Harry Litman [00:00:00]: Hey everybody, Harry here. Just a quick note on what you can find this week on our Patreon site, at patreon.com/talkingfeds: we’ll complete our summer virtual book series talking to John Dean, former White House Counsel and the author of The Authoritarian Nightmare. We’ll also have one-on-one discussions with Jennifer Rodgers on the Clinesmith case, and with Steve Vladeck on the president’s announced plan to post sheriffs at polling places across the country. Ok, check those out, and now here’s this week’s episode about the Democratic Party’s convention and so much more, with a stellar group of three Feds.
Welcome to Talking Feds, a round table 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. The Democrats held their virtual coming-out party for Joe Biden and Kamala Harris, who accepted their nominations in speeches at solitary lecterns in empty halls.
The four days balanced tableaus of everyday Americans with speeches from all the party luminaries, and upbeat visions of hope and progress with scathing attacks on President Trump. In his acceptance speech, Biden told the country that we face a perfect storm of four historic crises: the virus, the economy, racial justice and climate change.
John Durham, selected by Attorney General William Barr to investigate the investigators of the 2016 probe of Russia's attempts to interfere with the election, secured his first conviction against a low level FBI lawyer who altered an email. Trump, as well as Trump cheerleaders like Lindsey Graham, were jubilant and predicted it was the first ripple and a coming wave of indictments of all of Trump's tormentors, others saw it as isolated and inconsequential. To the extent Durham is looking to serve bar and Trump's goals of discrediting the Mueller probe and everything related to it.
Their efforts were sharply undermined by a bipartisan report from the Senate Intelligence Committee that found extensive contacts, in 2016 and thereafter, between Russia and the Trump campaign and administration. And that brought new scrutiny to Paul Manafort, Jared Kushner, and Donald Trump, Jr.
Meanwhile Trump, preparing for his own acceptance party next week, took some lumps at the hands of the criminal justice system in New York. A federal court dismissed his effort to keep New York District Attorney Cyrus Vance from getting his tax records, calling Trump's argument quote, “as unprecedented and far reaching as it is perilous to the rule of law.” And the Southern district of New York, the federal system, indicted flamboyant Trump swami, Steve Bannon, in a million dollar plus fraud in connection with a charity fund to help build Trump's wall. Bad news of one sort or another seems to crop up around every corner.
The US new jobless claims jumped back up over 1 million, even as the stock market hit record highs. Confirmed corona cases now exceed 5.5 million and hundreds of wildfires raged across California. We continue to live in extraordinary and tumultuous times.
And to drive home the events and takeaways from this week's flurry of news, we have a great panel of good friends and returning Feds. They are: Laura Jarrett, after a successful if brief career in legal practice, Laura in 2016 made the jump over to journalism. And since then, she's covered the justice department for CNN and is now an anchor of CNNs Early Start program. Laura, thanks so much for coming back to Talking Feds.
Laura Jarrett [00:04:17]: Always.
Harry Litman [00:04:18]: Matt Miller, speaking of always, our maybe most consistent visitor is a partner at strategic advisory firm, Vianovo. Matt served as the Director of the Office of Public Affairs for the Department of Justice, as well as in leadership positions in both the US House and Senate. Always great to have you sir, welcome back.
Matt Miller [00:04:39]: Always great to be here, Harry.
Harry Litman [00:04:41]: And another charter and frequent Fed, Frank Figliuzzi. He's an NBC News national security contributor, and former FBI Assistant Director for Counterintelligence, and special agent in charge of the Bureau's Cleveland division. And now, not sure how he managed to do it since he's always on TV — probably did a lot of writing in green rooms — but Frank also has written a new book.
The FBI Way, which is coming out in a few months, but is now available for preorder. Frank, congratulations on the new book, and thanks for joining us at Talking Feds.
Frank Figliuzzi [00:05:16]: Oh, thanks, Harry, it's my pleasure. I'll be on anytime you'll have me.
Harry Litman [00:05:21]: Okay. Well maybe we'll do a whole special one actually, when the book comes out, we've been doing a lot of interviews with authors, and you've joined their ranks.
Don't know how you did it. Alright, let's start with the convention. The first virtual convention ever, and it strikes me that the Dems approached it with a lot of ambition. They tried quite a bit to do party business, but also reach out to nearly all Americans, more or less everybody but the 1%, but also trying to put the withering criticism of the administration on a higher plane, and basically rapid and existential stakes for the election. So let's start there. I'm interested in people's view of their overall grade, and also whether the Dems succeeded in going high while going low as it were, and getting in their lumps on the president without seeming to be, you know nitpicking, or just crabby about things Trump has done.
