. But but others as well. I think he's got better milk that honeymoon period for all it's worth.
Harry Litman [00:45:37] All right. We just have a couple of minutes left for our final feature, Five Words or Fewer, where we take a question from a listener and each of us has to answer in five words or fewer. So Alison Broad, who asked: 'Will or can the Biden administration still go after Flynn, Stone and Bannon, who obviously have already been charged but have not in many people's view, seen full justice?'
Amy Jeffress [00:46:06] My answer? Please ask the career prosecutors.
Harry Litman [00:46:09] There you go.
Paul Fishman [00:46:11] My answer: Trump will pardon them.
Frank Figliuzzi [00:46:14] Pardon, not off the hook.
Harry Litman [00:46:16] I'll say: one of them, going down.
Thank you very much to Frank, Paul and Amy, 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 post 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 ad-free episodes, though we do have those there, but really original one-on-one discussions with national experts. Just in the last few days, we've posted discussions with T. Rowe Price chief economist Alan Levinson about the stimulus, Sam Vinograd about the firing of Chris Krebs and the Pentagon brass, Norm Orenstein about Lindsey Graham's efforts to reverse the election, and Jonathan Weinberg about an important affirmative action case going to the Supreme Court.
So there's really a wealth of great stuff there, you can go look at it to see what's there and then decide if you'd like to subscribe. 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. Our consulting producer is Andrea Carla Michaels. Thanks very much to Mark Aronchick for schooling us, and others, on constitutional levels of scrutiny. 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.
