Harry Litman [00:00:06] Welcome to Talking Feds, a round table that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman. We are finally, barely, pulling into port after a four year series of storms that nearly sank the ship of state on multiple occasions. And what a battered wreck we are: the country on lockdown for the upcoming inauguration out of fear of terrorist acts by violent extremists loyal to President Trump. Trump himself ending his term, disgraced, impeached for a second time, and awaiting trial in the Senate. 400,000 Americans dead from a virus that has been completely mismanaged, a dysfunctional political life, a middle class in economic shambles, and the country humiliated around the world by the bedlam at the Capitol. The president is going out as he came in: screaming, lying and acting like a jerk. The first president ever to be impeached twice and the first in over 150 to boycott his successor's regularly scheduled inauguration, which President elect Biden called, "one of the few things he and I have ever agreed on."
But he has a return ticket for his second impeachment trial, which has the genuine prospect of returning the first Senate conviction of a president in US history. After a tenure in which he lied and bullied his way out of trouble again and again, the president has gotten mauled in his last days in office, and growing numbers of Republicans and Democrats are determined to keep him from ever serving in political office again. So on the one hand, we're a mess, but on the other, we've weathered the Trump years and returned an adult to the White House. Things are looking up. To work through the implications of another tumultuous week and assess where things stand at the advent of one of the most important transitions of government in US history, we have three great guests, all brilliant commentators, friends of the podcast and proven warriors for the rule of law, and they are:
Natasha Bertrand, a.k.a. Scoop, the national security correspondent at Politico and a political analyst for NBC and MSNBC, where other writers tune in to figure out what they've been missing. Previously, a staff writer for The Atlantic, Natasha has been among the leading correspondents covering the US intelligence community and the impeachment inquiry. Natasha, thanks so much for being here.
Natasha Bertrand [00:02:53] Thanks for having me.
Harry Litman [00:02:55] Al Franken, the United States senator from Minnesota from 2009 to 2018, and current host of the funny, trenchant and very popular Al Franken podcast. He's also a world renowned, or certainly an Upper West Side of Manhattan renowned writer, comedian and author. Thanks very much, Senator, for returning to Talking Feds.
Al Franken [00:03:21] My pleasure.
Harry Litman [00:03:22] And Norm Ornstein, a resident scholar at the American Enterprise Institute, co-host of A.I.S Election Watch, a contributing editor for the National Journal and The Atlantic, and one of the country's foremost political thinkers. He has, in fact, been named one of the top 100 global thinkers for his role in diagnosing America's political dysfunction. So very apropos at the end of the age of Trump. Norm, thank you as always, for joining us.
Norm Ornstein [00:03:53] You're welcome, Harry. As of January 1, I am actually an emeritus scholar.
Harry Litman [00:03:57] Well, congratulations.
Norm Ornstein [00:03:59] Yes.
Harry Litman [00:04:00] OK, let's start with the continuing fallout from the storming of the Capitol and Norm, emeritus or not, your productive week in-week out, including this week when you've written about the shocking ease with which the terrorists were able to overpower the Capitol Police. That's going to be a subject of congressional investigation, but are we any closer to understanding it than we were nine days ago?
Norm Ornstein [00:04:27] We may be a little bit closer to understanding it, but we're no closer to having a plan if something like this happens again, if it happened this time, that we would be assured that we could have a Congress functioning and operating. It was 19 plus years ago that we had the September 11th attacks, we have talked about what we would do with a foreign terrorist trying to attack the Capitol. United 93 was headed there, and yet we could have seen even greater mayhem and more loss of life, and we probably came closer than we should have with an attack from domestic terrorists, and that we were not prepared for it, that we have done nothing in the time since 9/11 to plan for these sorts of things is very unsettling. And the other thing I would add here is it's not just a question of whether somebody could have gotten in with a bomb and blown up the capital from inside instead of having a plane hit it, we have razor thin margins of majorities in the House and Senate. If somebody just decided to take out a selected small group of members of the House and Senate to change the majorities, which could have resulted in a very different outcome in the counting of electors, that itself would be devastating. And we don't have a plan in place to make sure that if something like that happened, it wouldn't result in mayhem.
