Harry Litman [00:00:00]: Hey everybody, Harry here. Before we start today’s episode, I wanted to give a quick nod to our sponsor: the California Fair Political Practices Commission. Would you like to know who’s behind all the political ads you see? The FPPC can help. California’s Fair Political Practices Commission is the state’s political watchdog agency, and its new public service campaign will help you become a more informed voter. Visit fppc.ca.gov/learn/2020-election.html , got it?
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Welcome to Talking Feds, a roundtable in partnership with LA Times Studios that brings together prominent formal federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I’m Harry Litman. It is startling to imagine it’s been just about a full generation since the attacks of September 11, 2001. A generation of births and deaths, a generation of political turmoil and dangerous encounters with quicksilver terrorist threats. The 9/11 anniversary gives a depth and historical context to the homeland threats we are now confronting in 2020 in Donald Trump’s America.
This was a week in which a former whistleblower at the Department of Homeland Security alleged that he was repeatedly ordered to doctor intelligence, to bring it into line with Trump’s political propaganda, and also that the former director of the Department of Homeland Security lied to Congress about the movement of terrorists across the Mexican-US border. Shortly thereafter, acting Homeland Security Director Chad Wolf delivered an Orwellian state of the homeland address, in which he extolled President Trump’s “decisive and rapid action in responding to the coronavirus.”
And the following day, the country learned that President Trump purposely misled us about the severity of the virus, assuring the country that “we’re in very good shape, and it’s like the regular flu,” when he knew in fact that the virus was “deadly stuff,” as he told Bob Woodward, and very difficult to control. The clear picture that emerged was of the administrations ignoring or downplaying the most serious actual threats to the homeland — renewed Russian meddling in the election, white supremacists, domestic terrorism — while proffering its own fantasy threats — China interference in the election, left-wing antifa radicals terrorizing the cities — designed to enflame the president’s base and reinforce his false political arguments.
To separate out the true from the false or exaggerated threats to homeland security and to analyze the actual state of the homeland 19 years after 9/11, we welcome three of the country's most prominent political and national security experts: all good friends and returning regulars to Talking Feds, and all authors of recent or upcoming books, a very fancy group. They are first: Frank Figliuzzi. A frequent national security contributor to NBC and MSNBC. Frank is the former FBI Assistant Director for Counterintelligence, and he is author of The FBI Way: Inside the Bureau's Code of Excellence, set to be published in January, 2021. Frank, thanks for coming.
Frank Figliuzzi [00:05:08]: Always a pleasure. Thank you,
Harry Litman [00:05:10] David Frum, a political commentator and senior editor at the Atlantic, he is the author of 10 books, including most recently: Trumpocalypse: Restoring American Democracy. He served in government as speech writer for President George W. Bush. David, as always a pleasure to welcome you.
David Frum [00:05:30]: Thank you.
Harry Litman [00:05:31] And Juliette Kayyem, a national security analyst at CNN and the Senior Belfour Lecturer in International Security at the Harvard Kennedy School, she served as President Obama's assistant secretary for intergovernmental affairs at the Department of Homeland Security, and she too has a new book: Beyond 9/11: Homeland Security for the 21st Century, published August 2020. Juliet, thanks as always for coming.
Juliette Kayyem [00:05:59]: Thank you for having me.
Harry Litman [00:06:00] Alright, let's just jump in first. I'd like to structure this first with the sort of false threats as they come through the Trump administration and then onto the true ones. So let's start with the whistleblower complaint, or really complaints because it's a series over the last few years. We have a whistleblower, Brian Murphy, the principal deputy under secretary, formerly, for the department's office of intelligence and analysis. So, no slouch. He says he was demoted for refusing orders to distort intelligence to make it support the president's political claims. And he's got chapter and verse going back several years.
Let's start here. If his charges bear out, how bad, how unusual, how unprecedented is the conduct from the political appointees at the Department of Homeland Security?
Juliette Kayyem [00:06:48]: I'm a consumer of intelligence, just to be clear, I've never been an intelligence agent. So I'm completely dependent on the veracity of what the intel folks are doing, right, and the honesty. And what people need to remember about Homeland security on this 19 years later, day of taping, is the Homeland security’s customer is state and local governments, right? It is, I mean, it's the population, but it's essentially, what do you want your safety and security apparatus to do in response to accurate information?
Whether it's the weather, whether it's an election or whether it's an intelligence. So this is unprecedented in the sense that it not only skews the importance of a certain kind of threat that we should be looking at, and the FBI has already said that there's nothing surprising there, but also makes it seem as if a different kind of threat, right?