Matt Miller [00:06:21]: I thought it was a really successful convention, Harry. I thought they were, you know, it's interesting. You said that they were talking to all Americans, I think that's true. But you could see in the messages delivered — kind of in the set pieces, the videos, and also in the speeches, they were really laser focused on two specific groups of people, I think. One were kind of disaffected Republican voters, whether those be some of the voters that voted for Obama in 2008 and 12 and then for Trump, or whether they were kind of your traditional Republican, suburban voters, some of whom fell off of Trump in 16, some of them voted for him but fell off the Republican side and 18.
They were focused on those voters and also focused on the kind of core Democratic constituencies who didn't turn out in the same numbers in 2016, as they had in the two previous presidential elections. And I thought they did a good job at delivering messages to those voters. It was smart, strategic. And I thought, you know, you heard a few different things about Trump.
One, something that we have talked about on this podcast, that all, I think all of us on here have talked about on TV for three and a half years, which is that Trump's kind of a unique threat to the country. You heard that, especially from President Obama. But then there was a message you heard that I thought was really important that hasn't gotten enough, as much attention really until the virus, which is Trump's just not up to the job. You heard that from Michelle Obama, you've heard it from Barack Obama and President Obama kind of said it like he's not doing the job because he can't. It's not just that he doesn't want to, it's not just that he's focused on doing things like attacking people on Twitter, it's that he's not capable of the job.
And I thought that was an important message to drive home, to set the stage for Joe Biden to get up on the final night and say, ‘the first thing I'm going to do is fix the problems that have been created by the virus, and I have a plan, I've had a plan since March.’ I thought everything up to the convention kind of built into that final moment from the nominee.
And I thought it was, it was very well staged and executed.
Laura Jarrett [00:08:08]:, So, I think there's no question that the coronavirus has provided Democrats with this incredible opportunity to highlight Trump's failures in a particularly acute way, because obviously this virus sadly has killed so many Americans, and there's still not a national plan for how to come to grips with it.
But to Matt's point, I sometimes wondered, watching some of the speeches and some of the overall tone about who is really the intended audience of this type of convention. Democrats love this idea of a big tent. They love highlighting the tapestry of our country. But sometimes watching it, I wonder if the thread and the through line gets lost, because there were points at which they were clearly trying to rile up the Democratic base, the core of the Democratic party.
But there are also times when they're trying to embrace so-called ‘swing voters,’ some moderate Republicans. They've got Colin Powell, they've got the voice of Cindy McCain. And so it ends up being this kitchen sink approach. And I just wonder for folks sitting at home, whether that's a little disjointed, I don’t know.
I think overall the coverage of it obviously was, by and large, mostly positive, but I sometimes wondered whether folks at home felt like there was a little bit of whiplash there.
Frank Figliuzzi [00:09:21]: This is Frank. I think this was a solid B plus, A minus. And I'm trying to look at it through a critical eye.
I really think that, I never cared for the very traditional convention — the screaming, the hollering, people dressed like circus clowns — and I liked this format, I think for many of us, sitting at home watching Netflix for months in quarantine or isolation, that this video heavy, smooth transition was more TV/movie-like.
And I liked it, and I think it particularly suited Biden, because I think with some of his issues regarding speech and some of his less-than-spectacular public speaking skills — I think this worked very well. I think the Obama speech and others were phenomenal. I would say, because I tend to look at the world through the national security and the law enforcement lens, I would have liked more attention on some things that I think are going to come up heavily next week in the Republican convention. And I don't think they effectively countered, and that is the violence going on in the streets right now, the root cause of that violence. So you're going to hear next week, Trump just screaming, ‘fear and hatred and we’re losing our cities.’
And he'll never point out that this is happening on his watch. And that this is, the root causes of this are in many ways his. And I don't think we heard that from a law enforcement perspective. And from an intelligence community perspective, I don't think I heard enough of the threat posed by China, how are we going to deal with that? Would have liked to have heard that a little more, cause we're going to hear it tremendously next week.
Harry Litman [00:10:44]: Yeah, it's a good point. And I think what we're going to hear next week, he's begun this mantra of, he's suggesting that crime rates are spiking and soaring in Democratic cities, which is just false, I think is trying to blend the TV coverage of some of the protests with a much broader argument, almost 1968 Richard Nixon style. But to follow up just on the directing points that you, well all three of you really, have made. So first, after seeing one or two of the speeches in empty halls, which they wisely, I think, didn't try to build up with applause or anything.
I found them to be effective platforms for even the most high-profile speakers. There was a certain dignity to it. And then to Frank's point, I totally thought that the contrast was clear and strong with the roll call, which really is a sort of boring piece of ‘look at me, look at me’ from all 50 States. When you see it live, the scrum on the floor, and here had a great balance of different sorts of stories. How about Biden himself? So obviously it was very carefully choreographed, the kind of tone and message that he would take. How did he try to present himself and his candidacy as you saw it?
