Harry Litman [00:00:00]: Hi, it's Harry. Just wanted to give you a quick heads up about what you can find now on our Patreon site. We're in the middle of a sort of summer book club where I'll be talking to the authors of five different books, Anne Applebaum on the Twilight of Democracy. Norm Eisen on a case for the United States. Those are already up this week. I'll be talking to David Litt and to Jeff Toobin about their new books and the following week to John Dean, former White House counsel. There's also lots of material there that continues to be, I think, of interest, not just topical discussions. So, for example, you might want to check out Jonathan Zittrain, with whom I discussed the very interesting and complicated problem of how to track the contacts that people with the virus have had with everyone else. Or maybe the Alan Arkin conversation where we discussed his Eastern philosophy and approach to life during the virus. So lots of good stuff there. You can check it out without having to join, just to see the capsule descriptions of the various discussions and then decide if you'd like to subscribe for five dollars a month or three dollars for students. Thanks. And here's our show.
Harry Litman [00:01:29]: Welcome to Talking Feds. A roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman. It's official. The United States stands well above the rest of the developed world in its virus numbers and is the only nation to have suffered a severe and sustained outbreak for more than four months. Nearly two million Americans have tested positive for the virus in the last month, which is more than five times as many as in all of Europe, Canada, Japan, South Korea and Australia combined. And Black and Latino Americans continue to contract the virus about three times as frequently as White Americans. President Trump took it on the chin in two federal courts. Manhattan District Attorney Cyrus Vance told a federal trial judge that his office was seeking Trump's financial records to investigate not just hush money payments, but possible extensive and protracted criminal conduct at the Trump Organization.
Harry Litman [00:02:36]: And the full D.C. Circuit held that Congress could proceed in its suit to force the testimony of former White House counsel Don McGahn, who was a direct eyewitness to Trump's efforts to obstruct the Mueller probe. Meanwhile, the New York attorney general brought a massive civil fraud lawsuit against the NRA and its controversial CEO, Wayne LaPierre, alleging LaPierre bilked the organization of tens of millions of dollars to fund his ultra luxurious lifestyle and seeking to dissolve the organization. Obama Deputy Attorney General Sally Yates testified before the Senate Judiciary Committee, where chair and Trump surrogate Lindsey Graham used the opportunity to try to browbeat Yates into agreeing that the counterintelligence investigation of Michael Flynn was just a political setup by the Obama Biden administration. In the Senate overall, the two parties remain far apart in negotiations over a new stimulus bill was signed by week's end that Mitch McConnell was ready to give ground. And just for good measure to add to the general misery and mayhem of the week, a hurricane lashed the northeast U.S., leaving power outages and property damage. To break down the stormy week we have a great panel of great analysts, good friends and DOJ alumni. Four feds, all, in fact, each of whom I specifically had in mind when we started the podcast. Starting with Amy Jeffress. Amy is a partner at the law firm of Arnold and Porter. She served as the Justice Department attache to the U.S. Embassy in London, and she was a former counselor to the attorney general and a longtime assistant U.S. attorney in the District of Columbia. Amy, thank you for coming.
Amy Jeffress [00:04:25]: It's a pleasure to be back.
Harry Litman [00:04:26]: Ron Klain is an adviser to the Biden campaign. He has spent over 30 years in the highest purchase of government, including chief of staff to two vice presidents, Joe Biden and Al Gore. Chief of staff to Attorney General Janet Reno. Chief counsel to the Senate Judiciary Committee. And the Ebola czar under the Obama Biden administration. Ron, thank you for coming.
Ron Klain [00:04:50]: Always a pleasure, Harry.
Harry Litman [00:04:51]: And Matt Miller, a partner at V.A. Voh and former director of the Office of Public Affairs for the Department of Justice. Matt, thanks for coming back to talking feds.
Matt Miller [00:05:00]: Always good to be here.
Harry Litman [00:05:02]: All right, let's jump in with the virus. The numbers are heads spinning and the impact on daily life continues to be profound. We're approaching five million cases. One hundred fifty thousand deaths. There are 1450 cases per 100,000 population. In Europe, the numbers are like 90. So what's going on? And I don't mean this rhetorically necessarily. Why are we so much worse than every developed country? Is it only because of our president?
