Harry Litman: 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 legal and political topics of the day. I'm Harry Litman. Happy Memorial day. Remember how the country was going to be opened up and raring to go by Easter?
Well, here's where things stand as we hit the traditional beginning of summer: The country is quickly verging on 100,000 deaths, about 30% of the worldwide total. A new study by the Columbia School of Public Health estimates that over a third of those US deaths would have been avoided, had we not dithered for so long before initiating social distancing.
The disease and death toll moreover is much more severe among people of color. African Americans and Latinos are about three times as likely as Whites to know someone who has died of the virus. On the economic side, we're approaching 40 million jobless claims and record mortgage default rates. Top economists advise that we are in such a deep economic trough that we may never fully dig ourselves out.
That's a snapshot of today, but this week also saw the country looking backwards and ahead. Backwards toward the endless Groundhog Day replay of the Michael Flynn case and the circumstances of his lying in January of 2017 to the FBI and forwards to November and the election as the Trump administration began to show its playbook for November with allegations of voter fraud in Michigan and elsewhere.
To discuss these and other events, we have a terrific panel of not just returning, but charter feds, former prosecutors, all but with rich additional government and experience who are more than well-known to listeners of this podcast. They are first. Paul Fishman, currently a partner at Arnold and Porter. The former US attorney for the district of New Jersey and long-time AUSA there. And he also had a distinguished career in the Department of Justice in Washington where he was the principal associate deputy attorney general or PADAG. Which I learned quickly, basically meant he had rights to sort of call the shots for anything and everything.
Paul, welcome back.
Paul Fishman: Well, it's nice to be back, but every time I come, Harry, you make me sound even more important than I did last time.
Harry Litman: Keep coming. Keep coming. Barb McQuade, the former United States attorney and assistant us attorney in the Eastern district of Michigan. A current MSNBC legal analyst and professor at the university of Michigan Law school.
Thanks for being here, Barb.
Barbara McQuade: Oh, you bet. Harry. Thanks very much for welcoming me back.
Harry Litman: And Maya Wiley, the university professor at the New School, a civil rights attorney, legal analyst for NBC news and MSNBC, and previously an assistant US attorney in the Southern district of New York and counsel to New York city Mayor Bill de Blasio. Maya, thanks for returning.
Maya Wiley: It's great to be here, Harry, particularly with another boomer.
Harry Litman: You've been talking to my kids. Okay. Um, you know, we are pretty good friends and, and the virus has been a time for checking in and we really haven't done it for a while. Let's just take a minute or two.
How is, how's everybody doing? Are people fed up, hanging in there pretty well? How's the virus treating everyone in your various states of, I believe New York, New Jersey, and Michigan.
Maya Wiley: Wow. And we're all in epicenters.
Paul Fishman: New Jersey is finally starting to flatten the curve, but what's really sort of disturbing actually is that the number of people who are dying at home and not from COVID jump dramatically because people apparently are really afraid to go to the doctor and they're really afraid to go to the hospital when they need to and so the number of EMT calls in which they've actually called it a death has dramatically jumped, which has been a terrible thing. And the other thing that a friend of mine said, you know, if you took a heat scan in terms of how tempers are fraying and sort of went house to house, his suspicion isn't, the temperature in that way is starting to rise.
Harry Litman: Yeah. That's my sense generally, especially if you don't mind my saying so on the East coast where people are like, ‘okay, enough of this, we've hung in there. Okay, but we want out.’
Paul Fishman: Right. I think that'll change, obviously with the weather getting better and being able to get outside more.
Harry Litman: Barb and Maya, any observations about life with the virus.
Maya Wiley: Part of the struggle that I think is a very big part of the reality in New York city is for those of us who have space, who are not in overcrowded conditions, who have access to the Internet, who have paychecks have been extremely lucky and unfortunately a shrinking group of people. And I worry a lot, both about the fact that we're basically doing fine in my household because we have all those things and to Paul's point, one of the things that we're saying is that we have had an undercount of deaths due to COVID and COVID complications because people have been dying at home. And also that, you know, we have seen other aspects of communities start to come outside as the weather gets nice of unfortunately, some very disturbing videos about where and how enforcement of restrictions is playing out based on the demographics of the community.
Harry Litman: Let's move to that if you don't mind. I wanted to touch on a couple virus related stories, including racial disparities. You've made this point about law enforcement issues, but then just more basically we're learning in more and more States back to Michigan and Barb, I know that the African American community is about 14% of the population, but 40% of the deaths, and that seems to be happening generally, that people of color are bearing a disproportionate brunt of the really serious impacts. What's going on there? Why is that happening and is there something we need or should be doing now or is it sort of structural and at least for these few weeks insoluble?