Matt Miller [00:12:12]: Look, I think there were a few messages they were trying to send about Joe Biden. One was very simple in that look, he's a president. He looks like a president. He sounds like a president. And a lot of the message of the Biden campaign is text and subtext, and the subtext is, ‘I'm not like that guy you see ranting and raving on your television all the time and sending out crazy tweets, attacking movie stars and companies and random people that he saw on television that he's mad about, I look and sound like a president and I talk like a president,’ and a part of that, that there's a subtext was about Trump, just by seeing Joe Biden stand up and deliver what is a normal speech.
In terms of the text, I think there’s two important things. One, they wanted to show that obviously he has a plan to address all of what he sees — and what I think in their minds, and I agree with this, the public — sees as the major issues facing the country, the threat of climate change, the virus, the economic challenges associated with it.
But then beyond that, you mentioned the empathetic message they wanted to communicate about him, Harry, that was central to his speech, it was central in so many other people's speeches about him. Both because of his personal story, and the personal examples people could tell about how he had helped them.
There was the great story that left me in tears, probably everyone in tears, of the boy who stutters that Joe Biden tried to help. And that's, that is a message that is obviously both a contrast with Trump, who has attacked a disabled reporter publicly and doesn't have empathy for anyone. Any message that's authentic works better, and it's authentic to who Joe Biden is, and it connects with what the country needs right now, because this is a country going through a crisis. Biden said something in his speech that you’ve never heard the President say, which is talk directly to the people who have lost loved ones in this crisis. And I thought it was a smart message because it's authentic to him and it just met the moment, exactly where the country is or where I think, where I think and where I believe that they think most of the country is.
Harry Litman [00:14:02]: And the flip side, you mentioned the criticism from both Obamas, the pithy, “it is what it is,” almost it's just too bad, but we have to turn the page, as opposed to chapter and verse of everything Trump has gone wrong. Obama I think was unusually critical of a sitting President, but he wanted to walk a tightrope by putting his criticism on this sort of existential plane by making the case that this isn't pedestrian politics, but really the American experiment is sort of on the line.
Not an easy tightrope to walk, although he's a great tightrope walker, did it basically come off? You know, he wanted to be high minded, but deeply critical, was he?
Frank Figliuzzi [00:14:52]: I think he pulled it off. I think he allowed other people to be the bad guy. It's like good cop, bad cop. And I think you're going to see Kamala Harris play that bad cop role for the next couple of months so he can take the high road. I think that worked pretty effectively.
Harry Litman [00:15:07]: Speaking of her, it was striking, right? Because normally that's exactly what you have in these speeches is the vice presidential candidate playing the bad cop. Harris didn't. Right, it wasn't the doom-saying attack mode of a VP candidate. It was warm, very, very sort of American; the daughter of two immigrants who marched together during the civil rights movement.
I thought it was pretty clear that she passed her first test. She's someone who had been the kind of betting favorite the whole time, but couldn't quite close the deal. There seemed to be a lot of resistance to her, especially in California. But she comes out with high marks from this convention. No, anybody disagree?
Laura Jarrett [00:15:48]: I think she comes out with high marks, but I think she also realized the historic nature of just her nomination limits, how much risk taking she can do, right? She's the first black woman, Indian American woman on a major party ticket. She can't come out guns blazing in a way that some other people may feel unconstrained to do.
Now, that's not saying that she's going to hold back I think going forward. But this was a huge moment for her, a huge historic speech for her. And she did get her licks in. I mean, she says, ‘I know a predator when I see one.’ No one's confused about who she's talking about. Everyone, everyone knows that’s a shot at Trump.
So I think, particularly in the debate against Pence and through whatever form of campaign trail they have for the next 74 days, she will make her case against Trump in the way that a prosecutor likely would and just lay out the case.
Matt Miller [00:16:40]: Yeah. I also think she didn't need to go after Trump as directly as you might usually see a vice president do, and as she might do later, because Barack Obama had just left the stage right before and had come out and said, ‘not only is this guy not up to the job, he's never going to the job. Oh, and if that isn't enough, he's a unique threat to democracy. If you don't get out and vote and save our democracy, we might lose it forever.’ You don't really need to say much more than that, when the previous sitting President of the United States has come in and proceeded you with a speech like that.
Harry Litman [00:17:06]: All right. Well, all of these things will be playing out over the next 74 days as Laura says, I wanted to touch on one more thing. Matt, you spoke of the effort to perhaps appeal to former Obama-Biden voters who had defected to Trump. So the kind of right wing, the, the use of Kasich, and Cindy McCain.
So, what about the outreach to Sanders folks? You hear some people, they were a very big force in the campaign as they were four years ago. And you hear some quibbling, I think, among their ranks, that there was cosmetic outreach, but not much in terms of substantive outreach to try to bring them into the fold. Fair?
