Harry Litman [00:00:07]: 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.
Harry Litman [00:00:21]: It was a week in which the president of the United States declared war on cities across America. In Portland, federal agents in military garb and unmarked cars stormed the site of protests, creating bedlam and reinvigorating the demonstrations. The president announced plans for a surge of similar troops in New York, Philadelphia, Detroit, Baltimore, Oakland, all of which he declared were being run by radical left Democrats. Local authorities in Baltimore and Philadelphia responded with promises to arrest federal agents who tried similarly heavy handed tactics in their cities. Meanwhile, two inspectors general initiated a joint investigation into the use of federal force in Portland and added to the case the infamous clearing of Lafayette Square for Trump's Bible photo op last month. Elsewhere, Trump renewed his combat with immigrants, publishing an executive memorandum that purported to exclude illegal immigrants from the census count, a result flatly prohibited by the Constitution. And he promised to issue more such envelope pushing presidential memoranda going forward. And on the international front, Trump took aim at China, whom he already has blamed for the Coronavirus, which eclipsed four million cases in the United States, with daily rates hitting over 70,000 and daily death toll surpassing 1000. Trump shut down the consulate in Houston amid signs he was looking to scapegoat China should he lose the election, a result that seems to grow more likely by the week. All in all, the president's viciousness, his indifference to law and his insatiable need to find and then try to destroy adversaries have never been clear and never seemed more dangerous than in this past week. To break down the huge events of the week, we have a rock solid crew of charter feds, both great analysts and great friends. They are first Frank Figeliuzzi. Frank is an NBC News national security contributor and former FBI assistant director for counterintelligence, as well as the special agent in charge of the Bureau's Cleveland division. I thought I knew Frank pretty well, but I learned a new fact preparing for this podcast, which is that his first name is Ceasare. Is that right?
Frank Figliuzzi [00:02:48]: Yeah, in Italian, that's it. That's my father's name. We've got a lot of confusion in our town. So I went with my middle name.
Harry Litman [00:02:57]: Welcome back, as always. Next, Paul Fishman, currently a partner at Arnold and Porter. He's the former U.S. attorney for the district of New Jersey. And before then held multiple senior positions at Main Justice. Thanks for being here, Paul.
Paul Fishman [00:03:12]: Always a treat to be here. Thanks.
Harry Litman [00:03:14]: And Joyce Vance, a distinguished visiting lecturer in law at the University of Alabama and an MSNBC contributor. Joyce served as the United States attorney for the Northern District of Alabama from 2019 to 2017. Welcome back. Joyce Vance.
Joyce Vance [00:03:30]: Good to be with you.
Harry Litman [00:03:32]: All right. Let's start with federal troops storming into United States cities. We've all been thinking a fair bit about this, and Joyce has just written a piece about it in Time. Let's start with the legal basis for being there in the first place. Is this bad law, bad policy or both?
Joyce Vance [00:03:54]: So I think this is the right question for us to be asking, Harry. And one of the worst issues with the Trump administration comes home to roost here, and that is how incredibly successful they've been at avoiding any kind of oversight. Because any other attorney general would have had to have issued a public statement by now, probably six or seven days ago, explaining precisely what federal law enforcement, which agencies were involved, what they were doing and what the legal basis for their presence was. There is certainly a lawful scope for for federal activity here. Certainly, there would be the U.S. Marshals and others legitimately engaged in protecting federal buildings like the courthouse in downtown Portland. The problem is the reporting and the visual images we see out of Portland suggests that there is law enforcement activity that goes beyond the obviously lawful scope of what can be permitted. And so we need to have answers both from the attorney general and from the acting secretary of DHS have not heard a lot of demand for those answers yet. But I think we need to get them so we can analyze whether this is legitimate conduct or not.
Paul Fishman [00:05:12]: Harry, it's sort of interesting, right? When they created DHS, Department of Homeland Security, Congress added a statutory provision that basically gives the secretary the authority to call up extra law enforcement personnel to protect property that's owne or occupied by the United States government. And it gives them the authority to have those people carry weapons, to do investigations of whatever criminal activity is threatening that federal property. And they can investigate on or off the property. In concept, that's not that's not crazy. But the execution of this, as Joyce has described, is really quite stunning for a couple of reasons. First of all, at a moment in time when there was a very, very robust dialog going on across the country about how police should behave, what police should look like, what kinds of interactions they should have with the community, what the administration has done here is send into the streets of Portland a bunch of law enforcement officers who look like they are from the military. And that is not helping to resolve the issues that we've now are having these discussions about. So that's the first products like throwing gasoline on the fire. That's a bad thing.