So that's, it's a double whammy. So it's like, not only don't look at the apples, but now look at the oranges. And it's, it's very consistent with what you're hearing in the — y’know, turning to Frank, but in the intel election world where it's “don't look at Russia, but look at China,” right? It's almost the same story, just now on the homeland. I will tell you, I had never heard of anything like this going on. I mean, obviously, homeland security intelligence is more political than not because you're obviously bumping up against politics wherever you go, but the allegations in the whistleblower complaint of sort of minimizing what is clearly the number one threat seems to have an audience, not of the homeland, but of one which is of course, to make it consistent with what the president has been saying.
Frank Figliuzzi [00:08:25]: Juliette just gave us a great springboard on this topic because two or three things come to mind based on what she's observed.
But first, we got to start with the why of whistleblowers. In other words, what's the environment wherein whistleblowers come out of the woodwork to the unprecedented extent we've seen them do, it's because they feel they have no other outlet. It means that they've tried within their command structure to get it right.
They've tried to voice their concerns and they're continually being beaten down. And so that's why, you know, immediately when Brian Murphy came out, the Fox News people just flipped out on social. “Oh, here's another whistleblower. Oh, here we go again,” without, but they're missing the point. We have “oh, another whistleblower” because we have horrific fraud, waste and abuse going on that no one feels that they can get addressed within their structure.
So number one, number two, Juliette's point about state and local consumers of DHS intel is particularly pertinent to the white supremacy angle here, because who is it really that's going to be eyes and ears on the ground that needs to know that all of their crazies in their neighborhoods are going to come out and do bad things.
And who needs to get their intel analysts on top of this and their informants and sources. And it's the state and locals and they're not getting the intel that they need. And then the national security standpoint on Russia versus China, if we're not getting the truth about the extent to which Russia is meddling with this election, then we are flying blind as a voting public.
So why do you suppress the truth like this to this extent? Because it benefits you. And so Trump is essentially suppressing truth because he thinks it will benefit him.
Harry Litman [00:10:05] How about the mechanics? David you were in the White House, I was about the level, say of Murphy, I'm trying to think of somebody actually coming in and delivering this news to me at the Department of Justice and how long it would take me to pick my job back off the floor. But at least what he detailed seems the most kind of crass and unselfconscious railroading of intel. Did that aspect strike you as either noteworthy or especially troubling?
David Frum [00:10:34]: In terms of harm done, the distortion of the news about election interference struck me as much more serious than the distortion of the news about domestic threats, because in the end, state and local police don't probably need the federal government to tell them to watch out for white supremacist mass shootings, they're all around us.
So if you need to be told that, you're being pretty dense. Most of the responses to that kind of threat are non-federal. So even if the federal government is flying blind, it's flying blind in a situation where there's a limit to what it's going to be able to do.
Defending the country against international threats, that is absolutely a job of the federal government. And in the case of these election threats, it's a threat to which the federal government has really powerful tools. I mean, beginning with people in the federal government picking up the phone to the executives at Facebook and saying, “you are the conduit for this attack, you clean up your house.
You have six months to clean up your house or someone is going to clean up your house for you, but we are confident that all the smart people there can figure out a way to clean up your own house.” No one has ever had that conversation with Facebook. In fact, quite the contrary, they've empowered and invited Facebook to do the opposite.
So it's foreign angle that is the one that is especially distressing to me, because that's one where I think we are much more vulnerable than we otherwise would be. I do count on state and local officials to be keeping an eye on white supremacist threats, to the extent they can consistent with America's arm-everybody-to-the-teeth domestic gun laws.
Harry Litman [00:11:54] To follow up on that first, I think what's implicit in what everyone is saying is on the international front, we have clearly a strong meddling again by Russia. And the thrust of the altered intelligence was to make it seem as if they were just about the same as China and Iran.
And then on the domestic front, the elevation of a threat that seems almost nonexistent, antifa and left wing radicals, and the comparative ignoring of the much more numerous and immediate threat of white supremacists. But let me ask, assuming I have that right, was this sort of stuff to the state and locals anyway, so was it a dereliction in, of good government, but no real harm done? Or is there a bottom line impact of this politization of the intelligence function?
Juliette Kayyem [00:12:50]: Well I also was a state homeland security advisor, so I had to deal with budgets. So I think there is a tactical result to this. I think David's exactly right. If you have the federal government, imagine you're a police department, emergency management agency or whatever, you have the departments saying, this is your number one threat. Do resources... having the federal government align with how you want your resource focused distribution is really, really important.
I mean, just from the state government or local government perspective. So, in terms of the operation, I think it does impact it. It makes it harder. If the department is denying it or minimizing it, I think it makes it, it does make it harder for some jurisdictions to be able to focus on this very, as David said, much more politically sensitive, just because of the legal rules that apply.