Matt Miller [00:17:47]: I don't think it's fair. Look, in politics, you're always gonna get to hear those types of complaints, and I guess fair is in the eye of the beholder, but I thought two of the most prominent and two of the best speeches of the convention were delivered by Bernie Sanders and Elizabeth Warren. Elizabeth Warren comes from a little different part of the party than Sanders, but still, I think you, you couldn't argue that she's anything but on the left. I saw a real difference, obviously this was a virtual convention, much different from four years ago, but I was in the hall four years ago when Sanders supporters were vocally disrupting the convention over and over again, including while the nominee was speaking, when Hillary Clinton was speaking, they were erupting in chants against her.
And while there's always a little unhappiness, there is nothing like that level of discontent in the party right now. And I think part of that's Joe Biden, but let's be honest, most of it is about Donald Trump. Donald Trump was a theoretical threat. Last time he was a real threat, but most people thought he wouldn't win.
So, you could take your anger out on people in the party you disagree with. But four years in, he has, I think, unified the Democratic party in a way really no nominee would be able to, in the absence of him.
Harry Litman [00:18:55]: Alright, so we'll leave it there for now. We're going to see this playing out day to day on the trail with both stump speeches, and also all kinds of messages from surrogates. I had one more point just to add in passing, which I was impressed that the big tent, as Laura calls it, had seemed to me to have much more greater emphasis on immigrants than it has in the past.
Perhaps that's playing off Trump. And it also of course dovetails with Harris's nomination. But, in general there was, I think, a very big sense of ‘Immigrants. We get it done’ as it were, and an appeal to them as part of the Democratic vision for the country.
Alright, let's move on though. I'm sure we'll be circling back to all these themes in coming weeks. But I wanted to return to the several events that kind of took us back to 2016, as has been happening repeatedly in the last few years. So the conviction that John Durham secured of an FBI lawyer, Kevin Clinesmith.
And then the report from the Senate Intelligence Committee. Let’s start there. So this was a pretty killer report. Frank, you probably read it very closely. That's one problem, is as each new thing comes out it feels like old news and people don't necessarily digest it But this was the detail here, and the kind of filling in of the themes from the Mueller probe and even the were very rich, No?
Frank Figliuzzi [00:20:35]: Listen, the Senate Intel report reads a whole lot like an FBI counterintelligence case summary. By that I mean one of the big disappointments of the Mueller inquiry was that they were constrained to criminal conduct. And the mystery, of course, following that was whatever happened to the origins of the Russia inquiry, which was, it was all counterintelligence, national security concerns.
We finally see a thousand page document dealing with those concerns and it's fascinating. And there is no escaping, for people who truly read it, the fact that there was collusion. There was knowing, willing, eager contact with the Russians, and that the Trump campaign had, as it's kind of silent partner to Manafort, a known Russian intelligence officer.
This is the first time we've actually seen an acknowledgement that this guy wasn’t a, this guy Konstantin Kilimnik, was not a co-optee or an asset. He was a credentialed Russian intelligence officer assisting in the campaign.
Harry Litman [00:21:37]: Yeah, I mean, there are partners in crime. It's like a road buddy movie between Manafort and Kilimnik, yes?
Frank Figliuzzi [00:21:42]: And they, well, they've known each other for years. Well prior to the campaign. So you can see that at least one of the major threat vectors for the Russian intelligence officer that helped them penetrate the campaign was clearly Manafort. He's carrying the Russian water, and here comes Kilimnik just tagging along cause they've already got him next to Manafort.
But other revelations of course, that the president lied under oath to Mueller. When he said he did not recall that anyone had ever talk to him or vice versa about Wiki leaks and leaks prior to and hacking — it's nonsense. And so, its further conference for me, Harry, that the FBI knew what it was doing when they opened and properly predicated the Russian inquiry, that Mueller was handcuffed by constraints for criminal conduct.
And, comma, this is going to really make it hard for Attorney General Barr to come out with a Durham report that says, ‘Hey, this case should never have happened.’
Harry Litman [00:22:43]: It’s such a basic point. I've been tearing my hair out every time they re-litigate the Flynn case because they bring up the Logan Act like it's only a criminal investigation. This was, first and foremost, a severe threat to the intelligence interests of the United States. It would have been so derelict of the Bureau not to dive in, and yes, here we have what they were really needing to, to find.
I mean, this is not that far away from a Manchurian candidate kind of scenario. Manafort was pulling a lot of strings and there's no doubt why he was pulling them and whose interests, he was. This is chilling stuff normally you'd, you'd see in novels.
Laura Jarrett [00:23:23]: But no matter how chilling and devastating, I agree, the contents of the report are sadly, this country is suffering from Russia fatigue in a bad way.
And the report is a thousand pages. It drops in the same week as the convention. So, it gets far less press attention. I do not think it's registering with voters. I think people have a tin ear now when it comes to this stuff, even though it's adding all of these amazing new details on Manafort and Kilimnik.
And why is he sharing internal polling data? That still has just been mystifying to me, and how you even have a comeback to that? I don't know what their theory of the case is on that, but it's incredible stuff. And it's just, it's not — I don't think it's breaking through in a way, for regular folks.
