Jennifer Bassett [00:00:00]: Hi, this is Jennifer. The producer talking feds and I want to take a moment before episode begins to tell you about the exclusive content we post on our Talking Feds Patreon. Unlike a lot of other podcasters, we don't just post ad free episodes or outtakes. We post exclusive interviews and even full length episodes. And for just five dollars a month or three dollars for students, this is available to you. To get a sense of what's on there, the last two weeks alone, we published great interviews with people like you, Duschene Drew, the president, Minnesota Public Radio, a former Rodney King prosecutor, Lawrence Middleton, on what to anticipate with the George Floyd case. And a long, in-depth conversation with Matt Schwartz, the author of The New York Times Magazine piece, William Barr, State of Emergency. We also have a full length Supreme Court episode, which is an analysis of the final 10 arguments for the term that were broadcasted live in May. And if you were interested in a preview, we're making the whole Patreon on site free for 48 hours this Wednesday and Thursday. So check it out. And we hope you will subscribe where patreon.com/talkingfeds. That's Patreon.com/talkingfeds.
Harry Litman [00:01:12]: Welcome to Talking Feds, a roundtable 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. The chaotic protest that broke out spontaneously in Minneapolis three weeks ago in the aftermath of the George Floyd killing have now ripened into a full fledged, well organized political movement extending throughout the country and the world. The force of the popular will has seemed to catch politicians by surprise and left them scrambling to catch up. Voters of every stripe and community express majority support for the protesters and the Black Lives Matter movement. President Trump, by contrast, has staked out a reactionary course, repeatedly tweeting out law and order and the need to, quote, dominate, one of the favorite words in his sparse lexicon. He argues that the police brutality problem is just a question of, quote, a few bad apples. And he opposes the movement to remove Confederacy monuments in military bases and public squares. Trump's approach puts Republican politicians between a rock--distancing themselves from the president and facing his wrath--and a hard place continuing to cozy up to him as he becomes increasingly unpopular. For now, many are simply keeping their heads down and ducking the issue. The week also saw a nightmarish possible harbinger of the November election during the primary in Georgia, with yet another scene of voters in minority communities waiting many hours on impossibly long lines while nearby white communities were quiet and orderly. Oh, and the country remains in the grips of the worst pandemic in a century. This week's saw rises in virus rates in many cities and particular pockets such as nursing homes, even as more and more people seem to assume a dramatic loosening of restrictions was imminent. So another intense and tumultuous week draws to a close with a series of dramatic events that call out for closer examination and analysis.
Harry Litman [00:03:25]: And we have the perfect set of guests to do it. Also, not to mention possibly the most undiverse panel maybe in history: four old white, cranky Jews. Two of them returning guests to Talking Feds and one very special first timer.
Al Franken [00:03:40]: Who's cranky? I'm not cranky. I resent that.
Harry Litman [00:03:44]: We'll find out. They are David Frum, who returns for the fourth time to Talking Feds. David is a staff writer at The Atlantic. He's an MSNBC contributor and the author of 10 books, including the hot off the presses Trumpocalypse, which I've just finished. And it's great. It analyzes Trump and Trumpism and the prospects for a sloughing it off after Trump. David, we'll talk about this a little during the episode. But in a word, can you tell us why you wrote this one and what sort of purpose it serves in your overall work?
David Frum [00:04:18]: I wrote this book confident that the Trump administration was going to come to an end the election of 2020. That was even before the pandemic struck. The pandemic has made me more confident that. The question I want to wrestle with is how do we ensure that nothing like this happens again to the United States and to America's standing in the world? I'm less interested in Donald Trump, the person, they're always psychopathic personalities. We build a complex political system to screen such people away from the presidency. It failed. How do you rebuild a system so it doesn't fail again?
Al Franken [00:04:48]: That was more than a word. Harry, you said in a word,.
David Frum [00:04:50]: The German word. It was the German word.
Harry Litman [00:04:52]: A metaphoric idea, a word. Exaclty, one long word with a few semicolons. Norm Orenstein, second a resident scholar at the American Enterprise Institute, co-host of A.I.S Election Watch, a contributing editor for the National Journal and The Atlantic, many more. He's one of the foremost political thinkers. Has been named in fact, one of the top 100 global thinkers for diagnosing America's political dysfunction. And like our next mystery guest. He is a son of Minnesota. Thanks very much for returning to Talking Feds, Norm.
Norm Ornstein [00:05:27]: You betcha.
Harry Litman [00:05:28]: Finally, we're really honored and pleased to welcome Al Franken. Al Franken currently hosts the Al Franken podcast, one of the most popular podcasts on politics in the country. As everyone knows, he served as a United States senator from Minnesota from 2009 to 2018. His ouster, I would say, from the Senate was one of the stupidest self-inflicted wounds by the Democrats in U.S. political history.
