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Harry Litman [00:00:41]: Welcome to a very special episode of Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. But you won't be hearing from me much today. Instead, we are presenting a foursome of former prosecutors whom Twitter and Facebook have clamored to here together for literally years. They are the much vaunted sisters in law. Among the charter feds who were on board from the beginning are five women Joyce Vance, Jill Wine Banks, Barbara McQuade, Maya Wiley and Mimi Rocah, the newly elected D.A. of Westchester County. They're all extremely well known from MSNBC, but they always appear with others. I've long since lost count of the requests or demands that they have their own platform to interact with one another and only one another. And here for the first time, they do. Joyce, Jill, Barb and Maya break down another eventful week. And Mimi provides the sidebar. It's a bonanza. Before I turn the mike over, one more quick announcement. It's late June, and the country's focus turns to the final flurry of Supreme Court opinions. But there's a podcast, Amicus hosted by Dahlia Lithwick that you'll want to listen to in the coming two weeks for sure. But that does a deep dove into the U.S. justice system and our democracy year round. I listen regularly, and Dahlia has a gift for using interviews with important legal figures to bring out both the legal nuances and the human impact of Supreme Court cases. I really recommend it. And oh, yes, talking Fez will certainly be all over the important end of this blockbuster Supreme Court term with two episodes, one this Friday, featuring the dean of American constitutional law, Larry Tribe, along with Dahlia Lithwick herself and Ron Klain. So please tune in for that. And then within a couple days of the end of the term, our regular Supreme Court panel of Amy Howe, Leah Litman and Kate Shaw will tape an end of term analysis. So stay tuned to talking feds for coverage of the court's decisions. And now we give you the sisters in law.
Joyce Vance [00:03:13]: I'm Joyce Vance, in for Harry Litman, for this special Sisters in Law episode of Talking Feds. When we first started planning this show and selected this week. We had no idea what an appropriate time it would be for the first ever sisters-in-law podcast. And no, for those who always ask, we aren't sisters in law because our kids have all intermarried. We're quite literally sisters connected by our love of the law. Sisters in the Law.
Joyce Vance [00:03:39]: Barb McQuade and I work together as U.S. attorneys during the Obama administration. Barb was in Detroit. I was in Birmingham. We were both career prosecutors with four children each before becoming political appointees. Thanks for being here, Barb.
Barbara McQuade [00:03:55]: Thanks very much, Joyce. Really glad to be with you all.
Joyce Vance [00:03:57]: Barb and I met Maya Wiley and Jill Wine Banks after we all began working as legal analysts for NBC and for MSNBC. Maya has an incredible background, not just as a former civil prosecutor in the legendary Southern District of New York, but also as a civil rights activist and as a former board chair of the New York City Civilian Complaint Review Board, which is an independent and impartial police oversight agency. Maya, thanks for being here.
Maya Wiley [00:04:26]: It's a pleasure to be with you.
Joyce Vance [00:04:28]: Jill Wine-Banks really needs no introduction while serving as an organized crime prosecutor at DOJ, she was selected to be an assistant special Watergate prosecutor, the only woman to join that legendary group of prosecutors. Jill has spent her time since then, both in private practice and in government service, and has had a fascinating career. You can actually read about it in her book, The Watergate Girl, which is a great read. Jill, thanks for being here.
Jill Wine-Banks [00:04:55]: My pleasure to be with all of you.
Joyce Vance [00:04:57]: So the sisters in law decide to get together for a virtual cup of coffee and a discussion about what's going on in the intersection of law, policy and politics, which is our favorite place to be. And what a week we thought. We're in the middle of a pandemic. The president is holding MAGA parties in states like Arizona and Oklahoma, where infection rates are spiking. There are national protests sparked by the murder of George Floyd by Minneapolis police. The protests are ongoing and no one knows quite where we'll end up. Late last Friday, the attorney general, Bill Barr, announced that Jeffrey Berman, the U.S. attorney in the southern district of New York, was stepping down and being replaced by one of President Trump's golfing buddies. Berman quickly responded with a public statement on Twitter saying he knew nothing about it and most assuredly wasn't stepping down. Berman only agreed to leave after ensuring that his deputy, Audrey Strauss, a nonpolitical career employee, would take over. On Wednesday, erin Zwolinski and John Elias, two current assistant United States attorneys, testified before the House Judiciary Committee. Zelinski and Elias talked about politically motivated prosecutions. It was a week to rival Mr. Toad's Wild Ride, except that Disney is still closed. So grab a cup of coffee or maybe something a little bit stronger and have a listen along with us. We start today with the most important issue facing our country. Yesterday, the House passed a sweeping reform bill along party lines that would address systemic racism and police violence if it could pass the Senate. So, Maya, let's start with that. What needs to happen? And will America be able to keep its attention focused on the issue and create the transformation that we need to have?