And so I think that that's sort of a more tactical challenge, but I, I do agree with David in the sense, like, most jurisdictions are sophisticated enough. They can see what's going on in their jurisdiction. I [00:12:00] think that, on the anniversary of 9/11 is people do accountings of 9/11 today, and the famous 9/11 report, the failure of imagination, that was sort of nonfeasance. The criticism you could give Bush in the summer of 2001 was lots of people were telling him, and his focus was elsewhere. That's nonfeasance. This is like a failure of realism, right? This is, this is malfeasance to me.
Harry Litman [00:14:14] Not even real. I mean, this is Orwellian, right? It's not, they weren't ignorant.
Juliette Kayyem [00:14:18]: Right, it's not like we have different priorities, it’s that we actually have a priority. So, that's where I think that the challenges for state and locals is, if there is malfeasance behind it, how do you even rely on any of it?
I think COVID is part of this stew, right? But it's malfeasance. It's not nonfeasance, it's malfeasance.
David Frum [00:14:37]: Well, let's torque it up even a little bit more. There are places in the country where left-wing violence is a real problem.
If you're in the state of Oregon, if you're in the state of Washington, if you're in New York state, it's a problem. And especially if you think of animal rights activism as left wing, and we have had a history of murderous animal rights terrorism in the country. We don't have it right now, but that's something that if you're in the right place, you need to think about. But there's something going on worse here, which is, it's not a failure of imagination. It's not just malfeasance. It’s that the Trump people look at these guys and they identify with them. Those are our people. I mean, the killers are not literally our voters, but they are in proximity to people. If anything that cramps the style of the killers, is likely to also impinge on non killers who share aspects of ideology with the killers, and also share with us.
I mean, and this is where the 9/11 Islamic analogy becomes useful. I mean, we learned after 9/11, there's a spectrum of Islamic behaviors, right? There were the killers, there were the inciters, there were the permission grantors, and there were the people who operated communities within which the permission grantors were free to operate.
And there were lots of people, especially in Europe who would never do a violent act themselves, but who made possible violent acts. And that's this sort of white nationalist terrorism that is a global phenomenon we see. And what we also see when — I wrote about this Trumpocalypse, that while the killers have complicated attitudes to president Trump, I'm going to quote one of them who did a question and answer manifesto and said, “what do you think of Donald Trump?”
And he said, ‘as a political leader, good God, no, but as a symbol of reviving white spirit, yes.’ The tree of life killer was very critical of Donald Trump, but he criticized him for misleading fellow racists into thinking that Donald Trump was a reliable ally, and the problem was that while Donald Trump was, was tough on non-whites, that from the killer's point of view, the real threat was Jews.
And so Donald Trump was soft on Jews, tough on nonwhite, soft on Jews, and was thus going to deceive bonified a racialist into misunderstanding the nature of the threat. So there is a spectrum and that's the thing that is really troubling about all of this is that you have an administration that is obviously not complicit or supportive of terrorist acts, but on a spectrum of ideology where they're at one end and the killers are at the other.
Harry Litman [00:16:47] Good people on both sides, I, there's no express endorsement, but nevertheless, deafening silence from violence on one side, and really revved up frenzy from violence on the other. And I don't doubt your premise David, about quote unquote left wing violence, but they want to say something more specific about an organized antifa group, you know, specific groups.
David Frum [00:17:10]: You know, someone has gone to the insane trouble of creating a website called antifa.com, when you click on it feeds to the Joebiden.com website. As if like, there's like an antifa, antifa.com as if they have like a web channel of their own.
Harry Litman [00:17:25] We'll have a special cabinet position. So let's move to the other side of things, which is we have the misinformation and we've analyzed the reasons for it. It's even more appropriate on this anniversary, to be talking about the true state of homeland security.
Frank, I've heard you emphasizing how homeland threats are changing even under our nose. You know, a total straight up director of intelligence would be telling us what about the homeland threats as they now exist and as they've mutated in the last several years.
Frank Figliuzzi [00:18:01]: I remain in touch with my former colleagues in the intelligence community, law enforcement community, and there's a degree of hair pulling out right now.
And by that I mean, we need only look at the counterintelligence official the DNI, Bill Evanina, for example. There's a career professional, comes out of the FBI, extensive counterintelligence background. You know, it's public knowledge that he had proposed weekly briefings. It was actually promised it was, “Hey, we're going to publicly brief the public eye weekly on what's going on with the election.” And the vision was almost a kind of a Governor Cuomo COVID briefing of where we are on a regular basis, right.