Al Franken [00:05:56]: That's your opinion.
Harry Litman [00:05:57]: Well, no, it's the Lahey's opinion who said it's one of the worst mistakes. It's nine different senators opinions who have all regretted it. Thanks, guys. Politics, of course, was his second career after his initial incandescent rise to fame as a writer, comedian and author. Both on SNL and as an author. And in the Senate from Minnesota, he was a stalwart voice for progressive policies and for my money, the best and most prepared questioner on the Judiciary Committee. We're thrilled to have you with us. Thank you so much.
Al Franken [00:06:27]: Pleasure to be here.
Harry Litman [00:06:28]: All right, let's get started. David, you're the youngest here, I think. Can you please recite the four questions? Why is this president different from all other presidents? You know, how it goes. No. Let's go straight to Minneapolis, where both Al and Norm hail from. We had a pretty big development this week. The Minneapolis City Council voted to disestablish, whatever that means, the police. But nine members did and it's veto proof. So is this going to happen? And what comes next? Nobody seems to know any--either of you sons of Minnesota have a sense of what it actually means as a political process?
Al Franken [00:07:06]: Well, you know, this police department failed me so many ways, one of which was Thursday night and Friday night they failed. They were not present. They did not stop people from their peaceful demonstrations until around midnight. They were not there. There was no plan. And then there is just its history of killing African-American men. And so, of course, this is going to happen. I don't know who's going to answer the phone when someone needs someone to go to a domestic violence event. I think you have to have police. You have to have community police. But it's very hard to get anyone to defend the Minneapolis police department, including Governer Walz.
Harry Litman [00:07:51]: Yeah, I know. I agree with that. I wrote in the L.A. Times this week an article just noting, though, that the whole community police concept, which has had signal successes in many cities, is kind of the opposite of what we're talking about, right? Al's question and Norm, I wonder if you have an idea of it. It's a pretty important question, because when people show up at domestic disturbances, I've ridden around with cops and they're--the prospect, at least, that things might graduate to force and their ability to match it I think in the hands of well-trained officers can be a force for good. Do you envision a radical deconstruction of the entire Minneapolis police force or does nobody really know what's going to happen next?
Norm Ornstein [00:08:33]: So I'm skeptical that that will happen. And it's important to keep in mind that whatever the Minneapolis City Council did, they don't unilaterally have the power to abolish the police or to radically restructure it. This is the start of a conversation that's going to take place, I think, over a pretty long period of time. And as Al said, you know, getting rid of the police, some of these ideas that you turn it over to other groups don't work in many, many cases. The Minneapolis police department has been, to put it mildly, dysfunctional for a long time. One of the reasons is something we've seen with many other police departments. We had the establishment of police unions. They've done a kind of bargaining that goes way beyond wages and benefits. And one part of it is they have a mandatory arbitration for any instances of police misconduct. And that means you have arbitrators who have to be approved by both sides. [55.4s]
Harry Litman [00:09:29]: Right.
Norm Ornstein [00:09:29]: Police who are being challenged. And in many cases, the police chief wants to get rid of bad cops. But if they rule against the bad cops, they're gonna lose their jobs. And so the worst punishment offered with a police chief who tried to get rid of rogue cops is 40 hours unpaid. And until you change these mandatory arbitration rules, until you have consequences for bad behavior, nothing changes. And if there is a way of a template here, it's probably what's happened in Camden, New Jersey, where they did completely up end their police department. It's not perfect, but they've moved to community policing. They've moved to having consequences for bad behavior. And it's made a real difference.
Harry Litman [00:10:09]: Yeah, this whole back end part of it. People didn't know about I didn't know about how you really looked into it and the powers of the union, not simply in Minneapolis, but kind of nationwide there. A bit of a junior NRA, it appears, with the Republican Party. So something like 50 percent of the time under the system you outlined, cops are reinstated. And Minneapolis is a very good example because you have a very progressive in fact, a former kind of rebel police chief, mayor and governor and their hands are so tied. David, I don't know if you had a chance to see this, but an article of Al sort of mentions that longitudinal historical performance of the police force. And there's an article in this week's Atlantic called Minnesota had this Coming. And the thesis is that the very attractive, great place to live, great theater and food, kind of, you know, low property values Golden City in the Midwest has always been a sort of tale of two cities. I don't mean Minneapolis and St. Paul, but really disparate, bottom line difference is between people of color, especially African-Americans, in almost every important measure. And the notion was that was just a matter of time. Do you buy that as someone who's been in Minneapolis? Did you know it was coming one time or another?