Maya Wiley [00:06:42]: First of all, Joyce, I love you. I just have to say that on air. Secondly, policing has been broken from the beginning in this country. And I think part of why we're seeing now in our fourth week of protesting that isn't going away, even as states and cities are starting to make police discipline more transparent, are starting to talk about ways to shift funding, to support communities and support the kinds of needs communities have instead of broken policing that we haven't yet. Even with this reform package that's sitting in Congress, we haven't yet gotten to what protesters are demanding, and that's that we fundamentally rethink what we even mean by public safety, because policing is control and containment. It's the front door to our jails and prisons that are filling with people who need mental health services, people who are housing insecure or need treatment for addiction much more than they need incarceration. And part of what has to happen is I feel strongly that the House bill needs to get passed because those reforms are very important for accountability, for holding officers accountable when they do wrong and making that due process continue to be fair for police, but also to protect the public from police when they do wrong. But fundamentally, the state and local conversations really have to be about if five percent of all the calls that police are getting in this country are for serious crimes, what are we doing with the 95 other 95% of calls? And why are they going to police? Why are they not going to folks that can support mental health? Why are they not going two ways. We can better manage the kind of crises that people find themselves in. That that right now are becoming problems for police rather than solutions for communities. And that's really why we're still seeing protesting in the streets.
Joyce Vance [00:08:46]: Yeah, I agree with everything you say. And I think this conversation might have had an easier start if the notion of defunding the police had not been the first foot forward. Will one of y'all talk about defunding the police, what it means and this notion that our budgets are moral documents and what we choose to fund and when we put funding in police, not mental health, for instance, that we're making a deliberate choice that may or in this case may not be serving our communities very well.
Jill Wine-Banks [00:09:16]: Joyce, I'd love to talk about that because I think that words matter and defund police has been a very pivotal way of identifying the movement, but has turned off a lot of people who think police are necessary. And I agree police are necessary and that if we had called it instead divert funding or reallocate, people would understand what it means. It isn't really intended to totally eliminate policing. It is intended to do what Maya was addressing, which is to say, for the 95 percent of cases that aren't investigations of serious threats and crimes, we should be sending appropriately trained psychologists, social workers, other people who can handle without guns and violence, things that could be de-escalated it instead of escalated into death. And so I think that the term is misleading people and unfortunately, it's sticking. So we need to find a way to say it in a manner that really conveys what people intended. And that's not to say that there aren't some people who said defund police who mean defund police. But I think a majority of people could go along with some way of saying, let the police focus on what they're trained to do, which is to solve crimes and to protect life when it's essential. [82.9s]
Joyce Vance [00:10:39]: There's definitely a conversation going on about abolishing police, which Jill, as you and Maya both point out, is different than defunding the police. That's a conversation I think we need to be careful about having. And you're right, Jill, the words do matter. Barb, you worked on these issues as a U.S. attorney. What do you think the path forward on policing looks like?
Barbara McQuade [00:11:00]: Well, first, I want to say, and I think all of you agree with us, that we all know wonderful police officers who take their jobs because they truly want to serve the public and they're feeling pain. Some of this conversation when talking about abolishing and defunding the police, because so many of them do want to help. And I think we all need police, we don't want to live in a world without police. Oftentimes, crime victims live in communities of color and welcome police. Their biggest complaint is often that the police don't come quickly enough when they call. But I do agree that this idea of reinventing police is extremely important. And I know there's some disagreement between Republicans and Democrats about the way forward. And Republicans think the Democratic bill, the Justice and Policing Act goes too far. I think it doesn't go far enough. As you said, Joyce, when I served as U.S. attorney. We handled a pattern and practice case with the Detroit Police Department, and it took us many years to try to persuade the Detroit Police Department to comply with constitutional policing requirements, including reducing excessive force. And what I saw there was that change really came and they achieved full compliance with the consent decree when they got a chief who really cared. It was all about the political will. And he came in and said, we will get this done. I know that there is a police chief in Camden, New Jersey, who worked to reinvent their police department. They completely dismantled their police department because it was so dysfunctional and they started from scratch. They redesigned it. They rehired all the officers. And that chief there, Scott Thompson, said you can change training all day. You can change policies all day. But culture eats policy for lunch. And it really is all about instilling a culture of this mindset that you are guardians of the community and not warriors of the streets. If you look at President Obama's 21st century policing task force recommendations, he gathered all kinds of experts from policing, as well as community advocates and defense attorneys and academics, and put together 92 recommendations about how to reform policing. This culture change was a big part of that. And the Democratic legislation embraces that. But I'd like to see additional things beyond things like improving training and removing chokeholds, removing no knock warrants, removing qualified immunity. Some of those things that are popular and are in there is how about changing the whole military structure of the police? You know, we have captains and sergeants and lieutenants. I just think it creates a whole culture of us versus them. And we're at war with the, quote, bad guys. And I think if instead we just thought of it in different words and different language and thought of it as being there to help.
Maya Wiley [00:13:32]: You know, there is a large number of people, particularly young people, who are calling for a vision that imagines a society that doesn't need policing and that the heart of that word is about a vision that thinks that that could be possible. And I do think it is important to embrace with this generation the possibility, and that's not an anti policing position in terms of the individuals. So I think Barb's extremely important point about it's not about police officers being bad. Policing is broken because of the construct of what policing is and of the power, which we haven't talked enough about, of police unions to, in some respects, set and reinforce the very culture of policing that is so broken. I think it really is important to give acknowledgment to that because it is a vision of a safe public that imagines that might be possible. And I don't think it's. I just want to reiterate Barb's really important point. The Democratic bill does not demilitarize the police, and that is about national funding of police gear and equipment to policing. And that's something that I think some Democrats are talking about doing, because that is something that reinforces the culture that Barb so rightly said has to be challenged.