And I think the conventional wisdom around this report this week was, it should carry more weight because it's bipartisan and it's a product of this GOP led panel with Burr who then has to step down for his own issues and goes to Rubio. But if at the end of the day, supporters still see this as a hoax, where does it leave us?
Is it just a product of historical record? Is it the product of people who have the time and interest to read it now can look at it obviously, and be shocked and blown away by the contents, but what does it do in this moment as opposed to what it does in the future or history.
Matt Miller [00:24:41]: This is one of those moments when you think about Bob Dole campaigning against Bill Clinton in 1996 and saying, ‘where's the outrage?’ Because Bob Dole thought everyone ought to be outraged about Bill Clinton's conduct and the rest of the country just really wasn't. I think Laura is right, and I think somehow, the bar for acceptability for Trump's conduct got set at whether it was criminal or not.
Well, not just whether it's criminal, but whether it was proveable beyond a reasonable doubt as a crime. And I think part of that is the nature of him being the subject of a high profile criminal investigation for two and a half years. Part of it probably, you Harry and you Frank and me, we probably bear a little responsibility ourselves, we were on TV all the time talking about, ‘well, this would be a crime, this would not be a crime.’ And I know we all talked about, we've talked about what would be acceptable behavior as well, but I think the country, sort of by the end of the Mueller investigation, was waiting to find out whether there was a crime or not.
And when Mueller didn't come out and say there was a crime — and I think that, that wasn't because there wasn't evidence of a crime, it was because he didn’t believe he could accuse the president of one — the country, I think, pretty quickly moved on. And not the whole country, there are a lot of people who believe that Trump's conduct with respect to Russia was absolutely unacceptable.
And his conduct in obstructing investigations. And I agree with Frank, it's clear he flat out lied to Mueller in his written answers about discussing Wiki leaks with anyone. Some people found that unacceptable, but a lot of the country was just ready to move on and the same thing has been true about impeachment.
I don't think impeachment and Ukraine came up one time throughout the four night Democratic convention, a subject that — impeachments only happened a few times in our history, and it’s not a part of the main attack against Donald Trump because it's just not what's moving votes right now.
Harry Litman [00:26:23]: It's really true. And of course the strategy at the Mueller probe was to define things in terms of the legal nonsense term of collusion. And yet, as Frank says now, I mean the documentary record of exactly that becomes quite strong, but there's been this odd dynamic that has benefited Trump all the way along.
And part of it is his unique or Teflon status, but every big revelation has had the sting taken out of it by either advanced reporting or positioning by Trump. So when it came out, none of it did with the sort of explosive quality of, say, the initial revelations of Clinton's conduct with Monica Lewinsky or anything like that.
So that, and the fact that it foreign relations, which makes people's heads spin a little, they've set the table several times now with a real buffet of crimes and misconduct, but it just hasn't struck anyone. And I agree with Laura, it won't. Now, there is a question. Does it seem increasingly clear that the verdict of history will be that president Trump was a thug and a crook in the oval office? But it's ironic or somewhat anticlimactic that that will just be the stuff of history, in debates among historians going forward.
Frank Figliuzzi [00:27:48]: I was going to kind of echo your theme earlier, Laura, which is that this polarized society — as Barr said, history is written by the winners — and I think time eventually is going to show an incredible amount of co-opted activity between Russia and the campaign, and even the president and the report alludes to that in more detail than we've ever seen before, regarding relationships with a former Miss Moscow and trips, early, early trips.
And the fact that Trump came on the Russian intelligence service radar screen decades ago. I mean there's even published research that it was early on in his career. But I think when you're aided and abetted by and infrastructure like Fox News, like the current GOP membership in the House and Senate, you don't have to be brilliant to do what he's doing and become Teflon because everybody's looking through it through the lens of their news source.
And when you have Marco Rubio come out and announce that the report found no collusion number one, and number two, disturbing conduct by the FBI. Okay. So when you, when that's the news that you're getting you go, ‘Oh, okay. Nope. Nothing to see here.’ And unfortunately that's where we are.
Laura Jarrett [00:28:53]: I was going to agree with you, Harry, that I think the coverage surrounding all of this has framed the public's appetite for it as well. Even if this report had detailed even greater explosive connections between the Kremlin and the Trump campaign, I think even Democrats are ready to move on from that. Somebody raised the issue this week, I heard, of whether a Biden administration DOJ would rather prosecute any Trump officials for things, that this administration has sort of just dropped the ball under Barr. I cannot fathom that happening. I just don't see it. I think everybody has essentially been put in the position to say, ‘something happened here, but it's not something that we can prove criminally.’
And it seems that people's focus has really shifted more towards what's happening in the Southern district of New York or what's happening with the District Attorney in New York. And to the extent that Trump is going to face any consequences for some of his action, it seems like that's where the action is going forward. Not at a criminal level at DOJ in Washington.
