Harry Litman [00:00:00] Hey, this is Harry with a quick note about our Patreon site. There are six - count them, six - all new interviews and one on ones there since last week. We have Rich Cordray talking about the Texas lawsuit in the Supreme Court, we have Frank Figliuzzi on the big Russian hack, Juliette Kayyem on the road ahead for the vaccine, Bianca Brooks on Progressive's perspective on Biden's cabinet picks to date, Attorney General Josh Shapiro, who led the charge against the Texas lawsuit for Pennsylvania, and then finally, a whole episode unto itself, a four way conversation with Elie Honig, Katie Benner and Andrew Weissman about Bill Barr's resignation.
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. To borrow the image that Juliette Kayyem proffered in the most recent episode of Talking Feds: Women at the Table, "we are living in a split screen, one side grim and one side bright." On the grim side, the virus is ravaging the country at horrifying record rates, with new cases averaging over 200,000 a day, daily deaths spiking to as many as 3,600 Americans, and ICU beds down to zero in some spots. Also, the country has fallen victim to an enormous hack by Russian actors, which federal officials characterized as, "a grave risk to the federal government." President Trump appears indifferent to both these disasters, and remains solely focused on trying to reverse the election and playing golf.
He parted ways this week with Attorney General Bill Barr, who enraged him by not backing his rigged election fantasy, and perhaps even more by withholding the information that the Department of Justice had been investigating Hunter Biden since 2018. On the other bright side of the split screen, the first Americans received an approved vaccine. The Electoral College confirmed Joe Biden's victory, and at least many Republicans, including Mitch McConnell, finally capitulated to reality. And the Congress seemed likely to pass at least a modest stimulus to ameliorate the burdens from the virus. Oh, and as first reported by one of our guests today, the Cleveland Indians have decided to change their name, which they've used for 100 years, and Major League Baseball has decided to give official recognition to Negro League statistics. We are now at T-30 days until the Biden administration, which this week designated several important nominees but remains undecided about the closely watched attorney general position. To talk through these issues, and we'll have to talk pretty quickly, we have a fantastic group of prominent experts, beginning with:
Congressman Ted Lieu. Ted, who represents California's 33rd Congressional District in the House of Representatives. He is soon to begin his fourth term in Congress. He sits currently on the House Judiciary Committee and the House Foreign Affairs Committee, and is the co-chair of the Democratic Policy and Communications Committee. Congressman Lieu is also a former active duty officer in the US Air Force, and currently serves as a colonel in the Reserves. Welcome back to Talking Feds, Congressman Lieu.
Ted Lieu [00:03:48] Thank you, Harry.
Harry Litman [00:03:50] Next, Michael Schmidt, a journalist, author and correspondent for The New York Times based in Washington, as well as a national security contributor for MSNBC and NBC News. He has won two Pulitzer Prizes for his reporting, and he is the author of the recently published and highly recommended New York Times best seller "Donald Trump vs the United States: Inside the Struggle to Stop a President." He is also the ace reporter who broke the Indian story. Michael, very good to see you, and thanks for coming.
Michael Schmidt [00:04:24] Thanks for having me.
Harry Litman [00:04:25] And really pleased to welcome for the first time to Talking Feds, Dana Bash, CNN's chief political correspondent, Dana covers all the big political stories. She regularly serves as a moderator for CNN's political town halls, and she anchored special coverage of Election Night in America surrounding the 2020 election. In 2017, Bash launched her CNN series Badass Women of Washington, which features women from a wide range of backgrounds and generations, and shows how they have shattered glass ceilings on their way up the ranks. So pleased you could join, Dana Bash.
Dana Bash [00:05:05] It's great to be here, thanks for having me.
Harry Litman [00:05:07] All right. Let's jump in with the delayed and halting acceptance of Joe Biden's electoral victory. So the Electoral College voted this week, an event that in the past was a sort of obscure footnote, but this year served as the official act that brought many, though not all, hold outs over into reality, including, though, Mitch McConnell. So let me start there, after many deadlines had passed that would have been conclusive in other years, starting with the election itself, the vote of the electors on December 14th seemed to be the pivotal point. Why did McConnell choose this? What's his thinking in actually capitulating to reality now?
