Harry Litman [00:00:00]: Welcome to Talking Feds, our 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.
The raw tumult and blazing rage that broke out last week in the wake of George Floyd’s killing bent down this week to something that felt more cohesive, orderly and sustained. In major cities, demonstrations stretched into their tenth day, less convulsive and largely peaceful, though punctuated both by occasional lootings and episodes of excessive force by police. The Minnesota attorney general announced increased charges for the main assailant, Derek Chauvin, and serious charges for the other three police officers. A wide spectrum of politicians and opinion makers seemed to coalesce around the idea that Justice for Floyd entailed not just the prosecution of the officers, but some measure of systemic reform of police practices. And in Minneapolis itself, Sunday night, a majority of the Minneapolis City Council pledged to dismantle the Police Department promising to create a new system of public safety in a city where law enforcement has long been accused of racist practice.
Meanwhile, President Trump, after over a week of what seemed to be cowering silence, sought to take the offensive as a self-proclaimed “law and order: president. He adopted a mantra of, quote, total domination, close quote, and announce plans which he seems to have abandoned by week's end to send in the military to subdue the protesters. Meanwhile, the White House was ringed with new barriers and combat troops. Never had the president seemed so autocratic and weak at once. The forceable clearing of peaceful protesters with pepper spray and smoke canisters for a charmless photo op at a church across from the White House looked likely to become an indelible moment of his presidency and drew broad public condemnation, including from former senior advisers. And his tone deafness seemed reflected in the reaction of the public, which, at least for now, largely disapproves of his handling of both the protests and the virus. He fell significantly behind his putative opponent, Joe Biden, including in states he won handily in 2016 and among core constituencies such as Evangelicals and non college educated whites.
And, of course, through it all, the virus raged on, though overall both the death rate and the economy showed signs of having bottomed out. So ended another tumultuous week with the country's mood sullen and resolute and the barest sense that maybe, just maybe change was in the air. To discuss the week's most important events, we have a terrific panel of former government officials and prominent journalists.
First, Roy Austin Jr. is a partner at Harris, Wiltshire and Grandis. Roy previously had a distinguished career in government and law enforcement, serving as a federal prosecutor, a deputy assistant attorney general and the Civil Rights Division of the DOJ and the deputy assistant attorney to the President for the Office of Urban Affairs, Justice and Opportunity, where he worked on President Obama's task force on 21st century policing. Welcome Roy, to Talking Feds.
Roy L. Austen [00:03:28]: Good to be here, Harry.
Harry Litman [00:03:29]: Next, Barbara McQuade, a professor of practice at the University of Michigan Law School and MSNBC consultant and, not least, a charter Talking Fed known very well to all in this podcast. She, of course, is the former U.S. attorney for the Eastern District of Michigan. And before that, an assistant U.S. attorney in the same district. Thanks, as always, for joining us, Barb.
Barbara McQuade [00:03:53]: Thank you, Harry. Glad to be with you all.
Harry Litman [00:03:55]: And finally, Jennifer Rubin, an opinion columnist for The Washington Post, where she covers politics and policy and an MSNBC contributor. Before joining the Post. She practiced labor and employment law for 20 years, and she graduated first in her class in the famous Brault Hall class of 1986.
Harry Litman [00:04:15]: Thanks for being here, Jenn.
Jennifer Rubin [00:04:17]: It's lovely to be here. And as Harry reminded me, nothing much changes. I'm still drinking Diet Cokes.
Harry Litman [00:04:24]: And I'm still behind her. All right. Let's begin in Minnesota, which has been in the eyes not just of the country, but the world these last 10 days. So first, we had yesterday an announcement of new charges. The debate before had been over showing intent to kill whether Chauvin, in those horrific eight plus minutes could be said to have intended to kill Floyd. Roy, let's start with you. As a former civil rights prosecutor. How did you or do you view the intent issue? And what do you think about the new charges that Ellison's brought?
Roy L. Austen [00:05:07]: Thank you, Harry. The new charges are completely appropriate in my mind and really necessary in this case. I think the intent question is a challenging one for the prosecutors. But I think it's largely going to be decided by just the video itself. I mean, we're going to have an autopsy report that is going to say that it was the pressure to the neck that caused his death. But the defense counsel is pretty much guaranteed should this case go to trial to put on a medical examiner who is going to say that there were other causes
Harry Litman [00:05:47]: What's that matter,by the way, legally, what's the significance of that and the actual skirmish at trial? The dueling autopsies.