Harry Litman [00:29:55]: You know, I agree. I think essentially the Democrats have given up, you know, somewhat head scratching, but they've given up trying to score points here and it came through in the speeches of especially both Obamas. They're not trying anymore to show exactly the crimes that were proven.
They're just going at this level of, he's just not up to the job. Very sort of high level, but very much at job effectiveness rather than moral turpitude, if you want to call it that. Well, so now each side this week had something to cheer about, but also accused the other side of ignoring. For the Democrats and Trump opponents it was the report, but for Republicans and Biden opponents, it was that John Durham got a conviction against an FBI agent who had some participation in the FISA proceedings involving Carter Page. I want to just set this up a little bit as a former prosecutor, cause I think it's been really misreported.
So what he was accused of doing, Clinesmith, was not, was not lying about Page’s status. He said, he's not a source. And he inserted that into the email, but the problem was simply that he altered an email and he was charged under a not very frequently used statutory provision that makes that, and that alone, a crime.
He said, including in the plea colloquy, ‘I thought it was accurate. I still think it's accurate.’ And the United States, Durham did not charge that there was anything inaccurate about saying that Carter Page was not a full fledged source of the CIA. You get very quickly into nomenclature issues, differences between full source and partial source and the different ways that the different agencies describe those folks.
But basically the important point here is all he's accused of is altering the email. Now Barr himself called it not earth shattering, but the president said, ‘this is just the beginning, they spied on my campaign and they got caught and you'll be hearing more,’ Lindsay Graham, some of the same. Of course every big investigation begins somewhere, but is there any basis here for thinking that Clinesmith is just first rung on a ladder to the very top.
Laura Jarrett [00:32:25]: Well, it certainly can't be enough.
This one guilty plea certainly can't be enough for a president who has accused his political opponents of treason. I mean, this is, this is such a far cry from what Trump and his allies on Capitol Hill had been propagating for the last three and a half years. His conduct… I mean, it's appalling, right?
You can't alter emails. Um, and even if the motivation wasn't some cabal of a plot to take down the president. Maybe it was just motivated by just a bureaucratic laziness or a motivation to not have to do this back and forth with the CIA and have to tell the judge, ‘well, we're not sure.’ Whatever the motivation was, It's clearly not part of some larger political plot to take down Trump, which is what he has been beating the drum about since he got into office. And so if this is it, if this is all Durham has by way of actual charges, Trump can't be happy with this.
Harry Litman [00:33:19]: Frank actually, I have a particular theory that I wanted to run by you as a former Bureau person.
I absolutely agree with Laura. He had to know, this is more than cutting corners. You don't do this, but his supervisor, who was going to be the person who signed the application, really was pushing on him. Has the CIA said that in writing? Now, it's common knowledge among both agencies that there's mistrust among them.
And I see the possibility that if he's a junior lawyer and he just wasn't abashed about calling up the CIA guy then, and being, ‘My guy says, you must put this in writing,’ almost patronizing, and that's what led him to lazily, or to avoid confrontation and slip in those words, which his supervisor was insisting have to come from the CIA.
Does that hold up as a theory at all to you? And if not, how do you account for this?
Frank Figliuzzi [00:34:14]: Yeah, so first I feel compelled to say what's already been said, which is that this is entirely unacceptable behavior. I devoted, sadly, a portion of my career to internal affairs in the FBI and the office of professional responsibility and inspections.
So, this is a topic near and dear to my heart and it, it hurts when I see misconduct. This was a young lawyer, four years in general counsel at the FBI. And I will tell you personally that, in my own experience, getting the Central Intelligence Agency to properly characterize and consistently characterize a source, as you just alluded to.
And particularly if it's going to be used in a legal document, where they're going to say, ‘yeah. Oh yeah. Yeah. He's a paid asset.’ And then, as you said, there's vernacular issues, ‘well, he used to be a cooperator and now he's an asset and then he was an operative, but he wasn't, it wasn't an operational source.’
You get, you get these nuances that drive you crazy when you're trying to pin something down for a legal document. And what I'm hearing behind the scenes is, that was part of this confusion. The subtle nuance of linguistics coming out of Langley would drive anyone crazy. It's still unacceptable to alter or mischaracterize an email.
Although I will add, Clinesmith let the whole email go from the CIA to the Russian side of the investigation, the non-Carter Page side. The Russia inquiry people got the unvarnished email from the CIA. So it doesn't look like he was trying to hide it from at least a part of the FBI. Nonetheless, he's pled guilty because he did it.
He altered an email. Now, what I find interesting is there was a little rant by the president, there was an announcement for the guilty plea and I, yeah, Laura, it sounds like you caught it. It got my attention because it's the first time I've heard the president even imply that he's not happy with Barr.
Laura Jarrett [00:36:03]: Yeah, he says if you're, if you don't want to make history. Right?