Ted Lieu [00:05:53] So thank you, Harry, for that question. First, let me say what an honor it is to be on this panel with Dana and Michael. And to answer your question is, at some point you just can't ignore facts. Donald Trump and his supporters have lost well over 50 cases in court, every single case of voter fraud they have lost. And Mitch McConnell is well aware, there's no evidence to back up any of these voter fraud claims. And once the Electoral College voted, there was no effective way to reverse the election results at that point. Under the law, the only way for the Electoral College results to not take place would be for both the Senate and the House to agree on objections to then disallow the real electors and then put in fake electors. McConnell knew there was no way the Democrat-controlled House was ever going to do that. So at that point, it simply made no sense for him to keep fighting what was known to everybody at this point, which is that Joe Biden beat Donald Trump like a drum.
Dana Bash [00:06:52] Yeah, I'll just add to that. First of all, that was quite diplomatic, Congressman. I thought you were going to go way more partisan there, but I would add to that. By waiting as long as he did as disconnected from reality as it was, he was very McConnell-like in that he had the long view. And yes, he was getting hit every single time he walked through the hallways by reporters saying, 'are you kidding me? Why can't you call him president elect, meaning Joe Biden? Why can't you acknowledge reality? Why can't you speak out against the fact that the president of the United States is undermining a free and fair election?' And he is impervious to that kind of stuff, I mean we've seen it time and time again, whether it was with Merrick Garland, blocking even him getting a hearing or the flip side of him kind of taking it all back and pushing through Amy Coney Barrett this year, I mean, that is signature, hallmark Mitch McConnell. And by having that approach, and being comfortable in his own skin with that approach, he bought himself some credibility with the base who have been listening to Fox News and other conservative media outlets, nevermind the president of the United States.
Harry Litman [00:08:05] The only possible date that was left, the one that Trump is pointing toward is January 6th. And that's shaping up, again normally would be this obscure footnote, but shaping up to be a moment of some drama because the members of Congress will vote to recognize the electors. They've been sent to them by states and certified by the governor, but who has to preside over this pageantry? Vice President Mike Pence. So how is that going to work? Does Pence have any wiggle room, and what kind of blow will it be to Trump's continuing campaign?
Michael Schmidt [00:08:43] The thing about Trump is, that we've seen over the past four years, is that he finds a way to test these processes and these norms and these laws in ways that we haven't seen before. So usually this is sort of a perfunctory thing. In the past, some Democrats have tried to raise issues like in 2004 around the certification of the vote, which is overseen by the vice president. But this could probably be the biggest test of it that we've ever seen, because Trump, as we've seen in the past six weeks, is willing to suspend reality to push whatever he wants. So, you know, in his mind, if this is something that his vice president is overseeing, you can't help but think he would try and lean on him in some way to do this. And it will put Pence in this ultimate decision of hewing to the norms and the laws or to the president. And obviously, this is a dance that we've seen Pence do more than anyone else over the past four years. It's the loyalty to Trump versus embracing his most outlandish rhetoric and behavior, and will sort of be that final test for Mike Pence.
Harry Litman [00:09:54] And he's got very little wiggle room, right? He wants a future. To participate in some unconstitutional demolition job seems to me to be probably fatal for him.
Dana Bash [00:10:06] I don't think anything's fatal for any Republican in the Trump era. I really don't. I mean, if that's true, then he would be dead and buried long ago as Donald Trump's vice president. But I would just want to add about the sort of deep cut that he's going to feel. Everybody on this call is too young to remember, and Congressman, you weren't there, but I was a young producer covering the Hill at the beginning of 2001 when I watched Al Gore preside over his own loss. And that was not just for vice president, that was his loss for the presidency to George Bush after that brutal recount in Florida. So we've seen it before, and it can get really, I mean, that wasn't so much ugly, that just was tough. It was tough to watch.
Harry Litman [00:10:48] It was really poignant. But of course, he had already conceded.
Ted Lieu [00:10:51] Just as a procedural matter, if Vice President Pence, in fact, does something really bizarre and sustains that objection, if there is one, what that would mean is you're going to have Republican senators and Republican members of Congress then have to go on record on how they're going to vote on this. And many of them don't really want to do that, so I think there's going to be pressure on Mike Pence to not do something strange and bizarre.