Paul Fishman [00:06:17]: The second is, I don't know whether you or or Joyce or Frank have had a chance to look at that video of the two of these folks who are obviously from the Marshal Service or from somewhere in Homeland Security, either ICE or from CBP or maybe even the Federal Protective Service, who walked up to a guy on the street, not at a protest, nowhere near anything violent that was going on and basically steered him off into an unmarked van, videotaped by or recorded by some other protesters. And what was stunning was a few days later. Well, if this is right, there is very little oversight. They actually did try to explain what happened in that episode. And what was amazing is what good officials from DHS said was that there had been a protest. There was some violence directed toward these federal officers of a laser shining in their eyes or someone throwing something at them. And to be fair, that's an assault on a federal officer and maybe they can investigate that. That's fine. But what they said was they didn't want to wander into the crowd and talk to this, to talk to these people. And so when one of the people they wanted to interview peeled off from the crowd to a quieter spot, they went over to talk to that fellow, they said. But they then claimed that because there were other protesters around, they decided that they needed to take this person to a quiet area so that they could interview this person because they, quote, needed to question him. They claimed it wasn't a custodial arrest. But the only two ways they can take this fellow off the street constitutionally is either to arrest him if they have probable cause or to say, would you like to come with us? And if he says no, then he didn't. So they take him to a quiet area. We don't know where it was. Maybe it was a federal courthouse. And then they said they had to get out of the area. They claim that they released him 20 or 30 minutes later, quote, because they did not have what they needed, close quote. What that means is they actually arrested this guy without probable cause, asked him some questions and then released. They're just not allowed to do that in America.
Harry Litman [00:08:17]: Yeah. I mean, and you'll notice. So a judge, yesterday or this morning, enjoined them from doing just that with lawful observers. And I really want to second what Joyce said. I don't know if it was like this for me, for you guys, but basically we heard about it when they were already there and they were there in these unmarked cars and unidentified without badges like some sinister thing behind the Iron Curtain. All right. But doubling back. So both of you start with saying it could be legitimate, though you identify pretty thin reed, which is the protection of federal property. Need there be some predicate made out? Need there? You know, other than, you know, the surmise of the attorney general may be property could get hurt. Does there need to be something before they storm in like this?
Paul Fishman [00:09:12]: Well, there's a proportionality issue, right? To the question, I'm not saying that there can never be a circumstance in which the president of United States or the secretary of homeland security can call in law enforcement reinforcements to protect federal property or the lives of people who are in danger. But this is not that case.
Harry Litman [00:09:33]: No, I see that. But I'm just saying let's say there is literally this was just the sort of vestiges of a kind of 50 day demonstration in Portland. If they don't have any concrete indication that federal property is under some threat, may they not come in in the first place? Or may they come in just to make sure everything's OK and then then begin ransacking.
Frank Figliuzzi [00:09:55]: I don't want to go down the rabbit hole of saying, as you guys referred to, that feds can never come in and assist the city or or exercise authority. There's an irony here that I find really interesting, which is that in the state of Oregon, federal agents are broadly recognized as peace officers. This isn't the case everywhere. Not nor is it as broad everywhere as state of Oregon. permits. Which means that even though you're a federal agent, you could make arrest on local and state charges if the crime is committed in your presence or even, if it's a felony, if you have probable cause. So it's it's fascinating to me that we have this state official saying we don't want you here, but it's the state officials who have granted federal agencies broad authority. And I would hate to see as in the aftermath of this, that kind of authority go away, because when I was in the FBI, we fought state by state to be recognized as peace officers. It's very important when you're partnering alongside officers on task forces, etc. But they may have the lawful authority to do this deployment. But it's the execution that I would assert is unlawful. It's the way they're doing it. And by that, I mean, just as Paul has just described. Grabbing people off the street who seemingly have not even under federal authority, if you're arguing federal jurisdiction, they're nowhere near the federal building nor posing a danger simply to the federal building. If you're arguing, hey, we're doing this as peace officers recognized by the state of Oregon. Well, then you've got to have this crime committed in your presence or probable cause for a felony. And they don't have that either. So no matter how you look at this, I believe they have exceeded their authority. And I think this is a scary, scary path that we're on toward essentially a deployment of a secret police.