Roy L. Austen [00:05:54]: So, you know, I think a lot of jurors are just going to throw their hands up because they simply aren't going to be able to decide between the sides. So, at the end of the day, this is going to be about common sense. And you sit there and you watch your man with his knee on another human being's neck for nine minutes with the person crying out that he can't breathe, crying for his mother. And I think at the end of the day, this is a case of common sense. Both sides will have their experts, the experts will watch and people will base their decision on what their own eyes tell them.
Harry Litman [00:06:30]: And Barb, Jen, I mean, do you agree? I've done a fair number of these cases, including the Rodney King case. It's a really weird one. Normally you have a kind of convulsive beating and an explosive interaction with suspects. Here, Chauvin is just kind of almost lazily keeping his knee on the neck. A move, by the way, that he that's not countenanced in Minnesota unless someone's resisting which Floyd wasn't. You can sort of see in the hothouse of a courtroom. It playing kind of both ways, no?
Barbara McQuade [00:07:13]: Harry, I think one thing that's important to think about in these police cases is that the defense typically is a public authority defense, that police officers are allowed to use reasonable force under the circumstances. There's a case, as you probably know, called Graham Vs Conner that defines what that is and it's reasonableness through the eyes of a reasonable officer at the scene rather than through the 20/20 vision of hindsight. And you look at things like the severity of the crime, whether the subject was attempting to flee or evade officers or resisting arrest. And if you look at the facts here, all of those facts, I think, work in the favor of the victim and are going to work against the officers here. The severity of the offence was a counterfeit 20 dollar bill. He did not appear to be resisting arrest. He sat down. He seemed to be putting up some passive resistance, perhaps, but he was not posing a threat to the lives of officers or others. He was not attempting to run away or flee. And so, I think that part that defense is going to be really important here, regardless of whether it's second or third degree. And of course, there are other factors, not on the tape about statements people made and other things that will be important. But I think unlike many cases where there is this split-second decision that has to be made and there's a life and death moment where an officer has to decide whether to shoot or not shoot. That's often what makes it so difficult to prosecute these cases. And that element is missing here. I think the, as you said, almost bored look of the officer with his hand in his pocket as he keeps his knee on the neck of this motionless man for almost nine minutes, I think makes it a very strong case for prosecution.
Harry Litman [00:08:56]: Jen, so Barb mentioned even if they don't win the second degree murder, they still have the fallback to the third degree. What do you think happens here if there's an acquittal on the main charge? In the past, acquittals have been trigger points. What kind of risk are they running? Ellison said specifically, I want to push as hard as I can within ethical bounds or is it, you know, too bad, but no tragedy.
Jennifer Rubin [00:09:39]: I think anything less than a conviction on the most serious charge will be greeted as a gross miscarriage of justice, truly pouring salt in the wounds of the public. I think this case has gone beyond the immediate instance. It's going beyond the city, gone beyond the state. And now we've made this leap into historic terms. For him to be set free, I think would be viewed as yet another cataclysmic, to use your word, miscarriage of justice. I think there are two factors that would add to that. First of all, we don't usually get a videotape this clear. I'm sure any prosecutor would be thrilled to have this. But what makes this so powerful and I think why many Americans who normally would be sympathetic to the police, what normally would be the benefit of the doubt, vanishes because they are seeing this with their own eyes. And what's more, they're seeing people at the scene who are seeing it with their eyes and who are yelling at the police officers, ‘He says he can't breathe.’ So it's not only the victim, it's people who are right there who I'm sure will testify in person as well.
But I think any sense of reasonableness, any sense that there was some provocation for this behavior has been so far removed from this particular set of circumstances that I think there will be true outrage if he is not convicted. And I think the intent issue or a murder within the context of another crime, an unjustified assault. Those are hard cases to make. But I think in this case, the prosecutor has no choice but to make them. I'm curious from our former prosecutors what they think about change of venue, which would normally be an issue. But now this is a nationwide issue. Does a change of venue even make sense?
Roy L. Austen [00:11:46]: I don't think so. I think it would be hard for a judge to find a location where the entire jury pool does not know about this case. And you move to a point where if you find those jurors, you found 12 people who live under a rock and that would be a serious miscarriage in and of itself.
Barbara McQuade [00:12:08]: Yeah, I think I agree with Roy on that. You know, it's so rare that there is a change of venue. Oklahoma City is the last one that I can remember. But even the Boston Marathon bomber stayed in Boston. You know, and of course, the question for our listeners is not whether you've ever seen anything about this or ever heard anything about this. The question is whether you can set aside any judgments you may have formed outside of the courtroom and base your decision solely on the evidence you hear inside the courtroom. And so my guess is they can find such a jury, even in Minneapolis. I think the worst thing that could happen is to send it out of state, where people maybe lack the kind of interactions with the police that would give them the perspectives to be valuable jurors in a case like this. And so I would think that there are probably lots of good reasons to keep it in Minneapolis, where the sense of the community, when you're talking about reasonableness, I think it's valuable to have the community where it happened be the arbiters of what is reasonable.