Jill Wine-Banks [00:14:52]: And Joyce, if I could just add to something that both Barb and Maya said following up on this military aspect, [00:14:59]when I was general counsel of the army, the military was giving its surplus weapons to the NRA. Now we're giving them to the police. And when you see the police with tanks and the military type equipment, it creates a whole different vision. It also gives tools that they will end up using that they shouldn't have to begin with. So I want to stress that point and how important it is for the Democrats to stand up to that issue and stop giving military surplus equipment. I think also, although, as Barb said, the Democratic bill may not go far enough, goes a lot farther than the Republicans are willing to go. And there are some things in it that are obvious, easy, quick fixes that both sides could agree on. And we should take action on those while we fight over the other sides of them. And then my I mentioned about the unions, which is a big problem in Chicago. We just had a case decided by the Illinois Supreme Court that the Better Government Association that I'm on the board of participated in, which resulted in the Illinois Supreme Court saying that the union contract saying that records of police misconduct must be destroyed after four years. Can that trump the FOIA, the Freedom of Information Act, and the transparency that it requires that the public interest requires that those records be kept. And so it voided that part of the contract. And that's an important outcome and something to think about for all states is that we must maintain these records because as Barbara was talking about, you can't have a pattern and practice case if you have to destroy all the records and you can't have a 10 year old history.
Joyce Vance [00:16:36]: So that's a great point, Jill. Creating a misconduct registry is essential. That's one of the issues that the House Democrats have in their bill. The other key steps in that bill are ending qualified immunity for police, making reckless violence criminal, restricting deadly force, banning chokehold and no knock warrants, barring racial profiling and strengthening consent decrees. What do you all think? I know we've said that the House bill doesn't go far enough in many regards. But as we look at the specifics, are these the correct important issues to key in on?
Maya Wiley [00:17:13]: I actually think they're incredibly important issues for accountability and in particular, I agree with Barb and also with Jill about the importance of the demilitarizing the police, which isn't there, but certainly the things that Republicans are saying they can't support, which are fundamental to making the police accountable for constitutional violations. So qualified immunity saying, you know, you don't get to have a level of protection that says just because we didn't have a case that had every element, context and aspect of what happened in your case does not give you a pass on violating someone's constitutional rights and not being subject to a lawsuit for it. We just saw the Supreme Court refused to hear a case in which a homeless man couldn't breathe and died in police restraints. In that case, there had been a case that said if the person handcuffed and laying down on the ground, their constitutional rights may have been violated if they die. In this case, the man was sitting up when he couldn't breathe and died. And the case was well qualified immunity because we didn't say he had to be laying down. But it would also be a constitutional violation if he was sitting up. Now, that doesn't make sense to most Americans and nor should it. So shame on the Republicans for protecting that kind of constitutional violation. But the other thing that is so important is the racial profiling piece. And I can tell you from the perspective of civilian oversight of police misconduct, so many times you'd see a case and say, you know, what's really going on here is it's and---these are not the cases in which people die. You know, we have to remember that part of why people are outraged. Part of why communities of color don't feel safe from the police, even if they want some safety from them, is because of the things that don't result in death, the throwing the kid up against the wall and stopping and frisking them because they're young and black or Latino and hanging out on a street corner with friends. Well, you know, guess what? Often overcrowded housing, maybe in the summer, no air conditioning. Kids hang out on the street, but to be kind of roughed up by the police accused of possibly carrying something like marijuana. And that is the kind of harrassment that often doesn't even result in arrest. But there is a pattern, a pattern to that kind of behavior.
Barbara McQuade [00:19:37]: I'll chime in on that. In addition to the provisions that Maya has talked about, there's a couple of other, I think, important provisions that are in the reform legislation. And Maya talked about the civil liability, qualified immunity. There's also, I think, an important change that needs to occur with regard to criminal liability. You know, we've all seen this before where we see a video where we see something just horrific. And then the police officer goes on trial and he's found not guilty. There may be many reasons why that happens, including, I'm sure, some implicit bias that goes into it. But I think one big reason is the legal standard is insurmountable. It's almost impossible to convict a police officer. When you have a federal civil rights violation, you have to prove that he acted willfully and that is that not only that he knew what he was doing was wrong. He has to know that he is violating a specific law, constitutional right the person is violated. And they can become just an insurmountable obstacle. And so I think lowering that standard to something like knowingly would mean that you still have to prove that the officer acted improperly and you want to give them the leeway that the case law permits, which is that you take into consideration that they are in a stressful situation, in a rapidly evolving situation, that there is 20/20 vision in hindsight that may be lacking at the time. All of those things would still be part of the jury instructions. But just asking them to decide, not that the officer acted willfully, that is intentionally and deliberately violating the law when they acted. But just that they knew what they were doing at the time they were doing it. I also think that would address individual officers. But there are also some provisions that are important for improving accountability in larger measure. And one of those is requiring dash cams and body cameras. Many departments already do this, but many do not. And instead, we have to rely on the fortuity of whether some passer by, some observer, happens to have a cell phone to be able to record this. The only reason we all know what happened to George Floyd is because there were witnesses who recorded it with their cell phones and then shared it with the media and social media. There are many other incidents where we don't have video of Breonna Taylor, for example. There are many other incidents where we don't really know exactly what happened. And so instead, what we get is a report told from the police officers perspective. Even if an officer is being truthful, I think that we still see things through our own eyes that can look different from the way they're described by the people involved in an incident. And then finally, data collection. We do not collect the data in this country of the race of the victim of police involved violence. And I think that we can't. Begin to get our arms around it until we see that data.