Ron Klain [00:05:32]: Well, I'll start. I mean, I think I don't know if it's only because of our president, but it's principally because of our president. And I think we've seen this failure at every single step in the process. Early on, the president ignored the warnings that were coming from the intelligence community, ignored the warnings that were coming from the international health community. He stood in front of the American people, told people it would go away, it would be like a miracle. We were 15 cases, we'd go down to 5. It'd go away in April ago, it would go away at Easter, go away when it got warm. And so, we spent the entire spring basically in a pattern of denial and a lack of preparation, response to it. And that's what led to the crisis we saw particularly in the northeastern United States, in New York, New Jersey, Connecticut, other places that were really hard hit in March and in April. And then what we've seen since then is a second kind of wave that technically a second wave, the second round of outbreaks in the Sunbelt. And that's directly accountable for the fact that in mid April, when Trump's own administration led by Dr. Fauci, Dr. Burke stood and said, 'Hey, these should be the careful standards for resuming economic activity.' Donald Trump slashed his own plan, stood in front of the American people, criticized governors and local officials who are trying to follow those recommendations, and instead egged on those who simply chose to ignore the expert advice and rapidly reopened ones out of concern for safety and health. Particularly in Florida, particularly in Texas, particularly in Arizona. And so what we've seen really since June onward is a increasing number of cases, not a decreasing in more cases, but an increase in more cases. A second spike in a different part of the country because of Trump's direct recommendations to people to ignore the safety issues in reopening. And so I think that's where we are now. And now, look, we're turning the corner towards the fall when the question comes to schools. And once again, the president is not telling people to use data. He's not telling people to use science. He's not telling people to be careful who is running around saying every single school and every single part of the country should be open. And that is really paving the way for a third crisis moment in this epidemic.
Amy Jeffress [00:07:36]: What's so incredible about this, Harry, is that the Trump administration literally threw away the playbook. And I would like Ron to talk more about what that playbook was, but he said something that he contributed to. But] I’m reading a book about the great influenza of 1918. It's called The Great Influenza. And I'm reading it because ABC reporter Matthew Mosk did an article a couple of months ago that was about how George W. Bush, when he was president, had read the book and then said his staff, "This kind of pandemic happens every hundred years and it's been about 100 years and we need to be prepared." And so, he and his staff went about creating a structure in the NSC to respond to a pandemic. And then the Obama administration, of course, with to some smaller pandemics that it faced strengthened that structure and staffing. And then in the Trump administration, it was pretty much just abolished in the playbook was thrown out. And so when the pandemic hit, no one was following really very good advice that administrations had passed along. Up until that point, too. And those steps that were laid out in the book and the staff that had been there that could have really put together a competent response were all gone. And so it was left to people who really didn't know what they were doing and made terrible mistakes. And now here we are.
Ron Klain [00:08:49]: Yeah. So, look, I think Amy is spot on three critical points here. The first is that until Donald Trump came along, pandemic prevention response was a bipartisan priority. It was a priority of the Bush administration and the Obama administration. It really had nothing to do with partizan politics or ideology. There is a general view that we face this threat, we need to be ready for this threat. So, I think sometimes we see this as kind of like a bunch of Trump critics were jumping on Trump about this as if this might be a Democrat versus Republican thing. It wasn't a Democrat or Republican thing until Donald Trump made it that. So I think that's the first point implicit in what Amy said, that really bears some attention. Secondly, as Amy alluded to, we created two things after the Ebola response to institutionalize the lessons we learned from that response in 2014, 2015. The first was creating a permanent office, a pandemic preparedness response inside the National Security Council, led by a deputy national security director for Global Health Security. That person ultimately was Beth Cameron after I left the White House or to the Obama administration. It continued for the first year of the Trump administration, led by Adiramal Tim Zimmer, a veteran of the Bush administration, then brought back a veteran of fighting AIDS in Africa. Really talented, experienced, professional. He led that office till 2018 when Trump and John Bolton abolished it. Wiped it out.
Harry Litman [00:10:07]: Any reason? Was just a money thing.?
Ron Klain [00:10:09]: Yeah.
Harry Litman [00:10:09]: What did they say at the time.
Ron Klain [00:10:10]: No, no, no. It was an ideology thing.
Harry Litman [00:10:12]: Pandemics are for Democrats?
Ron Klain [00:10:14]: Pandemics are a soft power issue. So over overall NSC view that, you know, people getting sick from viruses, you know, that's not what we're worried about. We're worried about terrorism. We're worried about ISIS. We're worried about these hard power threats. We're not really worried about just people getting sick. I mean, these people get sick, they get sick in Third World countries, it's never going to come here. This is our kind of problem. It's a this is kind of a goody two shoes problem was the view of the hard security people under Bolton, and that's why they got rid of the office. But there's a third thing that Amy alluded to, which was this pandemic playbook, which we wrote at the end of the Obama administration. Which laid out step by step what to do when a pandemic threat emerged that people say to me all the time, 'Oh, but you couldn't have possibly seen this coming'. On page nine of the pandemic playbook that says look out for corona virus, corona viruses or emerging viral threat. You know, it's specifically called on page nine of the playbook. And so when the Trump administration abolish this office, took the view that pandemics are something that only happened in poor countries or undeveloped countries, didn't follow this playbook. That did lay the groundwork for the real disaster we saw starting in the early months of the Corona virus response.
