Harry Litman [00:00:01] Hi, Harry here with a quick word about our Patreon site. patreon.com/talkingfeds has all kinds of mostly one on one interviews about important issues that aren't covered on our podcast or other podcasts. So right now, we've just put up something on original jurisdiction and the Texas law suit. A couple of days ago, a debate with Jed Shugerman on presidential pardons, Andrew Weissmann on Michael Flynn, a whole wealth of stuff from many different fields. So it does have a fee, five dollars, three dollars for students. But you can go check out what's there, decide if it looks good and then if you want to, subscribe. So check it out, patreon.com/talkingfeds . OK, thanks, and here is our episode.
[00:00:57] 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 transition weeks tick away and the Trump administration begins to leave, or be dragged from, center stage. Trump himself is going out in full Trumpian style, obsessing about his phantom claims of election fraud while steadfastly ignoring the virus, which this week reached its peak one-day death toll in the United States with over 3,000 reported deaths. Meanwhile, the incoming administration sustained a legal and political blow before even taking office with the revelation that the president elect's son, Hunter Biden, has been under federal investigation since 2018 for a series of possible financial crimes involving his business dealings with China.
[00:01:54] It's not yet clear if the investigations will have legs, but they are serious on their face and at a minimum, give Republicans in Congress a bat to beat the new administration with. Biden this week selected nominees for many important agencies, including a controversial secretary of defense pick, retired Army General Lloyd Austin, and continues to fill out his administration at a faster pace than his predecessors. But most eyes are turned to the all important choice for attorney general, with four apparent finalists and the direction of the Department of Justice, which has been so troubled during Trump's years, in the balance. To discuss these developments, we have three good friends of the podcast and four, counting me, as I do, experienced veterans of the department who have both the rich vantage point and deep affection for the DOJ, as well as a passionate interest in seeing a return to the respected institution it was when we all worked there.
[00:02:54] And they are: Jen Rogers, a legal analyst for CNN, a teacher at both NYU and Columbia Law School. Jen worked for many years in the United States Attorney's Office for the Southern District of New York, where she served in numerous capacities, including as a deputy chief appellate attorney, the chief of the organized crime unit, and a chief of the general crimes unit. Hi, Jen. Good to see you.
Jen Rodgers [00:03:20] Thanks, Harry. Great to be here.
Harry Litman [00:03:22] Andrew Weissmann, a distinguished senior fellow at NYU Law School, a partner in the Jenner and Block law firm, a legal analyst at MSNBC and the author of the recent "Where Law Ends: Inside the Mueller Investigation," which if you haven't read yet, you should go out and pick up right away. Andrew, of course, served as a lead prosecutor in Robert Mueller's special counsel's office, and before that as the chief of the fraud section in the US Department of Justice's criminal division. Welcome, Andrew.
Andrew Weissmann [00:03:53] Nice to be back.
Harry Litman [00:03:54] And, Mimi Rocah, whom it's been too long since we've seen on Talking Feds, but she's been pretty busy. Mimi has worn many hats in her career, including assistant US attorney in the Southern District of New York, where, like Jen, she held a number of leadership positions, distinguished fellow at Pace Law School, legal analyst for MSNBC and NBC News. But the voters of Westchester County have fitted her for a new, very important hat: the district attorney of Westchester County, an office she won handily in November and will assume January 1st. So good to see you, Mimi. What do we call you, madam D.A.? Honorable D.A.? What should we call you? Mimi?
Mimi Rocah [00:04:37] You still you still get to call me Mimi, Harry, but to everyone else, yes. Great to be here.
Harry Litman [00:04:46] Let's start with the charges against Hunter Biden, who says that he just learned about them this week and made them seem like they were limited to tax. But it seems like they're broader than that encompass many offices. Just for starters, I mean, we only know what they are investigating on paper, but how serious does this look?
