Harry Litman [00:00:23]: Hi, everyone. Harry here. Two quick notes before we start. First, as for the extraordinary chain of events involving Attorney General Barr and the Southern District of New York, where investigations concerning President Trump are continuing. That's the down the middle kind of developments that call for a Talking Geds now. And we put that out Saturday, the same day as the events, and that's still up there. You can go to Talking Feds and here, Barb McQuade, Andrew Weissman, Matt Miller and I all give our quick but thorough takes on that important breaking news. Second, so I've been checking out more podcasts lately and one that leaves me green with envy. I mean, one that I always enjoy listening to is the Al Franken podcast, which already is hugely popular and you probably don't need me to tell you. Al was, of course, on the show last week and it was a great one. The thing is that being Al Franken, he's able to secure any guest he likes and he opts for super smart and knowledgeable people who are tops in their fields and interesting fields, not necessarily politics like George Packer or Paul Krugman or Austan Goolsbee. So it's like listening to really smart friends talk over interesting and important topics. Plus, being Al Franken, it's often funny. So you should check it out and then come back to Talking Feds. OK, here's our show.
Harry Litman [00:02:06]: 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 virus and the demonstrations took a backseat this week to other events in Washington, D.C.. First, the Supreme Court handed the administration stinging defeats in a pair of blockbuster opinions authored by conservative justices that surprised and delighted progressives. Second, the public finally got a much delayed look at former national security adviser John Bolton's book. And it was every bit as scandalous as anticipated, portraying President Trump as stunningly uninformed, deeply inept, comically indecisive, roundly loathed by advisers and dedicated to obstruction of justice, in Bolton's words, as a way of life. The White House ran to court to try to put the genie back in the bottle and deprive Bolton of any profits. Bolton himself came in for a share of criticism for having played a cute and not come forward with the information during impeachment when the country was hungry for it. Trump took it on the chin from other quarters, including former national security government officials, and his poll numbers seemed in freefall, especially in toss up states. He looked to begin to reverse that with a big rally in Tulsa for which supporters had to agree to not sue if they contracted the virus and where Trump threatened demonstrators, whom he called looters or low lives, that they wouldn't be treated gently as they had in Minneapolis. After the celebration of Juneteenth last Friday, the focus of reformers turned to federal, state and local government efforts at concrete reform, including competing bills from House Democrats and Senate Republicans. And, of course, the virus continued its strong hold on the country, with numbers surging in 22 states. 800 Americans dying every day and the country on pace for 200 deaths by October.
Harry Litman [00:04:12]: And yet a growing slice of the country increasingly cavalier about it. And Vice President Pence announcing that the reports of a coming second wave were just media scare mongering. So it was a very eventful week in law, policy and politics. And to break it down, we have a fantastic panel. Consisting of first, Juliette Kayyem, whom we're lucky to call a regular on talking feds. She is the senior Belfour lecturer in international security at Harvard's Kennedy School and a national security analyst at CNN. She served as President Obama's assistant secretary for intergovernmental affairs at the Department of Homeland Security. Welcome back, Juliette.
Juliette Kayyem [00:04:55]: Thanks for having me.
Harry Litman [00:04:56]: Next, Laura Jarrett. Laura, as most all of you know, is co-anchor of Early Start on CNN and before that for four years was a correspondent covering DOJ and all manner of legal and political issues, including really the biggest developments in recent years. Before joining CNN, Laura was a lawyer in private practice in Chicago. Laura, thanks for being here.
Laura Jarrett [00:05:21]: So excited to join here.
Harry Litman [00:05:23]: Finally, Peter Baker, The New York Times chief White House correspondent and a political analyst for MSNBC. Before he joined the Times, Peter spent 20 years at The Washington Post, including a four year stint as the Post's Moscow bureau chief. He's authored five books on presidential politics, impeachment and Russia. And he is soon to come out in a couple months with The Man Who Ran Washington, co-written with Susan Glasser, about the ultimate D.C. power broker, James Baker, who called the shots and choreographed the deals for 25 years. Peter, thanks very much for being here. And can we just ask for a word about what drew you to Baker as your next subject?
Peter Baker [00:06:06]: Well, thanks for having me. I really appreciate. It's great to be with you. Great to be with such a terrific panel. Baker was a fascinating figure in his time, I think even more fascinating now in Trump's time. We had decided his book before Trump even showed up on the scene back in 2013 because Baker represented, I think, a different way of Washington prior to all this polarization to a figure who could be both highly partisan during election years, just ask, you know, Michael Dukakis.
Harry Litman [00:06:33]: Bush v. Gore, among others, right?
Peter Baker [00:06:35]: Exactly. And yet then when things when the election was over, you would turn around and negotiate deals with Democrats to save Social Security or end the Contra War. And he he was one of those rare figures who had his hands in almost every major thing that happened in Washington for a generation. And then I think his stories only become more interesting with the advent of Trump, because Trump is so much the anti-Baker and the story of how Trump has sort of taken over the Republican Party and changed it from the the Baker-Bush model is a story of our times in some ways.