Harry Litman [00:11:41]: Yeah, I got to say, I can't think of a precedent. Your mind goes immediately to other combustive situations in Chicago, 1968 or L.A. 91 or whatever. But all of those were times in which the feds were really needed. And the very few times I can think to the contrary, maybe in the civil rights setting, you understand why they were coming in. But this clearly sort of antagonistic headbanging and again, with this feature of not clear who they are and there's a real dispute about whether they've really even made lawful arrests or have just been kind of there. As you say, Frank, a sort of sinister, you know, anonymous presences.
Paul Fishman [00:12:25]: There are two quick things, though. One is, first of all, I don't remember exactly because I wasn't quite old enough the circumstances under which there were federal officials in Chicago in 1968. But in the early 1990s when the feds went to Los Angeles in the wake of the acquittal of the folks who beat up Rodney King and almost killed him, they were asked to come in by the governor of California. And here, that's one thing. The second is I take Frank's point about the peace officers thing in Oregon, which is a little unusual. But the same time Portland is had been somewhat more fractious relationship with federal law enforcement. There's been an ongoing dialog there for at least a decade about the extent to which the local police wanted to be part of the joint terrorism task force of the FBI. And so there has been, I think, a little bit of some discord about how those federal and state relationships should work. And that makes this all the more dangerous, because if there's not coordination and there's not cooperation, Frank knows this way better than than the three of us, then it is a disaster waiting to happen because then you have law enforcement who don't want other war enforcement to be around and that's very problematic.
Harry Litman [00:13:32]: It's more than a lack of coordination. There's, you know naked antagonism. The mayor got teargassed. Both senators from Oregon have initiated the IGs investigation I talked about at the top. So we have, by the way, two IGs. Presumably, two are stronger than than one when it comes to potentially being discharged by the president. But what exactly will they do?
Paul Fishman [00:13:57]: I don't know, it's Friday, right?
Joyce Vance [00:13:59]: It is a Friday.
Paul Fishman [00:14:00]: So one or both of them could be fired tonight.
Harry Litman [00:14:04]: What will they be looking into? And is that much of value? Joyce has made this general point, and it's a perfect example of eluding accountability. I'll give one other component of it, which is the installation everywhere, it seems, of acting officials who've never had to face Congress. And we have an acting head of homeland security and it's been acting for like over a year. That's another way to just avoid the normal levers of accountability. But what could an IG report do here? And is it just a kind of a slingshot against a cannon?
Joyce Vance [00:14:41]: You know, the IGs could play a significant role here. They are not typically a fast moving process, but they have broad jurisdiction and as much independence as they're willing to exert. And so, as Paul does a really good job of pointing out, we've got an acting secretary at DHS who doesn't understand what probable cause looks like for an arrest and concedes during a press appearance that his folks didn't have probable cause when they made the seizure of an individual off the streets in Portland. That's something that I expect his inspector general will now be looking at. And they'll be examining the training and whether there was compliance with local laws in Oregon that required that federal agents before they were deployed have training in Oregon law and that certifications be filed. So there is a lot of stuff for the inspector generals to look at. The question, I think, is whether they will have independence or whether the White House will try to rein them in. And what they'll focus on in this very messy situation, if they're going to stick with technicalities like whether or not certification rules were complied with, they may well find that there were violations. But those violations may not be very compelling, at least to the public. I hope that they'll look at these larger issues to the extent that they have jurisdiction to. What Frank was suggesting is that we need to help preservation of the ability of federal law enforcement to work with state and local law enforcement. That's so critical. We all, I think, feel that deeply. There's also this issue that Frank suggests of improper deployment, of carrying this out in a bad way. The IG's of course can't talk about, you know, whether it was bad or good, whether it was something that was distasteful, sort of an awful but lawful scenario. What they can do, though, is they can go back and look at their agency regs, they can look at the law and they can see whether these deployments were an effort to avoid complying with the law, which they increasingly look like.