Matt Miller [00:11:28]: I could listen to Ron talk about this all day. The only point I wanted to add, I think the tragedy of all this is that except for being massively incompetent, which is obviously a huge caveat, Trump could have actually responded to this virus better than just about any other president. And by that, I mean, I try imagine this counterfactual where this epidemic has hit when President Obama was president. I think the response would have completely competent, you would have seen it run the way you expect government to run. But I have to imagine that there would be a mass pushback around the country, the kind of protests you saw in Michigan over the shutdowns and the kind of intellectual movements you've seen around makes. You would have seen that, but you wouldn't see it being led by Republican governors, Republican politicians who are doing it just to oppose Barack Obama. And I think you would have seen zero impetus from Republicans in Congress do anything to respond to this and other problems. Trump as not just any Republican, but as a Republican who is square in the anti-intellectual boat, anti-elitist wing of the Republican Party, both kind of a symptom of that problem in the party, and they'd celebrate it. He was uniquely positioned if he could let competent people inside the government, Fauci and others run the response. He was uniquely positioned to kind of say 'Wear your mass when you go out in public, socially distance' and just send the right messages. But he's just incapable of doing that. So in a weird way, one of the guys who could unite the country around being responsible because he could have brought along the people who are naturally inclined not to be responsible, refuses to do so.
Harry Litman [00:13:04]: Yeah, it's really true. And he's eventually had to come around to at least acknowledge the deaths. And you wonder what kept him from trying to be--I could really see how I could have just taken one different direction way back when and really in a strong way, tried to play the hero.
Ron Klain [00:13:24]: To answer your question, why not? I think I think Matt's analysis of the situation is exactly right. But the problem with the pandemic and other hard problems that both Matt and Amy have worked on in government is hard problems require hard work. And they require just a lot of grinding through the details and a lot of planning and a lot of implementation and a lot of like getting up early and staying up late and really working through it. The pandemic is a giant logistics challenge. It is a giant governmental challenge is just a giant challenge of effort and focus and intensity. And Donald Trump's never had any interest in doing any of those things. You know, his idea of a problem is it gets up the morning tweets about it. He says something in the Rose Garden, and then it's just all over. And that's always been the limitation on his ability to run this response. This is something that requires the kind of endless meetings and focus and work that Amy said. Thousands of these meetings, massive thousands of meetings. That's what fighting a pandemic involves. And Donald Trump was never, ever, ever willing to do that. [66.5s]
Matt Miller [00:14:31]: The best example of that is the debate around schools right now. I get so personally angry when I see the president tweet all the time over the schools because I have two kids that I want to have in school right now or I want to havemat school at the end of this month when they're supposed to open. And they won't. One of will we sit here with my wife and I'm trying to teach them how to read, doing a bad job at probably. Donald Trump is the one person who could have effectuated getting the schools to open had he just respond to this virus competently. But instead of doing that, he just tweets all the time about it, says, open the schools, despite the fact I have nothing to set up a situation where the schools could responsibly open. And you can look at a bunch of examples that I know, at least for me, that is the one that drives me crazy every time I see him talking about it.
Harry Litman [00:15:15]: I mean, we're all parents and we all feel that way. So what the hell is going to happen? He's saying open the schools. Open the schools. There have been other Republican governors who have followed him, even when he's tweeted imprudently and without regard to the science. Will some schools open? Will disasters ensue? Will students die? How do you see this playing out?
Amy Jeffress [00:15:36]: Yeah, I'm interested to talk about two things. One that you just mentioned, which is the sort of refusal to consider the science and follow the advice that the scientific experts are providing, which we haven't really talked about. The other is to what extent is this a problem that is really a feature of the United States? Because we are such a big country and we have very unusual freedom of movement from state to state. So it under normal circumstances, the pandemic probably would be worse here than it would be in countries that are smaller and have borders with border controls. And I mean, internally within the United States, you can really even drive anywhere and you don't face internal border controls. So there are challenges that are not necessarily the fault of the administration, although the administration hasn't grappled with them the way it should have.
Ron Klain [00:16:19]: Well, let me let me disagree with the second. Right. It should be much less bad here than it is in Europe. Our population is younger. Age is the number one death factor in this disease. The average population in Europe is about 10 years older in the United States. They should be experiencing significant more fatalities than we are. They also, for most of this, kept a lot of inter European borders open. People were moving around. Europe is also largerer United States 450 million people there. 330 million people in the U.S. So by every single metric, they should be seeing it much worse than we are. Yesterday, there were zero new cases of COVID in France. Zero. Zero new cases of COVID in Spain. Zero. There were more new cases of covered yesterday in Paris, Texas than in Paris, France. So, I mean, this is a singular failure of the Trump administration. I think on the schools thing.
Harry Litman [00:17:06]: Yeah, what's going to happen?