Barbara McQuade: Well, I think here in Michigan, for anybody who has lived in the state or understands the disparities that exist, it's, it's maybe not surprising that we're seeing this difference in fatalities in COVID, but I think maybe there is a silver lining here in that it is shining a light for the world to see that when you have poor access to health care and when you have disproportionate poverty rates and unemployment rates and other things,it is going to hit those communities harder. And so, I'm hopeful that as a result of this, maybe we'll do some things to take action. I think it's a problem that's easy to ignore in good times. And then I think in bad times, like now, it puts this contrast into stark relief. Our Lieutenant governor, Garlin Gilchrist, is heading a task force to explore these disparities and make some recommendations and I'm hopeful that when we come out of it, perhaps we will have some long-term solutions to help address the healthcare disparities that exist in our state.
Maya Wiley: You know, from the New York perspective--I mean, I absolutely agree with Barb on the opportunity here to find and forge a new political will to address long standing issues that are definitely the children of policy decisions that disinvested in low income communities of color and in many instances created them. And, and I say this because every single crisis that we experienced in this country, whether it's Hurricane Katrina in the Gulf coast, Hurricane Sandy here in New York, the Great recession, which hit African American and Latino communities and native American communities at a much greater rate and with a much slower recovery. It's every single disaster that we have points out the same disparities every single time. And it's always the same policy decisions and history of policy decisions that are, you know, the underpinning. And I'm just going to use one example in the context of COVID is the fact that we had in the news, many people saw that there were particular hospitals and they were public hospitals that were really, you know, struggles for hospitals across the board, certainly. But in particular, the hospitals that were at crisis point, at breaking point were public. And in some instances there was bed census available beds in private hospitals in other parts of the city that is, and they are racially identifiable patient populations. There is certainly a structural reason for that, but even in the context of an emergency, there's a psychological barrier to where and how we see the opportunity to pitch in and solve a problem in the immediate term because, because there's so little connection and advance thinking about how we share those resources. If we don't start to recognize that we don't get treated the same way when we pick up the phone and make a call about our healthcare, then we're not going to solve the problem.
Paul Fishman: I'm now very steeped in representing people in long-term care industry—nursing homes. And there's been some very interesting studies done by a professor at Brown, Dr. Moore, that the highest rates of infection and death in nursing homes had actually, in the end, nothing to do with the star rating of the nursing home. It had nothing to do with a bunch of other factors except that the incidence was highest in the largest nursing homes, in the most densely populated urban areas, and that basically there's a huge correlation between the incidents of the disease in the County in which those nursing homes are located. So if you have people of color, and if people of color are economically disadvantaged as they, as the statistics show. Then they're more likely to rely on public transportation and more likely to be in the kinds of living environments that Maya was talking about earlier. And as a result, you're just going to create an environment in which it's much harder to do social distancing and in which something like COVID is going to spread much more rapidly.
Harry Litman: Yeah. That, I mean, that seems to me to be a really big part of it. I guess the latest thinking is that it's really person to person more than surfaces that are culprits here, and so population density matters. A couple other things that seem pretty evident to me. People of color are more often going to be the kind of front line workers that we insist on continuing to work during the crisis. Don't have the luxury as everybody on this call does have of working at home and their laptop. And then I think COVID strikes disproportionately at people with certain underlying conditions like hypertension or diabetes, and those strike bigger up communities of color. And the question is whether there's something to be done in the concrete and the virus times, or are we limited to just this opportunity for public awareness of what's going on. There was one other virus story I did want to touch on.
It seems that we have, maybe this has to do with Paul's heat spectral count from house to house, but we're getting some really broad lawsuits now to basically strip state governments of the power to issue shelter in place orders. A big one was just, I think, denied yesterday in Michigan, Barb, in your home state. So I wonder if you could both speak to that, but also what's going on here? Is this just our litigious ways and people getting a little fed up, or is there some more of an organized movement behind them?
Barbara McQuade: I think there've been four lawsuits now brought against Governor Gretchen Whitmer for allegedly exceeding her authority as governor in stay at home orders, and they've all been rejected. I've read the lawsuits, you know the complaints themselves, they strike me as weak.
They've been brought on behalf of business owners and our Republican led legislature. And the arguments are of a couple of varieties. I mean, one is, ‘You're violating my constitutional rights by ordering me to stay at home.’ As we all know, no constitutional right is absolute and going back to that case of Jacobson versus Massachusetts from 1905 where the Supreme Court held that as long as there is a reasonable and necessary basis for public health reason—in that instance, a smallpox outbreak, uh, you know, COVID is right on all fours with that—that as long as an order is reasonable, it's generally going to be upheld. And so the constitutional arguments have failed. The other argument, in Michigan has been that Governor Whitmer has exceeded her statutory authority, and of course that's going to be different in all 50 States.
But in Michigan, the authority is really quite broad. There's a 1945 statute that says that the governor shall have the power to declare emergencies and to issue orders necessary to control, uh, the emergency until it is over. And so there has been an argument that it exceeds the separation of powers within the state constitution because only the legislature can issue laws and they delegated that power to her.