Andrew Weissmann [00:05:07] I think it's important to start with what we don't know. We don't know exactly what's under investigation. We don't know if it goes beyond the one district that has any active investigation. And we don't know if the charges that are under investigation will ever, in fact, lead to an indictment. There's a lot of unknowns. The information, as you point out, Harry, is that there at the very least is a tax investigation, which you would think would be the money that he got from various overseas ventures. Was he paying taxes on it? The statement that he issued kind of suggests a defense to at least criminal liability, which is that he had the benefit of tax professionals to give him advice about what should or should not be reported. Remains to be seen whether that kind of defense works.
[00:06:01] You folks know the way that can work is if you have disclosed everything to your tax professionals and then they happen to give you wrong advice, you may get off in terms of criminal liability. You still have civil liability, but it may also be the case that he didn't report everything to his own tax professionals. So, a lot remains to be seen.
Harry Litman [00:06:20] Or it may be that it's just a factor that DOJ uses not to bring charges that they think they could possibly win. There's an indication that there was an active money-laundering investigation that was closed without charges being brought. Did anyone else pick up on that hint?
Jen Rodgers [00:06:39] Yeah, this is Jen. I mean, the reporting I saw, it did say that they had a money laundering investigation which since has been closed, and they've now shifted gears toward the tax investigation. So one big question to me is this obviously is an ongoing investigation that's been in place for a couple of years now. What happens now? I mean, are they rushing to try to complete something before Trump and Barr are gone? If it does move over into the next administration, there's going to be pressure on Biden to appoint a special counsel. Alternatively, you could leave it with the Delaware US attorney, but kind of wait to get rid of him, if Biden would otherwise do so, until that investigation is finished. One big question for Biden on this is, what do you do with this kind of awkward investigation now that's floating out there?
Harry Litman [00:07:27] He's playing it very straight, which is a welcome development. He said at his press conference today just, 'I'm very proud of my son.' But one interesting aspect, this has been happening since 2018. They're only now taking overt steps, which they stayed their hand at doing during the election, but what's been going on for these two years and by the way, it seems as if Bill Barr played it straight here and didn't transmit to the White House and the president information they might dearly have loved about Hunters' being under investigation.
Mimi Rocah [00:08:02] I feel like this is at least the second time in about six months that we've been surprised by something Barr did or didn't do. Recently, he announced that he basically, in sum and substance, didn't find fraud in the election. And I think some of us said things like, 'wow, what's the world coming to when Barr is the word of truth?' And it feels a little bit like that now. It doesn't change anything that - and I'm guessing for others on this as well, that we thought about Barr in terms of being extremely partisan and politicizing the DOJ. And he's now being criticized by Trump supporters and some Fox News people for not having revealed the fact of this investigation before the election. But the fact of the matter is, that's the way it's supposed to work. And to me, this is just a sign of sort of how low our standards are now and how far we've fallen, we being Americans' view of DOJ, because this wouldn't have happened before. It would have been the norm that that would not have been revealed especially close to the election. And so doesn't change anything about what Barr has done in the past, but I think it's a reminder of how far we have to get back to normal operations of DOJ being independent from politics.
Andrew Weissmann [00:09:23] Mimi, the mother of a friend of mine used to always say, 'you don't get credit for doing the right thing.' And this is one where we're all sitting there going, 'hey, isn't this great? Barr played by the rules.' I've yet to be, I'm so cynical Mimi because I've lived through being burned, like a lot of people, that it remains to be seen just how much he really did and what was disclosed to him, and I'm sure there's going to be more to come. But you don't know sort of what the various U.S. attorney's offices reported and what kind of discussions there were. To Jen's point, you don't know if the money laundering investigation, whether that was just referred closed but referred to Delaware so there's one office. And the one thing that I always was surprised that we haven't heard about is, in addition to a tax investigation, just looking at what is public, it seems like there might be grounds for a FARA investigation, which that's the Foreign Agents Registration Act, and if he is doing work for any foreign client, it can be an individual who is a private individual, a private corporation or even a government, but it doesn't have to be a foreign government.