Harry Litman [00:11:17] Yeah, that's a great point. So just to elaborate, if there's an objection by a House member that a senator, a senator has to also sign on to it, then they actually separate out and vote on that objection. It wouldn't be unless there were five successful ones or whatever, it couldn't possibly change the outcome, but it could put the heat on everybody. Well, I just I just want to double back Michael, because you're saying a moment of high drama. But I think what Dana was saying assumes that Pence is going to go ahead and play it by the book unless there's an objection. Do you see that?
Michael Schmidt [00:11:52] That's my guess, but it's a very unusual situation. And you saw Pence in the past week as part of a rally for these Georgia Senate candidates praising Texas for filing this specious lawsuit that just got tossed out of the Supreme Court, saying God bless Texas. I don't think that Pence would go along with something like this, but at the same time, the pull of Donald Trump on Republicans is one of the greatest forces that we've seen in modern politics. And a lot of politicians who I don't think we thought would bend to Trump's will have folded very, very easily.
Harry Litman [00:12:33] Yeah, and we're now learning today how much of a war chest he'll have as he goes into presumed exile. So what does this mean then? There's still a lot of holdouts, a lot of holdouts in both houses. Mo Brooks is kind of a leading figure. With McConnells coming into the fold, they begin to seem ridiculous, but they also begin to seem like, why change now? So do you think there's going to be substantial membership in Congress that all the way through the Biden administration holds to the view that he's illegitimate and was unfairly elected?
Michael Schmidt [00:13:11] I don't think that you can take the Trump base, and the Republican Party's base, for that matter, in this era and feed them this diet of 'the election was stolen' for six weeks, as sustained as that has been, that argument, and just expect it will just go away and dissipate. And I think that they have really, really spooled up the party on the idea that Biden is not legitimate, and that the election was stolen. And I don't think that's just something you can just sort of turn off on January 20th and say, 'oh, we really didn't mean that. Let's just go back to normal governing.' So I think it really will set the tone here coming in, and you will have a base that believes that an election was stolen. And that's not a small thing.
Dana Bash [00:14:01] I'll just add to that. I mean, Mike's right, of course, as always, but it's not just the steady diet that is being fed to them with media, with the president's language. The president's allies have used the levers of power that they have in Congress this past week. And I'm talking about Ron Johnson the homeland security chair, had a hearing, and the subject of the hearing was how much fraud there was in the election. It was like a hearing in another space, time and dimension. And luckily, he had Chris Krebs there who was fired because he deigned to say that the election was safe and secure. I'm sure they could use them there now that there's a major cyber attack going on, but that is case in point of what Mike was just saying, which is that there is no way that this is going to end anytime soon. Republicans feel that this is not just about feeding the Trump beast, but at this point, the beast has taken on a life of its own and it's all of their shared constituencies.
Ted Lieu [00:15:03] I agree with what Dana and Michael are saying. There are two things going on, there is whether or not the Trump base thinks the election was stolen, versus do they understand that Joe Biden is the next president of the United States and is president, and I think they will understand that The same reason that when you look at Democrats, overwhelming majorities of Democrats believe that Russia engaged in a systematic and sweeping attack in our elections in 2016 and that affected the elections and help Donald Trump win, I believe that, it doesn't mean that I don't think Donald Trump is the commander in chief and can't execute orders and so on. I accept that. So there's still going to be these sort of two potentially contradictory ideas, but I don't think it's going to stop Joe Biden from governing. The U.S. senators and members of Congress, the Republicans are not going to not cast votes or not do their normal course operations, and just sort of do bizarre things because they don't think Joe Biden is president. I think they will accept that fact. They can still think the election was stolen, but governing is still going to happen in the next four years.
Michael Schmidt [00:16:04] I actually want to ask the congressman a question that I've been thinking about this week, and it relates directly to what's going on. House Democrats were at the forefront of publicly prosecuting essentially the case against Donald Trump in terms of Russia from the beginning of the administration. Yeah, they've been at the forefront of that. How much do you think that the Republican Party's reaction in the past several weeks has been a reaction to that, that it was this pent up notion that they thought that the Democrats tried to delegitimize Trump and then they can then use that as an excuse to do what they're doing. I realize that that is sort of applying a level of intellectual honesty to their behavior that probably doesn't exist because they don't need things to do things. But how much do you think this is a reaction to the push against Donald Trump on Russia?