Harry Litman [00:13:00]: You can certainly bet that their attorney general, Ellison, not to mention the mayor and the governor would fight like mad to keep it from happening.
Roy L. Austen [00:12:05]: The other thing you have here is you have a body cam footage that has not been publicly released.
Harry Litman [00:12:08]: Right, I don't disagree that the that the video is going to be front and center. But, you know, in these cases, there's always some additional evidence. Going to go into Barb's point about his being not resisting. We do know that he said he didn't want to go in the car. He was claustrophobic. We do know that there, at least in public view, we haven't seen so much of what's going on around the side of the car. It's sort of straight on. We don't know so much about the initial interaction where the court said that he was out of control and intoxicated. There will be more. Actually, let me just follow up on this for you know, you experienced prosecutors out there. If you had the, you know, showing here, what do you expect him to even try to say in his own defense? What theory will he propound?
Roy L. Austen [00:12:52]: I mean, he has to go on that the force was necessary, which is a really untenable position, and I also think Chavin has a huge problem. And I suspect he can't even testify because he has a lengthy list of complaints against him, which in this case is likely to be pulled in 404B. So, I mean, he has to somehow say that what he did was, in fact, necessary. That he didn't have all this weighed on Mr. Lloyd's neck. Mr. Floyds neck. But he has a hard hill to climb in defending himself in this case.
Barbara McQuade [00:13:24]: Boy, I agree with that. I think one of the things that we referred to in passing earlier is the idea of the knee on the neck. There is literature and police training that says that first putting someone on their stomach leaves someone very at risk of what's known as positional asphyxiation. Just whenever you're on your stomach with your hands behind your back, you are at risk. And then by putting any kind of pressure on your neck, like a knee, a person's body weight on their neck cuts off the airflow. And so, it is a disfavored tactic because of the very high risk of death that can result from that. And so I think in light of all those other factors we already talked about, like the seriousness of the crime, lack of resistance. So what if he gets away? Right, for 20 hour counterfeit bill. He wasn't posing a risk of danger to the officers or the community. And so I think in addition to all of those things, not only did they hold him on the ground, they used this technique that is known to be a high risk of death. He was the training officer for these other officers. And so I think it's going to be very difficult for him to say he didn't know better.
Harry Litman [00:14:22]: And just to be clear on Roy's point, there's a doctrine in the law that lets previous bad acts be admitted sometimes where they go to show intent. And here, Chauvin has like 17 of tem. His partner has eight. So if those come in, they tend to be very strong evidence in front of a jury. And in fact, that's why the law can be cautious about them. They don't want jurors to just conclude because he was bad then, he did it now. But it can be used to show intent.
Jennifer Rubin [00:14:56]: I think that I think on that score, although the jury is given an instruction that he is not on trial for those other instances of brutality. I think any juror is not going to be able to put that out of his mind and only consider that evidence with respect to intent. They are going to look at this guy and look at this pattern of behavior. And this is why bad acts often don't come in, because they do influence a jury despite instructions from the judge. And I think they're going to look at this and look at the number of offenses and they're going to ask themselves a very common sense question, which is ‘what the heck is going on over there in the police department?’ And I think we as lawyers, you guys as prosecutors, appreciate that it's the law and the facts of that case. But this case is so much bigger and the pattern of police brutality is so obvious. You are, in essence, putting the police department on trial here. And right now, if you are a police officer and you have had a history of using excessive force, you should be very concerned that whatever incidents you're involved in in the future, these are going to come out. The public is now having a new level of concern.
Harry Litman [00:16:24]: That's a really good segue, actually, to where I wanted to go next, which is the potential national impact of the Floyd case, calling George Floyd's death an inflection point for the country. It has changed everything she said. Just as Jenn is suggesting Speaker Nancy Pelosi told reporters that House Democrats are going to be releasing on Monday a comprehensive package to deal with the use of excessive force and racial issues in police forces nationwide. The minority leader, Kevin McCarthy, signaled willingness to play ball here. And it coincides with a remarkable rise in public support for reform, with most Americans now saying that the police do have a racism problem. So, are we, in fact, at a moment of general reform of police practices? And if so, you know, why now? We've seen high profile killings in the past. Just recently, Eric Garner, Michael Brown generated great concern, but came to not. But here the momentum really seems to be going downhill. Is it? And if so, why?