[00:10:32] And you do any sort of lobbying or influencing of the public here in the United States, that would require registration. So that could also be under investigation. But I do think the big issue for the incoming administration is what do you do with the US attorneys who have these sensitive investigations, whether it's John Durham, whether it's the Delaware U.S. attorney, obviously by right, the president can dismiss all of the US attorneys who are presidential appointments, it doesn't matter what label they're given, whether they're also given a label, special counsel or not, all of that is irrelevant to the president's power to remove, and Bill Clinton famously just asked everyone to hand in their resignation. But the question is whether that's going to look too political when it comes to US attorneys who have sensitive investigations pending.
Harry Litman [00:11:27] Yeah, it's an excellent point. And I remember when all the Clinton US attorneys were asked to leave, a couple stayed for this very reason, because they were presiding over sensitive investigations. And speaking of sensitive investigations, there's also a suggestion and talk about a complicating factor, we saw this with Trump himself, that there may be a counterintelligence aspect to the investigation of Hunter Biden. And as we know, those can sometimes A, take years to resolve and B, be resolved completely under wraps so nobody even knows what happens. Of course, moving into politics, not our normal safe harbor here, but just the pendency in some way of the investigation means that up on Capitol Hill, they can harp on it continually, right? We had no drama Obama, nothing for eight years then total soap opera Trump. But now Biden, who would have hoped to begin and remain clean, does have this chain to bear, and it seems unavoidable that he'll take political flak for it.
Andrew Weissmann [00:12:35] Yeah. Don't you think, given the history in this country of family members who are not necessarily on the straight and narrow, I think people kind of, unless it really is going to affect the candidate or the president himself or eventually hopefully herself, I think the country sort of looks by that. We've had family members who have been unsavory. I mean, he may have committed a crime, we'll find out whether he gets charged or not, but he clearly has had a difficult life in terms of drug abuse.
Harry Litman [00:13:04] And so you think maybe he gets a pass, although now maybe this was just for electoral purposes, but they were sure going at him hammer and tong over the last year, and certainly whatever it was kind of exaggerating. One of the things that are interesting about this actual investigation, what is this laptop and how does Rudy Giuliani come to possess it? Let's turn to the big policy question, Jen, you mentioned the potential need to appoint a special counsel, wither the special counsel. We had the whole Ethics in Government Act regime that seemed to basically be a disaster when Clinton was investigated with the endless upriver trip of Ken Starr. But then we went back to greater control and internal regulations, which gave the AG and president ultimate control.
[00:13:55] And that really seemed perfectly ill suited to the kind of rascal that President Trump was in terms of being willing to just violate norms, if not laws and meddle all the time. What should happen? I saw one proposal by Roger Painter to maybe there should be some kind of permanent standing special counsel. What regime now, having learned at least two lessons, should we be thinking about, how does the country want to handle investigations of relatives or close associates of the president?
Jen Rodgers [00:14:30] Yeah, that's the million dollar question, right? I mean, we had the independent counsel, we swung back in the other direction to the special counsel. Richard Painter's suggestion, which I also saw, seems to me to not be the right answer. I mean, as soon as you have a permanent special counsel, it's no longer an outside of the government person, right? Now, you are an internal government person, which, by the way, of course, is Bill Barr's parting gift to all of us is to install Durham, who is not supposed to be appointed as a special counsel, given that he's the US attorney, now is in that role and Biden will have to figure out what to do with him or the A.G. will have to figure out what to do with him. So I don't know. I mean, obviously, Andrew's more of an expert on this, having actually worked at the special counsel's office.
[00:15:17] I don't know where you draw the line between more versus less independence, probably somewhere in the middle, I assume, since we've now learned that both of those more extreme positions haven't worked well, it's just so hard to try to figure out where to go when you're dealing with someone who was as bad as Trump was in terms of busting norms. I mean, I think and hope we won't have another president who behaves that way, so in many ways, you don't want to go too far in trying to rein in future behavior that may never occur. On the other hand, given Trumpism and some of his followers in Congress and so on, I don't know that we can count on that, and he may have done lasting damage that requires us to have laws in place to try to to stop it. So, I don't know. But I am interested in what Andrew thinks, given his experience actually working in the special counsel's office.