Ron Klain [00:17:08]: Look, what's going to happen is that the schools are going to open in some parts of the country and not in others. By the way, there are parts of the country probably where the schools can open safely, if you take appropriate measures. If you require masking in schools, if you create barriers around teachers, do things to try to make the schools as safe as possible. And I think there are places Governor Cuomo, a Democrat, today announced that a New York state, he is authorizing the schools to open in New York state, subject to local decisions ultimately, but certainly in parts of that state where the disease is very, very low. I think that's probably the right decision. And so this goes back to that Matt said a second ago. It's not that there are no schools that should open. Some should open. What the president should be doing is saying, here's the standards you use to decide. Here's the safeguards we need to put in our schools if you're going to open them to keep kids safe. And here is some help for the schools to do it. I mean, we live in a country where we often make teachers by their own chalk because we don't give them school supplies. This should not go by their own PPE and is buy their own deep cleaning equipment for their classrooms? I mean, so instead of yelling at the schools, a competent federal government would be giving the schools the tools they need to make it safe, as safe as possible to open schools where incidents of the disease is lower.
Harry Litman [00:18:29]: Now and of course, Chicago just went the other way. But I assume some schools will open. There'll be bad results. It's genuinely unclear what what it looks like for parents and students in two months from now. So we'll leave it there for now. This isn't going away for sure. And the summer with the virus or without is hurdling by. So let's move on to a different topic concerning the president, however. There were several developments in courts and Congress this week that I would say are roughly centered around returning to like 2015 and 16 and and resuming the controversial conduct of the Trump campaign or to hear Lindsey Graham say that the controversial conduct of the Obama-Biden administration. But so starting with the D.A. suit, this went up to the Supreme Court through an argument of the president saying that he can't even investigate me while I'm the president. The Supreme Court rejected that, but returned it now for Trump to be able to make those sorts of arguments that any old joke could make to resist a subpoena. But I think the big news of the week is the litigation. Vance, the D.A. said that the office is investigating possible extensive and protracted criminal conduct at the Trump Organization. What's going on here, exactly? What do you think Vance is looking into?
Matt Miller [00:20:00]: It's hard when you think of a Trump entity. It's hard to limit your mind in terms of what kind of criminal exposure they might have, just because you see the way Trump operates. The one that comes to mind with the Trump organization is something that Michael Cohen said when he testified to Congress. I guess it was last year. They talked about Trump repeatedly overstating his assets when applying for loans from Deutsche Bank. There was another report this week that Vance had gotten Trump's business records from Deutsche Bank. So it sounds to me that would be just the basic bank fraud case, right? You overstay your assets or to get a loan that you don't otherwise deserve. Probably the kind of thing that Amy and you had prosecuted many, many times. But that's the easiest one to imagine. I mean, you can you can keep going and imagine insurance fraud has been raised other times as part of this investigation. As well as, you know, it's always possible and there've been some indications that is looking at this case on the hush money scheme that Michael Cohen was a part of that he ultimately guilty to do in New York in federal court?
Harry Litman [00:20:59]: I think that's right. There are state analogs and of course, those are subject to some intense problems of proof or at least challenges. People cite the John Edwards case, which was kind of a black eye for the department, though I think it's really not apposite. That would be how I'm thinking if I were looking at this. And it goes both ways. They were sort of accordion like with their different entities. If you want to get the bank loan, you want to look like you're robust and have a lot of proceeds. If you want to pay not much tax, then you want to contract and look kind of poor. And there's some suggestion from Cohen, among others, that they had it both ways and it was just a way of doing business. OK. Couple other things in this general category. What about the opinion by the D.C. Circuit that rejected what had been a panel opinion saying that Congress couldn't even bring a suit to try to force McGann to testify? You know, the court has said it's an interbranch dispute and the full D.C. Circuit now has said 'No, that that's not how it works. Congress has standing.' How important a decision practically and legally is that going to be going forward?
Amy Jeffress [00:22:13]: So I'll start. I didn't read a good bit of it. And it's a very strong, very solid, well written opinion. I mean, the D.C. Circuit has just some amazing minds and can really produce amazing opinions. And in this case, I'd say that's one of them. So I think this is now the law and it's clear. And the import of the opinion, in my view, is that this administration has really thrown out the playbook on how to relate to Congress and how to comply with legitimate requests from Congress. And they've largely gotten away with it. And this is a start. And, you know, the courts are setting that back and pressing reset. And no, we're going to return to what the Constitution said in terms of how these three branches should interact and Congress has the right to compel testimony. And so that is the way that it should be. That's the way most administrations have honored congressional requests throughout our history. And the fact that this administration didn't is unfortunate. But I don't know that it's going to be held to account. If there's a new administration. I would have expected that new administration to comply anyway. But at least it hits reset so that in the future it's very clear that you can't get away with the kind of obstructive rejection of Congress's authority that this administration has done.