And I thought, well, that's actually going to be pretty neat, are we at orange or red or whatever? And, and no, of course that's really not happening. And not only that, but we're not even seeing regular verbal in person briefings to the Intel committees or Congress. So, what we should be knowing is that bad things are being planned by bad people. But there's a good side to this, which is that even though, as we just talked about, there's a suppression of truth and intelligence to the public.
I do think this question of does it really impact a lack of response by the professionals, what I'm hearing is not, not really. And so I know there are preparations going on in the law enforcement and Intel communities for really bad things to happen. And they're hoping they don't, but they're out in front of it to the extent they can be. The same goes, let's look at the Russia, the suppression of Russia intel threat intelligence. In the last 48 hours, what have we learned? We've learned that even though it's being suppressed from us, we're seeing treasury sanctions against Russian agents. We're seeing justice department indictments against Russian agents, on Derkach, the guy theUkrainian who was feeding the BS to Rudy Giuliani about Bidens and who did the hacking, and it was Ukraine. Turns out, he's a Russian agent for 10 years. So I take from that, some hope that the career professionals are still moving forward with their jobs.
Harry Litman [00:20:08] So there’s a bastardization of the reporting function. But you think the actual operational function proceeds a pace.
David Frum [00:20:16]: The next DHS secretary should sit down with the next president, and the first sentence out of the secretary's mouth should be, the world has never been less violent than it is in the year 2021. And the world has never been more exposed to catastrophic environmental and epidemiological events than it is in 2021. However many people there are around this table, no more than a third of them should think like cops, two thirds of them need to think like other people, because I guess we are hardwired as human beings to be more upset if our house is burned down by an arsonist than if it's burned down by a wildfire. So maybe that's just the way we're constituted, and I accept that we will pay more to prevent arson than we will to prevent wildfires.
But at some point, the spectrum of risk, if my house has burned down, 10% probability that it's an arsonist, 90% probability that it’s wildfire, I’ll pay double the risk for the arsonist. So, so it's a 90/10, risk from the wildfire. I'm gonna pay 80/20 for my insurance, but it's still at some level you have to say, wildfires. That's how you're going to lose your house, if you lose your house.
Harry Litman [00:21:12]: This is a brilliant point. So, what is the government entity in fact, do we classify this as homeland security, the epidemiological and environmental threats he's talking about?
Juliette Kayyem [00:21:23]: Absolutely. We were on this path. So, Homeland security is bred out of nine, you know, comes out of 9/ 11 for four years from 2001 to 2005, it's singular focus was stopping 19 guys from getting on four airplanes, or the equivalent. Its singular focus. 2005 comes around, Hurricane Katrina, right? Can't save an American city from drowning, and to his credit, Chertoff began to pivot the department in the same way.
Harry Litman [00:21:51] Michael Chertoff.
Juliette Kayyem [00:21:52]: Michael Chertoff excuse me, Secretary Chertoff, in the same way that we used to think about civil defense and other things is sort of what we call all hazards. And those hazards also began to change, which were, they were no longer state centric. They were the four biggies: they were cyber, natural disasters, pandemics and an ideological radicalization, what you might call the lone wolf, although they're supported by a lot of people. The department began to understand that, and it actually made it better because the DOJ would have the lawsuits, right, would have the criminal investigations.
DOD would have the state threats, and we were sort of left with the sort of all hazards homeland approach. You then have the Trump pivot, which is the threat is Mexico. If you look at the numbers, if you look at the budget, if you look at the, just the freakin’ noise of everything that we talked about when it came to homeland security was a wall or was immigration, right?
Rather than immigration being an opportunity, or even recognizing the millions of people that, pre-COVID, were crossing the US-Mexico border lawfully every week, right? So that's hard to do, and we were doing it, right? We're about flow, that's what the department's about. It's about secure flow.
Focus on secure. But you need flow, right? Things need to move: people, ideas, networks, and so the department – it wasn’t perfect, my God, no, but it was beginning to get a sense of we're about the secure flow of people, goods, ideas, and network. That's what we do. And then when it crashes down, then we're the response people. And then that just changed. I mean, it just changed the singular focus of a department on a border. And it was so inconsistent with what everyone was talking about. I mean, it was a, you know, Mexico, a border, like that's not our existential threat.
So really in some ways it's how do you pivot back to all hazards, borderless all hazards because these threats, at least on climate change, when I think about my kids — yes I worry about pandemics for the time being, cause they're teenagers and life sucks for them — but when I think about the existential threat, it's climate.