Andrew Weissmann [00:16:08] I, too, think it's very difficult to figure out what is the best way for there to be an independent investigation of the executive when it's being done by the executive branch, because we saw the president use his ability to fire the special counsel, or at least the person who appoints the special counsel, if they don't fire the special counsel. And we also saw the use of the pardon power to thwart the investigation. But even I am not convinced that the answer is to go back to an independent counsel. I'm not a fan of the idea of a separate institution to do this, which does exist in other countries.
Harry Litman [00:16:48] For the same reason as Jen, Andrew, that you're opposed to the standing...
Andrew Weissmann [00:16:52] Yeah, I just think that we're not there yet, with no fault to the special counsel rules, which are were reaction to the Ken Starr investigation. I think that no one was thinking that we would have this kind of situation. So there's some tweaks that can be made, I actually write about this in my book is to sort of how to try and fix some of this. You could have an appointment that comes also from the DNI, not just from the AG. You can have direct reporting by the special counsel to Congress. All of the material should have to go to Congress. You can have Congress appoint a special counsel, obviously, and you can have Congress actually do an investigation and do referrals. I mean, that's not ideal, but it's a way of at least dealing with the executive branch, not appointing somebody.
Harry Litman [00:17:42] Oy, talk about leaks.
Andrew Weissmann [00:17:44] Well, I mean, there are other ways to deal with that, no one's clamped down on that. But we have to deal with what do you do when you have a lawless president and a lawless AG? There are ways to try and deal with some of the behavior. And you can have Congress trying to step into some of the gray areas about how the pardon power is used to make it clear what they think is criminal. I mean, obviously, there would be certain constitutional limits to that. Those are the steps that I think need to be done to tighten this up so that we don't have a repeat of this. And then finally, I'm a strong proponent that there has to be some accountability for a president who obstructs a special counsel investigation. And I think if you remove Trump from the equation, you just think about this, how do you investigate a president going forward? If there isn't some downside for a president obstructing a special counsel, then all of this is for naught, because if you can't indict a sitting president for a crime of obstructing a special counsel, and you have a view once the person is out of office is 'let's just move on,' then the message is, is that the president is de facto above the law, even if they're not legally above the law. And so I do think that is a issue that the new attorney general is going to have to wrestle with.
Harry Litman [00:19:12] Already there are calls for a special counsel for Hunter Biden. Biden's going to have to field that even as any responsible person in government would be wrestling with the issues that Andrew and Jen identify of what's the best way for a rule of law driven democracy to investigate its highest officials? Other countries have managed to do it, and I guess we have as well, until the debacle of the last several years.
[00:19:42] 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 in the news. Today, we're explaining an important distinction in the justice system that often confuses people: namely, the difference between criminal and civil contempt. And to explain, we are fortunate to welcome Andy Cohen. Andy is an American radio and TV talk show host, producer and writer. We've been friends since the last millennium. Andy's the host and executive producer of Bravo's Watch What Happens Live with Andy Cohen, and he has a pop culture channel on Sirius XM Radio, Radio Andy. He's won an Emmy and two Peabody Awards, and written three New York Times bestsellers. So I give you Andy Cohen on the difference between criminal and civil contempt.
Andy Cohen [00:20:38] What is civil and criminal contempt? A judge yells at the lawyer, 'order, order, order in the court. If you don't settle down, you'll be held in contempt of court.' You've seen this scene on television hundreds of times, so what does it mean to be held in contempt of court? Contempt is conduct that disrespects the court. There are two types of contempt that a court can impose: civil and criminal. Civil contempt is a coercive measure meant to encourage parties to comply with the court authority so that the court may return to a state of decorum. For more serious cases of courtroom misconduct, a judge might charge someone with criminal contempt of court. Criminal contempt is a criminal charge for serious offenses, and can even require a jury trial. Judges weigh different factors when deciding whether to hold someone in civil or criminal contempt, including the nature of the underlying court proceeding, criminal or civil, and the severity of the individual's behavior. In order for someone to be charged with criminal contempt, the charges must be proven beyond a reasonable doubt.