They have the power if they want to, to pass a new law by a veto proof majority. And I don't think they're able to do that. So, most of those orders have been rejected. We've had, as you know, some protests at our state Capitol, sometimes with people who are armed. It's a small group, but they're getting a lot of visibility. In Michigan at the moment at least. There's no prohibition of open carry at the state Capitol. But it was a really scary scene.
Some lawmakers were wearing bulletproof vests when they were voting on an order to extend the emergency orders. So, there's a lot of chaos there. But if you look at the polling data, something like 76% support Governor Witmer's orders, which some characterized as extreme, but I don't think there are any different from the orders that are going on in New York or New Jersey or California or other places where the outbreak has been high.
And it's been high in Michigan, we have the third highest number of deaths. So the legal arguments are being rejected. I think it's actually a small faction that opposes the stay at home orders and one gets the feeling that they are politically motivated in an effort to draw a wedge between red and blue and to push our governor into anti-Trump mode. But she doesn't take the bait. She says she's going to follow the data and do what she needs.
Harry Litman: She’s a cool customer, isn't she?
Barbara McQuade: Yep, she is. She's done an excellent job. I feel that I'm in good hands with Governor Whitmer.
Maya Wiley: You know, one of the things that's interesting about this one, what is obvious is Donald Trump himself has stoked people to fight and oppose these restrictions, even though they're based in recommendations and guidance that have come from the Centers for Disease Control and other health experts.
But these instances of individuals who were suing. So, you have this man in Colorado who was a restaurant cook, who lost his job as a cook, which was obviously a horrible thing. And we're seeing far too many people losing paychecks. And that's something the federal government can do something about with some paycheck support during this crisis as businesses are closed.
But what this man chose to do was bring a lawsuit against the state claiming a constitutional taking of his wages as a result of restricting the operation of restaurants, because as enclosed places, they were clearly going to be a danger to folks. And there was another one in Texas in which a couple was refusing to pay attention to some of the restrictions. So, I think we're also seeing individuals who are taking the cues from Donald Trump that there is something wrong with restrictions, even as public health experts are saying that these have been the kinds of things that have helped us flatten that curve and create the best hope of us getting back to a normal economy. [16:00]
Because we've created the way to ensure that people can work and be in public safely. I think that it's very clear that it is also a direct message to individuals that somehow their rights are being violated when, as Barb said, not really, not necessarily.
Harry Litman: Yeah. Or they are, I mean, this is what's bizarre about it. We've seen a whole raft of suits, especially in the free exercise religion area, and then in the gun rights area. And they always begin with, we've got constitutional rights here. And of course they do have constitutional rights here, as do all of us. There's all kinds of constitutionally protected activity that we'd be doing every day, but tor the situation. But as you say, it's well established that this is the situation and there needs to be an argument. This is a little bit aside, but he's now suggested that the entire country should decide that certain religious services are essential and have a one size fits all notion there.
Maya Wiley: Well, and Barr saying that he was going to open investigations into whether state restrictions were violating constitutional rights. And you know, certainly at least in one case, there may be a good claim that there has been discrimination based on religion.
Harry Litman: Sure. If they treat them differently.
Maya Wiley: If they treat them differently in terms of how the restrictions—right. But that's really the legal question. Are people being treated differently, say, because of their religious practice versus that it is an unsafe activity.
Paul Fishman: But this is where their tactics are in some sense of spectacularly clever and devious is really the word I'm thinking about. The President can stand in the White House and pronounce, ‘We have to have these restrictions. We have to do all this stuff’, but then almost like Henry the Second he then encouraged this view that you should go protest and you should go file a lawsuit. And if the lawsuits win, then that's great for him. If they lose that, he blames the courts, right? So in so many ways it's a very clever, but as I said, devious strategy to pretend that he's doing the right thing while encouraging people to do the wrong thing.
Harry Litman: And it's the federal government, and especially Bill Barr and Trump sure seem, big on rattling sabers with powers that, you know, they don't have. Federalism has gone out the window. And the notion that this is largely in the police power and of different states, you wouldn't know it from some of the proclamations that suggest if they don't all fall into line, whenever that means we're going to be bringing out the big guns, but they don't really have big guns to bring out.
Paul Fishman: The church thing is a perfect example though. He said, “Everybody, everybody can go to church on Sunday. I direct the governors.” Well, he doesn't have that power, right? It's just that it's just not the way it works. But so if people go and they're turned away, it will be not the President's fault because he wants everybody to worship.
Barbara McQuade: Paul, you hit on it. A lot of this is just propaganda strategy, which President Trump is masterful at. I mean, I think all of this stuff about criticizing governors for staying shut down is also a way to deflect blame about the economy. So if the economy is bad in November, he can say it's because those governors all kept their economies closed when I was urging reopening. So, it is a brilliant strategy. You know, heads I win, tails you lose.
Maya Wiley: Yep, exactly.