Laura Jarrett [00:07:04]: I was lucky enough to get an advance copy here, and I can attest it's a really great study of insider politics and as well as sort of a very smooth and engrossing read. Coming out, again, in September. All right. Let's just jump in with the big decisions from the Supreme Court. So what happened? We've come to see the confirmation of Kavanaugh and Gorsuch as cementing a monolithically conservative court. And yet they dealt Trump two surprises this week. What do you account for, for these results?
Juliette Kayyem [00:07:40]: Well, I can start with the dreamers just because that came out of my department. I always am wary of thinking that we're gonna be thrilled by a Supreme Court for longer than a week. There's good cases, depending on your politics, and bad cases. We have an abortion case coming up. I don't know if progressives are gonna be thrilled about the Court next week. But I do think something is important about the Dreamers case and DACA case that really is about less about law than I think about sort of good government. Technically, it's a sort of uninteresting case until the last three pages. It's not a romantic opinion. It's not about their contributions to society. It is just technically: what is an agency? In particular, an agency with broad powers within the homeland as compared to, say, the Department of Defense. What is its obligation of sort of due diligence before it makes such a decision? And so it ultimately ended up in basic administrative law land about it was arbitrary and capricious for Elaine Duke, who is the acting secretary at the time, to essentially in a three paragraph memo, impact the lives of close to six hundred or eight hundred thousand dreamers, and that any attempt by that later Secretary Nielson to remedy that through a lot of sort of post hoc justifications were simply intolerable at that stage because the damage had already been done. So, if you're going to have horrible policies, you have to enact them less horribly. And this was sort of the same reasoning that we got from the Court out of the census case where they left open the possibility that the Trump administration would act horribly from a policy perspective, at least in my mind, but said he got gotta let us write an opinion that passes the straight face test. And in neither case did they.
Harry Litman [00:09:19]: Yeah, I thought it was really interesting. Well, as you say, it was a very picayune basis for the holding, but there was a little bit of a stirring glimmer from the Chief Justice. We had had this maxim that everybody learns in law school about how you have to turn square corners with the government from a famous case where someone didn't exactly file his taxes right. But here, Roberts says, when so much is at stake, the government's got to turn square corners with the people. So there was, you know, at least a sense of the gravity of it. And you're right, they didn't talk about the success of the Dreamers. On the other hand, it's been a phenomenally successful program and I felt a lot of the coverage. We saw the Dreamers walking down the Supreme Court stairs after the argument, and it was stirring. You felt proud in a way that's been very rare in the last few years. Like, 'yeah, this country values matter and it gets it done.' Laura, you are a lawyer. One way of looking at his, just as Juliette says, these were just such crappy arguments by Trump and the administration, court just couldn't get there. Was that sort of your view as opposed to any kind of grander relocation of the very conservative court?
Laura Jarrett [00:10:33]: Yeah, I think one of the more interesting ways to look at both the decision on DACA and the one on Title VII for workplace protections for the LGBT community is that both decisions affect real people's lives in the most basic sense. Right? The the right to work, the right to live, to be able to to live free without the fear of deportation. And yet both of the majority opinions arguably employ what a friend of mine, professor at the University of Chicago, Daniel Hemel, calls moral minimalism. Right. So these are these are not sweeping Anthony Kennedy-esque opinions. The one from Gorsuch on Title VII in particular. He acknowledges, I think, the moves that he's making there and to use a textualist argument to support a position that, of course, LGBT advocates are going to be happy with the ultimate outcome. But the way he gets there, the formalism that he employs, it doesn't seem to fully acknowledge the core harm that's done when people are discriminated on the basis of their sexual orientation. It's amazing to have decisions that obviously people can breathe a sigh of relief. Over 700000 dreamers are not going to be deported in the near term. And that people are going to be protected in the workplace--are not going to be fired just because of who they love. But it's just an incredible way to think about how the law is used for real people's lives. And just interesting. This gets reduced as all things in Washington is like a way that the Roberts court tries to slap down Trump. And Roberts somehow has his finger on the pulse of America. And he decides when the administration has gone too far. But Roberts is also the one who signs on to the travel ban opinion. To sort of stake all your hopes on Roberts and these things, I think is a risky gamble. [111.4s]
Peter Baker [00:12:25]: I think that one thing I would add to what you were saying and what Laura was saying about Roberts, I think the thing that really is interesting about him is not that he's suddenly drifting to the left, as many people on the right might fear. They don't think he's forward as they would like him to be. He's still a conservative, but I think he is, in fact, an establishment conservative who wants things done right. And he saw this preview of this with that Census case. You remember when the administration tried to add a line to add a question on the census about citizenship. And it was Roberts who struck them down, not because he said they didn't have the power to do it. Because he didn't do it the right way, because he said that they weren't being honest with him about the reason that they were doing it. He was offended. It looked like from his opinion back then that they were sort of lying to him, in effect, about the real motivation of what they were doing. And I think you sort of see the same impatience on his part with the DACA decision this week, a litlle different maybe on the LGBT decision, but on the DACA one, he seemed to be saying, you guys have to play fair. You're not doing it. You have to get right. You want to back to me. Then we can talk about it again.