Harry Litman [00:36:08]: Are you a real man attorney general, right?
Frank Figliuzzi [00:36:10]: Yeah. Yeah. He has a chance to be the greatest, you know, or just another guy. And I find it interesting because soon after that, here comes the guilty plea from Clinesmith.
I wonder if Barr briefed Trump and said, ‘yeah, we've got this low level young attorney and he altered an email and that's pretty much what we've got.’ And Trump blew a gasket. So, that's a clue that that's basically what they've got, then Trump's going to be very unhappy.
Harry Litman [00:36:35]: Really interesting. All right, it's time now for our sidebar. And this was convention week and we have asked an attendee of the convention — virtually of course — to give the sidebar today and not just any attendee. Victor Shi, who is an incoming freshman at UCLA and he was 17 years old when he was chosen in the Democratic primary as the youngest Biden delegate. And he's going to explain to us whether the convention could have rejected Biden's choice of Kamala Harris for vice president and forced a different choice by the party.
Victor Shi [00:37:14]: The constitution originally did not anticipate that anyone would specifically run for the office of vice-president. The vice-president was simply the runner-up in a presidential election. The problem with this system is that the possibility, indeed the likelihood, that the president and vice president would come from different political parties. This came to pass immediately after George Washington’s presidency in 1796. Even worse in 1800, Thomas Jefferson and Aaron Burr both ran as Democratic Republicans, with Burr as the presumptive vice-president. However, they received an equal number of electoral votes, and the House of Representatives required 35 rounds of voting to pick the president. That debacle led to the 12th Amendment, as well as — indirectly — Alexander Hamilton’s death in a duel with Aaron Burr, which provided for the electors to vote separately for president and vice-president. Now, candidates would specifically run for the vice-presidency. The modern system in which a party’s presidential nominee chooses the vice-presidential candidate is surprisingly recent. The first candidate to choose his running mate was Franklin D. Roosevelt in 1940. Still as late as 1956, Adlai Stevenson, the Democratic presidential nominee, left the choice of VP to the convention. And in 1972, George McGovern was forced to win a convention floor battle to secure his choice, Tom Eagleton, only to have left the campaign 19 days later. Current party rules and 50 years of established practice now make it virtually inconceivable that a convention could override the presidential nominee’s selection. Democratic party rules in fact preclude the possibility; they specify that the VP candidate shall be nominated by the presidential candidate. The person the presidential nominee designates is then invited to give a speech to the convention, at the end of which she becomes the party’s nominee. Thus, Kamala Harris officially became the party’s vice-presidential nominee when she completed her speech. The rules of the Republican party are less simple, and do leave room for a topsy-turvy convention, in which someone other than the presidential nominee’s selection becomes the party’s choice. But as a practical matter, only the presidential nominee’s choice has a bonafide path to the vice-presidential nomination. For Talking Feds, I’m Victor Shi.
Harry Litman [00:39:17]: Thanks Victor. In addition to his other achievements in his young years, Victor is the host of the Intergenerational Politics podcast with our own Jill Wine-Banks.
All right. We have time for one more issue, and I wanted to focus a little bit on Mr. Steve Bannon. So he's indicted yesterday in the SDNY.
As it seems so often the case with fraud indictments, you wonder how could the guy be so stupid, but basically it's this really callous plot of setting up a charity to help build the wall with a front person who's a triple amputee from Iraq. And then after promising 100% of the donations would go to fund the wall, funneling off in his case a million dollars for personal effects and to pay somebody involved, et cetera. The case looks very strong on paper, is Bannon dead to rights?
Matt Miller [00:40:23]: Yeah, he is. It is strong on paper, I mean, it's one of those cases where it's compelling because you have great evidence on the front end and on the backend. On the front end, the thing that really gets him on the fraud problem is look, you can take money in a charity and you can use it for pretty high salaries and things, but you can't tell the donors to the charity that none of this money is going to go to the founders and then spend it on the founders as they did.
And on top of that, the thing that I think always is compelling in these cases is when you have evidence of concealment, which is what you have, when you do look at the indictment. Evidence that Bannon and the other conspirators were trying to set up little shell companies and hide the expenses, and conceal that the money was going into their pockets or going to fund kind of lavish travel.
It's, uh, I think, a pretty open and shut case unless he has a sort of pardon play as all of Trump's associates seem to try to try to run. Absent that, you'd expect him to be trying to negotiate a plea at some point.
Laura Jarrett [00:41:18]: I'm interested given my prior life, what the role of Attorney General Bill Barr is on this.
There was so much speculation when he tried to do this force ouster of the prior US attorney, Jeff Berman, about why. It seemed to come out of nowhere, the whole thing was orchestrated very bizarrely. And so immediately when I saw the charges come down, I thought, I wonder if this is part of some group of cases that Berman left behind.