Ted Lieu [00:16:56] That's a great question. I personally don't think very much of it has to do with impeachment. It just has to do with what Donald Trump says. Donald Trump could say the moon landing was fake, and most of his base would believe the moon landing was fake. And it's very clear to me that even if there was no impeachment, Donald Trump would be saying exactly the same things right now, that the election was stolen, that it was rigged. In fact, he was saying this before the 2016 election results happened. So I think his base just does whatever Donald Trump says on any given day. And there is just factually a difference, right? The United States Department of Justice found that Russia engaged in a sweeping, systematic attack of our elections in 2016, the Department of Justice found absolutely no widespread voter fraud in 2020. So just factually, there are massive differences.
Dana Bash [00:17:43] I actually think that, obviously there are differences and they go on and on, but I actually think that there's something to that, Mike. I'm sure you have heard this in your reporting, as I have, who knows what people out there, average voters think. But when it comes to the president and his psyche, I've heard time and time again from people who talked to him that he is still of the belief that Democrats never let him become a legitimate president, that from the very beginning it was all about whether Russia stole it and Russia collusion and so on and so forth, and that some of this is that he just doesn't want to believe reality, but some of it is retribution, that that is actually something that he articulates. Are you hearing that also?
Michael Schmidt [00:18:23] Yeah, at the most basic level. I mean, with Trump, you have to go to the most basic common denominator. He's a tit for tat person. If you did something to me, then I can do it to you, it's like a child on a playground. So you can see I mean, he's even said as much that this is retribution and this is getting the Democrats back for what he thought was done to him. He's not someone to easily move past anything, but he certainly never moved past the Russia question ever. I mean, he's still talking about it today.
Harry Litman [00:18:53] Yeah, I'm often drawn to sort of third grade playground images when I think about the president. The basic question underlying everything we're talking about is, does he continue to be aggrieved and furious? That answer, I think, is clearly yes. But does it continue to be effective with his base? There's a minority view that says he fades somewhat as he's out of power, but I think nobody here holds to it. Let me ask one sort of final question going out of McConnell's embrace of reality, there was a little bit more we saw this week. They have a long standing relationship, McConnell and Biden, there's actual concrete steps to a modest stimulus. If they form a sort of working relationship, and so there's actually some kind of bipartisan conduct by the government, will that mute the Trump diehard partisans, or is this still going to be a huge part of the political calculus for the next four years?
Ted Lieu [00:19:55] I'm actually one of those in the minority that believes that Trump, in fact, will fade. A recent poll came out and the way that was highlighted was, 'wow, look. 71 percent of the Republican base wants Donald Trump to run again.' My take on that is, he's not even out of office and already nearly 30 percent of Republicans are rejecting him. And so I think four years is awfully long time when he doesn't get to do anything, because he's no longer president to shape what's happening United States. I do think he's going to fade, that's my sense. And then in terms of what Mitch McConnell is going to do, he might view the next two years differently than the next four years. I think Mitch McConnell's calculation is going to be what sorts of things do I do that make sure that I retain control of the Senate if, in fact, they win one or both seats in Georgia. And I think that's how he's going to view it, and we'll see how he makes that calculation.
Dana Bash [00:20:47] I don't want to be Debbie Downer, but I think that a lot has been made about the Biden McConnell relationship, and they do know each other well, and they've worked together for decades, obviously, first in the Senate as colleagues and then when Biden was vice president, but it was when it was break-glass time that they got together and made the deals for the most part. Right, Congressman? I mean, they didn't sit down at the beginning and say, 'let's work out a bipartisan solution to problem X, Y or Z or craft legislation A, B or C,' it was 'oh, my God, the tax cuts are going to expire. Let's fix it. Oh, my gosh, the government's going to shut down. Let's fix it.' And that's when they came into play. I mean, that's not nothing. It's something. But it's not as if they both have a history of Pat Moynihan bipartisan crafting of legislation.