David Frum [00:23:59]: To pick up on that point a bit about the way bureaucracy works, and I'm sure everyone who’s working in government has seen this, the way it works is it begins by choosing or vetoing a particular solution.
And then once the solution is chosen or vetoed, that then defines the problem. So if you say that, look, we want to prevent school shootings. Don't touch guns. You need to conceptualize the school shooting program in such a way that the most obvious solution is not allowed. That's where the wall comes from. So where the wall came from is, if you decide, look, what we want to do is we want to enforce immigration more strictly than we've been doing before, which is something I would want to do.
Well, the obvious answer is, we'll tell the department of labor to come up with some standards to enforce social security numbers at the place of work, so we can confirm that employers are hiring legal people. No, that logical solution is out because the restaurant association doesn't like it.
So, now we need to figure out a way to control immigration that doesn't use the most potent tool for controlling immigration. And then you end up backing just as we try to control school shootings by policing backpacks rather than weapons, we try to control immigration by building a border wall rather than joining the workplace, which we already have the mechanisms to do.
And the thing that Juliet said about flows, I mean the thing that the great walls of history — Great Wall of China, Hadrian's wall — have never been about, they were always about regulation. They were never about exclusion. It's not like on the other side there's this seething mass of Scottish barbarians on one side of Hadrian's wall and Romans on the other, the whole point was the wall was perforated by gates. The wall was a zone of transition. And it was as much about taxing and inspecting as it was about trying to keep people out, which no, you just can't do. Even on, on the small scale of Great Britain, nevermind the vast scale of the American Southwest.
Harry Litman [00:25:36]: It’s now time to take a moment for our Sidebar feature, which explains some of the terms and relationships that are foundational to events that are in the news. And we are very fortunate today to have Neil Brown, Jr talk to us about insider trading. Neil Brown, Jr is an American actor many will recognize as Guillermo on AMC’s The Walking Dead, as well as from his other roles in Battle: Los Angeles, Fast and Furious, Straight Outta Compton, and CBS’s SEAL Team. He’s going to explain to us how the federal crime of insider trading works.
Neil Brown, Jr [00:26:16]: Insider trading is a kind of fraud in which people buy and sell things on the basis of important confidential information that they learned in ways not available to the public at large. If you buy or sell a stock in the stock market, and it turns out the other party is the CEO of the company, and trading on confidential information that won’t be public until tomorrow, you’d feel cheated. The United States Securities and Exchange Commission sets up rules to insure that financial markets are fair and transparent. One of these rules prohibits individuals from taking advantage of other traders by using material nonpublic information obtained as part of a relationship of trust or confidence.
Material nonpublic information is any information that hasn’t yet become public, and important enough to affect a stock’s price. Of course, ordinary investors could obtain the material nonpublic information simply by doing better research than everyone else. That’s why the SEC only makes it a crime when you learn information by virtue of a position of trust or confidence. That’s the insider in insider trading. So, who has such a relationship? Well, corporate officers and employees, even low level employees who pick up nonpublic information in their jobs, as would their family members and close friends, outside lawyers and accountants, anyone who signs a contract saying the information would be kept secret.
In addition, if an insider gives this information to a member of the public, that person is also prohibited from trading on it. There is another group as well, the Stock Act says that members of Congress owe a duty of trust and confidence for any material nonpublic information they obtain in the course of their official duties. That means that they have a duty not to trade on the confidential information they learn in office. That’s why it was such a big deal when news broke that several senators had made major stock trades hours and days after receiving a private briefing about the coronavirus.
The most serious were trades by Senators Kelly Loeffler and David Perdue of Georgia, and Senator Richard Burr of North Carolina. Allegations were also raised about trades made by Senators James Inhofe, Diane Feinstein, and Congressman Greg Gianforte. The SEC has never criminally charged anyone for insider trading under the Stock Act, but the DOJ began investigations into some of these allegations. The investigation into Senator Burr continues, but the DOJ announced in May that it had closed the investigations into Senator Loeffler and others. The big question federal investigators are looking at is whether Burr sold stock based on the private confidential information he received by virtue of his office. For Talking Feds, I’m actor Neil Brown, Jr. from HBO’s Insecure.
Harry Litman [00:30:02]: Alright, I wanted to touch on now, we said up front all our guests have written books. It's sort of a season for books, but two receive particular attention this week and both in different ways detailed the president’s confabulations in discussing threats to the national security. So I thought that we could speak briefly about Pete Strzok’s new book, and then also the revelations, which consumed the news cycle of admissions from the president to Bob Woodward about the virus. Let me just serve up the Strzok book, I mean, it's, it's sort of old news, but he does make this very vivid charge, if true, that Michael Goldsmith, the inspector general of the department of justice basically altered things at the end out of some uncertain animus.