Frank Figliuzzi [00:16:48]: Well, I'm not optimistic in this current environment about any IG getting to the bottom as much at this point. And boy, I echo Joyce's comment. They take an awfully long time. It's very unusual for them to be successful when they're investigating in real time while the alleged misconduct is going on. They usually come in after the fact and they're good at that. But doing it in the middle of employment is going to be very problematic. And one of those things, one of the reasons why is because I'm sensing from the way this is happening that there is chaos in terms of administrative records, documentation. We don't know badge numbers. And I because there's multiple agencies involved, CBP, HSI, then cross over to the DOJ and you've got marshals, you may have Federal Protective Service among the troops on the ground and Border Patrol. And so it's just a nightmare of being able to figure out who's doing what. What are unit commanders? Who are they? What what are their orders? It's gonna be just extremely complicated. But here's what I like about this. I like the fact that it's it's a wakeup call to the agents on the ground going, oh, oh, wait a minute, we may be held accountable for what we're doing. And that means that their unions, their agent associations are going to start coming in, go and say, hey, folks, we may have a problem here. And I like that it's going to generate some introspection and some concerns about accountability among the boots on the ground. I think that serves a purpose.
Paul Fishman [00:18:25]: Yeah, that's a great point, Frank. The only thing I was going to add, Harry, is that this has been billed and publicized by the White House and by DHS as effectively a DHS department Homeland Security operation. But at least one pleading that the government filed in court send the 114 agents participating from DHS and the United States Marshal Service. And I wondered why Mike Horowitz, the Department of Justice inspector general, was was involved. And that's one reason, I think. But the second is that at the same briefing where they were describing that incident with the van, the officials from DHS talked about the fact that the United States attorney and the United States attorney's office are at their roll call giving them legal advice about how to proceed. That's going to be a very interesting thing for the inspector general to look at, too, I think. To see what the interaction there has been between the U.S. attorney's office and the agents.
Harry Litman [00:19:15]: Yeah, this would be a whole other show, but I would just note to Joyce and Paul have in this seat, as I have to, would be a pretty funky situation if you had all these troops coming into your district. At least the initial indication is that U.S. attorneys haven't even been briefed about it. But you do have the president who has promised to take the road show to all nasty liberal outposts like Philadelphia and Baltimore, where you have DAs is now promising to arrest federal authorities who they think act unlawfully. I mean, if one side doesn't blink, we're looking at the most sort of direct square off between feds and states since the Civil War, it seems to me. Or at least the civil rights era. Are Trump's promises to redouble here to be credited?
Joyce Vance [00:20:03]: This is so troubling, this conflation. Because as Trump talks about moving on to cities like Chicago, at least putting the best face on it, he's talking about the kind of traditional law enforcement activities that the federal government has often conducted jointly with state and local partners. That is investigation and prosecution of criminal violations, typically serious violent crime. He is somehow conflating that with moms peacefully protesting, asserting their First Amendment rights on the streets of Portland. I don't think we should let him get away with that conflation. Those two things are not like each other. And that's what's so fundamentally un-American about this whole mess.
Paul Fishman [00:20:45]: In the last week, aside from operation in Portland, which they are calling Operation Diligent Valley.
Harry Litman [00:20:53]: I hadn't heard that before.
Paul Fishman [00:20:54]: I know it's a quite an name. It is as if valor is not always diligent.
Harry Litman [00:20:57]: Thank you my seige! Yes. Verily, I'm off to do valor diligently.
Paul Fishman [00:21:02]: Exactly. I'm actually impressed in the midst of memorizing person, woman, man, camera, TV that the president was able to memorize the words Operation Diligent Valor also. That's a whole other.
Harry Litman [00:21:10]: And repeat them 10 minutes later, apparently.
Paul Fishman [00:21:13]: Exacly, I don't wanna make light of this right. There is another option. There's a whole other side of this that Joyce just described directly, that there's something going on with the way they announce that they're now going to move some CBP folks in to Seattle.
Harry Litman [00:21:24]: That's Customs Border Patrol.
Paul Fishman [00:21:26]: So maybe that's part of this Operation Diligent Valor, protecting federal property idea that turns into something very different and terrible. But the law enforcement stuff, they do have this thing going on. Kansas City called Operation Legend. And it does sound like that there was a big dust up between local law enforcement, local officials and the federal government over what the role would be. The mayor of Kansas City has now said if this is in fact just an augmentation of the existing federal law enforcement presence in Kansas City, then that will be fine with the mayor. As long as they are not going to be involved in the kinds of things that they've been doing in Portland. And the Mayor Litefoot in Chicago basically just said effectively the same thing. That as long as they are just coming in to reinforce the existing federal law enforcement presence to deal with actual violent crime of the type that the feds work with the locals all the time in cities across the country, then she won't object to that. But as soon as there's any hint that it's something else, then I think we're going to see the kinds of real anger that you've been hearing about in Portland.