David Frum [00:11:32]: I think it's really urgently important to observe a line which we don't always observe between explaining events and excusing them. It is true that the problems that America faces today are products of America's inherited history, America's inherited injustices of various kinds. None of those are justifications. So to say, and the author of the article didn't say it, but headlines. We've all done this. Headlines have to grab attention. There is no justification ever for rioting, looting, which is just stealing defiance of public authority by violent means. None of those things are ever justified. I know we all feel that, but that's just a point that has to be hammered home, hammered home. Something else that really needs to be said about this. And I'm going to reveal my Canadian roots here. [00:12:16]The first professionally organized police force on earth was the London Metropolitan Police. They were organized in the 1820s. Robert Peel, who become prime minister, organized them and that police were set itself nine important principles that surface well to this day to define how policing should work. [14.7s]
David Frum [00:12:32]: And one of them, Principle Six, goes as follows. Police use physical force to the extent necessary to secure observance of the law or to restore order only when the exercise of persuasion, advice and warning is found to be insufficient minimum force. So in disarmed countries like Great Britain and Canada, you can have disarmed police. But the project of having disarmed American police in a country where, as far as the police know, every glove compartment and every vehicle could contain a Glock. What are they supposed to do when the driver does not keep all hands on the steering wheel? In Canada, if you don't keep both hands on the steering wheel, you're probably getting ready to make a rude gesture at the police in America. You could be reaching for a Glock in the glove compartment. [38.9s]
Al Franken [00:13:11]: I'd like to disagree over with David in one respect tremendously. But this has just been systemic in Minneapolis. And it's not just African-Americans, of course Native Americans as well, but with African-Americans, we have the greatest disparities in the country. In high school graduation we're 50 between whites and blacks. There are so many things in Minnesota's history that are really disgraceful and part of it is the police. Now, as far as reaching for the glove compartment, I mean, Philando Castile told the policeman he was reaching he's going to get his registration. And the cop shot him. This has not happened to white people. This happens to black people. And that would make me angry. It does make me angry. The police should have been on the street preventing the looting, preventing the fire. They didn't prevent the fire of their own precinct. This is a completely dysfunctional police department and the victims of that have been African-American. So it's very hard to say that trying to explain it is excusing it. It's really the anger there. I think part of the reason for this is that there has been a rash of these and that video was so obscene, so horrific because this wasn't a cop scared, pulling a gun on somebody and pointing it at them is a very frightening thing for a policeman to do, actually. And this was not that. And being the victim of systemic racism is something that the four of us have not experienced. My daughter and I were discussing this last night and she said, you know, Dad when I get a receipt, when I pay for something in a store or someplace, I just don't pay attention to the receipt. Black people do, because going to be asked at the door. If I'm if I go in, if I have to go to the bathroom and I go into a restaurant, I ask to use the restroom almost all of the time. They say, OK, black person, they won't do that. This legacy of our original sin is not just still there. It affects every African-Americans life in this country.
Norm Ornstein [00:15:21]: So let me take a position in between. [00:15:23]One part of it is I resonate what Al is saying. And I think we've seen a transformation. We see it in public opinion now, a real understanding that it is different for black people. I've said a number of times in the past. I lost a son. I know what it means to lose a child and the pain is unbearable. But when my kids were growing up and when they were teenagers and went out at night, I worried that one of them might drink and drive or that they'd be in a car with somebody else drinking or driving. They could get into an accident. I didn't worry about it every time they left the house that they could be stopped by a cop for a broken tail light and be killed. And all of that is true. Now, the question is, as we see a lot of white people suddenly coming, more and more aware of what's happened and how this works, what we can do about it, and here I resonate to what David said.
Norm Ornstein [00:16:15]: Most cops, I believe, are not racist. Most cops are not out to beat the crap out of people or to shoot them. There is an enormous amount of PTSD and depression among police. The suicide rates are more responsible for the deaths of law enforcement officers than thing that happens elsewhere on duty. You're right, David, that when a policeman goes up to a car, somebody's been speeding. You don't know what the response is going to be. But we have to change the way policing is done. We have to weed out those police who are racist. We know that in 2007, our intelligence forces warned us that white supremacists were going to make a strong effort to infiltrate police departments. We have to take police unions away from doing anything except collective bargaining over wages and benefits, not over how misconduct is treated. We have to do extraordinary steps to get a kind of de-escalation training. I've worked with a judge in Miami Dade, Steve Lightman, who's trained seventy five hundred police officers in crisis intervention team policing. Al was a champion of that when he was in the Senate. If you get police officers to understand as a part of their training to de-escalate and you try and get rid of some of the racist elements, then we're gonna have fewer incidents of assault or wrongful death. And if you make sure that when there are suits for wrongful death or wrongful assault, they're not just paid by taxpayers through the back door, but some of it comes out of police unions. They're going to point out they're bad actors and they're gonna keep it from happening as well. There are things we can do now, but we cannot ignore the pain and the reality of the mistreatment and the different treatment that happens to people of color.