Matt Miller [00:23:23]: I agree with that. Look, if Trump is a two term president, God forbid I think this ruling along with the Supreme Court rulings a few weeks ago will be important. But I think in the short term, Trump has won basically these fights with Congress because he never cared about the principles of executive privilege and the principles of what he ought to have to turn over the law, the kinds of things that administration lawyers argue endlessly about internally. He cared about delaying everything past the election and he's basically going to get away with that. He got away with that in the impeachment fight. He got away with that. With all the other investigations, the House is open ended. And I have actually been pretty disappointed by the court's inability to either recognize what Trump was up to or care enough about it to respond to it and force him to comply, not just eventually, but quickly, because time was of the essence and the White House got that. And I think they're going to get through the election without really having ever complied meaningful congressional oversight. [
Harry Litman [00:24:19]: OK, granted. But will the case actually be mooted with a new Congress or will McGann still testify?
Matt Miller [00:24:28]: Well, look, in terms of testifying, the DOJ has already been interviewed a bunch of times by DOJ. I think the congressional subpoenas were important for public oversight. The cases wouldn't be booted. But they'll just be irrelevant. We inherited when we took office in 2009 a big fight between Congress, the Bush administration, about whether Karl Rove and Harriet Miers had to go testify.
Harry Litman [00:24:50]: Right.
Matt Miller [00:24:51]: Yeah. The House didn't really care anymore. We eventually worked it out. We suddenly carried this is they had to go testify under closed doors, but nobody really cared at that point. And this, I think, the same will be true if it's Don McGann testimony while Joe Biden president. It's some extent old news.
Harry Litman [00:25:04]: All right. Well, sticking with old news, Sally Yates had to troop up to the Hill to talk to the Senate. Well, I think talking to might be the wrong term with the Senate Judiciary Committee. To be browbeat by and listen to Lindsey Graham, who tried to use the occasion to try to promote a storyline of Obama and Biden. Biden's name came up in again, again and again as having been unmasked and acted corruptly toward Michael Flynn. So does this signal like a big theme coming up in the campaign? It seems completely fact free. But is it the kind of thing that Trump can make stick? At least among his base?
Ron Klain [00:25:47]: Well, I have no doubt they have been signaling for months that this was going to be their fall attraction, was revisiting these claims about 2016 campaign and the FBI's roll in it. And then the follow up and investigations on that. And they certainly are pounding that drum. I thought former Deputy Attorney General Yates did a superb job of, you know, unmasking the lies about unmasking. And just kind of very factually going through and rejecting these false claims and laying forward the facts in a very powerful and persuasive way. That won't stop what the Republicans, what the president's allies are trying to do. That won't stop them from trying to make this some kind of bete noir of the right-wing movement in the fall. But look, I think fundamentally, I think most of the voters are going to decide the election, think that this is all a bunch of nonsense. They think that their kids can or can't go to school. Their parents can or can't get out of the house because of a virus. They want to see the president and his allies working on that. I think we have the highest unemployment rate in a generation. They want to see the president's allies working on that. And I think them wasting a bunch of time sword fighting with Sally Yates. Senator Kennedy calling her stupid. I mean, all this craziness. I don't think it's doing a much political good. I guess it's chewing up some C-SPAN airwaves or something like that. But I don't think it's really anything. It's really moving the needle for them in any significant way.
Harry Litman [00:27:09]: Matt, what's in it now for the Republican senators? Why be such continuing warriors for this kind of crazy story instead of at least hedging their bets? We're getting pretty close to an election that he is way down in. They have to at least contemplate the likelihood that he'll lose. What's the calculation of the Kennedy's and Cruz's and Graham's of the world?
Matt Miller [00:27:34]: The first of those two senators aren't up for reelection right now, so they don't care. And Graham's seat is up, so a little closer. I think you will see some of that hedge their bets, but a lot of them are kind of trapped where they hedge their bets. They hurt themselves with their base. I think with this year, there were two reasons why they were doing it. One, this year, it was such an example of how Republican and conservative media disinformation works. There has been this conspiracy theory on the Right for a while that on January 5th of 2017. So the last few days of the Obama administration, Obama and Vice President Biden, Susan Rice, Jim Colby and Sally Yates got together and Obama told Colby Yates to go set Michael Flynn up. The first thing Sally Yates did in the hearing was come out and say: "That didn't happen. I was in that meeting and the president said, I want to know about whether you're investigating him. If you are, I don't want to influence it." She could not have been clearer. Marsha Blackburn, Republican senator from Tennessee, who sits on that committee and was in the room, heard that testimony. An hour later, tweets, President Obama and Vice President Biden ordered Sally Yates and Susan Rice to investigate Mike Flynn just completely refuted by the evidence her committee had just heard. And if you watch Fox later that night, the same thing. Now, to Ron's point, do I think this is relevant to what voters care about? Not at all. But I think they're trying to feed their base. And I do think there's something more nefarious going on in that they want to keep throwing all this relitigation of 2016 and what happened with respect to Russian interference in the investigation is that interference partly as a disinformation screen. So if something happens again, let's say the Russians have hacked into buying campaign e-mails and dump a bunch of them out on the Internet. Or the president gets caught asking Russia or another country to interfere in the election. China or Ukraine has done it repeatedly, that they have set up this kind of talking point that, 'Oh, you can't believe anything you've heard about foreign interference in the past. You can't believe that again now.' They're sending up that message to voters in case they need.