Roy L. Austen [00:18:20]: It is absolutely. This is the most amazing point in my lifetime. And I'm a 70s kid, so I was not born in the 60s. But you have here just so many different things coming together at one time and you cannot ignore the bully in the White House. And three years of hearing his bullying and three years of his complete and absolute support for law enforcement. And then you have the clearness of this video and then you have the economic and racial inequality that has been brought on by the COVID-19 pandemic. And you have, on top of that, you have some of the wild black incidents where someone is bird watching while black. Well, someone is going into Starbucks while black while someone is-- And all of this coming together. And the thing that makes this movement so different just optically than anything that I have seen before is not only the fact that it is happening in cities and states across the country. It is happening in small, vastly majority white towns all around the country. It is happening all over the world. And people who even attempt, like Drew Brees, try to attempt to be nuanced about this, got shouted down for the lack of wokeness in his statement. This is a moment for criminal justice reform that is not going to turn around until things actually change.
Jennifer Rubin [00:19:00]: I do agree. I think you look back in the history of the Civil Rights Movement and you remember these seminal moments. The protesters being beaten on the bridge on their march to Selma, the unleashing of the dogs by Bull Connor in Alabama. And those became iconic moments, iconic visuals. And I want to emphasize visuals because people have a completely different reaction when they can see it with their own eyes, when they can make the assessment. And now in our on the screen constantly world, how many times have all of us seen it? It's probably over 100. And it's only been a week or so. So this gets reinforced and reinforced and reinforced again. And I think what Roy said about not the coincidence, but coincides with the Trump administration is very important. Part of this is the built-up anger over three years of playing the white grievance card, three years of overt and not so overt racial messages to his base. And I think the fury, the frustration, the anger has really sort of been bubbling there all along. And this now has brought it out and is much about Trump. It is much about his and his party's cluelessness on race. It is much about all of those things, the political situation in America. So I think these things happen because they're overdetermined. There are lots of reasons why this is so important. And it just seems like all the factors here are coinciding on this one incident. When you have these iconic moments where a public gets it and then the politicians are following. It's not that the politicians are leading this. They're scrambling to keep up with the American people who have been galvanized. And that doesn't happen more than a few times in a lifetime. And we're seeing it play out right now.
Barbara McQuade [00:21:00]: Harry, I would just add we've seen these incidents again and again and again. And it does feel like this time is different. And if it's not, shame on us. But I have to agree that, you know, COVID is part of it. Just feeling exhausted and tired and in a lot of pain. But I really think the impetus is President Trump, who has galvanized people and woken a sleeping giant in the rest of us. I think it is as Roy pointed out, it isn't just the black community, but the white community that is also rallying in support of real change in policing. And, you know, the way forward has already been written for us during the Obama administration. The 21st Century Policing Task Force put together a blueprint of very concrete reform efforts that need to be made. They had a blue ribbon panel of police officials, as well as defense and community advocates who put together a number of recommendations. And so, nobody has to study anything. Nobody has to spend more time thinking about what needs to be changed. We know what needs to be changed. De-escalation needs to be there. We need diversity in our police forces. We need oversight of police officers who do wrong. We need officer wellness and safety improvements. There are a number of specific recommendations there. And you know, the time for thinking and talking about it has passed. The time for action has come.
Harry Litman [00:22:12]: Roy knows a thing or two about that blueprint. So let me turn to you and ask, first of all, do you generally agree with Barb's identification of the big ticket items? And what would you see as most probable, but also most exigent in terms of the coming legislation? Because, presumably it's too much to hope that they simply take the paper and make it law.
Roy L. Austen [00:22:45]: Look, we know and we've known for a long time what needs to be fixed with policing. You look at Chauvin himself, the lack of officer accountability is an enormous thing. The number of officers who have prior complaints against them, where absolutely nothing has been done is stunning. And then those officers, when they go on to get worse and worse and then you put them in positions of authority and training other officers. That is such an obvious problem that has to be fixed. The fact that we have discriminatory policing and we're talking about a 20-dollar bill that was potentially fraudulent. That is silly, that you need five police officers or four police officers even on this kind of a case. The fact that someone dies over this is incomprehensible to most of the country. Throw on top of that the number of individuals who have been beaten and hit by rubber bullets and sprayed with tear gas who are protesting. And the reaction to the protests have made it more likely that we're going to have criminal justice reform.
Harry Litman [00:23:58]: What are the concrete proposals that stand a good chance of becoming law that address those problems?