And I can tell you that people in the community who know Strzok really thought that Goldsmith both hammered him hard, and left out some important things. Any thoughts in particular about Strzok book and its role in the apparently endless controversy over the 2016 counterintelligence operation that involved the president.
Frank Figliuzzi [00:31:13]: I think that when you combine Pete Strzok’s book with Mike Schmidt's book and the realization that we have an unanswered question, which may be the seminal question of our time, which is whether or not the president of the United States is co-opted by a foreign power. And that the revelation is that we seem to not have answered that question or fully attempted to resolve it.
And I think the fact that there's even still grayness about whether or not, you know, this initially the Schmidt book is saying, hey, it was a finger pointing Mueller saying, I thought you got it to the Bureau, the Bureau saying, I thought you had it. I got to tell you, that to many of us that doesn't ring true in terms of how things work. Major counterintelligence investigations don't simply vanish. There's too much paper tracking, but, but now here comes Strzok saying, well, I'm not sure exactly what transpired, but, um, it hasn't been resolved and it hasn't had a financial aspect to it, for sure. As far as he knows, but remember he got walked out of the building.
So, we have an unanswered question that may never get resolved and that's a huge takeaway from Strzok’s book, the other, the other thing I think we were all focused on Trump so much that we forgot that Pete Strzok is the guy that Michael Flynn lied to and and pled guilty to lying to.
And what Strzok’s message of course is, Hey, the right got all caught up in the Logan Act. This was a criminal case and we ambushed him, cause the Logan Act is nonsense and he keeps reminding us this was a counterintelligence case. It was very important to know whether he was going to lie to us about Russia from a counter intel perspective. So this issue of relevancy is nonsense.
Juliette Kayyem [00:32:57]: You know, I will bring up the Woodward book because the Woodward book is about Trump's admissions, but it also has some reporting, some of it's second hand about Dan Coats. I mean, you have the director of the office of national intelligence, at least asserting to someone enough so that would Woodward feels confident reporting it, that he believed, not sorta-believe, that he believed that the Russians ‘had something’ in quotes, on Trump. That is the same question that Frank raises, which is just the ultimate question, which is the why. I'm a big former Dixie Chicks fan. They're now called the Chicks, but they have a line in their new big hit song that is, “what the hell happened in Helsinki?” Right? I mean, you know, like it's like, it's like that, that sentence is just basically the entire Trump administration in four years, just leave it to the Chicks to cut to the chase.
David Frum [00:33:49]: The why question is so important. And the harder you think about it, the more important it becomes, and the Russians got the same information in 2016 as everybody else. Hillary Clinton was overwhelmingly, probably likely to win. And what they also knew about Hillary Clinton is she's got many good qualities, but forgiveness is not high on the list of her good qualities.
So they were going to go to electronic war with the probable winner of the United States, who is probably going to hold them to account if she won. They had to have a good reason to do that, and mischief making is just not a good enough reason. There are a lot of ways to make mischief other than getting into the highest level of politics and making a personal enemy of the probable next president of the United States. So they must've had a good reason. And I have been struck throughout as you all were at the lack of interest in getting to the bottom of the why question. I think part of the problem is a configuration of the American mind and the American legal system in American media, which is, this is a highly legalist country.
And so Americans want to know, were any laws broken? And Americans also tend to think if you didn't break the law, you did nothing wrong, because you can go up to the limit of the law rather than be bound bound by them. And as the laws get multiplied, as there ever more laws to violate, then if you don't violate the law, you must be in the right.
And the thing — I've been yammering this over and over again since the spring of 2017, is that if Trump was beholden to Russia, he probably did nothing illegal. It is not illegal for an American citizen to owe a lot of money to creditors in another country. That's perfectly legal. Even if Trump had colluded… it was a very nice question whether or not even collusion would be against the law, because it is illegal for a foreigner to contribute a thing of value to an American political campaign. But there's a lot of reason to doubt that information would count as a thing of value. And so even if they chatted back and forth, shared information, it's not clear that that was against the law.
And none of that should matter because it's not a legal matter. And so I've been pleading for three years, do not give this the department of justice, and with respect to our friends here, do not invite legal analysts on to MSNBC to talk about it, because they will start talking about the US code and that's got nothing to do with it.
What you need are former spies to convene a special independent commission that can go away for six months and get access to records, subpoena people, and find out what happened, even if no law was broken.
Harry Litman [00:36:06]: Yeah, I mean, it's manifest, is it not, that it was crazy that we even had the debate that when you're talking about impeaching a president, it can't be limited to crimes.