Harry Litman [00:13:24]: Yeah. And by the way, they won't have time to come back home unless Trump wins reelection it's effectively settled. So I totally agree that he's a square shooter. I totally, totally agree with both Juliette and Laura's injunction. You know, don't get too sanguine too quickly. I do think Roberts--everything you say is right, but also take seriously his view as the chief. I could have imagined, for example, that if he were just an associate justice, maybe that case comes out five, four, if he's just thinking about his own views. But but when the court speaks six to three and a polarized setting, it just has a little bit more for miss, a little bit less of a politicized overlay. And I think in some instances, he takes his his role as chief justice seriously that way. All right. A few bits on on Bostock, which came out Monday. So this is a Title VII case, actually, Laura Title VII. How big important a statute is it?
Laura Jarrett [00:14:26]: It's everything. It is the core fundamental civil rights law for I think many scholars would say in the United States. It's interesting again to me that this is the move that gets it done, right? It's an argument that I had seen time and again clerking on the 7th Circuit, but it hadn't really got any traction until not too long ago. And the idea--.
Harry Litman [00:14:49]: Which argument exactly?
Laura Jarrett [00:14:51]: The basic argument is that obviously sexual orientation is not one of the enumerated protected classes in Title VII. Right? So it says you can't discriminate on the basis of sex. And so the idea is, if a man is told he's not gonna be hired or he's going to be fired, a gay man is told that that that's a Title VII violation, because if it was a woman, he wouldn't be fired. So it's sort of an argument the advocates have been making for a long time. They thought it was elegant and sort of had a natural appeal. And it turns out with Gorsuch, it worked. And he had sort of signaled this even before he was confirmed that this is the way he might vote on this. But again, I just there's some question there about what it means for people who identify as bisexual. I think that there are some repercussions that the dissenters pointed out that certainly judicial conservatives will attach to what this means for bathrooms, cultural issues that people find alarming. So we'll see how it plays out in litigation on the ground, in the lower courts where this is going to come up regularly. But there's no question this is the fundamental civil rights law in our country that now has a radically different meaning.
Harry Litman [00:16:02]: I'll take it another step, at least from Gorsuch's view. I mean, I agree that there's a sort of bloodless Nissan and technocrat aspect to the methodology, but the conclusion is as sweeping and tub thumping as can be. It's that always, I'm an originalist. And what I mean by that is in 1964, it already banned that discrimination. But the legislators didn't realize it. The courts, Alito in dissent, talks about 30 decisions. So it really is a kind of a of a blueprint for the incorporation of social progress and ideas and kind of moral advances in the words of an individual statute. So that's like consistent technically with originalism but it's sort of not what we think of as originalism, right? I mean, it really is updating it morally to keep pace with with social advances.
Peter Baker [00:16:59]: One of the things I'll be interested to watch is how the president talks about this at Tulsa. He basically let the LGBT ruling go without much comment, partly because I think Neil Gorsuch, his appointee, was the writer of it and therefore attacking it would be a little problematic for him. He went full throated against the DACA opinion and then against the court generally in that regard. And it may be interesting to watch him pivot because one of the arguments he's had with his base has been, I am your guy for getting the courts back on our side. I have put in nearly two hundred appointees, including these two great Supreme Court justices. And he's going to now end up having to either find a way to pivot in making that argument or explain basically how one of his Supreme Court justices went so wrong on an opinion that might be very important to a lot of his supporters on the right.
Harry Litman [00:17:47]: Yeah, and his lawyerly response to it, of course, was do you get the impression that the Supreme Court just like me? It's all about him. All right. Well, fifteen opinions yet to come. The abortion one is Juliette says, obviously the huge Trump cases themselves. So, you know, everything's been topsy turvy this whole year, but the Supreme Court late June still coming in with the big opinions and the next couple weeks will show quite a bit. All right. So, John Bolton, The Room Where it Happened, his 17 turbulent months with the president, so many kind of lurid details. Let's let's start with a kind of larger bird's eye view. Peter, you've written a lot about this. What do you think mattered more? Both for the current climate, but also just history, that reaffirmation of all the Ukraine story, that was the basis of impeachment or all the other stuff, China and Turkey and the insider White House stuff. Which is the more important or damning?