Roy L. Austen [00:24:00]: I honestly think one of the top ones is going to be qualified immunity. So, qualified immunity is the idea that police officers cannot be prosecuted for much of their conduct, that prosecutors cannot be held liable for much of their conduct. And this is a fiction of the law that both the left and the right cannot stand. This is one where Clarence Thomas has kind of been raging for a number of years about it that the Supreme Court might take up where I think that this is a safe place for even Republicans to go. I think that there's going to be legislation that is going to forbid the use of holds where we are basically taking people's breath away. Neck holds, hog tying, that kind of thing is going to be banned at a national level. I think that's going to happen. I think you're going to have some significant movement on police training. It's going to be part of any legislation on implicit bias training. I think you're going to end up having a number of things on body cameras where they're going to be mandated and they're going to be decisions made there. You may even go so far and this is going to be the one that's really gonna be telling us if they find some federal legislation to limit the power and the authority of police unions to bargain on these specific issues, that's going to be telling.
Harry Litman [00:25:12]: Everybody does tell you that that's unless you're sort of sophisticated in the middle of these issues, you don't realize what a powerful force police unions are and contracts that forbid or at least make very difficult the discharge of bad apples. I want to make a quick point about body cameras. I think they are very likely here. And that it reminds me a little bit of Miranda, a decision that when it came out, officers were bitterly opposed to but came to actually champion and not want to reverse. And it's--when I was U.S. attorney, I tried to make the case to local police that a camera is in their interest and especially in the interest of law abiding officers. And I think there was initially a lot of resistance, but that's starting to change. And you'll see police coming to live with this. Because after all, there are cameras around everywhere now and they might as well have their own. Anything else? Or Let me put it this way. What you know, McCarthy will be somewhat cooperative, but what will his breaking point be like? What's a sort of pivotal proposal that, you know, maybe passes, maybe not. Will there be a battleground?
Roy L. Austen [00:26:21]: Oh no, this is going to be a huge battleground.
Harry Litman [00:26:22]: And what provisions? Because they'll certainly they won't try to resist it completely. So what provisions will be the real ground of battle?
Roy L. Austen [00:26:28]: Anything that touches the unions, anything at all that specifically touches the unions, they are going to lose their minds about that.
Harry Litman [00:26:37]: Republicans will lose their minds about or the unions will?
Roy L. Austen [00:35:44]: One in the same, one of the same, Harry. The Republicans have been kowtowing to the unions for decades now, the police used to hate all other unions, but the police unions. And so anything that the union says, like, you know, one of the issues is going to be militarized equipment, that's going to be a big, stumbling block block, because I remember in the Obama administration, we faced huge opposition to even putting accountability measures on those. So the Republicans are going to try. And I think the Senate probably won't pass much, but the Republicans in the House are going to have a hard time not doing something here.
Jennifer Rubin [00:27:12]: I would agree that the use of military sort of weaponry and gear is going to be a big issue for Republicans. I also think that they are going to resist strenuously any attempt that they say is not germane to this particular case. So if Democrats, for example, go broader and they say, ‘Well boy, we sure learned that there's a problem with the federal Insurrection Act here.’ That's going to be another point of resistance. Their effort is going to be to narrow, to make anything that they pass sort of go through the prism of this one case. And Democrats, rather, who I think rightly see this as a seminal moment, are going to want to use the opportunity to get as much in there as possible. So, I think you're going to see a big fight about what kind of reform they're really doing.
Barbara McQuade [00:28:02]: I would just add one other potential change in the law that I think could be helpful when it comes to federal civil rights law to enforce a criminal violation under the Color of law Statute 18 USC Section 242 requires intent of willfulness, which is the highest level of intent that exists. It can be very challenging in cases of police force to show that a police officer willfully deprived someone of his civil rights. It means that things like a mistake, accident, panic, bad judgment are not enough, but that the person deliberately acted to, you know, to kill someone. That standard seems to me to be too high. And changing that to knowing or even reckless, I think would give a lot more accountability over police officers and federal civil rights cases when they're using the color of law that is their badge to unlawfully seize someone by arresting them or using excessive force.
Harry Litman [00:28:53]: And whatever does pass, does it seem as if Trump is going to have to sign? I mean, after whatever the Republicans sign on to, it would be quite a political risky move for him to try to veto. Yes?
Roy L. Austen [00:39:18]: If he gets to his desk. He has to sign it. But I think the congressional, the Senate Republicans are going to prevent much of substance from getting to his desk.
Harry Litman [00:39:31]: OK, that's all on the legislation for now, as I say, it's going to be introduced next week and it will be. It will play out over the next several weeks.
It's time now for our sidebar feature. The government, as most of you know, has moved to dismiss the charges against Michael Flynn two years after Flynn already pleaded guilty to them. A very unusual turn of events. And the judge in the case, Emmett Sullivan, seems to be pushing back what law governs, whether the government can simply do it, or does the judge have some power?