Harry Litman [00:22:28]: Yeah, that makes sense. And much of this, of course, is the prism of television. Even Barr himself has said this is classic crime fighting. But, you know, when there are episodes like that, they're going to fan the flames. Now, of course, as best we can tell, in Portland, they weren't really counterposed by much of what you would call a classic crime fighting activity and normal arrests. So.
Paul Fishman [00:22:48]: The other thing that's weird about it, too, is that typically, at least the administrations I've been a part of these sort of law enforcement of are not announced by the president of the United States from the Rose Gardem.
Harry Litman [00:22:56]: Right.
Joyce Vance [00:22:57]: Well for operational security reasons, right? I mean, that was the first thing that you saw here. Not in danger, as if if they're contemplating arrests of violent criminals, which is what they're talking about in Chicago. We've all done these surge operations. You don't announce them until they're over.
Harry Litman [00:23:13]: All right. Well, this is obviously going to be playing out over the next several weeks. I find it hard to believe that they'll double the temperature, which is already at boiling point, but it wouldn't be the first time to be continued. It's now time for our sidebar, where we take a moment to explain some of the terms and relationships that are foundational to events that are in the news. And we're very pleased to welcome Sharon Washington, a longtime star of stage and screen who most recently appeared opposite Joaquin Phenix in The Joker. And in ABC' legal drama For Life. He's also long been a luminary on the stage where she originated the role of the lady in the critically acclaimed Broadway show The Scottsboro Boys. Sharon will explain how federal sentencing works.
Sharon Washington [00:23:59]: How does federal sentencing work? Congress sets a maximum and in some cases mandatory minimum penalty for federal crimes. But within that range, the defendant's actual sentence is determined by the federal sentencing guidelines. The calculation of a guideline sentence is complicated and begins with the pre-sentence investigative report, which is a thorough review of the defendant and crime written by a probation officer. The report guides a judge to calculate offense level and criminal history scores based on the circumstances of the crime, the defendant's role, acceptance of responsibility and other potentially relevant factors. Those scores correspond to a guideline sentence that might include a term of prison, fines, restitution and other punishments. The guidelines also identify circumstances that may warrant a departure from the recommended sentence. Such as, if defendants provide substantial assistance to the government in prosecuting others or the case presents a factor not taken into account by the guidelines. The Supreme Court has held that judges must calculate and consider the guideline sentence, but may choose a different sentence even without identifying a basis for departure. And judges do so in about 20 percent of cases. Since the reinstatement of the federal death penalty in 1988, 78 defendants have been sentenced to death. Three have been executed and 12 have been removed from death row. For Talking Feds, this is Sharon Washington.
Harry Litman [00:25:35]: Thank you, Sharon Washington. Sharon's solo play, Feeding the Dragon, about growing up living in a custodial apartment inside a branch of the New York Public Library--you heard that right--is available to listen to on Audible. Let's move now abroad and to the Trump's focus on China both as a scapegoat for the virus and as potential scapegoat for the upcoming election. Frank, I know you've written about this. Can you kind of set up what Trump seems to be doing with China?
Frank Figliuzzi [00:26:11]: Sure. And although it may not seem like it on its face, our discussion about what's happening in Portland and what I've written about with regard to Trump and China are not distinct and shouldn't be viewed separately. By that I mean, we have a president that has told us he wants to be a wartime president. Back in March in the context of the Coronavirus response, he said something to the effect of 'I think I must be a wartime president now.' He's been seeking that out and he's in search of adversaries. And so on a domestic front, we've just spent a great deal of time talking about his adversaries that he's fabricating on the so-called liberal mob, as he calls them, and Democrat controlled cities and states. And he's sending his troops in to do battle there. It's a similar thing as we lead up to November. And he's way down in the polling, in his search for a foreign adversary. Somebody, some country, some entity we can coalesce around in his mind and see as a scapegoat and see as a threat. And that is clearly developing and turning out to be China. And here's why. We've now heard for months in the context of the virus response that this is all China's fault. And just in one month alone, in a two week period he called the virus that China flu over 20 times. He's called it the Kung flu. He's called it the Wuhan virus, as have the attorney general and the secretary of state. We're looking at a scapegoat, but it's more than just deflecting attention away from his poor response of the virus. Because now what he's been signaling to us in numerous public speeches from the Rose Garden, from Mount Rushmore, other places is that there's going to be foreign meddling in mail-in ballots in November. We should be very worried, he says, about the mail in ballots because a foreign power could inject and insert fraudulent ballots into the system. And he snipped one day, Harry, which really got my attention. And he said, it's going to be China. It's not going to be Russia. It's going to be China.