Barbara McQuade: But really irresponsible leadership,
Harry Litman: Alright. Let's, switch gears to the ever-fascinating—I guess one way to put it--let's go back to before the Trump administration even was sworn into office and the Michael Flynn case. So we have this really high stakes showdown brewing between the Department on the one hand, aligned with Michael Flynn saying, we want to dismiss it and judge Emmet Sullivan thinking, we're not sure what, but he's at least appointed someone to try to make the arguments that Department won't make. We had a late-breaking development on this yesterday, that's bizarre as any other developments in this scenario. The DC circuit, the court above Solomon has taken a sort of mandamus request from Flynn himself and given Sullivan 10 days to write a brief, if I understand it correctly, to respond to the question whether he has to grant DOJ’s request to dismiss the prosecution before he's done any evidence before he's done any kind of consideration of what's up before he's heard from the parties below. Has anyone ever heard of anything like this? Assigning a judge to write a brief and doing it before the cases even started.
Paul Fishman: There have been instances in which judges have been called to account and sometimes they've hired counsel to prepare briefs for them in the courts of appeals. But what I can't figure out is why this has mandamus, because let's assume that judge Sullivan, if he just ultimately dismisses the prosecution, then game over. If on the other hand, he doesn't dismiss the prosecution, then the next thing for him to do would be to sentence Michael Flynn. He gets sentenced. And then this is clearly an appealable issue at that point, so I'm not, it's not clear to me what the jurisdictional hook was for the court to grant that.
Harry Litman: Explain briefly for listeners what mandamus is and when you're supposed to be able to get it.
Paul Fishman: It's an extraordinary writ when a judge needs to be ordered to do something that is really beyond the pail of what's legal. And traditionally the way the criminal justice system and the civil justice system work in an orderly way is that there's something, something's not appealable immediately because there's not a final order of final judgment. And if they're—the harm that you're trying to avoid wouldn't occur until later, you just let the case proceed. And when the judge enters, in this case, his final order, then somebody gets to appeal. So, it's a little strange. Now the case that the DC circuit cited in asking him to do that was a case in which they took an interlocutory appeal. But that was an appeal from an order by the judge not to do something. So this is a little, it's a little strange procedurally, I think in that way.
Barbara McQuade: Also, as you said, Paul, the standard is requiring a court to enforce a known legal right when there's no question about what the issue is. And I think there's a substantial question here about what the law requires. The rule itself says that an indictment can't be dismissed without leave of court. There is a case out of the DC circuit that held that a court did not have the power to reject non-prosecution agreement where both parties agreed to it.
But you know, in this instance it's something quite different. And I also know, Harry, that although the order does talk about the judge's decision about whether to grant or deny the motion to dismiss, it doesn't say anything about the other matter for which Judge Sullivan has appointed John Gleason to be his amicus. And that is determining whether Michael Flynn has committed perjury or contempt by, on the one hand, admitting in open court that he lied and then later submitting an affidavit saying he didn't lie. Not as to the legal conclusion, this materiality, but the factual question of whether he did or did not lie. And so it's interesting that I think that even if the court of appeals were to say, this is not a matter, you can reject—the motion to dismiss. I think that question of perjury and contempt is still going to be out there.
Harry Litman: That's interesting. So even if that happens, Gleason still writes his brief, but he's dealing with perjury under rule 42. Nobody can quibble with that. I mean, it's a little bit of a strange situation that he is able to appoint a prosecutor, but it's right there in rule 42 and it would be quite a stretch for a higher court to somehow say it's improper.
Maya Wiley: I want to go back to just how, not only bizarre this is for an appellate court to do this at this stage, but a reminder of the facts that are underlying this, which is that Flynn admitted to this not once, but twice.
This is the person who was the head of the Defense Intelligence Agency, and he's not clear on what perjury is. It's just patently ridiculous when he was offered a sweetheart deal of a plea, essentially, because he was probably going to walk away with no jail time or very, very little jail time, if any. So I think that part of what I find so shocking about this, in addition to the legal points, is one of the judges on this panel was one that so many court watchers had very strong opposition to because her views were so extreme.
And that's Judge Raugh and just one example that's not about procedure, but some of her views were so extreme that this is a person who even supported and defended this horrific practice called dwarf tossing, which even brought the disability community out in opposition to her appointment for the bench.
Harry Litman: And she's a Trump appointee, right?
Maya Wiley: And she's a Trump appointee. And she was one of the people who was sort of at the top of the list of nominees to oppose for both the civil rights community and a lot of court watchers who worried about both qualified judges, who were going to be judicious in every sense of that word. And that includes the temperament to do exactly what you all are talking about right now is to step back and say, well, no, we're not getting pulled into this right now, there's a serious process underway. This deserves some scrutiny. We won't say right now whether it is or is not appropriate and I think my concern is this is yet another kind of event that undermines the public confidence in critical institutions of government, and that includes the independence of the bench.