Joyce Vance [00:22:14]: Yeah, I really agree with all of that, Barb. And I'll just say that one of the last civil rights cases I prosecuted as a U.S. attorney was a police violence case involving an Indian grandfather in the northern part of Alabama in Huntsville. He was not, fortunately, killed in his encounter with police, but he was partially paralyzed and suffered really serious and debilitating injuries when he was body swept by a police officer who outweighed him by about 100 pounds. Body sweeping as a technique that's frowned upon, but it was within this department's training. And because the legal standard that you've talked about here, this need to prove intent or willfulness is such a high standard. The jury did not convict. I think if the lower standard that the House is talking about putting in place in its legislation were used, then prosecutors would be able to obtain convictions in appropriate cases. And it's a fine line. And there's a lot of debate, I think, about what the appropriate standard will be. But it's clear that the standard right now is too high and let too many officers get away with conduct that's simply unconscionable. I have one last question before we leave this topic. To the extent that we think it's unlikely that a bill will pass the federal government and that the federal government can be the entire vehicle for transformation of police here. Do we think answers could come from the states or at least some of the answers could come from the states?
Maya Wiley [00:23:43]: Oh, absolutely.
Jill Wine-Banks [00:23:44]: I certainly do think so. There's no question about it. Illinois is starting to address this. And I think that all states have the ability. Cities are the ones who employ the police. And so they can take the good ideas that have come out of this. The ones that are low hanging fruit. And even if you don't create the national registry of data that we need, you could at least have a statewide registry. You can certainly change the training. You can mandate body cams. Although, as you pointed out, we need funding and make sure that people use them, because for some reason, the police, when they did the no knock at Breonna Taylors, weren't wearing their cameras or didn't turn them on. So you have to mandate that they are and punish when they aren't. These are all things that can be done at the state level.
Joyce Vance [00:24:32]: That's the perfect segue way to today's sidebar segment, a conversation with our good friend, Mimi Rocah. Mimi is one of the original sisters in law. And as most of you know, she has spent the last several months running for the Democratic nomination to be district attorney in Westchester County, New York. The absentee ballots are still being tallied, but it looks like a landslide for Mimi. Mimi as an alumnus of the U.S. attorney's office in the Southern District of New York, where she worked with Preet Bharara. One day, I suspect it will be a badge of honor for him to be able to say that he worked with her. Mimi, we're all proud of you. We appreciate you making time to be with us. Start us off by letting us know what comes next.
Mimi Rocah [00:25:09]: Well, but first, I just want to say there is no group of people I would rather be talking with right now because feels like we've all been through a lot together in terms of watching the destruction of the Department of Justice and the justice system that we hold so dear all of us over the past couple of years. And as you know, I've spoken with every one of you individually about it, that's part of what motivated me to run. Because even though obviously this is not a Department of Justice, it's part of the broader justice system, as you said, it feels more important than ever now. What comes next in terms of the election is basically, you know, because of this year, there just there are more than normal amounts of absentee ballots and they can't start counting them until I think it's seven days after Election Day. And that will take a while. So we're looking at a couple of weeks. As you mentioned, though, our results, it's almost 70 percent lead in early voting and Election Day voting in person. And actually, there is not one town or city or village in Westchester County that we did not win by some margin. You don't want to jinx it, but it just looks really good. And I'm hoping we'll be able to say not only a victory, but a resounding call for change, which I think is hopefully where we're headed.
Joyce Vance [00:26:29]: So what are you going to do with that mandate? What is your first hundred days in office look like?
Mimi Rocah [00:26:34]: I think first and foremost, and this is a little bit of a local issue, but it ties into national issue. First and foremost, I really need to address what has been some reporting over the past couple weeks of really serious allegations of police misconduct in a number and not hurt its police department, which is one of our our largest cities here in Westchester. So there have been really serious allegations and apparently information that was reported by a really detailed investigative reporter with Gothamist that these recordings made by a whistleblower police officer were turned over to the DA's office over a year ago, and that that case has basically really not been investigated in any meaningful, thorough way and that the police officers have been continuing to do new cases and arrest people and do search work. That's first and foremost, conviction. Integrity, which is also tied to that, is something we do not have in any meaningful way in Westchester DA's office. And that's going to be one of my top, top priorities. Obviously, hiring people, quality people, but also making sure that we're really diversifying the office, working on proactive ways to do that, not just sitting back and waiting for applications to come in.
Joyce Vance [00:27:47]: Jill, Barb, you'll take it from here.
Barbara McQuade [00:27:50]: I would love to know what thoughts you might have about how from within your office you might shape police reform. You know, holding police officers accountable. You certainly don't have the tools to change laws. But I'm wondering if you've given some thought to how you might address that challenge as the as the D.A.?
Mimi Rocah [00:28:09] First and foremost. I think the people, the voters, the people who live here and the police officers need to know that they are going to have a DA's office who is going to take this really seriously. Any allegation, however big, however small, and that it will be thoroughly investigated? I'm not looking to charge people with crimes, but it is a promise to really thoroughly address these, which just hasn't hasn't been done. I think knowing that people will be held accountable in corruption type of cases, that that can really have an impact on people's behavior when they know there's going to be accountability and investigations.