I mean, this prefigures the Woodward discussion a little, but if it's true that he purposely downplayed things and if it's true, whatever that would mean that it caused deaths, that would play out as a grave violation of public trust, the kind of thing that impeachment is there for and it'd be uncontroversially not a crime, but it's just stunning to me.
There's some frustration involved in his continuing to elude accountability. But what seems even more profound and grating is the country's inability to come to the fact of the matter of what the hell happened in so many ways. And even in 2020, the manchurian candidate hypothesis is not completely, it can't be taken off the table, and there's such basic things that will be the stuff of these books and historians and suppositions or nice storylines by the Bob Woodwards and Jeff Toobins of the world. And that's a hell of a way to treat such a, such a grave national chapter.
David Frum [00:37:15]: Anyone who's visited the website law of the day will understand the absurdity of the concept that you impeach the president for breaking the law. That the president goes fishing and catches the wrong kind of mackerel on the wrong day. You're not gonna impeach him for that. The first lady misperceives the age of one of her daughter's friends and serves alcohol to a minor in the white house.
You're not gonna know. There's just, there's so many things that are illegal that of course you wouldn't impeach the president for. And then there's so many things that are, you would impeach them. As I said, it would not be illegal for private citizen Donald Trump to owe a hundred million dollars to Russian creditors. And yet I’d remove him from office if he did that, wouldn't you?
Harry Litman [00:37:52]: Yes, is the short end. I mean, when you, when you have any kind of grownup analysis of the public trust that he's sworn to uphold, it does put the criminal code, I agree, beside the point, and it was a funny kind of political dynamic that that replaced what really ought to have been the true inquiry.
All right. Let's talk for a couple minutes about Woodward and with the headline revelation of the president's saying, ‘Oh yeah.’ Even as he was assuring the country it was no big deal. We have it under control. He knew this was, or he asserts now too, that he knew it was gravely serious. That really seems another kind of instance of what you were just talking about, David, that's as grave a transgression and, and breaking of national trust as you can imagine. My first question is, why do Trump and others, you know, talk unguardedly in this way to Woodward, do they, how does it work out that he gets this kind of information that seems so against Trump's interest.
David Frum [00:38:47]: Well, I joked on Twitter that it's a very simple explanation that Trump made the classic error, which is he thought he had the sharks with laser beams, in fact, they were sea bass with flashlights, and he left the fish tank guarded by Jared and by Don Jr. And of course, Bob Woodward escaped after Trump confessed the evil plot, but I think there's something else that's going on here.
And I've wrote a long and not flattering review of the first Woodward book and I have another long and not flattering review of the second Woodward book coming out, that the Woodward method is a series of transactions where he pays for information by offering to allow you to disparage your opponents and aggrandize yourself.
And if you are nimble at that game, you get Alan Greenspan's Maestro, you get this hagiographic treatment, right. And if you're less good than Greenspan, but still pretty good, you got the first Bush at War book. And then as things, if you don't play the game as well, things are bad. Look, Donald Trump negotiated a pretty good deal for the first Trump book, because the price, what Woodward paid was that he became a leading media attack dog on the Russian story in 2017.
People forget this, but Woodward was out there saying there's nothing to it. It's a hoax. He derided it. Partly because it wasn't his story, but partly because that was the price of doing a deal. Now what happened in this book, I started to sort of in the Atlantic, was back in 2017, Woodward thought that Trump was a savvy figure like Greenspan and you had to pay, what he figured out was Trump is the Schmendrick of all Schmendricks. You don't have to give them any, anything, and he'll keep talking.
Harry Litman [00:40:15]: You don't even need the nickel, he just keeps talking.
David Frum [00:40:18]: But what Woodward is also a genius at, is repackaging stuff you all already knew as if it were new. So here's the big headline reveal in the Woodward book is that on March 19th, Donald Trump said, I am I'm deliberately downplaying COVID.
Trump said that on television, on March 17th, he said, back when I was saying it wasn't a pandemic, I knew it was a pandemic, even when I was saying it wasn’t a pandemic. He said it on TV. And the reason I think we focus on Woodward is Woodward gives us this feeling we're hearing something secret. And only secret things are wrong. So if the president was taking bribes, in a briefcase, five stories underground, that's news. If the president builds a hotel on Pennsylvania Avenue and puts his name on the door and takes bribes there and we can all see it happening every day, that's not news because it's all happening in plain sight.
Juliette Kayyem [00:41:06]: Yeah. It's so funny you say, cause I had the same reaction a little bit of the Woodward thing. I want to just step back and just, there is something, there's like a generational aspect to this that, you know, if I’m important enough for Bob Woodward to want to talk to me, I must be a big deal, where if you talk to my kids or like, what the hell?