He, you know, he said as he was departing, there was some stuff he wanted to finish, there were some important cases in the pipeline. And I wonder if this was one of the more politically sensitive ones on his plate. Now, at least the reporting shows that Barr was given a heads up, which isn’t a surprise, that makes sense. You know, politically sensitive cases would go up to the Attorney General, as I think you guys would agree on this one. But I do wonder what else is coming, you know we're now, like I said, 74 days out from the election and not like this DOJ has followed many of the prior administrations rules. But once upon a time there were rules about doing things within a certain period of time before elections. And I wonder if there's, if there's anything else coming.
Frank Figliuzzi [00:42:25]: So I like where Laura's going with this. What else is on tap? And particularly in light of Barr’s edict to everybody, ‘hey, we're not doing anything to impact the election.’ A couple of things first, I got to agree totally with Matt, that this is kind of open and shut.
It's very hard to claim that the money coming to you was overhead in salary when you went to great lengths to hide it with shell companies and creating charities, et cetera. Number two though, I'm intrigued by a couple of things. One is, that this was entirely a postal service case. And I don't mean in any way to denigrate postal service. In fact, to the contrary, they are some of the finest investigators I've ever worked with. And I worked with them extensively on a serial bombing case back in the deep south, early in my career.
Harry Litman [00:43:07]: But explain, who would you have thought would have this case?
Frank Figliuzzi [00:43:09]: Well, okay, so a couple of things. One is, there's reporting that the AUSA’s Southern district of New York’s on this case. And please tell me if I've got this wrong, but the reporting is that they're the same AUSAs working the corruption case on a number of these issues, including likely on Trump.
So, this is a straight up white collar kind of a fraud case. Not necessarily work by any corruption unit. I find that odd. Number two, the fact that it's postal inspectors, and by the way, my sources have confirmed, there was zero FBI support in this arrest.
Harry Litman [00:43:42]: That's the point, right?
Frank Figliuzzi [00:43:44]: Why do I find that intriguing? Well, postal inspectors pulled somebody off a boat in Long Island Sound...
Harry Litman [00:43:49]: A 150 foot yacht!
Frank Figliuzzi [00:43:50]: ...without FBI support. And that, it's the FBI that would have had the boats, a SWAT tactical guy. So it's almost like they went out of their way, deliberately, to not include the FBI in this. And I have to wonder whether it was to try to minimize visibility to the DOJ or whether there's a screen team and a wall that's gone up, but this is interesting that such a high-profile case would have been handed to the postal inspectors, there's something to this and I'm intrigued by it.
Harry Litman [00:44:20]: It's a great, great point. And you can read the press release too. This has FBI written all over it, and the SDNY — which is now effectively, there are two DOJs out there, the SDNY and everyone else — actually consciously cleaved the FBI off. It has to have something to do with their relations with main justice and the like.
Man, we could go on this one for another half hour, but we are out of time. And we just have a couple minutes for our Five Words or Fewer segment, though I just want to underscore what a really trench point that is on Frank's part. And we may be learning more about it in the coming weeks, but okay.
Five Words or Fewer, where we take a question from a listener and each of us has to answer in five words or fewer. So, Randy Sherman asked today, “Now that the USPS has backed down somewhat in face of all the protests, can we trust them to at least do their best, as DeJoy promises, with respect to the election?”
Matt, want to start Five Words or Fewer?
Matt Miller [00:45:25]: Not just no, hell no.
Harry Litman [00:45:29]: Frank? Laura? What are you thinking?
Frank Figliuzzi [00:45:32]: I'll take a crack at that. I watched the testimony. So here's my five word response: DeJoy was way too nervous.
Laura Jarrett [00:45:42]: Mine would be simply: be skeptical. I think that his testimony has shown to be in direct contradiction to some of the emails that have been flying around by some of the postal service workers and the unions would show major differences than what he has been saying is actually happening on the ground.
Harry Litman [00:46:03]: Yep. We're on the same page. Let's see how I can say it differently. I'll go with: Better, but lots of problems.
Thank you very much to Frank, Laura, and Matt, 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 Podcasts (or wherever they get their podcasts), and please take a moment to rate and review this podcast. You can follow us on Twitter @talkingfedspod, to find out about future episodes and other 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, and ad-free episodes. Submit your questions to questions@talkingfeds.com , whether it’s for Five Words or Fewer, or general questions about the inner-workings of the legal system for our Sidebar segments. Thanks for tuning in, and don’t worry: as long as you need answers, the Feds will keep talking.
Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wright. David Lieberman and Rosie Don Griffin are our contributing writers. Production assistance by Ayo Osobamiro and Matt McArdle. Andrea Carla-Michaels is our consulting producer. Thanks very much to Victor Shi for the Sidebar on whether the convention could buck the presidential nominee’s choice for vice president. Our gratitude goes, as always, to the amazing Phillip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I’m Harry Litman, see you next time.