Mimi Rocah [00:28:51]: Also, I will say, I mean, I've already talked to and heard from several police chiefs around the county who are looking on their own to start doing things that I am very excited to encourage and partner with them. They're already setting up, Zoom kind of trainings with, for example, police officers who are members of what's called the Guardians, which is a group here of mostly blacks in law enforcement, retired and current. And just talking with them and getting advice on how to set up better trainings. And they're already instituting those and some of them reached out to me about that. And that may not be something the DA's office normally does, but it is [39.6s] absolutely something we can partner, because I do believe that a big part of the reform has to be working with the police officers, police chiefs, police departments that are acknowledging that there is a need for change.
Jill Wine-Banks [00:29:45]: Mimi, I have one other question, which is, in addition to the reforms that are needed because of George Floyd and the Black Lives Matter movement. What other issues do you see cropping up as big issues? And for example, I'd also like to point to the #Metoo movement, which was the movement before Black Lives Matter that was getting attention. And is there anything you as D.A. can do in those areas?
Mimi Rocah [00:30:12]: Absolutely. This has been a big part of my platform and I don't want it to disappear. I mean, obviously, we can focus on more than one thing at a time, but we have to, first of all, work on and not just the DA's office. I think this is the criminal justice system as a whole. How we treat victims of crimes, particularly sexual assault, sexual harassment. There's still too much victim shaming and blaming going on. And it makes the experience so much more traumatic for crime victims. But it also impacts what cases get brought and don't get brought. And I've been saying for a long time, the details need to be mine to bring the cases that they believe in, even if they don't think they're going to win. This can't be about which cases we're going to win or lose. It has to be about which victims we believe and we can corroborate. And then even if it's going to be a hard case to to litigate, to bring to trial, we still need to bring it because it. That will encourage more victims to come forward. And similarly with domestic violence, I also really want to work on holding institutions accountable.
Joyce Vance [00:31:15]: So, Mimi, I think we need district attorneys who will be willing to speak truth to power and hold, as you say, institutions accountable. That's obviously something that's been lacking both in the private sector but also in government and with police. That's really the core of many of the problems that we've seen. So I know I speak for all of us when I say that we're really proud of your brave decision to run. It was not a foregone conclusion that you would win. But you have run a really immaculate campaign. And your vision, I think, is emblematic of what we need in our next generation of district attorneys. Thanks for making time to be with us.
Jennifer Bassett [00:31:55]: Before next segment, I just want to take a moment to thank Express VPN for supporting the show. Data privacy is very important for me. And while I had previously thought I was doing a good job with data privacy by using Duck Duck go in incognito mode, I recently found out online activity can still be traced with these precautions. That's why when I'm working from home, I never go online without using Express VPN and regardless of device express VPN keeps me protected from malicious hackers. Express VPN secures your privacy and protects your information. Visit Express VPN.com/feds and you can get an extra three months free and a one year package. So protect your online activity today with a VPN that we trust to secure our privacy. That's Express VPN.com/feds express VPN.Com/feds to learn more.
Joyce Vance [00:32:40] One of the biggest questions about the Trump administration after the events of this week is why Bill Barr is still the attorney general. And of course, we all know why he's still there. He's the president's lawyer. He's his Roy Kahn. He is not the people's lawyer. And that's exactly what President Trump wants. So, Barb, why don't you start us off and talk about the firing of Southern District of New York U.S. Attorney Jeffrey Berman?
Barbara McQuade [00:33:05]: Well, it began with a press release from William Barr saying that Jeffrey Berman was stepping down and that President Trump was going to nominate Jay Clayton, who currently serves as the chairman of the FCC, and that in the meantime, the U.S. attorney in New Jersey would be acting as the interim U.S. attorney kind of on the side here. And it already has a pretty busy job. But in addition to leading the U.S. attorney's office for the district of New Jersey, he would also, in his free time, lead the U.S. attorney's office for the Southern District of Michigan. And if anyone knows the rivalry between those offices, that's like saying the Ohio State football coach is going to fill in for a little while and also coach the Michigan football team. There's rivalry and it's a really big job. So that on its face, I thought was just absurd. But then just a short time later, we get a press release from Jeffrey Berman that says, no, I didn't. I didn't resign. I didn't step down. It is highly unusual, Joyce. And I think it just exposed Bill Barr as a bully and a liar. I mean, I think he sent out that press release expecting that Jeffrey Berman would just kind of go along and say, well, yeah, that's what happened and then resign and toe the line. But he didn't. The next day, he issued a letter clearly intended for the public, but he said, you know, I'm sorry, you chose to proceed by public spectacle instead of public service, Mr. Berman. But nonetheless, he said, I recommended to President Trump that he fire you and he has done so. Later in the day, when President Trump was asked in Tulsa about the firing of Jeffrey Berman, he said, I don't think about it. That's all william Barr, you'll have to ask him about it. So perhaps even yet another lie. And then the U.S. attorney in New Jersey, Craig Carpinato, said, When I agreed to serve as U.S. attorney in the Internet to help out in the Southern District of New York, in my free time, I thought that Jeffrey Berman had resigned. That's what was represented to me. I didn't know that he was being pushed out like this. So it looks like Barr completed at least two lies, if not three lies. And so I think by standing up to William Barr, Jeffrey Berman was able to force him to put in place, not Craig Carpet Ito, the New Jersey U.S. attorney, but instead the traditional acting in the place of a U.S. attorney in between presidentially appointed U.S. attorneys. And that is that his deputy named Audrey Strauss, who by all accounts is an independent and professional career prosecutor who will do a good job here. I don't think they're out of the woods yet because William Barr continues to be her boss and have some authority. But at the very least, they don't have a puppet they can control in that office. They've got, I think, a strong and independent U.S. attorney who will do what's right by her cases.