So that was a long time ago, mom. So there's something about, Woodward's very presence and existence made Trump feel like a president in ways that he's constantly trying to prove himself. I mean, we have a president who yesterday took credit for the auto bailout, which happened in 2008. I was about to tweet, but then my husband, who's my good at Twitter editor told me not to, we're two weeks away from Trump claiming he's the first black president. Like, I mean, he's just like, basically, he's just trying to figure out, you know, what is, what does Obama have a claim to?
And I want it next. Right? So that's the first thing. The second is, in Trump’s world, I do believe that it is better to be deadly than wrong. And that's what I think was happening, that he could, he had to start fessing up to the fact he knew it was going to be a pandemic because if he had missed that, that means he's wrong.
So he didn't miss it, it means he's deadly. Cause he didn't prepare us, but in Trump's world, it is better to have to excuse 200,000 dead than that Donald Trump was wrong. And so he's been on this, ‘I knew it, I knew it was coming blah, blah, blah,’ for a while.
And I think, you know, Woodward just puts it out starkly, but if you were listening closely, this was a man who wanted to be clear that he was never wrong.
David Frum [00:42:47]: That's a great point, one more follow up. The first reported American death from COVID is February 28th. The real deaths happened a little bit earlier, but I'm not gonna know the toll as of the 19th of March when, when Trump spoke, but it would be not that big.
And what he was saying at his press conference when he, yeah, when he said I knew it all along cause I'm such a smart guy, was not as catastrophic as it would become in April and May. So it was partly because Trump was so unbelievably ignorant about what was happening, that he felt it was a smart move to try to look smart by taking credit for it.
Harry Litman [00:43:17]: Yeah. One more quick, related point, the flip side of what Juliette says, uh, you know, Woodward basically offers social acceptability, the kind of thing he's craved and always escaped him, say in New York. And of course in Woodward's world, which is about, as he puts it, ‘the best obtainable version of the truth,’ you're taking huge risks if you don't play ball, those are the people who might have the biggest trouble.
Alright, we’re out of time in a fantastic discussion. We just have a couple of seconds left for the Five Words or Fewer feature, and I’d like to call an audible here and go with the news that broke just as we were recording on Friday, and that was about Nora Dannehy’s resignation from the probe led by John Durham, and she resigned not just from the probe, but from the department, which is a really extreme move and suggests that they were being asked to do something that she found antithetical to her role as a prosecutor. And let me just add that Nora Dannehy, anyone who knows her knows shes a very respected long time serving career prosecutor, unimpeachable integrity, judgement, the whole package. Alright, so I just ask in Five Words or Fewer, if her resignation will in any way derail or hobble the report by Durham? Frank, wanna start?
Frank Figliuzzi [00:44:45]: Nora’s resignation weakens Durham’s report.
Juliette Kayyem [00:044:49]: Okay. So I have one: yet again, woman calls bullshit.
Harry Litman [00:44:58]: I don't, I don't know. I think we're silenced after this, David. But do your best.
David Frum [00:45:02]: I'll try it because, just to set it up, I've had acquaintances who have been summoned to talk to the investigation or invited because some of them were foreign nationals. And my advice to all of them, and I will say here in five words is: Talking? Record it. And that I think no one should go to that meeting with any presumption of good faith, and they should have their own audio and visual record of everything that happens, and of the questions are asked. And because this is not a legal inquiry, there is no reason at all that if you are interrogated and you ask or ask questions that you can't record it and post it on the internet and you should.
Harry Litman [00:45:34]: And by the way, it's not a legal inquiry, but what the hell is it? Because where does the department of justice, which isn’t supposed to influence elections get off in issuing a report potentially before the election. It's the equivalent of the thing that Comey was so pilloried for. Making the gratuitous editorial comment about what Hillary Clinton had done and the process of saying we're not prosecuting her, why this is something that the department releases to the public is beyond me. Nevertheless, I will say: no, but already not important.
Thank you very much to Frank, David and Juliette, 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. And you can check us out on the web, talkingfeds.com , where we have full episode transcripts. You can also look to see our latest offerings on Patreon.com/talkingfeds , where we post discussions about special topics exclusively for supporters, you will find there this week the three episodes about the Office of Legal Counsel, the White House Counsel, and the Solicitor General’s office, and later in the week a 1-on-1 interview between me and Pennsylvania Attorney General Josh Shapiro. 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 from Matt McArdle. Our consulting producer is Andrea Carla-Michaels. Thanks very much to Neil Brown, Jr. for explaining the federal crime of insider trading, and our gratitude 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.