Barbara McQuade: Can I say one thing just about the merits of this issue as well? Think about the question that's before the court. It is whether under rule 48 a judge has any power whatsoever to decide whether to grant or deny a motion to dismiss when the government brings it. It is the government that has the sole power. Now, ordinarily under separation of powers, we defer a lot to the prosecution to make these decisions because we don't want the judiciary forcing prosecutors to bring or not bring certain kinds of cases. They have that power. But I think once it gets into the court after there's a guilty plea and all that remains is sentencing, you are in a very different posture because there's not much for the government to do.
They could not even show up in our state courts. Sometimes the prosecutors don't even show up to sentencing. So, the ball is really in the judges court. And imagine a hypothetical scenario where the worst situation you can imagine. What if the government's motion said, ‘we would like to dismiss the case against Michael Flynn because he is a friend of the President’s and the President doesn't want his friends to go to jail. Would we say that the court has no power to deny that motion? I don't think so. And so what's the difference here?
Paul Fishman: It's interesting Barb that you say that because there's the case of the DC circuit that the DC circuit itself cited when it asked judge Sullivan to respond as a case called Fokker services. And in that case, the government had worked out a deferred prosecution agreement.
The only question that the district court judge in that case had to decide was whether to stop the speedy trial time from running. And so that was an even more ministerial decision. But in talking about the deference that a judge should give to the decision of the executive branch of prosecutor, not to pursue a case any longer. The court said something I think is quite striking and something that I think will come back in the context of this case. The court said, the presumption of regularity applies to prosecutorial decisions and in the absence of clear evidence to the contrary, courts presume the prosecutors have properly discharged their official duties.’
And I wonder whether judge Sullivan overplayed his hand just a little bit. If he had just waited for everybody to show up and had said to the government, “I don't get it. Explain it to me.” And if he had said “That seems not okay to me”, and then rejected it, he might've had a better record going in instead of asking for time with the views of amicus briefs and the like.
Harry Litman: That was one of the main contentions in the Flynn motion that went to mandamus by a very hot headed, and tempestuous attorney that he's turned to. But supposedly we're hearing it's completely improper for him to have appointed an amicus at all in a criminal case. Does that hold water? I know it's unusual. We're in a situation where, as you say, something seems potentially awry and there's nobody there to represent the views of what would have been the United States in maintaining the prosecution. I know it may be not very frequent, but isn't it impeccable to actually do, or do they have a good point there that it's just too funky?
Paul Fishman: It's not unheard of for a court to appoint an amicus to argue a view that the court does not think will be adequately addressed. And it happens actually in front of the Supreme Court when, for example, that the administration changes as it did here and the Trump administration as it did here, reversed the government's position in an unprecedented number of cases, actually, across the country. And the court wanted to hear the other side. And did at points at amicus to adequately express those views. So I think that is not so unusual. It is a little unusual in the context of a criminal case in which the views of an amicus are actually quite rare. But I think, if you read as Barb pointed out what Judge Sullivan did, he asked a former judge Gleeson to help him determine whether Michael Flynn should be prosecuted for perjury or contempt. That is—that rule 42 clearly gives the judge the power to do that. Ordinarily, when somebody lies in front of a district court judge and the judge is annoyed, the judge calls the United States attorney.
And says, so writes a letter that says, “I'm referring this to you. Please take a look.” That can't happen here. Right? Because we already know where the US attorney's office stands on this case. And so there have been situations in which judges have gone outside the Department of Justice to do that. It's a procedure that has been rejected in some courts. It's been accepted in some courts, and it's just not clear the extent to which you can bring in a private party to prosecute a criminal offense against an individual. Now, Judge Sullivan, of course, could on his own say, he said X to me on Tuesday. He said, Y to me on Thursday? Those two things are inconsistent. There has been a perjury, and I'm going to hold them in contempt without anybody prosecuted. He has the authority to do that, so it's a little unclear how this will come out for those reasons.
Maya Wiley: Yeah, and I think we should remember that one of the reasons Gleeson is the person that Judge Sullivan appointed is that Gleeson was one of three who have served as judges, who made the argument that this was a requirement of the judge, and not to appoint Gleeson, but to have a hearing and examine whether the interests of the People were being served.
And remember that the Department of Justice had asked that the charges be dropped with prejudice. Meaning, if more information were forthcoming in the future and there was a new administration in office, they couldn't resurrect the charges. And one outcome from this may be that Judge Sullivan says “I’ll dismiss it, but without prejudice”, so that there is an opportunity for this to continue to play out. We don't know what he'll do, but I just say that because it seems to me, to your point, Harry, it was impeccable because he also was pretty much saying to the public, “I have to sit here as an independent arbiter, so I'm not going to make the arguments and I am going to have someone else so that I can sit in here, all sides and have the information brought and presented to me, and then I can make a decision as an independent arbiter.”