And to tell us about this issue, we're really pleased and fortunate to be able to turn to Lewis Black. Lewis Black as a comic playwright and author and actor and the longest running cast member of The Daily Show. I give you now Lewis Black to talk to us about rule 48.
SIDEBAR
Harry Litman: [00:33:29]: Thank you very much. Lewis Black. Lewis has a special coming out this summer that you'll want to catch, as well as a new audio series called Lewis Black's Rant Cast.
All right. Let's move back to D.C. and in particular the, you know, remarkable descent that we began to see from the President's former advisers. He's been remarkably successful throughout his presidency in suppressing criticism and even enforcing fawning praise among his advisers and tyrannical and lowering the boom to anyone who he thinks is insufficiently sycophantic. But there was therefore all the more arresting that his former Secretary of Defense, James Mattis, said, “Donald Trump is the first president in my lifetime who does not try to unite the American people, does not even pretend to try. Instead, he tries to divide us.” And Mattis added in a sort of, I think, implicit swipe at his successor, the current Secretary of Defense Mark Esper, “We must reject any thinking of our cities as a battle space that our uniformed military is called upon to dominate.” And that word, of course, is exactly the one that Trump has tried to use to characterize his conduct. All right. Why does this happen now? I mean, we've had outrage after outrage that has passed with nary a peep from so many current and former advisers. What's going on and how important is it?
Jennifer Rubin [00:35:07]: Well, I think part of what's going on is what I call the revolt of the generals. Suddenly, they were being asked to do something that the military culture, all of their training, all of their thought process would reject. And that is the use of military force, disproportionate military force to suppress protests of unarmed civilians. And I think when that occurred, when suddenly they saw the chairman of the Joint Chiefs participating in this charade on Lafayette Park. When they saw the Secretary of Defense doing it. I suspect I don't have a particular inside information that when they got back to the Pentagon, they heard holy hell from the generals. This is not what they are trained to do. They are inculcated in the culture of civilian control. They do not want to be put in the position of firing upon, of policing Americans outside of something that is truly cataclysmic. This is an anathema to them. And I think what you saw slowly popping up before we heard from Mattis, actually, and then we even heard from John Kelly, the former head of DHS and the former chief of staff on Friday, was that some lower level people--the chief of staff of the Air Force, for example, those people were speaking out in ways that made it very clear that they wanted no part of this. And when that happened, I think everybody sort of looked around and said, ‘Yeah, we got to hang together on this.’ And it is a tribute to some degree to our military, which do not as Trump imagines favor the use of force. It's Trump who wants to use the military in all kinds of perverse ways. That's not our U.S. military. And for that, I think we should be very grateful this week.
Barbara McQuade [00:37:06]: There's a cascading of there's a cascading effect of these comments as well. I think that when someone like General Mattis speaks out, it gives license to others to speak out things that they might have been thinking but felt reluctant to say. And it's so important that people call this out to end it. I've think we've seen President Trump do these things before where he rules something out, he tosses out a trial balloon and waits to see which way the wind is blowing and then backs down. And so I think not only does it affect his likelihood of success at reelection in the polls, but it can also cause him to retreat in terms of engaging in dangerous behaviors.
Roy L. Austen [00:37:39]: You also just can't ignore the fact that these are not particularly debatable points. The absolute inanity of having troops basically march on to peaceful protesters. And you see the images live on TV of striking them again with rubber bullets, with tear gas, with shields for what was a photo op. At the end of the day, any normal human being is at the end of their rope. There's no nuance. There's no question this isn't a close call. So, of course, at some point these folks are going to start speaking when you're telling them to be the protectors of this behavior.
Harry Litman [00:38:18]: Do you think it caught Trump by surprise? He must have had a troubled relationship. But here he is, Mr. Strong arm talking about the military. And they say, ‘Well, maybe not.’ It makes him look really terrible, I think. Pulls out the rug from under him. Do you think he assumed that they were going to salute and be right behind him?
Jennifer Rubin [00:38:40]: He absolutely assumed that he refers to them as his generals, which is an anathema to the military and to all of us. They are the military that have sworn an oath to the Constitution, not to Donald Trump. And I have no doubt that he was taken aback when they didn't all salute and follow his routine. If you remember, this sort of behavior happened during the campaign of 2016 when he started talking about committing war crimes and he started talking about bringing back torture and all of this stuff that the military wants no part of. And then it was, at the time, the respected by him. People like, Mattis, commanders who said, ‘No, no, no, we're not doing that.’ But he has no real idea of the military ethic keep. He is a weak man's idea of a strong man. He is a draft dodger idea of a military man. He doesn't appreciate honor, he doesn't appreciate the code of military conduct. He thinks this is all an exercise in bullying. And every time it comes back to him that, no, this is not what the military is about. This is not what they do, this is anathema to them. I think he is surprised because he never learns. He thinks that that's what military people want to do, that they live for killing. And in fact, that's not their job. Their job is to protect the United States and defend the Constitution. So I have no doubt that that took him by surprise and now he looks weak and cowering in his bunker or in creating a bunker all around the White House by that fencing. He looks scared. He looks small. And he doesn't have, quote, his generals that are going to endorse any of his crackpot ideas about going to war with the American people.