Al Franken [00:17:57]: And Norm, why don't you talk about what the result of the crisis intervention training was for the police in Miami, in terms of the number of people they shot every year.
Norm Ornstein [00:18:08]: So this was mostly focused around encounters with people with serious mental illness. But it's broader than that. And that is that they used to have an average in this huge county of two shootings a month in encounters between police and either people with serious mental illness or others. Most of those, by the way, people of color. Now, after the crisis intervention team policing, they've had five or six in the last eight to 10 years and they were able to increase and improve their bond rating because of all the money they saved from the wrongful death suits. They cut the number of arrests in half. They were able to close a jail, one of their three main jails, and they've saved eighty four million dollars over the last seven years. So you can save lives and save money if you do the right training. But it's also important to emphasize that training alone doesn't do it if you have people out to do bad things and know that there are no consequences if they do.
Harry Litman [00:18:59]: This may sort of thread the needle. I just want to add one thing, and I wrote about it, too. It is from my experience in law enforcement. I agree wholeheartedly, Norman, with what you just said and I just want to point out it's consistent with believing, as I do, that in the last 30, 40 years, there's been a strong turnover in police departments and an increasing intolerance for old school racism and brutality. But the problem is that people know who the bad cops are and the system like unions, but also the wagons circling that happens whenever there is an episode is what sustains the bad apples are used for David, the hockey analogy that I proffered on Twitter. It's like the goons and a hockey team. Everyone knows who they are. But if the fans and the teams didn't permit them, just said zero tolerance, they would dry up. What's really sustaining the bad apples is systemic problems, beginning with the unions. All right. I like to stick with race for a second and ask--there was an article this week by Tom Etzel. And, you know, it made it cynical, but maybe trenchant point. I wonder what people here think. The I quote, White Americans have a history of losing interest in racial justice soon after they acknowledge injustice, as if their acknowledgment rather than actual changes in the world were the end of the matter. And he cites the 60s. So, I mean, do we see the vast movement toward support of Black Lives Matter and reform of police practices as something that's going to ebb in fairly short order when the majority or white people in society kind of go back to their daily lives? Or is this one really different?
Al Franken [00:20:43] Both. Does this guy actually has the first black owned micro distillery in the country. So he started a gofundme, which I'm helping with. And for black and brown owned businesses in Lake Street Corner and elsewhere in the Twin Cities for these businesses that were burned down. And there is also the fact that people from outside of Minneapolis and St. Paul came in to do some of that and some of them were just getting drunk and partying and doing stupid stuff. But he said that the donations for this gofundme just went off a cliff very recently. People losing interest. So Etzl's kind of right. This is, though, different, I think, than the 60s. In the 60s, that was African-Americans. And this was mixed. This was very mixed racially. These demonstrations, which was very, very heartening. And it was just stain. I think you had a question in your questions, which was, is Congress going to pass police reform? And my my answer is not this Congress.
David Frum [00:21:51]: One of my favorite professors in college used to teach history never repeats itself. It only appears to do so to those who don't pay attention to the details. I think the differences between now the 1960s are so overwhelming. Let's just start with this. Between 1958 and the middle and later 1960s, what an extraordinary era of progress in racial equality, both formal changes and law, starting with the Civil Rights Act of 1957 through the great Civil Rights Act of 64, Voting Rights Act 65. More legislation in the later part of the 1960s. And at the same time, we had extraordinary material improvement in the conditions of black households, incomes rising, job availability. It was a remarkable period of progress, which then crashed into the increase in urban violence in the riots of the middle 60s, culminating in the terrible wave after the assassination of Martin Luther King in April '68. The riots changed the politics of the country. They stopped civil rights legislation and they introduced an era in which black economic progress slowed. But the story of the past 10 years has been the opposite. The period from 2009 to 2019 was not an era of tremendous progress with black families. We had this symbolic achievement of the first black president, but there were not a lot of legislative changes that crashed into these disturbances. Unlike those of the 1960s, where the disturbances got worse and worse and more and more violent, the disturbances we've seen since May 25th have become more orderly, more peaceful, more like protests, less like riots as they've gone on. I have witnessed this here in Washington. I have been out in the streets almost almost every day, sometimes twice a day, just walking around on foot. And I was struck by the change of the atmosphere day by day. By the end, you were seeing strollers and families and people of every age and every background and there that people set up music speakers and there was dancing just outside the White House and there some COVID risk in all of this. But other than COVID, it it just it could not have been more like a street festival or a county fair or something. And so we're going to see something go into reverse that I think we are going to see just whereas the disturbances of '65, ]68 ended an era. I think the increasingly peaceful protests of May and June 2020 are the beginning of an era. [125.2s]
Norm Ornstein [00:23:57]: I would say that we've certainly seen a sea change. And I think it wasn't just the video of George Floyd. The Arbery video where you had horrific young man jogging on the street, pursued by three awful people who pulled him down, shot him, murdered him and uttered racial epithets. It's jolted an awful lot of people who didn't think a lot about what Black Lives Matter was all about into thinking about it a little bit differently. And I do think that the way these protests have evolved underscores that. The problem is going to come when we hit the inertia that is always there in the public policy process, along with the difficulty of untangling a set of laws and regulations in city after city that makes it very, very difficult to alter the way in which police deal with elected officials and with citizens, and including purging some police departments of the really bad people and getting those who are not bad to point out the ones who are bad. And doing some of the things about economic progress as well, especially since we're gonna hit a wall when it comes to funding anything as COVID continues to do bad things for the economy. So it's going to take a sustained effort, even though attitudes have changed. And I think those fundamentals are going to change over a significant period of time. Translating that into effective policy is a completely different matter.