Peter Baker [00:18:52]: Well, I would go with a bigger picture. I think what he does in effect with this book is put the Ukraine chapter into a larger context. The a larger context is a president who doesn't see the lines, who doesn't see the borders and the boundaries other presidents have seen. Whether they're legal or simply traditional or moral or ethical or whatever phrase you want to use, other presidents have refrained from doing a lot of the things that this president has done. We've seen that time and time again with John Boehner is doing this book is saying, hey, from the inside, what I saw was Ukraine was just a part of the whole pattern here of obstruction of justice as a way of life. And he's saying that the president uses his office to his own personal political benefit, even at the expense of the nation's interests, which is a heck of a charge. Now, remember who John Bolton is. This is not some screaming liberal. This is not some never Trump or Republican who's drifting to the left. There's a hard core, hard line hawkish Republican conservative who has not changed his ideological stripes. Not changed his mind about politics, but finds Donald Trump to be wanting from the right, not just from the left. And I think that that's a really interesting moment. I know a lot of you aren't going to like him. He to many people as a flawed messenger. He's obviously vilified by the left for not coming forward during impeachment. He's vilified by the Trump Right right now for being a traitor, to use the word of the secretary of state. But what's more shocking to me is, is I wasn't sure if John Bolton I am and what he's telling us about our president. [86.1s]
Laura Jarrett [00:20:19]: But Peter, was there anything in that book and I have not read it, but is there anything based on your reporting that you found surprising? And I mean that in the sense of is there anything that is inconsistent with all of the other reporting about this president over the past three and a half years? And maybe it's an it maybe it's a sign of the times and and something that we should actually find disturbing, that all of the things that Bolton says about what the president allegedly said about the concentration camps, housing the weiger Muslims and some of his other claims and even the claim that he pressured Xi, pleaded with him to help in the 2020 election. That under any other presidency would be like huge breaking news, huge banners. I mean, we would be going crazy with that. It barely registers, at least in my estimation right now. And maybe it's because there's too much going on, but maybe it's because we've become sort of habituated to some of these things. And so I I just wondered, was anyone really shocked? I mean, we call this like a bombshell book. Was it was there anything in there? I think that was that was surprising or inconsistent that many of the other reporting that has already been out there. And the other thing that just is so striking to me is that he was there for 17 months. He was there for 17 months. And yet he's so troubled now that the man is not equipped to lead the office. What was he doing for all of those months? I understand that he says he was thinking about leaving. He was thinking about resigning. And we obviously have to report on the things that he says because these are the facts that have happened and this is the only person who's really had that level of access to reveal what was going on behind the scenes. But I think that there have to be questions fairly about a person's credability who stays in that job for 17 months and now says he thinks that he is not fit to be the president.
Peter Baker [00:22:09]: Yeah, I think you raise a good point, a very good question. And I think in some ways you answer the question, too. Is it inconsistent with our understanding of who this president is? No. We knew he was not a particularly astute history student, for instance. And in this book, John Bolton tells us he didn't know that Britain is a nuclear power. He didn't know whether or not Finland was part of Russia or not. Did we know, was it a surprise that the president says the journalist should be executed? Well, it should be a surprise. I mean, I think yes, you're right. In some ways, it's not a shock, and yet it should be anyway. It's not surprising, but it still should be shocking. We should still find the energy in our lives to look at some of the things that we're being told here and say, holy moly, that's just not something we hear from a president or see a president do. And just because we've seen a lot of it the last four years shouldn't diminish the importance of what he's telling us. And to your point about him, I think it's interesting. [00:23:03]This is a question that goes to a lot of the people who have worked for President Trump. They go in there and I think that many of them anyway, convinced themselves that they can make it better. They don't, I don't think anyone is fooled at this point about what's going like. They know he's erratic. They know he's impulsive. They know he's going to tweet out things that are going to make things go nuts. And they know that at some point or another they'll probably be fired because that's the end result for almost everybody except for members of his family. And so they convince themselves, I can do things that will make it better. The difference, I think, between him and, say, some of the early figures like McMaster and Mattis and Tillerson, I think those guys felt like they were trying to keep the whole thing from coming off the rails. They saw themselves as guardians of of the system to some extent. Bolton I think is different. I think he went in because he has a strong philosophical or ideological set of beliefs and he wanted to achieve some things that he thought he could get done even while he knew the president was going to do other things that he didn't like.
Laura Jarrett [00:23:57]: Yeah, it's just like Bill Barr.
Peter Baker [00:23:58]: A little bit like Bill Barr. Right. And in this case, he you want to get out of the IMF treaty. He wanted to get out of the Iran accord. He wanted. He's a he's a fierce opponent of internationalism and international accords. And so he got us out of, like a half dozen treaties or something during his time. So while he paid a price, you could argue or he turned a blind eye to things he shouldn't or whatever. If you want to look at it from his point of view, he got some things done. And he also, in his view, kept things from getting worse with what he saw as foolish diplomacy with North Korea and Iran and so forth. But you're right, it's not like he could have fooled himself into thinking that present Trump was somehow different and woke up one morning and say, holy moly. Who knew that this is what it was like?