Harry Litman [00:29:35]: One final point on this relitigation is the prospect that became very concrete last week when Bill Barr testified that the Durham report may actually be coming before the election. Amy, you were in the middle of the department when he was a U.S. attorney and in fact, when the attorney general called on him. First, what the hell happened? But do you see the likely prospect of that October surprise?
Amy Jeffress [00:30:03]: So Matt was there as well when Attorney General Holder appointed Durham to continue the CIA investigation. And he was, I'd say, very different from my impression than he is now. And I will just point to the most stark example of that, which is the statement that he made after the inspector general's report came out last year stating that he disagreed with its conclusions. Now, he was in the middle of his investigation and there was no reason for him to take issue with a fellow Department of Justice employee. And yet he did.
Harry Litman [00:30:36]: There was reason not to, in fact.
Amy Jeffress [00:30:38]: There was much reason not to. He's in the middle of investigation, has yet to interview witnesses. Obviously, he's still interviewing witnesses, according to reports. So that's just not how we do business. And so I was appalled by that. And that made me think that that's also not consistent with what I had long heard about Durham and his reputation. So it made me think that he was put up to it. I mean, that's the only explanation that I can give. And that's not an excuse either. If you're told to do something that you understand is wrong, just resign. Don't do it.
Harry Litman [00:31:06]: And by the way, do you agree? All three of you would speak to this but certainly, Amy and Matt. That, this would be a patent violation of the department's policy of not influencing elections. Bill Barr has offered the argument, 'Oh, that's just for where concerns candidates.' But of course, that's not what it says and it's just not common sense that you can totally throw a bomb into the middle of a campaign, whether or not you are investigating the candidates. Yes?
Amy Jeffress [00:31:34]: I think that's right. And honestly, though, my prediction is that they won't do that. There might be something minor, but I don't think there's going to be something that's going to threaten to shake the election, anything very significant. But we'll see. I've been suppressed before.
Matt Miller [00:31:48]: I have a hard time seeing any big indictments come. I do think there will be a report and who knows what it will say. I think Barr will at some point take over the report and author big pieces of it and spin it. And it will be as nefarious as you can imagine, probably far more nefarious than back support. And of course, it's a violation of the DOJ rules. And I think the way to think about this is what would be the law enforcement reason for releasing this report in the last 60 or nine days before the election? You can't think of a good one. Sometimes there are reasons why DOJ might take an action that could possibly have some impact on election because there's a law enforcement reason to do it. Say a suspect is going to get away or you have to subpoena someone out or executed search or because evidence is going to be evidence is going to be destroyed. There's no law enforcement reason to do it now, and there are plenty of good reasons to wait. The not even a question of interfering with the election. So if they do it between now and November 3rd, it is absolutely clear, why.
Harry Litman [00:32:44]: Yeah. I mean, that's a great point. Sometimes you're trying to figure and applying that policy as a prosecutor. What is neutral? What would you be doing any way say? But this is a report. It may ripen into a criminal investigation, but as you say, I mean, the main reason is to give the information. So it would be gratuitous to actually drop it in October. All right.
Harry Litman [00:33:07]: It's time now for our sidebar feature, which explains some of the terms and relationships and events that are going on in the news. As you may have heard, the attorney general in New York has brought a lawsuit against the National Rifle Association seeking, among other things, to dissolve it. What's the case basically about and how strong is it? To explain, we have a very appropriate public figure, Kris Brown. Kris Brown is the president of Brady, one of America's oldest gun violence prevention groups. During her tenure, she has launched Team Enough, a youth initiative in response to the Parkland shooting and also End Family Fire, a safe storage campaign. She's going to explain what's up with the attorney general of New York's lawsuit.