Harry Litman [00:25:28]: Yes. You know, one thing that will tend to perpetuate it is this gonna be a focus of the election, in fact, sort of staying with the political impact. You have Trump having staked out a position that really is against the grain of almost everyone but his most intractable base. And he talks about law and order, a lip service to Floyd looking down from heaven. But he has chosen to redouble the strong man approach, which I'll just add is in keeping with the maxim in David's book that he always chooses whatever policy option makes him look the strongest. But this will be part of the debate going into November. And he's definitely staked out a counter-majoritarianism position even more than normally. How big a cost is he paying? And has he basically gambled everything on an economic resurgence, having put himself on the minority side of this dispute?
Al Franken [00:26:31]: Well, if you can just stop a lot of black people from voting.
Harry Litman [00:26:35]: That's part of the strategy. We're gonna get to Georgia in a minute.
Norm Ornstein [00:26:37]: You know, one of the odd things here, but it fits a president who I believe as a lifelong narcissistic sociopath simply can't change. He can't help himself from doubling down on a base that is, in fact, very likely a narrowing base. He will have support that will be there no matter what. We're in an age of tribalism, of negative partizanship. A lot of people will support him because they don't want the evil people on the other side to win. But when it comes to many older voters, some upset because of the pandemic, others because of his reactions to all of these things when it comes to suburban voters, including, I think plenty in the South, in places like Georgia and Florida, who are appalled by his more openly racist stances, his bombastic rhetoric and the reaction to a lot of this. He can't help himself, but it's making it much, much harder for him to be able to prevail. That doesn't mean he can't prevail. You know, it's not just, as Al said, stopping a lot of black people from voting. It's stopping students from voting and stopping, as we saw in a couple of these earlier primaries in Wisconsin, Georgia and elsewhere. A whole lot of people from voting who would not be voting for him. It's Republicans in Congress who are delighted to have that kind of voter suppression, especially when the Senate is at stake. It's the rural tilt of the Electoral College that could help them as it did in 2016. But the kinds of things that a rational president would do, a non sociopath would do to broaden the base, to improve standing-- he just can't do it. And, you know, just quickly, one striking thing to me. [100.9s] The prime minister in Australia is not a figure who would otherwise be viewed as a statesman or distinguished. In fact, had a pretty mediocre standing, Scott Morrison. But when COVID hit, he relied on the experts and the scientists and the epidemiologists and did the right thing early on. Australia has done extraordinarily well. His approval rating has soared. Trump could have found himself in the same position.