[00:21:44] Criminal contempt can be either direct or indirect. Direct criminal contempt occurs during the court proceedings, such as the defendant shouting profanities at the judge during a hearing. A defendant muttering an obscenity during a hearing, on the other hand, would be considered civil rather than direct criminal contempt because the courtroom disruption is much less severe. Indirect criminal contempt typically occurs outside the court, usually when someone deliberately disobeys a court order or judgment. Movies like My Cousin Vinny make light of disobeying court orders and contempt of court, but in real life, contempt of court can carry significant jail time. So on behalf of Talking Feds, we ask you to please remember to dress appropriately and be polite next time you find yourself in a courtroom, which I hope is never. For Talking Feds, I'm Andy Cohen.
Harry Litman [00:22:42] Thanks very much, Andy Cohen, for that explanation. We often, after sidebars, provide the latest achievement of the readers. Today, the latest achievement is not of Andy, but of Andy's son, Benjamin Allan Cohen, who recently won a Golden Robe Award in a three way tie for over the top adorableness with fellow infants Anderson Cooper's baby, Wyatt and Amy Schumer's baby, Gene.
[00:24:39] I want to talk briefly about these calls that were public, but not their content, that the president made to Republican officials in Pennsylvania, Georgia, Michigan, as part of his brazen campaign, I might say, to just set aside the electoral results in those states. But obviously, it was unseemly and Trumpian, any possible liability there or anything that a steadfast Department of Justice would be looking into?
Jen Rodgers [00:25:14] I don't think so. I mean, when I look at them, first of all, of course, you don't know what was really said. And if you think about it like a call to say, 'hey, what are the options? What can be done here? We have an election, we have results that we think are maybe not trustworthy, then you have to certify, then there are these electors and they go do their thing, what's the deal? Then I don't see how that could possibly be criminal, right, in the way that if the legislators themselves were sitting around trying to figure out what is it that we have to do, what are we bound to do, what are we not bound to do, where can we exercise our discretion? So until and unless you had some evidence that he actually was advocating something that's clearly illegal as opposed to just kind of trying to figure out if there is a way that it can be done legally, then I don't know how you would even open an investigation, frankly.
Harry Litman [00:26:10] All right. So your verdict is sort of politics as usual, I guess, and maybe that's it. The reason this caught my eye is I'm just wondering if it's one thing, the offenses that Trump has committed the last four years, but are we in some kind of special period where tampering with the election might actually cause the DOJ to look into things?
Andrew Weissmann [00:26:34] I think it's going to really depend on what was said. I completely agree with Jen, if somebody calls and says, 'look, I'm troubled by this, is there anything legally that you can do? What is the scope of your discretion?'
Harry Litman [00:26:47] Well, let me interrupt you there, for Jen and Andrew, because there's at the most benign there's no doubt he was applying pressure, right? It's more than, 'oh, you know, anything we can work together on?' So certainly we start with that. Now, that doesn't mean it crosses the line, but...
Andrew Weissmann [00:27:02] So let's assume I mean, this is why you would want to know from the recipients of the calls what they recall. And I think you could imagine him spinning out the same false facts about their being election fraud, which has no evidence, and then saying, I want you to take action and threatening primaries and even what his supporters might do. So you can imagine situations where this would, I think, fall into 18 USC 242 and there would be substantial reason to want to vindicate this. So 18 USC 241 242 are sort of the election, the specific election fraud statutes that are sort of more commonly used by, for instance, public integrity, that's sort of the withered section of the Department of Justice in the last four years. And interestingly, those statutes came about because of the freed slaves and being concerned about their votes being tampered with and harassment.