Juliette Kayyem [00:24:34]: They just all sounds so horrible. I just have to say. Have you been certain in government for a chunk of my career, people are competitive. And also, is it just in each book just makes that group of people. There's no not mission oriented. Now, I blame the president for that. Whose reason for being president wasn't based on any ideology, it was just based on ego and any ability to do it and doesn't have any strong feelings about much except for what's going to help him win and how he perceives a win is. But yeah, I've read excerpts and just thought like my stomach, like anybody's who's been in a bad workplace, your stomach sort of is queasy. But I want to pick up on the sort of shock factor. [00:25:12]One of these I just want folks to remember is that there's no reason to believe that Trump has changed since the time that Bolton left. And I I've raised this throughout the COVID. But if Trump is that desperate for Xi's attention, for for the desire to not be isolated by him to to get the help of China in terms of supporting our agriculture and things like that, there's no reason to believe any of that has ended whatsoever. The Ukraine was recent China's recent seven. And so just leading into these last months of what could be the Trump presidency in the middle of a virus that has been fought with the support and help of China, we now get over I think it's close to 60 percent of our PPE from China now. We just have to have eyes wide open about what may be going on. There are inexplicable aspects of the Cauvin response that I am now very curious about, and not conspiracy theory. But why didn't he invoke the Defense Production Act when almost 60 percent of our GDP is coming from China. There's good questions that need to be answered in real time now because we are losing a thousand people a day, and that's totally fine by some segments of Americans right now. So this is-- one has to believe that none of this is in the past and that this is continuing on a daily basis. And all that Trump has done that's different is he's been successful in getting less ideological, more sycophantic people around him. And so this present national security adviser has no business having that job. His defense of the President's racism, which is not really the national security advisers job and chief of staff, equally so, who is picked for that reason only to. So I think Trump is hiring better, so to speak, right? In the sense that these are just people who are not likely to challenge him on any of this stuff. [108.7s]
Harry Litman [00:27:01]: Although I think his defenders seemed [1.1s] to be winnowing and we'll talk about your letter, but basically the last people standing are Pence who is always kind of been tepid in chilly, and then Pompeo, who is all in. I totally agree. It just screams out for questions to be answered in real time. And I think the prospects for them being answered in real time are close to zero. This goes back to what Peter and Laura were saying, but you read this stuff and if you sort of blink, you know, your head goes 360 degrees. And then you remember that your head went 360 degrees the other way when you learned X, Y, Z. And somehow the almost the Trump phenomenon par excellence is the country's overall shrugging it off the base as being indifferent and others sort of ranting and shaking their fist but to no practical end. So this struck me especially with the eyewitness aspect of it, as when historians pick up this book, as Adam Schiff says they will, they will not be kind to Donald Trump. And yet my best guess, maybe this has to do with the ambivalence toward Bolton, is it really won't have great ripples and be a huge boulder in the but it will just kind of be subsumed in the general. Yeah, we know Trump is fill in the blank. Imperfect? Or like disastrous. But it might it has to do with minds seemingly already made up.
Peter Baker [00:28:27]: You know, it's striking I think we'll see at this rally tomorrow night. But if you're a Trump fan, you have heard this before. And you're right. You've probably discounted it his case. Well, just job Boehner, a disgruntled guy, he's just headed for the two million, which, of course, the people, the left would say as well. Or your center it I think a lot of people say "Look. Yeah, OK. Trump isn't the guy I'd want to have come over and visit with my my mom. But Trump for Thanksgiving dinner or something. But he's getting stuff done."
Harry Litman [00:28:52]: I like the judges before last week.
Peter Baker [00:28:56]: Right now I think I think that they feel like the fighter in him that is the appeal, right? So whether he wins or loses as is less important, is the fact that he's out there willing to do it. And they sort of thrill the fact that he's making the establishment, including the media, get all worked up.
Harry Litman [00:29:09]: I quite agree. I mean, that that's the corollary of what Juliette said. He wants to win and they want to see him win against people who have had their boots on their necks. But, boy, what a huge topic. And it's just it really is disconcerting that the country is not going to know everything or come to resolution in real time. As you say, it'll be hopefully just hopefully the stuff of history.
Juliette Kayyem [00:29:32]: Yeah. The thing I want to add to that, I think one of the interesting phenomenons about Black Lives Matter. You look at the polling in terms of just the shifts in support for Black Lives Matter, which if you ask me if I had opinion on it before, it might have been. No. No opinions but, what's interesting in the last couple of months, and it may be related to both Trump becoming an increasingly embarrassing figure publicly, but also the nature of race relations and police misconduct is that shame seems to have returned to our lexicon. And I'm loving it. This is true of terrorism as well. That's the field I grew up in. One of the reasons for the rise of white supremacy terrorism in the Trump era is there's a variety of reasons, Facebook and other issues. But it was the failure to shame it in real time by leadership. And I think what you're starting to see is the inability of people to disaggregate the shamefulness of Trump from a race perspective or many perspectives with voting for Trump because of the judges or the economy. This is, of course, most people who follow it know this is, you know, the never Trumpers and the Lincoln Project and all these groups that are formed. But I love it. I think shame is a very important aspect to an agenda that is more representative of America right now. I think we have to understand the Trump voter. We have to get to know the Trump voter. I think we have to minimize the Trump Trump voter from the perspective of someone who's a Democrat. I know people on this phone call are not necessarily as political as I am, but whether it's in white supremacy, terrorism, it's in race relations or it's in just the conduct of a president towards the world, which we've now seen exposed by Bolton. I like an America with a sense of shame. I do think it's I think it's a good movement. [103.9s]
Laura Jarrett [00:31:18]: It's just interesting to think about why now and what that impulse is that has now been sort of exposed in the most robust way. And why not after Charlottesville or any number of times, whether it's shame or guilt or whatever, whatever the word might be? What is it about this time? And I wonder what voters are actually finding so much more shameful about this. Is it the church photo op? Is it just the words and the tone and the throwback to a racist term in terms of when the looting starts, the shooting starts? Is it--what is exactly is being tapped into that people find so offensive that again, wasn't offensive before? What? Why was this the last straw? I find interesting when you talk to voters, a lot of them just seem sort of beaten down and exhausted, frankly. But it's just interesting to think about why this has been the moment for the average white female suburban voter. What is it that has caused them to feel uncomfortable this time?