Kris Brown [00:33:58]: New York Attorney General Leticia James on Thursday brought a mammoth civil lawsuit against the National Rifle Association. What is James alleging and how serious a risk is it for NRA leadership and even the organization itself? James' complaint alleges widespread and long standing violation of New York's laws governing not for profit corporations. The NRA has been chartered in New York throughout its nearly 150 year existence. Like other New York nonprofits, the NRA is subject to legal oversight to ensure it uses its donations and leverages its tax advantaged status to further its charitable mission and serve the legitimate interests of its nearly five million members. The lawsuit alleges that NRA leadership, especially longtime chief executive officer Wayne LaPierre, instead plundered NRA assets to fund a lavish lifestyle. For example, the complaint charges that LaPierre, who already pocketed a seven figure salary, used NRA funds to charter private flights for his wife and extended family. Took frequent trips to the Bahamas on a luxury yacht owned by an NRA contractor, expensed millions of dollars in gifts to his inner circle and engineered a lifetime employment contract valued at more than $17 million, without NRA board approval. There are similar charges of self dealing and misuse of NRA money against three other top NRA executives, all are allies of LaPierre. And the alleged vicious infighting in the organization, which in recent years has been in a financial tailspin. LaPierre and Company are also accused of unlawful retaliation against NRA employees who questioned their conduct. James is asking the court to dissolve the NRA based on the directors looting of corporate assets and the organization's alleged pattern of conducting its business in a persistently fraudulent or illegal manner. The suit also seeks to require LaPierre and other top executives to pay full restitution and penalties, including their salaries earned as NRA employees and to bar the men from ever serving on any New York based charitable boards. Finally, James made a referral to the IRS to investigate a possible series of criminal tax violations by LaPierre and company. In response to the state court filing by the New York attorney general, the NRA filed its own lawsuit in federal court, claiming that James violated its First Amendment rights and seeking a declaratory ruling that its actions were lawful. Since the attorney general's lawsuit has nothing to do with the NRA's lawful advocacy and rather is based on the NRA's alleged cell feeling and other unlawful conduct, the NRA's counter is unlikely to slow the case down. For Talking Feds, I'm Kris Brown, president of Brady.
Harry Litman [00:37:06]: OK, you know, there are like 16 other issues that we plausibly could talk about. But when I thought about this episode, I just think it's really valuable that we have three alums of the Department of Justice, both kind of rank and file and also upper level. And there's a burning issue that people have been thinking about. We don't know if it will come up, but we hope and that is with all the damage that the department has absorbed. What's going to happen, assuming Trump loses and Biden becomes the president? A new attorney general. A new day, and yet a legacy of real demoralization and also institutional damage to the very function of the Department of Justice and law enforcement in the public eye. What do you do in the happy event, I guess, but difficult one to try to just put everything right and restore the department to its institutional footing?
Ron Klain [00:38:15]: Well, I mean, I'll start. Look, I think that Vice President Biden made it very clear that the top of his agenda is restoring the institutional integrity and the independence of the Department of Justice. He will pick a competent and independent attorney general who will run the department with the kind of historic independence that his or her predecessors have enjoyed. And he will expect that to be the case. He won't be doing what President Trump has done, which is berating the attorney general not to recuse himself, critical cases in which he has a bias, basically egging on the attorney general to pursue his political rivals. All these things we've seen over the past three plus years are not going to happen under a Biden presidency, by restoring that institutional integrity and that institutional independence. I agree it's a big problem here because I think serious damage has been done to the department. Serious damage has been done to the norms that protect those things in the department. The sense of integrity to the department. And it will take time to regain all that. But I think that will start on day one of a Biden administration and we'll continue throughout its duration. I think it's important to say, though, that it isn't just about putting things back to the way they were. It isn't just about restoring that independence, also about having an agenda for pursuing justice that the Justice Department, that includes making sure we're vigorously enforcing voting rights protections, really expanding and stepping up the work of the Civil Rights Division with regard to voting rights, with regards to police brutality cases. With regards to a lot of the other issues that we're facing as a response to racism in our country. It means stepping up the action in the environment division to really make sure we're doing what we can to address environmental issues and address particularly issues of racial injustice and environmental issues. And so I think it starts with the idea of an independent, honest, faithful Justice Department, but includes rebuilding the parts of the department that really need to be doing work to expand a true agenda of justice in the United States.
Amy Jeffress [00:40:12]: I couldn't agree more with all of that, Ron. Also, the point about restoring integrity, which is so important to me, having spent 20 years of my career at the Department of Justice. And then I was also going to identify both of the issues that you did, the need for better environmental policies, and then also certainly police reform. And, you know, at the end of the Obama administration, there were some real partnerships that were in place to help police departments affect change. And those, of course, were dismantled when Jeff Sessions came in as attorney general. So but we do need to go beyond what was being done in the Obama administration. And I think there's an appetite for some real reform and dismantling certain police departments that have just such difficult problems that they can't function unless they're really completely revamped. And some police departments are doing that successfully and it's being written about. And I think that that's what's needed and I'm looking forward to seeing the change that we can bring about. It's so badly needed.
Matt Miller [00:41:06]: You know, I think the important thing to remember is we've been here before. Remember, the Bush administration ended with a massive scandal in the Department of Justice. Nothing on the level of what Barr is done. The things that Alberto Gonzales resigned for is minor compared to the scandals under Sessions or Barr. But the beginning of the Obama administration, I was there on Eric Holder's first day as Amy was, and it was the reaction he got from employees when he entered the building was like De Gaulle entering Paris. And it had nothing to do with Eric personally. It was about somewhat that the career employees recognized was himself a career person who is committed to the department's mission. The three points we talked over and over about the first year are rebuilding the department's reputation, restoring its integrity internally and refocusing on its core mission. Those are the things that are going to have to happen. And I think in terms of restoring the integrity in the building, I think that will be easy. I mean, the culture there is so strong. I think once you cleared out Barr and every other crony that he appointed, I think the career workforce strong and they'll be put back on track pretty quickly. The problem, I think that's going to take a long time to repair and I struggle with the question or whether it's possible is to rebuild the idea, the public's mind of a nonpolitical Justice Department.