Harry Litman: And by the way, a splendid choice. Gleeson was a judge's judge, but before that he was a lawyer's lawyer. He prosecuted John Gotti among others, and he’s very widely respected. Just one more question here. I mean, the practical impact of this possible mandamus would be to preempt the evidentiary hearing that Maya, you just mentioned. That's really what that op-ed was saying. You can develop the facts that does seem very odd and unsound that you can't even develop the facts, but what's the sort of up shot for the government? How much do they want to avoid an evidentiary hearing? What are the prospects for embarrassment or a sort of ugly record if there is an evidentiary hearing?
Barbara McQuade: Imagine if you can, a Department of Justice with integrity might take a moment.
Harry: We’re closing our eyes.]
Paul Fishman: I remember that
Barbara McQuade: One of the reasons that we defer to the executive branch, other than, you know, constitutional separation of powers, is there things known in the executive branch that cannot be publicly shared. And so although we know some classified information that has been declassified, it could be that there is a good reason not to disclose the underlying phone calls. For example, in this case between Flynn and Kislyak, we haven't seen them. I think that there've been so many things that have been politically motivated and disingenuous in this administration that is difficult to assume good faith on the part of the Department of Justice. But there are times when prosecutions have the plug pulled, even though they are righteous prosecutions because the intelligence equities are just not worth the conviction. I’ve had that happen in my own cases where we needed to use particular witnesses or evidence to prove up a case, and the intelligence community said no. Now, I never doubted their good faith. I might have disagreed with their decision, but I knew that they had the best interest of the country at heart when they were making those decisions about what can and cannot be disclosed.
And so, there could be good intelligence reasons that they don't want to pursue this case and reveal additional classified information. On the other hand, there could be politically embarrassing things that could be disclosed as a result of this. They don't want John Gleeson, for instance, poking around and finding out about internal communications or deliberative decisions. Were there things said between white house counsel and William Barr about, we need to make this case go away? So I think there are potentially valid reasons to prevent further inquiry and also potentially political smoking guns that could be revealed.
Paul Fishman: Let me make two quick points. First of all, this is not the time, first time that Judge Sullivan has done something like this, right? In the wake of the prosecution of Senator Ted Stevens of Alaska, when there were allegations of prosecutorial misconduct for the teams having failed to turn over exculpatory evidence to the defense.
You know, Judge Sullivan appointed a very prominent criminal defense lawyer in Washington and got Hank Schulte to do an investigation for Judge Sullivan. And that investigation was done and the report was published. And so he's done this, he's gone to the well once before. The second is keying off the distinction that you made before, which is one, what's the reason for the government to be dismissing this case?
And two, did Flynn lie to me? My understanding was, the way Gleason's appointment was structured was it didn't really have anything to do with point 1. Right? Why the government was going to dismiss the case? I mean, I think Bill Barr was pretty clear. He said, we just don't think that this in the investigation was appropriate. It shouldn't have interviewed him. It wasn't material. And there are lots of reasons why that is not a correct answer. But, it seems like Gleeson was asked to figure it out, whether Flynn lied to and that would not be so complicated. And the last point I'll make is that interestingly, and perhaps ironically, and maybe intentionally, when John Gleason was a district court judge in Brooklyn, trial judge, there was a deferred prosecution that was presented to him. A deferred prosecution is the complaint gets filed against a corporation and the corporation promises to do some things over the next number of years. And if they do, then the government dismisses the case against the corporation at the end of that good behavior. There was a case that was brought against the bank, HSBC, in that court. The case was this time to Judge Gleeson and Judge Gleeson started to ask a lot of questions about whether that DPA was an appropriate resolution of the case and the like. So he is somebody who believes that if a case is in front of a judge, that judge does have more authority than the DC circuit's opinion in the Fokker case seems to give.
Maya Wiley: I just don't want to lose the fact that politically, what's so important about dropping charges against Flynn? It's all political, right?
So if you have Donald Trump in March suggesting he's strongly considering pardoning Flynn, but there, there's obviously some political challenge to do that. And then you have now in May, the department of justice doing a complete turnaround on a prosecution that came out of a very thoughtful and very, you know, I would say critically important investigation into Russian election interference where Flynn was playing a direct role in communicating with a Russian ambassador in transition before they're in the White House on sanctions that the Obama administration had announced because of election interference. It's really hard for the American public to hear, I think, that there's not a relationship between an attack on the basis for the investigation in the first place and whether or not dropping these charges is politically motivated.
Harry Litman: A lot of twists and turns here. It seems to be accelerating. It'll be very interesting to see what the DC circuit says and if it really does try to come out of the box and just say, categorically forget a hearing. Forget anything. You just have to accept the DOJ's conclusion. All right, well, that's to keep a close eye on.
It's time now for our sidebar segment, when we explain some of the terms and relationships that are foundational to events in the news but that aren't necessarily explained. Team Trump has lately made a loud protest about the quote unmasking close quote of Michael Flynn by Obama administration officials during the transition period. So what is unmasking, and is it sinister or unusual
To tell us about that we are very happy twelcome John Cho. John is well known for his roles in the Harold and Kumar franchise, the Star Trek movies, Selfie, and most recently Searching for which he was nominated for best male lead by the Independent Spirit awards. His work has inspired the hashtag starring John Cho movement, which pushes for more representation of Asian Americans in TV and film. So I give you John Cho and the question: What is an unmasking?