Harry Litman [00:28:14]: And some of his tweets, in fact, just interjection. More than maybe I mean, he's had a couple of tweets have just said it's going to be the most rigged election in history, you watch. It's a flat out prediction.
Frank Figliuzzi [00:28:24]: Yeah. He said repeatedly in tweets, rigged election 2020 will be rigged. We are headed to a situation where he's going to blame foreign power involvement, likely China. And here's the deal. I'm here to tell you, as the former head of counterintelligence at the FBI, China is a bad actor. They they are bad dudes. And so they can and want to hurt us. So it's it's a perfect, attractive target for him to say, 'Yep, it's China.' They gave us the virus. They gave us election medaling. And so you've seen it even recently with the closure of the consulate, the Chinese consulate in Houston. I'm not saying it should not have been closed. In fact, I'm saying that the long overdue action. But I'm saying, why now? Why isn't he doing the same thing to Russia when there's equal, if not greater concerns about Russia as a threat to our election and our nation?
Harry Litman [00:29:12]: Is, in fact, he making the same charge? In other words, is the notion going to be the same kind of social media meddling? The attorney general in an interviews seem to be entertaining this fantasy that somehow China is going to counterfeit millions of ballots. And, you know, when asked, well, how do you what's the proof for this? He said, well, it's obvious. That wouldn't go over to our normally in the courts. But are they just putting Russia's 2016 mischief in a new Chinese suit or are they there to find different kinds of content?
Frank Figliuzzi [00:29:49]: A couple of things going on. First, this is kind of a masterful chess move. It's not going to play out in victory in the long term. But think about it. He's been so steamed and livid over the Russia inquiry and the implication that his presidency is illegitimate, that he's going to turn this on its head and say, 'Oh, oh, really? You think the Russians helped me get into office? I'm going to claim that the Chinese are working on behalf of Joe Biden.' And he doesn't need to ultimately prove that it happened. He needs to plant enough of a seed of doubt in the American voter's mind that we have chaos come November. And even more chaos if indeed our intelligence service tell us, 'You know what, we think maybe China did do something.' Because the reality is that the mail in ballot experts tell us that, 'Look, in most states, we've got bar codes. We know how many mail in ballots we've sent out. We know how many will come back. This is not a real concern for us.' But if you hear it enough, it could become true in your mind. And that's all he needs to do. And he's got accomplices in this in the form of Pompeo and Barr. As you said, Barr has already said, 'Big concern of mine for mail-in. Real, real concern of mine in the ballot balloting.' And then, of course, we know that Pompeo has came out with this ridiculous statement about the virus, saying he had overwhelming evidence that it came out of the Wuhan lab. When in reality he had to retract that weeks later because there was no evidence. So we're in a mess with a DNI who's a crony of his, inspectors general who he has replaced. And it's all headed toward kind of a signal that he's he's painting China as the bad guy, lumping Biden in with China. He's got his domestic enemy in the liberal mob and he's got his foreign adversary in China.
Paul Fishman [00:31:28]: This is a confluence of all of the things that have all motivated this president, right? And before he was president, there's always someone who is the other. There's always someone who is the enemy. Sometimes it's individuals. Sometimes it's groups. It's the media. It's the deep state. It's liberal anarchists, Democrat mayors. It's the Chinese. And there's always somebody. And it's almost like he keeps trying to find ones that will stick so that his base or voters generally will try to come along with him for the ride. But the fact he's been casting about so often now suggests that he is worried about the way this election might go. But also, the other thing about this is while the claims that he's made and that Barr and Pompeo made are all incredible in so many ways. This is where our discussion before about policing and about the use of the military and law enforcement and about China and elections all sort of comes back to the same point. Which is that, in some ways, the most damaging aspect of the Trump presidency is--maybe it is the most damaging, but it's so hard to tell anymore--is his deep, deep, deep efforts to try to undermine all of the institutions of liberal democracy. Our trust in the media. Our reliance on the CDC. Our ability to count on elections being honest and fair. The fact that you can believe what people in public life tell you. The fact that you can trust the police most of the time to do the right thing. The fact you can trust the person who's wearing a badge actually is a police man or woman at all. All of those things are going to be the lasting legacy of the Trump presidency, which is a deep, deep, deep problem with how we think of institutions and particularly the ones that are the ones that we need to trust.