[00:28:02] And DOJ has put out guidance for many years that says that those statutes are to govern election fraud, which covers conduct intended to corrupt the process by which the ballots are tabulated or election results are certified. So the department has definitely viewed the statutes as covering this kind of situation. But again, depending on, as Jen points out, what the facts are in terms of those calls. But I think an interesting aspect of this is this raises the issue of can a president sort of pardon himself away from this? Because one counter to that is, 'well, don't worry, there's always impeachment.' So you don't need to let's say the president can pardon his way out of this. But what do you do with the president who commits a crime between November and January?
Harry Litman [00:28:50] Exactly.
Andrew Weissmann [00:28:51] You don't have an, impeachment is not an answer. Let's assume he was on tape physically threatening violence, is the answer that he then can issue a self pardon, which, by the way, I'm confident he will do for any and all crimes. And is it really the case that it would apply to this situation, again, assuming the hypothetical that the facts would warrant an investigation and or prosecution?
Mimi Rocah [00:29:14] I just think it's also I mean, without sort of getting into the specifics of what might or might not actually be investigated or prosecuted here, I mean, this kind of picks up on Andrew's point about impeachment not being an option, when the very thing that he was impeached for was this very parallel fact pattern. And so, I just think that cuts in favor of there being some resolution or way of dealing with this. Now, it's the same calling Ukraine. It could be, right? As we're saying, depending on what was said, it could be a domestic equivalent of calling Ukraine and saying, 'do me a favor, though.' It's really striking.
Jen Rodgers [00:29:55] Although one one good thing is that unlike some of the things that Trump has done, if you're talking about meddling in the election in these states, there's unquestionably state crimes that would be violated here, right?
Harry Litman [00:30:08] Excellent point, yeah.
Jen Rodgers [00:30:09] If you're going to talk about a violation of 242, there is going to be a statute on point in Pennsylvania and Georgia and Michigan and so on. So those state authorities would really probably, frankly, be in the better position to go forward with such a thing, right? I mean, it's their election integrity that's being threatened here. So that is not pardonable, as we know by Trump.
Harry Litman [00:30:31] Yeah, he has been in this perfectly protected position, as Andrew said. 'Oh, you can indict him. Oh, let's let's let bygones be bygones.' But this does seem like a, if it's sinister. And of course, he rarely disappoints on those grounds. But but if it is, it's both going to the heart of democracy and also not otherwise remediable. I wanted to move into its discussion about the A.G. selection, not in terms of, 'hey, who do you like' and that sort of thing, but what really are the stakes here for Biden? We've had four announced candidates, Doug Jones, Sally Yates, Merrick Garland and Deval Patrick are under active consideration. Which way do you sort of go? Again, not in terms of your own preference, but what's at stake with the different kinds of choices? It's obviously a really important one that will have everything to do with what happens to the department's efforts to kind of right the ship.
Mimi Rocah [00:31:37] I mean, look, I think what's at stake I mean, you said it, but I just don't think it can be overemphasized is the reputation, integrity of the Department of Justice. It is so badly damaged, and we've all talked about it kind of ad nauseum for four years. And the question is, can it recover, right? And I think we all want it to, we all hope it can. We all think it can. But I think it's still an open question, quite honestly.
Harry Litman [00:32:04] A lot to be done. It only begins with the choice of a AG nominee.
Mimi Rocah [00:32:07] Right. And because of the perception and how divided the American public is, and the fact that everything now is seen through a political lens and we have to undo that. So to me, putting personal preferences aside, this has nothing to do with that. As a former DOJ person who wants to see it succeed, I would love for it to be a person who will least prompt that. Oh, they're just doing this because of their political beliefs, response, whatever they do. And in some ways, Doug Jones, even though he's the one who was actually political, like ran for office, he's not associated with the whole Russia investigation in any way, as salivates is. And so I think that maybe weighs, if you're looking at it just through that lens, kind of puts him at an advantage. But he's a guy who ran for office as a Democrat, and that's more like my world now of DAs, which we don't want for the Department of Justice. I mean, in some ways, a judge I mean, Deval Patrick, too. I guess he's in the Doug Jones category, so.