John Cho: President Trump and his allies have recently accused a number of Obama era officials, including Joe Biden, of participating in the unmasking of national security advisor designate Michael Flynn during the final months of the Obama administration.
Unmasking is a term used by the intelligence community to denote the revealing of the identity of a US person who is referred to but not identified in electronic surveillance of foreign entities. Intelligence agencies such as the National Security Agency routinely spy on foreign citizens and agents.
In the process, they may incidentally collect information about US persons who are not the targets of investigation. For example, because the US person is discussed on the intercepted communication or is a party to the communication. When that happens, the agency implements minimization procedures to avoid revealing extraneous information.
In particular, it masks identifying information about US citizens, reports of the communication. Thus might refer to the US person as US per one. Unmasking can occur for a few reasons. Most notably, if the identity of the us per is necessary to understand the foreign intelligence information or assess its importance, there is a procedure for unmasking it.
Certain national security officials can make a request to the collecting agency accompanied by a written justification to reveal the identity of the USper. The collecting agency then determines whether to grant the request based largely on one, the relevance of the person's identity to a valid investigative intelligence or foreign policy concern, and two the validity of the requesters need to know unmasking requests are common and lawful.
In 2016, the Obama administration filed about 9,200 that number nearly doubled to about 17,000 in the first year of the Trump administration. It returned to about 10,000 the following year. It has been reported that unmasking requests of incidental communications allowed the FBI to stop a terrorist plot targeting the New York City subway system and uncover an Al Qaeda cell in Kansas city, Missouri. For Talking Feds, I'm John Cho. And I understood everything I just read.
Harry Litman: Thanks very much to John Cho. You can catch him on the upcoming Netflix show Cowboy Bebop, and I also recommend his recent op ed in the LA times: Coronavirus Reminds Asian Americans like Me that Our Belonging is Conditional, which was published April 22nd.
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Harry Litman: Alright. I thought we could turn now to the obvious advent of the election season in the sense that at least the President is beginning to rattle sabers again with different states. So back to Michigan. I don't know why Michigan, while I guess I do know why, because it's such a battleground state, but there is the most recent example.
He has asserted that the secretary of state improperly passed out ballots to everyone. Of course, as it turned out, it was only applications. But what's going on here? I mean, he had to know that was a false strategy. Is he trying to make people believe it? What seems to be Trump and the Republican’s approach to this, well, I'll call it a canard of massive voter fraud around the country.
Barbara McQuade: Well, I've been giving some thought to this, Harry, because I live here in Michigan, and as you said, it's perfectly lawful for the secretary of state to send out these applications for absentee ballots in Michigan. In November of 2018, there was a ballot initiative where voters approved no excuse, absentee voting for any reason at all. We had had in the past for limited reasons, like if you were over a certain age and out of your district on the day of the election. But now for whatever reason, in an effort to make voting easier, uh, the voters approve that. So there's nothing wrong with our secretary of state sending out those applications. And her theory was during COVID, it's particularly important that we give people the opportunity to request an absentee ballot so they don't have to choose between voting and staying safe. And so to come out and get on Twitter and say this is illegal and that she's a rogue secretary of state, and these kinds of things is an effort to perpetuate this idea that vote by mail increases voter fraud.
Now that the facts say it does not, Oregon has been doing it for years and the fraud rate is infinitesimal and no greater than voting in person. So, I don't think there's any truth to that. And it also appears that voting by mail doesn't necessarily favor Democrats, that it would be just as likely to favor Republicans because it appeals to an older demographic.
And so what's the reason? I think the reason is just laying the groundwork so that if he is to lose the election, he can say that the election was rigged. ‘See, I told you for a month that this vote by mail was all a sham and sure enough…’ and so it will be one of many basis he will use if and when he's defeated in the election. That's my theory anyway.
Harry Litman: Even in the last election, am I not right? He actually said he was defrauded out of many millions of votes.
Barbara McQuade: Bus loads of immigrants in New Hampshire who came and voted, he said though it was never documented in any way.
Paul Fishman: Yeah, because Canadians crossed the border all the time.
Maya Wiley: I completely agree with Barb, but I think his tactics also predate the actual November election. I think he has been very clear about trying to undermine efforts to ensure people's ability to vote safely in the selection. He said it publicly when he said mail-in voting in general is subject to vote fraud. Anytime he says voter fraud, that's sort of like his way of saying “squirrel!’ Meaning distract from the very things you should be paying attention to, look at that squirrel over there. We know you're more likely to die because you come into a collision with a deer than you are to see an individual case of actual voter fraud. So I'd rather say deer, you're more likely to get hurt by a deer.