Joyce Vance [00:33:13]: This is Steve Bannon's boy, right? Burn the whole thing down.
Harry Litman [00:33:18]: Yeah, I think that's incredibly insightful. He's really a one trick pony in a sense. Get an enemy and try to rail it in. And I think the reason he's flailing so much is with the dynamic of the virus it's basically the focus is on him. And so as he generally lashes out at China or the liberals or whatever, it just doesn't hit home in the same way. It's just still remains Trump, the virus, the economy. And that's all bad news for him.
Paul Fishman [00:33:48]: Well, that's true. But there's one more piece to it, which I think is for the last three years of his presidency, three and a half years of his presidency, even before that, there were lots of us who couldn't understand why it was that all the things that he keeps saying, which are demonstrably false over and over and over, that so many things wasn't resonating. And part of it was that the things he was talking about were not necessarily things that were obvious to Americans across the country in everyday life. The virus is that. He has been on television saying things that everybody now knows turned out to be completely wrong. And it's affecting everybody's lives in a very profound, immediate and tangible way. I don't think he knows what to do about that.
Harry Litman [00:34:30]: That's a great point, too. All right. We have time to talk a little bit anyway about this immigration memorandum that Trump issued this week. And he promises more where that came from. But it's a very dodgy legal stratigem it seems to me. He has taken another shot at trying to keep illegal immigrants from being counted in the census, even though the 14th Amendment, as the Supreme Court has held unanimously, has said they must be counted. So what's he trying to do here and can it possibly fly?
Paul Fishman [00:35:08]: I'll take a crack at what he obviously wants to do is continue to discriminate against this group of people and not have them count, right? That's what's motivating him here. And obviously, you'd see some tangible benefits with his base and with people continuing to see him as anti-immigrant. And there may also be implications for a way apportionment of representatives and gets done as a result in the census, as well as the allocation of federal benefits under the census. But it's completely crazy as a matter of law in different ways. Frank has an agent and you and Joyce and I, as prosecutors, we've made decisions not to enforce the law on particular ways because we only had so many federal prosecutors and only so many agents. You can't we go after everybody. And it's up to prosecutors and agents exercising your discretion to figure out where to allocate the resources. And The Supreme Court has recognized that the decision not to enforce is a discretionary one in that way and isn't subject to the ordinary strictures that deal with how the government acts and what's reviewable in terms of creating rights and expectations. The reason that didn't work in DACA was, you know, the Obama administration decided it wasn't going to bring immigration proceedings against to certain class people. And then the Trump administration decided it was going to bring them. But the problem was that in the meantime, the people who didn't get enforced against developed rights and expectations and benefits and the Supreme Court ruled you can't take that stuff away without some due process and and with some administrative process. That's an administrative process. Here, they didn't say that any time the president of the United states wants to write a memorandum deciding to do certain things, he can't. It's just not the way the law works. And presidential memoranda, which are kind of not even executive orders, are not the vehicle in which you can decide under the united statutory and constitutional rules about where you're going to count them or not. The president can just make a unilateral decision about.
Harry Litman [00:36:52]: That's exactly right. Look, there are two parts to DACA. It's really a cynical strategy because he obviously and John Yoo obviously thinks the decision is wrong. But, he wants to say, not only can I do this, but I can hamstring future administrations. But as you say, the only reason that the Supreme Court said that you had to go through processes is they didn't simply decline to enforce, but they put in programs for Social Security and other things that citizens get. And it was that they couldn't take away willy nilly. But the first point, I think, is even stronger, because you're right, we we make these decisions all the time. And if you're going to not enforce against a class of possible offenders, it seems to me that the Dreamers would be a very good category. This is not about not enforcing the law. He's not declining to penalize or go after illegal immigrants. He's just saying, I'm not going to count them because. Why? Well, I there's really hardly any reason given. And there's some with some bromide about it's more consistent with American values. I question that. But it's just not prosecutorial discretion. It's rather just declining to extend a benefit that the Constitution gives to people. And not every executive action is one of prosecutorial discretion it seems to me. So that's the second big flaw in what they're trying here.