Al Franken [00:28:44]: One of my favorite quotes about the Trump presidency comes from an unnamed aide who worked with him of the first who said, "Trump isn't playing three dimensional chess. Most of the time he's just eating the pieces." He doesn't have never had strategy and often he doesn't have tactics. What he does have is a preternatural gift for finding the psychic ethical moral weakness in others, both in people and in systems, and then exploiting that. If there is anything in you that isn't solid, he will find it and use it against you and turn you. you see that with people who one would have thought it was quite decent people that Lindsey Graham's and the Marco Rubio's in this world. That he just he just found something in them and worked it and broke them. And he's trying to do that to the American system. But he's now in a jam is just too big. I mean, yes, he's going to try to end the Republican Party will try to stop like voting and students. But unless they repeal the 19th Amendment and stop women, they're just too big a hole. [54.0s] I looked it up. The worst unemployment rate in a presidential year for president who did not outright lose was Barack Obama in 2012 at 7.7 percent unemployment. But he had had strong job growth in the 12 months before the election. The second was Ronald Reagan in 1984 had seven point two percent, but he had amazing job growth in the twelve months before the election. Just to give you an idea of how close, though, Obama was to the razor's edge. In 1976, Gerald Ford had 7.8 percent unemployment, a tenth of a point more than Obama and lost. Now, it's not as simple, obviously, as just that tenth of a point, but it just gives you an idea that when you're in the high sevens, you're in a lot of trouble. We're at, what, 16 to 20? And there's no realistic prospect for bringing that much under 10 by voting day. It's just it's just too big an economic depression for the President to get past, even aside from all the dead bodies.
Harry Litman [00:30:29]: We could definitely explore that, these political questions. I hope we will for hours. I do just want to touch on what the hell? Norm and you've suggested that somehow another tableau of these interminable lines that we saw in Georgia and mainly black and brown people waiting hours and hours to vote while nearby community white communities have no trouble, are actually I'm sure that Republicans were delighted by it, but you're maybe suggesting if I heard right there, kind of architects of it. Is that your sense? And why the hell in 2020 does this keep happening?
Al Franken [00:31:04]: Oh, my God, yes. I mean, part of the only thing they've got going on. Of course they do this. And they have a Supreme Court backing them, you saw what happened in Wisconsin. They took a case that had been cited by the district court and then by the circuit court and a state election. It was absurd that they took it and then their position on it was absurd. And that was to basically have to have your absentee ballot in by Election Day. And that meant the people who worried, but if their absentee ballot would get in. So they had to show up when at that point the Waukee was just thick with COVID. And so they were trying to suppress the Democratic vote in Milwaukee. Milwaukee had, I think, only five polling places in the whole city. And that's because most people who work at the polls are over 60 and the Supreme Court is very, very, very frightening.
Norm Ornstein [00:31:59]: So take Shelby County, the decision of which John Roberts said basically there's really no more racist behavior in these areas that have been pinpointed in Section four of the Voting Rights Act. And within days, Shelby County itself and many others were returning to those. You'll look at actions taken by other courts and by other actors. The governor of Georgia, Brian Camp, as secretary of state, promoted pretty vicious voter suppression actions. His successor is no different. In Texas, where you can vote as an older voter with no excuses and an absentee ballot. But the 5th Circuit panel just ruled that COVID is not an excuse for anybody else to get an absentee ballot without an excuse otherwise. So there are those actions. Now, I would say that there are things we can do to ameliorate that. And one that I've suggested and I'm trying to put out now even more is get states to print up huge numbers of absentee ballots. And if they don't have the resources to do it, work out public private partnerships with foundations to get them printed and have them at the polling sites a few days before the election for early voting and on Election Day. And if people have not gotten their absentee ballots on time and they've done it the right way, which is what we saw in Wisconsin and we've seen in other places, they can fill them out there and put them in safe repositories at the polling place. And if there are very long lines of those voters who can't stay in line, absentee ballots to fill out and deposit them right there. Have actuaries volunteer to be there if there are places where you need a notarized witness signature. There are ways in which we can cut down the lines and actually have and allow more people to vote. If there is a willingness to do so. But what we see now as well is Mitch McConnell trying to block the Postal Service from getting the money that would be necessary for it to operate so that they can actually get out absentee ballots after the applications are done and get them sent in on time. There are a lot of efforts to suppress votes and to make this difficult. And that's a hurdle we have to overcome.
Al Franken [00:34:03]: We need to have polling places open on the weekends and early voting. You have to make it easy to vote by mail. We ask the poll workers, because all of what Norm was talking about requires there be people working at the polling places.
Norm Ornstein [00:34:19]: High school and college students should be doing this, and the high schools and colleges should be encouraging and giving credit to their students for becoming poll workers.
Harry Litman [00:34:28]: All right. So a huge topic which we'll be following and talking about a lot.
Harry Litman [00:34:34]: It's time now for our sidebar feature, where we take a moment to explain some of the terms and relationships that are foundational in the news, but maybe not explained in the news. And we're very lucky today that Mayor Bill Peduto of my hometown, Pittsburgh, PA. will be explaining to us. He is currently serving his second term as mayor. He was elected in 2013 with 96 percent of the vote. Before that, he worked 19 years on the Pittsburgh City Council, during which time he wrote the most comprehensive package of government reform legislation in Pittsburgh's history. And I just want to put a nod to him, because after the Tree of Life shooting in October 2018, he was really a tremendously compassionate and focused leader. All right. He's going to tell us today about the limits that there may be on a state's power to order citizens to shelter in place. So Mayor Peduto.