But you know the thing here is, the Republican party, unfortunately, and I say this because both parties can engage in fraudulent behavior when it comes to votes, that that in and of itself is not one party or the other. But there's no question that we have, particularly since 2010 heard Republicans actually speak the words that say, if we can keep certain communities, particularly communities of color, that are just go-to democratic voters, if we can make it harder for for them to vote, we are more likely to win. And you can look at that from the North Carolina voter ID. You can look at that. The Texas voter ID. Even Justin Clark, who works as a Trump election adviser said in Wisconsin just last year, that the Republicans traditionally rely on voter suppression. So, I also think we have to pay attention to the way in which the Trump administration is trying to make it more difficult to have mechanisms that ensure more voter participation because they're worried about how people will vote and rather than when our votes, they choose to suppress them. [
Harry Litman: I mean, I do think that candid political operatives will tell you just that the more the franchise expands, the worst it is for Republicans. So at least that seems to be one good reason why they've embraced these basic myths. Just in the last couple of weeks, we've had it debunked in Florida, after 17 month investigation. Also in Pennsylvania. Now it looks as if the Democrats are going to try to really engage on this. I mean, this might be a silver lining, if we're looking for them, of the virus.
It sure gets harder to defend barriers to by mail voting when you're talking about forcing people into hazardous health situations. So, that these battles will be fought out sort of state by state, but you have to think the Democrats have an unusual opportunity to win a lot of the skirmishes.
Maya Wiley: One thing I should have said, because it's true, you know, Trump attacked Whitmer, he attacked Michigan as a democratically run state. But Georgia, Iowa, West Virginia, I mean, States that are run by Republicans have also been embracing mail-in and voting. He's not attacking those States.
Paul Fishman: You know, I'm all in favor of mail-in voting. I think it makes it so much easier and it increases turnout and the more we can encourage people to participate in our democracy, the better off we all are. But I will say this, having grown up as a little kid who went to the voting booth with his parents, and having taken my own kids when they were little and having vivid recollection in 2008 of the enormously long time, I had to wait on line to vote for Barack Obama and flicking around and seeing dozens of people I knew on line and being part of this incredibly cool, communal act of citizenship. I will miss that. Right? I will miss the idea. Of going to the polls, pulling the curtain close, casting my vote and not seeing my friends when I do it and taking my kids. And I get that it's not as efficient and it suppresses turnout, but there is something I'm gonna miss about that.
Barbara McQuade: .Yeah, I agree with you, Paul. I think there is something really special about going to the polls. There is a sense of community about it and getting your sticker earlier, ‘I voted’ sticker and all that, but I think in this era of, at the very least, it's, it's essential, right? I mean, otherwise you're going to have to keep people six feet apart. Pole workers are frequently retirees who may not want to show up and expose themselves, and so you can reduce the number of people. I think you still need some people going to the polls, disabled voters and others will need to go to the polls, but if you can keep that number as low as you can, at least this time around, I think everybody benefits.
Maya Wiley: Yeah. And well, also the expansion of early voting. I think your point is extremely important, Paul, and Barb,importantly raise that their populations that really do still need physical voting, but that includes populations that are often whose votes are suppressed in other ways, but early voting and in low income communities in general, it expands the participation of voters. And we could do a lot more early voting and get a lot more physical participation safely. So, the civil rights community I know has been calling for polling sites and early voting so that there can be social distancing and a physical experience of voting for those who need it.
Harry Litman: But to, you know, to double back perhaps where we started. So, I have that same, misty-eyed feeling about the last time we voted and my son looking down and explaining it to them. But, every year, we then see at about 10 o'clock these ridiculous lines, always in minority communities, of people who are heroic sticking it out three, four, five, six hours to vote, and they're just having a totally different experience. I always ask myself, would I stick it out that along? So that's the other potential big advantage.
Paul Fishman: That’s a great point
Harry Litman: Well thank you, because it’s our last point. It's time for our final segment though, we have a few minutes. Five words or fewer, where we take a question from a listener and each of the feds has to answer in five words or fewer. Our question today comes from William Wanamaker. I hope I pronounced that right. Who asks, is Judge Sullivan supposed — has he been ordered to personally write a brief to the court of appeals?
Barbara McQuade: Pray for good law clerks.
Maya Wiley: No, because his law clerks,
Paul Fishman: He can ask a friend.
Harry Litman: Who the heck knows?
Thank you very much to Paul, Barb and Maya, 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.
And you can also check us out on the web: talkingfeds.com where we have full episode transcripts. Or on Patreon where we post discussions about special topics exclusively for supporters to thank them for helping us to fray the costs for the podcast. 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 Sam Trachtenberg and Ayo Osobamiro. Consulting producer, Andrea, Carla Michaels. Thanks very much to John Cho for explaining the concept of unmasking, our gratitude as always to the amazing Phillip Glass who graciously lets us use his music. Talking feds is a production of Dalito LLC. I'm Harry Littman. See you next time.