Harry Litman [00:42:20]: Right.
Matt Miller [00:42:20]: And a commitment to rule of law that is nonpartisan and that when the Justice Department takes actions, it's doing it based on the law, not because the president is opposed to someone's policies or their politics. Trump has poisoned the well in a way that's going to take some time and it's going to take more than one president to rebuild that if we can do it. It will happen under a Democratic president. But I honestly think the question will really be answered when we see another Republican president. We decide whether this committed to a nonpolitical DOJ is a bipartisan commitment or it's only something exists now in the Democratic Party. I think that's a huge question.
Amy Jeffress [00:42:57]: You know, it's a great point, Matt. And it actually counsels against doing what Attorney General Holder did on his first day and parading it and making a big to do about change. I think that what Joe Biden has conveyed is that he wants a reset and he wants it level and he wants to stay out of the Department of Justice. And so I think that the next attorney general would be well advised to go in and say, 'We are going to cut it straight down the middle. We're not going to be political.' And not make a big deal out of any sort of partisan reset.
Harry Litman [00:43:25]: The point you raise about the public is the daunting one, especially because the Trump base now it's 30 percent. I mean, we're seeing who are the really completely, never say die Trumpers. They're not going anywhere. And perhaps neither is Trump himself or Fox News. And there will be now a significant contingent of American society, media and just population who will it will be dyed in the wool for them that whatever move you make is political and that will just be a reflexive reaction.
Ron Klain [00:44:03]: Well, look, I do think that Trump, Barr and the people they brought in there has taken a lot of existing problems in our country and made them infinitely worse. And so they are unique problem. But I think a lot of the dynamics we've been talking about certainly existed well before Trump. I mean, Amy and I worked together for Attorney General Reno and after Waco, the kinds of extreme views of people who hated the Department of Justice, Ruby Ridge, right through to Matt's time there, the Fast and Furious investigation.
Harry Litman [00:44:32]: Going back to the mid 70s.
Ron Klain [00:44:33]: Go back to the mid 70s all the way through. So there's always been this kind of tension around segment of our society that's viewed the Justice Department with suspicion and anxiety. And even in what we now consider a kind of the glory days of the Justice Department's reputation and independence, that wasn't a unanimously held view in American society. And there were plenty of people who had Trumpy views. Look, what's changed is that those people now a, include the president of the United States and unfortunately, the attorney general, that these views get new purchase and visibility due to social media, the Internet and all these things that allow them to get much more broad dissemination than they had 10, 20 years ago, and that there's kind of a whole media culture around spreading these things now through Fox and through OANN and through all these other things. So I think that this kind of tension has always been there. It's just much worse now and of course, especially worst because it exists in the Oval Office and on the fifth floor of the Justice Department.
Harry Litman [00:45:36]: All right. There's a coda for now. As the saying goes, there are problems here, but we should have such problems. We are nearly out of time, but we have our final feature on Talking Feds. Five words or fewer, where we take a question from a listener and each of us has to answer in five words or fewer. And today's question is from Romey Parrot. And it is, can Trump force schools to reopen? Answer in five words or fewer anybody want to go first?
Amy Jeffress [00:46:10]: Sure. I'll say, no, he can't. Thank goodness.
Ron Klain [00:46:15]: I'll go with even he knows he can't.
Harry Litman [00:46:18]: Five! Perfect so far.
Matt Miller [00:46:21]: Not a chance.
Harry Litman [00:46:24]: No states’ rights still exist.
Harry Litman [00:46:29]: Thank you very much to Amy, Matt and Ron. 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 podcast and please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFedspod to find out about future episodes and other feds related content. You can check us out on the Web. TalkingFeds.com, where we have full episode transcripts. And you can look to see our latest offerings on Patreon where we post discussions about special topics exclusively for supporters. Submit your questions to questions@TalkingFed.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 keep talking.
Harry Litman [00:47:30]: Talking Feds is produced by Jennifer Basset and Rebecca Low Patton. Our editor is Justin. Wright. David Lieberman and Rosie Don Griffin are our contributing writers. Production Assistance by Ayo Osobamiro. Our consulting producer is Andrea Harold on Miko's. Thanks very much to Kris Brown, president of Brady, for explaining the lawsuit by the New York attorney general against the NRA. And our gratitude, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of Delito, LLC. I'm Harry Litman. See you next time.