Jill Wine-Banks [00:35:34]: I think, to summarize, I had whiplash between all the lies going back and forth. Yes. He resigned. No, I didn't. The President fired him. No, I didn't. Aside from that whiplash we saw for the first time, some real incompetence in how this was handled. And by that, I mean, you can't expect to get away all the time with a public statement that is a lie when you're dealing with intelligent, strong people. And he got caught in the lie both by Berman himself, by the U.S. attorney in New Jersey and by the President. And that's one of the first times that I've seen him doing things. Now, remember, you said it started with the letter thing--that Berman had resigned. Actually, this all started with your admission memo that we embar wrote to get the job as attorney general. And it continued with his false statements when he announced that the Mueller report had concluded that there was no collusion and no obstruction. Hours before it was released. And we could see that that is not what the Mueller report said. So there's a whole history of his lying to the public and creating what is a false narrative. But he knows, as we all do, that first impressions are hard to change. And so a lot of times you prevail when you do that. And this is one of those times when he got away with it. The same thing is true at Lafayette Square, where he is in command of the federal troops and was part of the gassing of peaceful protesters.
Joyce Vance [00:37:02]: This attorney general has a rap sheet of offenses against the public that's about a mile long, starting at the very beginning, as you say Jill. Maya, you you came out of the Southern District of New York. Help us understand why it's particularly important in the Southern District, this situation where the attorney general is trying to influence who runs the office.
Maya Wiley [00:37:25]: What people I think, need to understand about Bill Barr is that he absolutely should be impeached. And he's probably the most dangerous man in America right now because he's more than a defense attorney for Donald Trump at this point. Part of what's so important to me is being a defense attorney in the case of the Southern District, because what has jokingly, as you all know, and in U.S. attorney circles, called the sovereign district of New York because it has had both is the largest U.S. attorney's office and you have attorney's office that frankly brings a lot of very big criminal cases, some very important civil fraud cases. And it has often had the privilege of even additional independence from the Department of Justice. Even then, some other very, very smart, strong, critically important U.S. attorneys offices. And in this particular instance, when Donald Trump's personal business transactions may be under scrutiny and certainly his, you know, people with whom he has had very close business dealings are under criminal investigation with clear questions about whether those roads lead back to Donald Trump. Obviously, there is a lot of concern that part of what Bill Barr was doing here and certainly appears to have been doing here was trying to interfere directly in investigations, either because they were friends of Donald Trump or because it would get too close to potential crimes. Donald Trump and the Trump Organization have committed to Jill's point. The President has given Barr kind of unprecedented power in an attorney general in having him have security clearance, decision making that we have not seen a president delegates so universally to an attorney general on national security and also in Lafayette Park with now Black Lives Matter Park as Muriel Bowser would say. But that is not a traditional role for an attorney general to go kind of survey the clearance of a demonstration site. This is him not just being a defense attorney. This is him being his right arm. Too hard arm the public in a way that is giving the president more power than a president should have in a constitutional democracy.
Joyce Vance [00:39:42]: Trump loves to talk about his unrivaled, limitless Article two powers as president. I don't see anything in the Constitution that gives the attorney general unlimited power. But Barr seems to have taken on that mantle and be acting in that role. And as if what we saw Friday night wasn't bad enough, the firing of Berman. We then this week saw this incredible spectacle of two current sitting assistant United States attorneys testifying before the House Judiciary Committee, talking about the attorney general's exertion of influence over criminal cases. What do you make of that situation?
Barbara McQuade [00:40:21]: I thought it was really remarkable. One is, before you can testify, you have to get your testimony cleared by the Justice Department. And so I thought it was remarkable that he was permitted to testify. But, Joyce, if you've made this point, which is ordinarily deliberative, processes are privileged and typically do not get exposed publicly like that. But there's an exception when you're discussing misconduct. And so that was done in this case. But just to focus on the testimony of Aaron Zielinski for a minute, he is a an assistant U.S. attorney who is assigned to the Roger Stone prosecution. And he testified about how his supervisors told him he needed to water down the factual basis in a sentencing memo. He need to obscure the facts that contributed to the sentencing guidelines, calculation about what his advisory sentence ought to be. They use the word distort and that his supervisor said this is not the hill you want to die on. You could be fired for this. And so there was pushback. The reason he was told that Roger Stone was getting this preferential treatment was because of his close relationship with President Trump. The justice manual that we all used as our Bible, so to speak, says that a prosecutor should not make decisions based on a person's political associations, activities or beliefs. This is one of the most fundamental principles of the Department of Justice. And it was Timothy Shea, that acting U.S. attorney who alone filed the bonafide sentencing memo after they had filed their own asking for a sentence of between seven and nine years. And to me, that is the greatest sin that an attorney general can commit using the office that is supposed to be independent and based on evidence, in fact, to skew the outcome for the president's ally. And if you can help the president's allies, that means you can also harm the president's enemies. And that is not how the justice system is supposed to work.