Roy L. Austen [00:40:30] The only thing I would I would say with regard to what Jennifer just said, and I agree with all of it, is that to to be truly surprised or to to have it go a different way would require, like, he actually planned it to go a certain way or he planned what he was going to say. This is a person that doesn't think through what he's going to say. He just says it and hopes for the best and hopes that it riles people up, his people up. But he lacks any kind of even attempt or foresight. This is all just him speaking out loud and unfortunately, his inside voice is awful and so i his outside voices.
Harry Litman [00:41:08]: Yeah, he does seem pretty tone deaf and it was said that the whole photo op was kind of a close hold and he and Ivanka planned it. And really nobody even thought to call the bishop. So now, the current defense secretary, Mark Esper, who I think Jan accurately described as having really gotten holy hell from the whole military culture, came out and distanced himself at first, but then he's kind of tiptoed back. You know, he was at the church with Trump and that and he was making it seem like, ‘Oh, he didn't really know what was going on.’ Are his days numbered in the Trump White House? Will he be purged?
Jennifer Rubin [00:41:41]: Well, you never know how long these people are going to stay. I think. Former General Kelly, said it best on Friday when he said every relationship with Trump eventually goes bad. So whether he wants to make that change right now or that would seem to be even further disruptive to whatever he has in mind is unclear. I actually think at this point it would be a surprise if he fired Esper. And I think he would have some doubt about what Esper would say if he was fired.
Harry Litman [00:42:08]: Yeah, I've got to say, I agree the cost of that of being crosswise with the military would be high. But certainly he was notably tepid in talking about Esper’s future-The White House secretary was. All right. Well, you know, the drama of this and the sort of sea change that you noted in different aspects brings us to a sort of final question. I hesitate even to frame it because we have this overwhelming loosey Charlie Brown dynamic. Right. You know, how many times has the commentary that speculated we're finally at the event that breaks the back of Republican senators and wakes a large portion of Trump supporters to his venality and then somehow, he roars back as his base kind of circles around him. But, you know, are we, in fact, at an actual different point here, a very influential commentator wrote this week, ‘Something feels different. Increasingly, it feels that we collectively have concluded that President Trump is a tyrant whose rule must. Whose abuse of our fundamental rights has exceeded the limits of our collective patience’. And fortunately for us, that commentator is here. So what do you think, Jen Rubin? Are we truly at an inflection point?
Jennifer Rubin [00:44:25]: I think we are. But I think people have to understand that history and change doesn't happen by unanimity. It happens at the margins. It happens gradually. It happens sporadically. You're not going to get all of these Republican senators, maybe any of them to publicly break. But the question is, whether ordinary Republicans who have kind of shuffled along and said, ‘Well, the economy has been good’--obviously, until now--’Well, we've got a bunch of judges that we really liked. Oh, but Hilary was worse.’ It's those sort of Republicans who can call them soft Republicans, Republicans of convenience who supported him. The question is whether those people finally break away. And there's some evidence there is. You're seeing remarkably awful polling from him of late where he's tied with Biden in Texas, where he is behind double digits nationally. Part of that comes because independents begin to choose sides. But part of that is you're eroding, eroding, eroding until you get down to the very core of the core base. That may beall he gets in November. So that is enough, of course, paring law's slicing off all of the less devout followers that allow for quite a cataclysmic election for the Republicans. And what they should be looking at is the Senate polling numbers are almost as bad as Trump's. You have people who were not considered to be in any danger, someone like Joni Ernst from Iowa who is now tied with her opponent. These were not on the Democrat's radar screen in their wildest dreams.
Barbara McQuade [00:45:16]: I live in a swing state here in Michigan and Michigan, went for President Trump in 2016. And I think the most compelling thing I have seen here that I think will move Michigan voters are these ads saying, are you better off today than you were four years ago, echoing the campaign slogan of Ronald Reagan. And when you look around us with unemployment and COVID and protests in the streets and the militarization of our police forces taking in response, the answer across the board has to be no. And I think people are just exhausted from all of the winning. It's time to get our country back to normal. And in Michigan, I think a big reason for Trump's success in 2016 is Hillary Clinton was not very popular. She didn't work very hard here. She didn't campaign hard here. And the blue-collar workers felt left behind by her brand of politics. You know, they saw her in her very fancy pants suits talking to members of the board at Goldman Sachs. Joe Biden resonates with them in a way she did not. And I think he will win in Michigan, in places like Pennsylvania and Wisconsin in overwhelming fashion.