Joyce Vance [00:38:19]: You know, the Supreme Court has already decided this issue against Trump. The Constitution says count persons. Last summer, I think last June, it was late in the Supreme Court season when they told Trump, no, you've got to deal with the census within constitutional boundaries and you can't ask an immigration question. And so since then, he's been trying to get second bites at this apple. One of those is a lawsuit in Alabama where the state of Alabama sued the Department of Commerce and said you can't count non-citizens in the census because it'll disenfranchize Alabama. Alabama will lose a congressional seat. And so that litigation has been live. And I'll tell you, it's interesting and something to watch that about 10 minutes after Trump issued that executive order. And full disclosure, I'm local counsel for the New York attorney general and other attorneys general in that case. But about 10 minutes after Trump issued the executive order, DOJ filed a notice to the court of the executive order and said that it, quote, might have some bearing on the case. So DOJ is chomping at the bit to get a ruling in what they perceive as a favorable forum in Alabama. But the Supreme Court has already told the president no and not an executive order, not a second bite at the apple case in court. None of those things can undo what the Supreme Court has already said.
Frank Figliuzzi [00:39:43]: And it's so deeply disturbing that the root of this appears to be a notion that there's a whole set of people who simply don't matter and don't merit being counted at all. It's not unlike the concept that Trump keeps repeating that we have so many coronavirus cases because we just keep testing. And if we stop testing, we wouldn't have cases. Well, if you stopped counting, then you don't have to deal with the reality of how deeply embedded undocumented people are in our society and in our economy. And so, you know, if you don't want an accurate count, you don't have to deal with that reality.
Harry Litman [00:40:18]: Yeah. You know, it also seems to me that this whole legal line of attack is of a piece with both what we talked about with China and the whole Portland debacle. It is just another way of trying to evade accountability. There's law here. There's the Constitution, there's Congress, there's immigrants. But the--he can try to demerit all that and say I'm I'm just doing prosecutorial discretion. So it's not just legally bankrupt, but it's of a piece with trying to be an autocratic. A government of one. All right. Wow. So much happening this week. And we're out of time on what's been not just a great conversation, but one about topics that are not going away over the next couple months. So hopefully we'll be back and unpack them some more. We just have a couple of minutes for our final feature on Talking Fed's. Five words or fewer, where we take a question from a listener and each of us has to answer in five words or fewer. Today, the question comes from Akash Sing. Who asks, why are federal agents permitted to stay unidentified in Portland? Anybody? Five words or fewer?
Frank Figliuzzi [00:41:34]: Well, I'll take a crack at that: because anonymity precludes accountability.
Harry Litman [00:41:39]: Four, OK.
Joyce Vance [00:41:40]: I'd say Congress needs to act.
Harry Litman [00:41:43]: Mr. Fishman, please?
Paul Fishman [00:41:44]: The question is why are federal officials permitted to stay unidentified in Portland? And the answer is they should not be.
Harry Litman [00:41:51]: And I would say permitted sometimes, but not here.
Harry Litman [00:42:00]: Thank you very much to Frank, Paul and Joyce, and thank you very much, listeners, for tuning in to Talking Feds. If you like what you've heard. Please tell a friend to subscribe to us on Apple podcast or wherever they get their podcasts. And please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other 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.com/talkingfeds where repost discussions about special topics exclusively for supporters. Just in the last few days, we've posted a complete episode there for supporters about the Supreme Court with a panel of national experts, a discussion with Steve Vladeck on the basis of the federal surge in Portland, and a discussion with Alan Arkin about how he is approaching the virus based on his Eastern philosophical beliefs. So there's really a wealth of great stuff there. You can go look at it to see what they are and then decide if you'd like to subscribe for five dollars a month. Three dollars for students. Submit your questions to questions@TalkingFedss.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 Weight. David Lieberman and Rosie don Griffin are our contributing writers. Production assistance by Ayo Osobamiro. Our consulting producer is Andrea. Carla Michaels, thanks very much to Sharon Washington for explaining how federal sentencing works and our sincere gratitude, as always, to the great Philip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I'm Harry Litman. See you next time.