Joyce Vance [00:42:15]: You're always so fair minded and careful in your assessments and hearing you use such strong, condemnatory language. I think at least makes me sit back and take notice, because what you're describing is really a total abrogation of the rule of law.
Barbara McQuade [00:42:30]: Yes. I mean, that that's the idea of the rule of law, is that no person is above the law. One of the other witnesses was a former deputy attorney general, Don Ayer. What he said is that I think this is the greatest threat to the rule of law. I've seen in my lifetime and this is someone to live through Watergate. It's to me beyond disturbing. It's shocking. No one should put up with this. It's impeachable. And I think we should put enough public pressure on William Barr to force him to resign. It is so much worse than what Alberto Gonzalez resigned over in 2007. And I think we need to speak out about it as much as we can to try to put that public pressure on him to resign, because I don't know that we're going to get the House to act on impeachment in this short timeframe.
Joyce Vance [00:43:12]: Aman.
Jill Wine-Banks [00:43:13]: This is so much worse than Watergate. And remember, the result of Watergate was that the attorney general went to jail. So that clearly, in my view, bar is impeachable despite trouble and probably jailable. I think his conduct has been unbelievably hideous and completely destroying the rule of law. I think that impeachment is definitely the right way to go. And it could prevent a an October surprise with Durham and the fact that Barr has been personally involved in investigations, which is not the role of the attorney general, and that they're threatening that something's going to happen, they're going to release it just in the nick of time is really an abuse of power. It goes back to the Nixon era enemies list where they went after people and used the IRS to start doing tax investigations of people. You can't use the Department of Justice for political reasons. So I think Barr has definitely overstepped. Anything that is possible and that we need to make this end. [65.4s]
Maya Wiley [00:44:18]: Let's remember that while Donald Trump is throwing out little trial balloon bombs about whether or not there's an effort from Democrats steal elections, that it's Bill Barr who will be his right hand as he starts to try to build that case more as we head into November. And he undermines, you know, the ability of people to vote and vote safely.
Joyce Vance [00:44:40]: So that's a great segue way into our next topic, which is the COVID19 pandemic and the impact it may have on voting in November. It's a perfect storm for voter suppression. And this week, we had primary elections in jurisdictions across the country. In Kentucky, there was one super polling place in Louisville. In 2019, there were 227 polling locations in Jefferson County, which is where Louisville is. In June of 2020, only one polling place in a majority black area where people were at a higher risk for COVID. Now the situation in Kentucky is not clear because we had a Democratic governor working hand in hand with a Republican secretary of state to deal with problems that they said were brought on by the pandemic. But that said, what do y'all think? Are we going to be ready even with the HAVA funding for the states that Congress has put forward in COVID bills? Will we be ready to hold safe and secure national elections in November?
Barbara McQuade [00:45:42]: I think the challenge with that choice is that, you know, as you know, it's not just one election, it's 50 separate elections, actually additional when you consider all the territories and other places. I think some states will be really on the ball. You know, in Michigan, for example, our secretary of state has been sending out absentee ballot applications to everybody so that they can get a good handle on who's going to be mailing in and who's going be showing up at the polls. But as we've seen in some of these primary elections, where there've been incredibly long lines, I know Wisconsin was one. I think New York just had this the other day where people were waiting in line for three hours, standing in line for a long time to vote is onerous enough. And I think discourages people who don't have the ability to stand in line for three hours because they have young children at home or they have multiple jobs and they just don't have the time to do that. But then you throw cold it on top of that, where people are reluctant to be in close proximity to others in November, it's cold. So some of that waiting may occur inside. And I think what you see is voter suppression in many places because of a lack of of the right number of polling places. I think, you know, the Brennan Center has done a lot of good work on holding elections and best practices. You can't do it all by mail or absentee or early. There will be some people who, because of disabilities or language challenges, need to physically show up at the polling place on Election Day. So you have to make sure you have enough polling places to accommodate that group. But the way you do that is you encourage everybody else who can to vote early or to vote by mail. I'm concerned that some states will do just fine. But I have to believe that there may be a state that is problematic. And if we see just one state where there's a problem. Recall Florida in 2000, we could run into a very significant issue, as we did with Bush versus Gore.
Jill Wine-Banks [00:47:28]: I think Kentucky does show us something, which is they did convert to early voting and to mail in ballots and they are predicted to now have the highest voter turnout that they've ever had in a primary because of the mail in ballots. And I think the only thing that's going to prevent that is goes back to Barr and voter suppression and Trump and voter suppression. They are putting out this false narrative of fraud is more possible with mail in ballots, which as Barb just said, is absolutely not true. And I think that we need to make sure that states have the proper funding to be able to convert to mail in ballots and be authorized to do the things that are necessary. And they have to do it now. We're not that far off from the election. I can remember the days when public protest actually had an impact. And I think public protest is once again having an impact. I think that that could bring about the states properly setting up for mail in ballots and long term early voting.