Ted Lieu [00:21:38] I agree, Dana, regardless of the relationship, I believe that McConnell's view of keeping and retaining power is just going to override.
Harry Litman [00:21:47] All right. So there it stands for now. I think January 6th will be a moment of real drama and of course, the Georgia election runoffs the day before, which we'll have a special episode on next week. Let's switch gears and focus briefly on the Department of Justice. So this week, Bill Barr announced his resignation in a remarkably fulsome letter to the president. And we also learned that some sort of investigation of Hunter Biden has been going on since 2018. Let me start briefly with Barr, so he goes to this meeting about voting fraud cases that Trump's desperate to pursue and after which Trump announced Barr's resignation in a tweet. I think there's still a difference of opinion about this, did Barr walk of his own accord or did Trump basically show him the door but permit him to put it in the guise of a resignation?
Michael Schmidt [00:22:41] I think the answer is a little bit of both. I think that Barr knew he had to get out as early as he could. He knew that Trump had lost. Barr had been attorney general before, at the end of George H.W. Bush's administration. He had gone through an incredibly tumultuous time at the end of that term because there were questions about a special counsel issues, actually, and there were pardon questions, and questions about Iran-Contra that he got himself caught up in. And he knows that the handoff is certainly, he's someone who has looked very skeptically of the handoff from the Obama administration to the Trump administration, that the transition is a fraught time. So he wanted to go early. So Republicans tried to stop him, not stop him, but convince him to stay. Then Trump got really mad at him because he said there was no election fraud. Barr sat at home last weekend, afraid that Trump was going to fire him, living in fear of Trump firing him. I still find it amazing how these people live in fear of being fired by tweet. But I guess that's the story of the Trump era. And then Barr had a meeting with him in which they basically came to an understanding that he was going to leave early. So in sort of an exchange for that, what we saw was this very laudatory letter from Barr to Trump about what a great president he was, and sort of through that dancem we got the end of Bill Barr's term as attorney general.
Ted Lieu [00:24:04] That was one of the most bizarre resignation letters I've ever read. And it really shows you that Bill Barr was much more loyal to Donald Trump than to our country or to the Constitution. I thought it was a very embarrassing letter that no attorney general should ever write, and I'm very glad that Bill Barr is leaving. And I am very fond of Bill Barr's quote, where he said earlier that, 'history is written by the winners.'
Harry Litman [00:24:31] Yeah. I mean, it was a crazy letter and you wonder, it really is within Trump's M.O. to have basically, as Michael said, kind of insisted on it the same way he stages the cabinet meetings where everyone has to go around and praise the great leader. But let me just push back a little. Michael talked about his failure to back him on the election fantasy, something bigger, it seems to me, that he didn't back him on, he knew when he came in because it had started under Sessions that Hunter Biden was under federal investigation. That's the very nugget that Trump was pushing for from the president of the Ukraine. And in so much more effective fashion, he could have had this great talking point and Barr didn't give it to him. That's a pretty significant - or do you disagree?
Dana Bash [00:25:22] I totally agree with you. I think the Hunter Biden thing was was huge, but honestly on this, I defer to Mike because he's so well sourced in this world. But just knowing, just even what's in public and and talking to sources for the past two years on this, or year and a half or whatever it was since impeachment, the level of obsession that the president has had with Hunter Biden, Joe Biden, and obviously it was goosed in a big way by Rudy Giuliani, and the fact that he finds out, 'oh, by the way, this is actually going on,' and that Barr apparently didn't want it to be public, which is the right thing to do. That is a sin that somebody like Barr or anybody around him just doesn't come back from. Which is not a sin, I mean he did the right thing, but from Trump's perspective.
Ted Lieu [00:26:05] I agree with Dana, and I also want to note that people are complicated, right? It's rare that a person is 100 percent evil or 100 percent good. It's usually sort of a mix. And, yes, Barr did not find election fraud, he also kept this investigation secret. What I find even more remarkable is that everybody else who knew kept it a secret also. And so you had all these folks that knew this fact and did not disclose it, and that does give me some more hope in the Department of Justice.