Mayor Paduto [00:35:32]: States possess a police power that allows them to pass, enforce health and inspection laws to interpret or prevent the spread of disease. These laws can include isolation, quarantine or shelter in place orders. Most of the COVID 19 orders require individuals to shelter in place and restrict outside activities to essential businesses such as food or health care. Individual states determine which activities are essential. It is well established that during a pandemic such as COVID 19, the state's police power is quite broad in courts generally defer to it. But what are the limits of the state's power to enforce orders such as shelter in place? Several provisions in the U.S. Constitution provide potential limits. For example, the due process clause found in the 5th and 14th Amendment prohibits the federal and state governments from depriving individuals of liberty without due process of law. The Supreme Court has suggested that a public health order such as a quarantine or mandatory vaccination rule lacks any serious justification so as to be arbitrary. It may violate the Constitution. The equal clause of the 14th Amendment precludes the government from unreasonably discriminating on the basis of certain characteristics, including race or religion. These groups are referred to as suspect classifications.
Mayor Paduto [00:37:03]: In the early nineteen hundreds. The city of San Francisco imposed a quarantine that included only a Chinese neighborhood. A federal judge concluded that the quarantine unreasonably targeted Chinese individuals and violated the Constitution. So we know that public health orders cannot unreasonably target suspect classifications. The First Amendment precludes the government from restraining free speech, association, assembly or from unreasonably burdening the free exercise of religion. Clearly, shelter in place orders restrict some First Amendment activities, such as political rallies, public meetings and religious services. However, as with other constitutional limits, the government can regulate the time, place and manner of speech. But it may not treat religious practices worse than some similar secular activities. So, for example, the government can ban religious gatherings only if it also bans similar non-religious activities. Recently, there have been a number of suits arguing that the state shelter in place orders violates the Second Amendment because they've failed to include gun stores on the list of essential businesses. The results of these cases have been mixed, but the trend is for the court to reject the argument that gun stores must be deemed essential. For Talking Feds, I'm Pittsburgh Mayor Bill Peduto.
Harry Litman [00:38:36]: Thank you very much, Mayor Bill Peduto, who announced last week a new Office of Community Health and Safety to implement some of the community policing reforms necessary in Pittsburgh and similar cities.
All right. We have just a few minutes left that I thought we could touch on a big topic. The Attorney General of the United States, who kind of took it on the chin this week. There was a letter to the Inspector General from 12000 alums of DOJ asking for his role in the Lafayette Square debacle to be investigated. And he seemed to sort of run from it. You know, he's normally has this kind of chest thumping indifference to criticism, but he was responding and seemed to be trying to temper his own role. And then we had former Judge John Gleason, who is awesome, I can say, who excoriated him, even his credibility in the brief to Judge Sullivan. And finally, Friday morning, Court of Appeals seemed ill disposed to cut off Judge Sullivan from considering the question of why the hell did the department dismiss charges against someone after pleaded guilty twice? So let me just ask, has Barr become--even as he furthers Trump's program in every way he can--has he become a kind of net political liability for the President?
Al Franken [00:39:59]: Well, you mean the part about him being so transparently corrupt?
Harry Litman [00:40:02]: You could put it that way or even I mean, he's become very visible now more than the Attorney General. There is the attack on institutions, but he's very closely aligned now with what happened in Lafayette Square, which is this indelible moment that ain't going away. He's getting sued left and right. He didn't show up at all to the Judiciary Committee, just thumbed his nose at them this week, just in political terms, a kind of net less than zero four for him.
Al Franken [00:40:29]: Well, he's such an appealing guy, though. There's that. Look, he's got a great track record here. He lied about the Mueller report repeatedly. He mischaracterized it completely. He said there was no collusion which it didn't at all. They justify not responding to any subpoenas from Congress. It's just the worst. He's a thug.
Harry Litman [00:40:49]: But has it now entered the kind of political water David or Norm be of any any view on that? I don't know what percentage of America's even heard of the average Attorney General and probably even Bill Barr, but he's really in the middle of some pretty important controversies.
Norm Ornstein [00:41:04]: If you looked at the venture into Lafayette Park, we had Mark Esper, the secretary of defense, Mark Milley, the chairman of the Joint Chiefs, as well as Bill Barr, who are the two who are really on the hot seat, Esper and Milley. Why? Because they contradicted Trump. They said we shouldn't have been there and said it was a political photo op. Bae hasn't done that. And as long as Barr will do Trump's bidding and his dirty work, no matter how unpopular he becomes, he's safe.