Harry Litman [00:32:28]: So true. And I would add another word kind of returning to the lexicon. At least I felt this in the DACA case is pride, some sense of what matters in America and what the values are and why trampling them is not what we stand for.
Harry Litman [00:32:43]: For now, it's time for our sidebar function, where we take a moment to explain some of the concepts and relationships that are foundational to events in the news, but aren't typically explained on on other shows. And today we have none other than Frances McDormand here to explain an important news concept. Most everybody knows who she is, which is fortunate because this is her own pithy thumbnail description. To quote, Frances McDormand has a New York driver's license, TSA pre check and over 40 years in the entertainment business. And now she also has the credential of being able to tell us about lawsuits like the one that Robert Mueller brought against Russian actors who we still haven't apprehended, and we doubt we will. But for conduct by foreign nationals on foreign territory.
Frances McDormand [00:33:38]: When can the United States bring criminal charges against foreigners for conduct outside of the country? Generally, U.S. criminal law is limited by territorial jurisdiction. In other words, crimes are generally tried and punished according to the laws where the crime took place. This usually means that federal criminal laws apply only to crimes committed in the United States. But in some cases, federal prosecutors prosecute foreign nationals who, while located outside of the United States, engaged in conduct that violated one or more U.S. criminal laws. For example, as a result of the Mueller investigation, the Department of Justice brought charges against the Russian Internet Research Agency and Russian nationals for conspiracy to influence the 2016 elections and assist candidate Donald Trump. The Supreme Court has held that there is a presumption that U.S. laws apply only within the territorial jurisdiction of the United States. However, when Congress clearly expresses an affirmative intention to broaden the reach of such laws, it has authority to do so. In other words, when a particular criminal statute expressly or impliedly authorizes its application beyond the territory of the United States, prosecutors may validly target criminal activity committed outside U.S. borders. A surprising number of federal criminal statutes have such extraterritorial application. These include the Foreign Corrupt Practices Act, the Racketeer Influenced and Corrupt Organizations Act, commonly known as RICO, and various anti money laundering and criminal fraud laws. Extraterritorial enforcement of these laws is fairly rare. However, this is likely due to practical challenges and diplomatic considerations. In the case of the alleged Russian international computer hacking and bank fraud schemes, for example, the cases are complicated by Russia's refusal to extradite its citizens to the U.S. for prosecution. Indeed, the Department of Justice recently dropped charges against the only Internet research agency defendant that appeared through lawyers in a U.S. court. This was Concord Management and Consulting. In dropping the charges, Department of Justice lawyers explained that the difficulties of prosecuting the foreign entity classification issues and the inability to enforce punishment against Concord all weighed in favor of its decision not to further pursue the case. For Talking Feds on Frances McDormand.
Harry Litman [00:36:08]: Thank you very much, Frances McDormand. Her latest movie project, by the way, is Nomad Land. It's about a movement of older Americans who have chosen to live in their vehicles and have joined the modern workforce of our country. It is supposedly soon in theaters near you, but as Fran says, not exactly sure how that's going to happen.
Harry Litman [00:36:29]: OK, we talked about Tulsa a little bit. You know, that's a pretty interesting situation because he's been kind of muffled for months and now there's the sense of we're unleashing the tiger and his and his roaring into Oklahoma. Of course, Oklahoma itself is surging in virus cases and he's scheduled to hold an indoor campaign rally in defiance of even his own administration's guidelines. I guess the broadsst question I wanted to ask is, can he effectively returned to the hustings right now with the virus still sort of surging? And what's his angle if he has one? Is he trying to shore up his dwindling base or actually make a broader argument to broader Americans? Here comes Trump in his campaign mode. So what? Why now? And what are his prospects?
Peter Baker [00:37:24]: Well, I think I would say is I think that Trump has been itching for something like this for three months. He's been stuck in the White House and doing very little travel until the last couple of weeks. He's like a caged lion roaring to go. And he we know from history that his idea of campaigning are these mass events, that he gets energy from it. He sees he sees them as validation of his presidency and validation of what he's doing. He thinks they project strength and power to the political world. And I think that there's something to that. It is the the lifeblood of his political identity. And so without them, for three months, he's been kind of listless and flailing and looking for ways to impose himself on the conversation, not very successfully at times. And I think that he thinks that once he gets out there again, he will be the dominant.
Harry Litman [00:38:13]: The real Donald.