Michael Schmidt [00:26:37] The thing about Barr - and look, I think the Barr legacy is going to be complicated, and especially if he's trying to make himself look like a man of the law, he will benefit from going out with sort of these bad terms with Trump. But the thing about Barr that I see so clearly today, moreso than anything, is that bar really had the chance more than anyone to turn this thing, whether it was the Hunter Biden thing or particularly the election thing, in Trump's favor. A well-placed Barr comment in the aftermath of the election about voter fraud, I think would have given even more Republicans the cover to question the result. And I think that if Barr just dipped his toe in the water just a little bit to help Trump, it would have gone a very, very far way, and it would have made this even messier at the end. So in many ways, I think that Barr's decision not to do anything around the election may turn out to be one of the most consequential things that he did, because as we saw here, the Republican Party was willing to go along with this, and Bill Barr is someone that they look to and that they respect, and it would have given the McConnells of the world, I think, more cover to protest even more here.
Harry Litman [00:27:53] That's right. And he dipped his toes much more in circumstances where it was no less dishonest. He'd been willing to do i, and this is a much longer topic, but I think, Michael, part of the complication, I've tried very hard to come to grips with it because I was one of the people originally who championed him. But I do think that when all is said and done, there turns out to be something special about the whole 2016 probe and Mueller that he loathes, and in some other respects that have been consequential, he tended to play it straight. It's not just the election because again, Hunter Biden he could have whispered in the president's ear any time in the last couple of years. We'll be coming back here a lot, but with the couple of months we have on the DOJ, maybe we'll ask if you guys have thoughts about the AG search. It seems to be getting more complicated, and we really are getting the impression that they're undecided and that there are crosswinds here. What do you think a fly on the wall would be hearing about these discussions?
Ted Lieu [00:28:57] My sense of what Biden will do is appoint an attorney general that #1 he believes can get confirmed, and #2 is going to be perceived as independent. There are a number of candidates, I think, that fit those qualifications, I think this would be a very personal decision made by Biden, he's going to listen to his advisers, but at the end of the day, I think Joe Biden is going to go with his gut and make a pick. I have no idea who that's going to be.
Dana Bash [00:29:20] I have a question for the for the crowd. Merrick Garland, Merrick Garland. What are the chances that Merrick Garland actually...
Michael Schmidt [00:29:28] I mean it'd be a fantastic story.
Dana Bash [00:29:29] Right?
Michael Schmidt [00:29:29] Like, you know, putting the politics of it aside, like it is really sort of has a sort of Aaron Sorkin notion to it. It's like, it's like a dramatic thing. This man was nominated to the Supreme Court. He thought he's going to be on the Supreme Court. This unprecedented thing happens where the Republicans stop him. He goes away for four or five years back to his old job, and everyone thinks, 'oh, poor Merrick Garland never got the job that he wanted.' And then he comes back to be attorney general, in a time to restore the beleaguered Justice Department. I mean, that's just a great narrative. I mean, it would be a fascinating thing to cover, and Garland, to me seems to have this you know, he's a judge and he seems to have much more of a makeup as a judge and not a partisan and watching a judge in that role as attorney general. Look, he did work in the Justice Department, he was a prosecutor, but coming at it as Judge Garland would be a refreshing story to cover.
Harry Litman [00:30:26] I just have to interject that, I mean, he did more than punch a ticket there. I worked very closely with him down the hall, but he did it for four years. And, yes, he's - I mean, he was sort of judicious in his own way or a total, total rule of law guy. But he is a paragon of excellence. Sort of once in a generation guy, anyone who's ever worked with him would think so. And he will, I think if he's nominated, you're exactly right about the fight, but there will be Republicans on the D.C. Circuit who say he is a total straight-shooter. I think the issue will more be on the left, people who think that Doug Jones or, if he's even in play any more, Deval Patrick would be stronger on civil rights, or people who think that from having been a centrist and applying criminal law, which is conservative, right, that he won't be progressive enough. That's where I think the flack will come on his side.
Dana Bash [00:31:23] And you have to replace Garland on the bench.
Harry Litman [00:31:25] There's that, too. So you want to know, as in so many other things, what's going to happen on the 5th in Georgia, but you won't know. He can't wait that long.