Harry Litman [00:33:17] I mean, they've gone that road in the past, a judge, but of the four, why doesn't what you say, Mimi, scream out Merrick Garland? I mean, they lose a seat on the D.C. Circuit, but he's old, it would be his last stop. Isn't his reputation for integrity, institutionalism impeccable or no? Is he just because of the whole brouhaha on the Supreme Court is he just an unwitting partisan somehow?
Mimi Rocah [00:33:40] I mean, I don't even think that it makes him an unwitting partisan, but it makes again, if we're looking at it strictly through the reaction of the public, the reaction to him is just unavoidably partisan at this point. I mean, I think it is. His name has become synonymous with that, and that's I mean, that's not his fault.
Harry Litman [00:33:59] You guys agree?
Jen Rodgers [00:34:00] Yeah, I'm afraid so. I don't like it because he didn't even do anything. He didn't even make a decision. And not that Sally Yates should be tarred with that either, but at least she affirmatively made a decision that they don't like. And so therefore, she's kind of stuck with this anti-Trump label or what have you. One thing I do like about Merrick Garland, I have to say, and I read it on Wikipedia so we all know it's true, is that he apparently, after having done all of these amazing things and been a special assistant to the AG, been a law firm partner, goes back to be a line assistant to do complex cases as an AUSA, which is amazing. It's like what Bob Mueller did. I just think that speaks really well to his character and where he wanted to be professionally. But I have to agree with Mimi, I think that once you kind of become a name that is in the mouth of the Trump people, you're just not going to hear anything else for four years other than 'hes anti-Trump, and therefore he can't be trusted and everything he does can't be trusted.' And you hate to play into that and to kind of give in to their definition of who Biden's AG is going to be, but this is so important. This is so important. I just feel like he's got to pick someone who doesn't have that label.
Andrew Weissmann [00:35:16] So I basically agree with a slight twist. So first, I think all four of them would be great choices. I mean, no pun intended, but this is a low bar to be better than. Sally Yates would be spectacular, but I can easily see why you would not want to go through that kind of confirmation fight. But I think at that point, I think there's only so much that you need to be keeping an eye out for how they're going to be perceived on the far right, because you then you need to just be saying, 'look, if this person can be confirmed, then there are a whole bunch of other factors that I'm going to take into account.' And understanding that this is one where you have three other people are also terrific. I mean, to say you're dealing with really good choices. I think there's sort of a reality of Doug Jones, I think you would say is easily confirmable because he was a senator and Biden would get the two votes, assuming that we were to lose the votes in Georgia.
Harry Litman [00:36:13] Wait, he would get which two votes?
Andrew Weissmann [00:36:15] You assume that you lose the votes in Georgia and then say, would you be able to get in a 52-48 senate, would you pick up the two senators to support Doug Jones? And I think with a sitting senator, I think you would, because there's such a strong tradition of collegiality.
Harry Litman [00:36:30] Where Sally Yates is, if the Democrats don't win, Georgia is in for a buzz saw, isn't she?
Andrew Weissmann [00:36:36] Yes. And also that's going to be an ugly confirmation, and she is, I'm not saying she did anything wrong whatsoever, but she she is involved in the facts that could still be part of an investigation.
Harry Litman [00:36:49] And they'll try to make a hearing and everything out of it.
Andrew Weissmann [00:36:51] Exactly, as well as committing her to recuse herself on issues. So, but I do think, especially with the Department of Defense nominee being controversial because of his affiliation recently with the military, that you can understand why the Bush administration would want to appoint someone who is an African-American, who also has a civil rights background. So I do feel like Deval Patrick has that is a huge plus. And the fact that he's also managed an entire state so that he has that management experience, which the attorney general position, that is a management job where you have to be able to speak to the public, and you have to be able to manage that department, obviously, with the help of a deputy attorney general. So he seems to me that seems like a promising choice, and I also feel like he would be confirmable as well. So I sort of feel like that. To me, this is all the sort of like politics more than...