Peter Baker [00:38:14]: Yeah. And again, it's not wrong to say if you're a person like him, to look around an arena of 19000 people screaming and shouting- He gets a reaction of these things I don't see very often from politicians. I mean, obviously, President Obama could fill a pretty good stadium and give a great speech. And he had a lot of energy among his supporters. But beyond Obama, I don't think I can think of too many politicians who get the crowds and the energy that he does. Now, that doesn't mean it's a majority of the overall population, obviously, so far by polls it's not. But it is a political strength and it plays to him and empowers him. And that's what he thinks he needs to get back out there and try to reclaim some ground he's lost in these last few months.
Laura Jarrett [00:38:57]: Well, and the other thing is, of course, look, the reporting shows he did not like the optics of him being hunkered down in the bunker. And so this gets to just the pure imagery that he wants to get away from. Not to mention, as you mentioned, Peter, just the pure energy that he gets from our coverage of lines that have been out there knee deep for days, all waiting with bated breath to see him. I mean, what would a better ego stroke for somebody who so wants that love and attention? The difference this time, of course, is that we are still in the middle of a pandemic. And every single public health expert out there has cautioned about having this rally, especially when they're not going to require masks and they're going to be packed in there like sardines.
Harry Litman [00:39:44]: Is either of you going to be there, by the way?
Laura Jarrett [00:39:45]: No.
Peter Baker [00:39:46]: No, not me. No. We've got somebody waiting to be there.
Juliette Kayyem [00:39:49]: Don't go. I know both of you. Whatever you say, don't look. I mean, the irony, of course, on Laura's point is if it happens, I'm definitely someone who spends time advising corporations and knows the lawyers and insurers who worry about things like this. I am still in shock that Bob is still going forward with it as we speak. The Supreme Court essentially just punted it back to the facility. The Supreme Court in Oklahoma said we won't stop it. But the failure of the Trump campaign to have health and safety standards is a contractual one, not a constitutional one. Now, I'm still holding out for 24 hours because, first of all, that facility will not be able to be used for two years because the brand impact of what's about to happen is, you know, it's going to be a lot of it's going to be a little bit like Fukushima or Chernobyl. You're like not going to go for several years. And so they're just going to measure that and the hit that they'll take and maybe they can figure out whether it's outdoors. And I could be totally wrong.
Harry Litman [00:40:42]: Oh, you think they might still try to pull the plug?
Juliette Kayyem [00:40:44]: I mean, it's just, you know, last night the company's said to the Trump campaign, "look, we still haven't had a safety and health plan from you", which is the contractual obligation. That always strikes me as the first salvo by any corporation to allege breach of contract, as Laura certainly knows that, you know, you sort of failed- you failed to deliver. It could be that they're just trying to cover themselves. I don't know at this stage. All I know is that this is a company that is is literally might as well just burn the facility down for three years after this, because there's no question from a public health standard what's going to happen is that there's going to be an intolerance in the facility for masking. Right. You just already know what the mood is like. Meanwhile, Trump Mr. Get out there. Doesn't like to be seen in a bunker. He's going to come up through the back through a tunnel, never experience or they're going to have shields in the front So, he's never going to really experience actually that engagement that he might at another event. He will be completely, I think, protected even on the on the air side. My guess is that there's gonna be additional protections for him in terms of a coronavirus. You know, whether it's he's completely isolated in terms of air quality. My guess is that that's what they're planning on doing. In some ways, it is high. I'm going to kill all of you and that and everyone that you encounter and meanwhile, I'm still going to be safe. We make it benign by calling it a super spreader event. It's a super killer event. It really is. I mean, you're just looking at the numbers in these states. Now, the south and southwest states, this is a super killer event and we should just call it that.
Harry Litman [00:42:19]: And to get nerdy and lawyerly here, I'm sure Laura could affirm the little waivers they'll sign will not prevent lawsuits.
Juliette Kayyem [00:42:26]: No.
Laura Jarrett [00:42:26]: No.
Juliette Kayyem [00:42:26]: And in particular, they got the facility.
Harry Litman [00:42:28]: Yeah. And even by the law of chance, some people are going to get sick and die. And that's gonna be a bit of a buzzkill.
Juliette Kayyem [00:42:34]: I didn't sign the waiver. So if I encounter someone who's there and I get sick, I have a cause of action for extreme negligence, right? I mean, in other words--.
Harry Litman [00:42:42]: Recklessness, yeah.
Juliette Kayyem [00:42:43]: The CDC is saying do not have these events.
Laura Jarrett [00:42:46]: Especially since there-- I mean, they've been on notice for, for weeks now. And every like I said, every single public health expert at least that we've we've had on has been pretty unequivocal that while it's just so striking. I mean, if we just take a step back, he has still managed to cast that this entire issue as a debate and a political one that's about public health, right? I mean, just the idea that we have so many reporters on the ground who are talking to folks there and they do not even want to be questioned about why they're going to an event like this. Do they feel safe? They are just like, stop asking me these questions. It's like they almost feel offended that, you know, that they're being attacked. And it's just it's just sort of incredible to me that he has managed to spin this public health crisis into politics.