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 going to explain a topic of great importance in these next 30 days: namely, burrowing. When an outgoing administration tries to install some of its political appointees, who 'burrow in' to career positions. And to read about it, we welcome Josh Siegel. Josh Siegel is a writer, co-executive producer, comic book writer and occasional actor known for his work on 30 Rock, The Unbreakable Kimmy Schmidt and the fabulous, The Good Place. In addition to producing and writing for The Good Place, you may recognize Josh in his role as the recurring character and nemesis Glenn on the show.
Josh Siegal [00:32:28] Can Trump install his political employees in career government positions? There are two broad types of employees who make up the executive branch workforce: political appointees and career employees. Political appointees align the work of executive branch departments with the administration's policy views. They serve in positions that involve policy determinations or require a close and confidential relationship with the department or agency head and other top officials. These usually include the highest officials in each agency, as well as selected policy advisers. Political appointees can be selected on the basis of politics and without regard for their knowledge, skill or experience, but their tenure usually ends when the administration leaves office.
On the other hand, career employees form the backbone of the federal civil service that operates government without regard to the president and cabinet. Their selection is based on merit and without political influence, following an open and fair competitive process. Depending on level, career employees are protected by various merit systems to ensure that they are not terminated for political reasons or without reasonable cause. When administrations change, some political appointees seek to convert their status to that of career employees to remain with the government. This is known as 'burrowing in.' Burrowing in raises concerns, because the burrowed employee takes a spot that would have gone to a career employee selected based on merit and skill. It also installs someone in a permanent position who might seek to undermine the work of a new administration with different policy priorities.
The end of an administration is an especially ripe time to try to install political employees and career positions. These conversions are legal, but only when an agency follows a strict set of procedures, such as publicly advertising the job and ensuring that the applicant is the most qualified and experienced to hold it. These procedures ensure that the employee is qualified for the civil service job. When an agency fails to follow these procedures, the new administration can fire the employee without complying with the strict civil service protections. This happened in 2017 with an employee of Housing and Urban Development who had previously been an Obama political appointee to the Agriculture Department. The employee challenged his firing, but the Court of Appeals determined that his hiring had constituted an impermissible conversion and permitted the termination. Generally, the Office of Personnel Management, called the OPM, must approve any conversion of political appointee to career employee, and conducts periodic reviews of conversions to make sure that the process follows the rules and complies with the merit principles underlying career federal service. The Government Accountability Office, or GAO, also conducts periodic reviews, as does Congress. So look to Congress, the GAO and OPM to be vigilant during the transition period to ensure that the Trump administration does not abuse the burrowing in process, or seek illegally to install any political appointees in career positions. For Talking Feds, I'm Josh Siegel.
Harry Litman [00:35:46] Thanks very much, Josh Siegel. You can catch Josh's work in all four seasons of The Good Place, which are available on Netflix, and also in the brand new Saved by the Bell, which the L.A. Times called 'one of the year's best TV shows,' and which is available on the NBC Universal streaming platform Peacock. The first episode is free.
All right, so let's move on for a few minutes to what some people are suggesting may be the worst hack of the US government in history and our cyber security agent has called 'a grave risk.' First, we've got a little bit of different reporting, some say the hackers are connected to the Russian government. Some say, you know, it's straight from Putin. Does it seem to be really at the government of Russia level? Do we know at this point?
Ted Lieu [00:38:04] I don't think we know, but I think what's more important is not just who the foreign power may be, but the fact that this keeps happening. So their hack of the Office of Personnel Management, I was in Congress when that happened, that was a devastating hack that really significantly affected our national security. And it wasn't because there was a kinetic missile strike or soldiers attacking the United States, it was basically a cyber security attack on the US. And the same thing happens again, and it happens a very similar way, which is through a third party vendor. And we just have to be more serious about protecting our federal agencies and also our private sector, but we have to also focus on third party vendors, not just on the actual software that the federal government uses by itself, but also the ones that we purchase and buy from private sector companies and make sure that those are tested, and that we continue to monitor those programs as well. I'm one of four recovering computer science majors in Congress, I think it might be one of three next term because one of the folks retired, and cybersecurity is just very clear to me is something we need to jack up from a scale of 5 importance to 10, and I hope the Biden administration does that.