Harry Litman [00:37:49] It is politics, but it's a toughie because it's politics, but it's politics at the service of a really important public policy rule of law goal, right? And they do have to do it without knowing about Georgia.
Andrew Weissmann [00:38:00] Let's just get real, all four of these people are rule of law people. I mean, these are all terrific choices. The debate here is not about, 'oh, how could you think of appointing this person?' I think it comes down more to trying to understand either Mimi's point about how will they be received publicly so you do the least damage to the department, and then how you get them through the Senate.
Harry Litman [00:38:22] Maybe, I mean, I'm not sure, Andrew. Obviously, they all do vault easily over the bar, as you named it. But who the attorney general is and how he or she manages things is really going to matter. I'm reminded now of Clinton who remember, he had two, Kimba Wood and Zoe Baird like miscues, and then I think he wanted to just show the person would be as independent as possible and I'm sure he would count it as a mistake that he eventually chose Janet Reno because she was so arm's length from him. I'm not pointing to one or the other, but I don't think the fact that all four of them would be way better or would be rule of law people is sufficient given the challenges that are there. It's a tough and that's not even thinking about the other political considerations, including within the party that he has.
Jen Rodgers [00:39:19] Well, one more thing I was going to say about Patrick is the one thing that I do want are the two things that really deep department experience and true prosecutorial experience, which is one thing that we've been missing. I mean, at one point I think one of them has left now, but we had the three people atop DOJ, who have never been prosecutors before, which is preposterous, right? And all of these four had, but, Patrick not for very long, and not at the level that you would hope for if you were building a perfect A.G.. I don't know. I mean, you look at these are four amazing contenders, and then you start to like pick at it, and I don't know that there's a perfect person who kind of meets all of the criteria, although some of those criteria are unfair, right?
Harry Litman [00:40:02] But this is an excellent point. It's sort of what I'm saying. So take Patrick, all of us know from having been in the department, the Civil Rights Division is a little bit an enclave unto itself. It's got its own kind of culture, he's very strong for that. But is he the person to lead all the criminal division, organized crime? Maybe yes, maybe no, that's all - but I do think they've got a lot to sweat about in making this final decision. All right, that's all we have time for today on the episode to discuss. We just have a couple of minutes for our final feature on Talking Feds known to all of you of Five Words or Fewer, where we take a question from a listener and each of us has to answer in five words or fewer. Today's question comes from Pearl Marin, who asks, "Are there any contemplated pardons that DOJ might fight in court?" Let me put this into context. I think a lot of people, including I, have said if he pardons himself, we're really not going to get a chance to see if it's legal because they won't prosecute him. But, maybe there are some others that they might. I take that to be Pearl's question, so five words or fewer anybody?
Andrew Weissmann [00:41:17] Again, I'm going to go out on a limb then, and my one word answer is: No.
Harry Litman [00:41:23] OK, four four words left over for either of you guys.
Mimi Rocah [00:41:26] OK, good. I got extra words because I want to add 'I think:' we will see some challenged.
Jen Rodgers [00:41:32] And I'm going to say: unlikely, maybe Rudy.
Harry Litman [00:41:38] And I'll say less the person than the kind of pardon, maybe a brazen blanket one, anything they've ever done. All right. Very good to have all the homies back.
[00:41:52] Hey, that's our episode for this week. Thank you very much to Jen, Mimi and Andrew, and thank you very much, listeners, for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other Feds related content. You can check us out on the web, talkingfeds.com , where we have full episode transcripts. And you can look to see our latest offerings on Patreon, where we post discussions about special topics exclusively for supporters. Submit your questions to questions@talkingfeds.com , whether it's for Five Words or Fewer, or general questions about the inner workings of the legal system for our Sidebar segments.
[00:42:47] 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 Andy Cohen for schooling us on the difference between criminal and civil contempt. Our gratitude goes, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Feds as a production of Dalito, LLC. I'm Harry Litman, see you next time.