Joyce Vance [00:48:37]: So, Jill, I want to pick up on what you've said there, because you've talked about public protest. There are lawsuits that have been filed across the country to try and protect voter rights. Of course, the 5th Circuit has held that in Texas, at least fear of getting COVID that at the polls is no reason to justify being able to vote remotely to vote by mail. There is litigation pending in Alabama and other states. Are you saying that you don't have confidence in going to the courts to get relief and think it will be up to citizens to protest?
Jill Wine-Banks [00:49:10]: Well, I think, first of all, for example, any state that has challenged anybody saying I don't want to come out because I've COVID all states should have what Kentucky had, which is no excuse absentee ballots. That's what Illinois has. You don't have to give a reason anymore. It used to be you had to apply and say, I will be out of town or whatever your excuse was that required that you vote by absentee ballot. Now, there are no excuse ballots available. And I would, first of all, have a big public effort to get people to all apply in states where you can apply. I would have an even bigger effort to try to get the secretaries of state to actually send out applications routinely or even to send out ballots to convert to all mail in voting. And I just think that we forget how much politicians respond to public pressure. My experience during Watergate was the president was very successfully stonewalling. He was not turning over the tapes that we had subpoenaed and he was getting away with it. And then he went a step too far and he fired the special prosecutor, Archibald Cox. And to do that, he had to fire his attorney general and his deputy attorney general because they wouldn't carry out his order to fire Cox. And he sort of thought he was gonna get away with it until the bags of mail. So there were these huge canvas sacks that were inundating our office and the White House and people were protesting in the streets. And it took only three days of that. And the president reversed himself and said, OK, I'll appoint a new special prosecutor and I'll turn over the tapes. So, there can be an effect. Politicians want to win elections. They go along with what the public demands. So if the public demands police reform and if the public demands mail in ballots, we're more likely to get it.
Joyce Vance [00:51:01]: So, Maya, you've lived through the pandemic in New York City. You know what the election issues look like. Both the ones that involves competence in running the polls as well as efforts at direct voter suppression. How do you see COVID impacting the elections in November?
Maya Wiley [00:51:17]: Here's the thing. At one, health experts already have told us that the 400 I think it was 400 million that Congress added to emergency relief to help state address save voting was not a sufficient amount of money. No excuse mail in voting, but you have to apply. And for far too many people who are maybe low-Income voters, who are also traditional Democratic voters, like Black voters, often do not vote by mail where they have the option. These are issues that really are not being sufficiently funded by the federal government in states that are actually demanding five hundred billion dollars just to help them stay afloat because of cozied. You know, this is something that Donald Trump, we know, absolutely does not want to see happen. And that really strains states ability then to spend money on things like making sure everyone can get out to vote. And the other thing we should not forget in New York was a good example of this, where it was just disastrous for a lot of people because poll workers had not necessarily been trained. That's a concern. That has nothing to do with intentional suppression. It has to do with sufficient funding and support for execution. The last thing I just want to. We haven't really talked about is remember that factually electorates that decide who the president is? Well, in the case of kov it, imagine this. We have 24 of 30 states with Republican legislators leading the legislatures. And that's a control of 22r electoral votes. And with the 12th Amendment says is that if you can't call a winner and we're not going to have a winner in November because of mail in balloting, everyone should realize that now. But because of the 12th Amendment, it's the House that decide who's the president. And so that if there's no majority of electors, if there's not a sufficient man to call it. No, that it's going to put us in this place we've never been before where essentially states are going to pick the president. And so I'm not saying that's absolutely what's going to happen, but this is a turnout election. This is fundamentally about how many voters actually vote. And those votes getting counted and then being accurate and fair.
Jill Wine-Banks [00:53:39]: We polled our listeners to get a question for our five words or fewer segment and there were some great questions. We could have done an entire podcast with them. But our question today comes from Buddy,@Budds442Bud on Twitter, who asks, Should Speaker Pelosi impeach A.G. Barr regardless of the Senate Republicans? Five words or fewer ladies. What do you got?
Maya Wiley [00:54:02]: Heck, yeah.
Joyce Vance [00:54:04]: So Maya in two.
Jill Wine-Banks [00:54:06]: Yes, it's deserved and it's a permanent record for him.
Joyce Vance [00:54:10]: Jill, that's more than five.
Jill Wine-Banks [00:54:12]: OK. Yes, deserved permanent record.
Joyce Vance [00:54:16]: Barb?
Barbara McQuade [00:54:17]: Yes. Corruption must be exposed.
Joyce Vance [00:54:20]: And I would add do the right thing.
Harry Litman [00:54:27]: Thanks so much to Joyce, Jill, Maya, Barb and to D.A. Rocah for the first ever and much overdue sisters in law. We'll hope for a reprise on a future episode of talking feds. And thank you very much, listeners, for tuning in. I'll see you Friday with our special Supreme Court episode featuring legendary constitutional law scholar Larry Tribe. 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 @Talking fedspod to find out about future episodes and other fads related content. You can also check us out on the Web at 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 pay for the podcast. Submit your questions to questions@ Talking Fed.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 very much to everyone who responded to Joyce's call to submit questions this week. Please keep those questions coming any time and we will endeavor to answer them. 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. Production assistance by Sam Trachtenberg and Ayo Osobamrro, thanks very much to the newly elected district attorney, Mimi Rocah for joining our sidebar segment. Our gratitude, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of DeLedo LLC. I'm Harry Litman.