Harry Litman [00:39:15] You know, it's interesting, Biden administration already is making moves to do it. It occurred to me that we are exactly at the juncture that we were when Mike Flynn began to kibitz and meddle. And yet I see it from a different standpoint now where the Trump administration is doing nothing. Biden would like to go forward, he's at least rhetorically being kind of a commander in the wings, but he's paralyzed until they actually get in.
Dana Bash [00:39:42] Well, they don't know. I did some interviewing of people this week, and they even as we speak, the hack is likely going on, and the scary thing is that our intelligence community doesn't know several really important things. A, has it ended? They don't think it has. B, was it intended to disrupt, or was it intended to take information or both?
Harry Litman [00:40:06] LIke traditional espionage or something bigger?
Dana Bash [00:40:09] Yeah, it could be that the goal was to blow up the power grid in the middle of the winter. We don't know that, it could happen tomorrow and they could have all of the plans in place to do that based on how they were able to get in. I mean, it is really scary stuff.
Michael Schmidt [00:40:24] The only thing I would say on these hacks is that every time there's like a hack that happens, it's always like the worst hack that we've ever had. And I just think that we should just have a little bit of patience in the sense of look. Edward Snowden took over a million documents from the intelligence community and made them public. That was like a very damaging thing for the intelligence community. OPM, as the congressman was pointing out, had basically all the personal information for anyone that's ever worked for the federal government stolen. The Russians in the second term of Obama's administration, got into the unclassified email system in the White House and got Obama's emails. And this one may turn out to be the worst, but it's hard to know because it's so early in that process and these things do seem to get worse and worse, but I don't know.
Harry Litman [00:41:06] Tying this to what Dana said, the question seems to be, is the idea just to do traditional espionage like everyone does, or this really could give people the capacity to do something much worse, really grind systems to a halt and the like? This is a really interesting question. Brad Smith, president of Microsoft, is kind of stepping into the void that the government's leaving, says there's just got to be some laws here as there is in the law in wartime. There are things you just can't do. And he proposes in the same way, espionage, OK, we know that's going to happen, but chain of supply attacks and the like, that has to be the equivalent of illegal wars.
Ted Lieu [00:41:47] Here's a reason why this hack is a little bit different. The scale of it is really quite vast. Based on public reporting, we're talking about potentially over 18,000 customers that were compromised. And we also know that earlier in the year, they were selling access to this on the dark web. So the reason we don't know what may happen in the future is, what if you're a North Korean intelligence agency that is looking at this going, 'oh, OK, I'll buy some access,' or if you're the Iranians or if you're just a criminal hacker group, who knows who may have access to this, including not just the Russians, it could be anyone potentially. And that's why this could be a pretty devastating hack.
Harry Litman [00:42:27] All right. We have just about a minute for our final feature of Five Words or Fewer. I'm going to make this a host prerogative because we were hoping possibly to talk briefly about Michael's scoop on the Cleveland Indians, combined with Major League Baseball's decision to finally recognize statistics from the Negro Leagues, elevating suddenly such all time greats as Josh Gibson and Satchel Paige into the company where they deserve to be. So let's make this the Five Words or Fewer and I'm dedicating it to Tom Kagle and Anne LaFollet, whose relationship is built on the great game of baseball and one of whom is about to have a birthday. So five words or fewer, please, "are the actions of major league sports leading the charge for social reform or following the leads of others?" Five words or fewer?
Michael Schmidt [00:43:25] Yes, they clearly know they have to change.
Dana Bash [00:43:28] OK, this is a shout out to my producer, one of our producers, a deputy political director, Terrence Furley, who's a Cleveland native. Cleveland native Terrance Bearly, says they should be called the Guardians.
Harry Litman [00:43:43] Congressman?
Ted Lieu [00:43:44] So I'm just going to give you the most politician answer ever: leading and following.
Harry Litman [00:43:49] OK, and I'll play it straight: Baseball, football following, basketball leading.
Thank you very much to Congressman Ted Lieu, Dana Bash and Michael Schmidt. 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. 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 Josh Siegel for explaining the important transition topic of burrowing to us. Our gratitude goes, 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.