Harry Litman [00:43:32]: And by the way, politics into public health crises. There'll be demonstrators there that he is going to jump up and down and call left wing looters when his own government says there's really nothing to that at all. But I think that's a theme that we'll see continuing in the campaign, if indeed we're sort of at the advent of the Trump campaign season. We've got a couple minutes to talk virus, which is, of course, related to Tulsa, but so many causes for concern. The task force seems dwindling or in embers. Fauci and he apparently don't even talk anymore. You have a weird red blue dynamic where red governors take it as important for their loyalty to Trump to just downplay the virus for the most part, with some exceptions, like Ohio. So, Juliette, let me let me zoom in on you here. You said every state is reopening the wrong way. What do you mean? And do you think that a strong second surge is basically inevitable at this point?
Juliette Kayyem [00:44:33]: Well, it's not all states are the same. Look, all of the states reopened before even the sort of lax criteria that the White House had established early on to reopen. If you just look at how quickly states reopen, even New York phase one and you compare it to Europe and you compare it to Asia, they were in really much more aggressive social distancing than we were. And, you know, we were still able to go to markets and stuff. But that's I don't want to say that's OK. It's just I just you know, you take the world as it is. We're a different kind of country. And, but that doesn't mean that there aren't good ways to open up early and bad ways. And so now what you're seeing is the division between good and bad ways. And you're seeing the consequences of it in the South and Arizona and other places like that. So it's just important that people that this is the first surge for those states. In other words, just because of the timing of the virus, this is in a second phase that the second wave, we would anticipate some sort of drop off in August and September because of the natural drop off of viruses. And then you'll probably see a combined flu COVID sometime in October, which could be stronger because it would be with the seasonal flu. So what we're likely to see is a 1,000, 800, 600 thousand deaths a day in the United States making 250, 300, if not 400000 dead by the end of 202 very likely. And then sort of that comes with a vengeance that we're just going to be adapting at all times. You know, you're starting to see in Asia. Beijing had to close their schools again. Israel had to close their schools again. And we're doing this blind without a strong testing. So it's going to be sort of like an acceptable bad, though. I mean, you just see what's happening as we just sort of responsible people act responsibly, responsible leadership ask acts responsibly, responsible CEOs act responsibly, and hopefully that that is enough to protect more people than might otherwise be exposed, given the lack of federal interest in this.
Harry Litman [00:46:28]: You know, I mean, that's the big point that I maybe it's a closing point for Laura or Peter. It does seem some of this is at a bureaucratic level that might not be visible to the public, but it really seems like the federal government is just AWOL here and any kind of day to day management of the risk. Is that your sense?
Laura Jarrett [00:46:47]: I mean, part of the issue, I think, just quickly, is that there was never any coordinated, coherent federal plan to start. And so as a result, we've seen sort of a patchwork of decisions made at the local level. Some more aggressive than others. Like in New York where I am it's been very different than it has been in a place like Florida. But as a result, I think that's part of why you're seeing now a different result in certain states and why and why things may be different come this fall. And it's troubling for something like public health when people don't have confidence in what the federal government is saying. It's troubling when the messaging seems to change day to day, even on the situation with the masks, right? I mean, think about how many weeks we were told don't wear masks. Don't you know, it's not worth it. And then to make such a reversal, which now all of the research seems to support, can make an enormous difference. A lot of people just don't have confidence in it because there's just never been a coherent, clear message.
Harry Litman [00:47:48]: Man, there's a lot going on. And I feel we could go for hours, but we're at an end. It's our final segment. We take a question from a listener and each of the Deds has to answer in five words or fewer. Our question today comes from Grace Wen who asked, "Why didn't Bolton testify at the impeachment trial? Wasn't it his legal obligation?" Feds?
Peter Baker [00:48:14]: Both. House Democrats. Senate Republicans.
Harry Litman [00:48:17]: Good. A word left over.
Juliette Kayyem [00:48:20]: Two million dollar book advance.
Harry Litman [00:48:23]: Laura?
Laura Jarrett [00:48:23]: Washington inaction.
Harry Litman [00:48:26]: And I'll go with Republican senators gave a pass.
Harry Litman [00:48:34]: Thank you very much to Peter, Laura and Juliette. 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 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 fads related content. And you can also check us out on the Web. Talking Fed's. 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 to help us with the cost for this podcast. Just up there now is my conversation with Natasha Bertrand about her new article about far right boogaloo members and the violence they seem set on sowing in demonstrations.
Harry Litman [00:49:32]: Submit your questions to questions@TalkingFed's.com. Whether it's four, 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 Lopatin. Our editor is Justin Wright. David Lieberman and Rosie. Don Griffin are contributing writers. Andrea Carla michaels is our consulting producer and production assistance by Sam Trachtenberg and Sarah Phillips, whom thanks very much to Fran McDormand for explaining to us when the Department of Justice can bring criminal charges against foreign nationals for conduct abroad. Our gratitude, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Feds as a production of Deledio LLC. I'm Harry Litman. See you next time.