David Frum [00:41:33]: If you're Donald Trump, which do you want? An attorney general who cares about his reputation, cares about being caught saying untrue things, and therefore is not always reliable? Or, an attorney general who doesn't care about those things and is always reliable? Obviously, from Trump's point of view, the latter is better. So no, Barr is not a political trouble. There's no mechanism for any cost to be inflicted on him or for him to inflict any costs on the president. We're in the context here of an administration that isn't so much political trouble. Their best strategy is at this point, just to stick together and try to minimize losses.
Harry Litman [00:42:06]: And suppress the vote.
David Frum [00:42:07]: Suppress the vote and suppress information so as to hold as many Republican Senate seats as possible. Because while it's probably unrealistic for Donald Trump to be reelected, it is realistic for Republicans to hope they can retain the Senate. And if they don't, it just becomes a political bloodbath. I mean, if we're in a world in a few months, Donald Trump has lost the presidency fifty three to forty six. Republican's have dropped three or four Senate seats where they have lost control of the states. Remember, 2020 is not just an election year. It's also a census year. The twenty twenty one will be the year where we will shape the political map of the states. The states would very shape by Republican since the census of 2010 and the redistricting of 2011. The Democrats are now poised to do unto the Republicans and in reverse the Republicans did onto them. There's going to be an internal bloodbath in the Republican Party afterwards. And from the point of view of Barr's own personal interest. He will be well served by his image as the last loyal man. There will be enough sympathy for those who fought the good fight to the last. I don't think he's going to face a lot of personal costs, whereas if he discovered a conscience at this late date, you might well incur costs.
Norm Ornstein [00:43:12]: Quick prediction. If David is right and let's say Trump loses the presidency and Republicans lose the Senate. Our long national nightmare will not be over on November 4th or a week later when we count the votes. We will have two and a half months following months of sheer hell because Donald Trump will pardon everybody and he will do whatever he can to get rid of any evidence of wrongdoing, corruption or misconduct. Mitch McConnell will ramp up as much as he possibly can, even if he has to go 24/7 to confirm more judges. If Ruth Bader Ginsburg, God forbid, should die during that interim period, even up to iff they lose the Senate. January 2nd at midnight before the new Senate convenes, he will confirm a new Supreme Court justice. We will have a transition from hell. So we need to be prepared for that. Not just an election from hell with suppression and other problems, but a transition that could be really, really bad.
Al Franken [00:44:10]: There's also the nightmare of a very close election. David writes about this in Trumppocalypse. Terrific book. And this is why I wish Milley had not publicly announced that he was sorry he did that picture because I'm afraid I'll get fired. I think we it'd be nice to have the chairman of the Joint Chiefs not on the side of, "Oh, OK, we'll protect the president who won't leave."
Harry Litman [00:44:36]: And one more thing from David's book. The Trump core base of supporters aren't going to leave the country. And the prospects for what happens then for some kind of reconciliation of our partizan politics is vexing, to say the least. David spends a lot of time talking about that. All right. We are done with what's been a great discussion. I wish we could go two more hours. We can't. So let's proceed immediately to five words or fewer. Talking Feds' final segment where we take a question from a listener and each of us has to answer in five words or fewer. This week's question from Leroy Martinez is Will comprehensive legislation to reform police practices pass the Congress? Five words or fewer.
Norm Ornstein [00:45:23]: No.
Harry Litman [00:45:25]: Just OK straight. No, I don't think you can borrow the four words, Al, but--.
Al Franken [00:45:28]: No, I have two words. Which Congress?
David Frum [00:45:32]: OK, I was going to say I've tried to fit this in five words. Not now. State action.
Harry Litman [00:45:38]: That's a good one. So I'm a little against the grain, but we'll see. Comprehensive. No. Something fairly weak.
Harry Litman [00:45:50]: Thank you very much to David, Norm and Al. And thank you very much, listeners, for tuning into Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple podcast or wherever they get their podcasts. And please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFedPod 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 paying five dollars a month, three dollars for students to help us with our 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 Right. Consulting producer Andrea Carla Michaels. David Lieberman and Rosie Don Griffin are our contributing writers and production assistance by Ayo Osobamiro and Sam Trachtenberg. Thanks very much to Mayor Bill Peduto of the incomparable American City of Pittsburgh P.A. for explaining limits on the state's power to order residents to shelter in place. Our gratitude, as always, to the amazing Philip Glass, who graciously let us use his music and who, by the way, has a very significant Pittsburgh connection. Before he became the musician that everybody knows, he was a composer in residence for the Pittsburgh Public Schools. No lie. Talking Feds is a production of Deledio LLC. I'm Harry Littman. See you next time.