Roy L. Austen [00:46:18]: I want Jenn and Barb to be right more than anybody else, as a civil rights attorney and as an African-American man. But I have to tell you that I remain fearful because number one, these things always go on a roller coaster. He may be down now, but there's going to be a pickup, like today's job numbers, are something that surprised a lot of people. On top of that, the Republicans have no choice but to support him. The Republicans certainly in the Senate, in the House, and they're going to keep fighting on his behalf-- they simply have no choice. We saw Rakowski give the strongest statement that I've heard from anyone since Jeff Flake about him, and she is being taken to task for that, promise to be primaried and what's not. So I just want to say that and we don't know what's going to happen with all the voter legislation that's going around right now. The attempts to suppress the vote are enormous. So, until people actually go out there and vote and vote against him, he remains a very powerful figure. And I think it's going to be very difficult to unseat him.
Harry Litman [00:47:13]: I mean, he has been quite the escape artist hasn't he. Do you see any scenario if the general polling looks like they're going to lose the Senate and Mitch McConnell will loseaApparently the only thing he cares about, which is the position of majority leader. Any chance he fishes and cuts bait or they, you know, to mix metaphors connected at the hip now through November, no matter what?
Jennifer Rubin [00:47:37]: I think what will happen is if these numbers continue, that come around October 15 or so, and this is when this happened once before in another very different context. Republicans start making the argument to voters, you need a check on Joe Biden. In other words, they will sort of cut Trump loose, stop assuming he will be the president and present themselves as, you know, the only thing standing between Joe Biden and socialism or whatever it is. And it's when that happens that they implicitly throw Trump overboard. And this has happened before. This usually happens in a House race when the House and Senate look like it's being pulled down and they suddenly pull out the benefits of divided government. But that won't happen until October, if it happens at all.
Harry Litman [00:48:30]: The president has this just just perpetually stunning indifference to telling the truth and contradicting himself, but that that has a bit come home to roost because you've probably seen ads now, not just from the Biden camp, but also from Republican never-Trumpers. You put them back to back the things he said about the virus, the things he said here and it and it makes him look like an absolute inept disgrace. But, of course, you know, I drank the Kool-Aid before he even was elected and as Roy says, we've been wrong before. But this is something we'll really be following with some sense of hope. All right. I think that's what we have time for now. What a week and a really great discussion. Thanks to everyone.
We end now with our normal final feature of five words or fewer.
Our question today comes from Robert Ecker, who asks: If Trump orders the military to attack peaceful protesters can they refuse? Feds, five words or fewer please. You know the rules.
Roy L. Austen [00:49:37]: All right, here we go. Absolutely. And they should.
Harry Litman [00:49:40]: Nice a word, a word leftover. Barb?
Barbara McQuade [00:49:42]: Yes. Must refuse illegal orders.
Jennifer Rubin [00:39:46]: Yes, under the military code.
Harry Litman [00:49:53]: Oh, I will slightly temper it by saying, but must be manifestly unlawful.
Thank you very much to Roy, Barb and Jen. And thank you very much, listeners, for tuning in to talking feds. If you like what you've heard, please tell a friend to subscribe to us on Apple podcast 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 Fed related content. And you can check us out on the Web TalkingFed'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. We have some really great discussions there. I just wanted to say they're not simply outtakes, but original one on ones. So just now, you'll find a discussion with Ellie Hoenig about the new charges in Minnesota, a discussion with Matt Schwartz, who wrote a very telling profile of the attorney general, Bill Barr in the New York Times magazine. And we'll be talking about that and just keep checking the Patreon t in for really original content as well as, by the way, ad free episodes. Submit your questions to questions at TalkingFed's.com. Whether it's for five words or fewer or general questions about the inner workings of the legal system for our sidebar segments. Thanks for tuning in. And don't worry, as long as you need answers, the Feds will keep talking.
Talking Feds is produced by Jennifer Bassett and Rebecca Lopatin. Justin Wright, is our editor. David Lieberman and Rosie Don Griffin are our contributing writers. Andrea Carla Michaels is consulting producer and production assistants Sam Trachtenberg and Ayo Osobamiro. Thanks very much to comedian and actor Lewis Black for teaching us about the circumstances where the government can dismiss charges, as it attempted to do in the Michael Flynn case. Our gratitude, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of Deledio LLC. I'm Harry Litman. See you next time.