Natasha Bertrand [00:05:53] Yeah, and the National Guard was actually told to be prepared and to anticipate IEDs being brought into the Capitol in the days surrounding the inauguration. So things like pipe bombs, Molotov cocktails, things that were already found last week during the insurrection, they were telling the National Guard that they need to be prepared to respond to something like this, which freaked a lot of them out, frankly, because that's not part of their usual training. So we were hearing from guardsmen who were like, this is not what I expected when I, when I thought about being deployed to Washington, D.C. But it's a very serious threat. And it's surreal being in downtown D.C. right now and just seeing the presence. A lot of these warnings that they're getting also concerned the fact that these individuals are planning to come armed, heavily armed. And that's why the National Guard in turn, has now been authorized to carry arms of their own, so a lot of them are coming around M4s, M9 handguns, and they look pretty scary, but a lot of these folks don't seem to be the protesters and the insurrectionists. It's unclear what they're actually going to be deterred by that. We'll see what happens.
Harry Litman [00:07:06] But just again, about the overwhelming of the Capitol Police. Al, you lived with them and kibitzed with them for several years as a senator. I think of them as a little bit in between a campus police staff and a real municipal staff. Do you have a sense, just from your experience with the Capitol Police of what happened?
Al Franken [00:07:28] Well, you know, I always felt very secure there, and I always felt that these were guys who felt like more than campus cops. We've lost Capitol Police in the history of the country before. These are pretty serious law enforcement guys. Harry Reid had actually been a Capitol cop. I was very surprised by some of the reports that they weren't set for us. I don't I don't think this is their fault, though. I mean, somebody really screwed up,a number of people really screwed up. This should never have happened in the way it happened, and I don't think it's necessarily a reflection on any of them or at least on the vast, vast majority of them.
Harry Litman [00:08:10] Norm, you actually raised the possibility, a little teaser in your USA Today article of complicity, that they were complicit?
Norm Ornstein [00:08:18] Yeah.
Harry Litman [00:08:18] Did you mean that there's actually sort of advanced coordination with somebody in the police and the demonstrators, I should say, terrorists?
Norm Ornstein [00:08:28] Well, we do know that there were at least a few of the police who directed some of the mob to come in, opened the doors for them, removed the minor protective barriers, took selfies. But there are other things that we know, Harry, and we're not sure where they came from. We know that many of these people had maps of the Capitol. And we know that just as one example, Jim Clyburn, the number three leader of Democrats in the House, if you've been in the Capitol, you know that there are visible offices for the speaker, the majority leader, the minority leader and the whips, but all of them also have unmarked hideaway offices on the third floor of the Capitol that have no markings on them. And what Jim Clyburn says is they went right past his official office to that hideaway. They knew somehow where the hideaway was. Now, that could have come from one of his colleagues, and we have some evidence, of course, of members of Congress violating the order not to do tours of the Capitol the day before all of this, taking some of the people who were in that mob around. But a lot of them wouldn't know where these hideaway offices are. So somebody was given them inside information, and one hopes that all of the investigations going forward, we'll find out who that was or who they were.
Harry Litman [00:09:49] That's a really good point, because I don't think we have a strong sense, at least I don't have a strong sense of exactly who they are. At first on the television, they looked almost like kind of ragtag festival, but it became clear, it has become increasingly clear since then that whatever else they may be, they are a well-organized and very determined group of domestic terrorists. Do we have a good hold on who these guys are, how many groups they are, what kind of resources they have at their deploy? Or is that still very much completely murky?
Natasha Bertrand [00:10:30] I think it's still a little bit murky. There was an interesting report yesterday in Yahoo about how there were large Bitcoin payments that were made to several right wing groups in advance of these riots. And obviously the funding that some of them received either to travel or to arm themselves or to organize, that's going to come under a lot of scrutiny. I think that there's definitely more to learn about that. But as of right now, it does seem like they just used whatever was at their disposal to beat cops, to enter the Capitol. They were beating them with lacrosse sticks and flagpoles and fire extinguishers that they found. And some of them did seem to have some kind of advance knowledge or some kind of understanding of what the Capitol complex looked like.
They had maps of the tunnels, for example, in the building, but it's unclear whether they would have gotten that from members themselves or from some Capitol police who may have been involved, or if this was just stuff that they were able to kind of scrounge up on the Internet. That's still being investigated, some Democrats have hinted strongly that there was some kind of involvement by their Republican colleagues, and there's definitely a question of these tours that were being given the day before by Republicans to some groups who ended up being part of the riot at the Capitol. So all of that's going to be investigated, but I do think that the level of coordination surrounding this is still unclear. There was the Stop the Steal campaign, which was led by this right wing activist called Ali Alexander that was doing a lot of the coordinating with these groups. But how far up did that go? That's also unclear at this point.
Al Franken [00:12:15] I just don't understand the intelligence failure. I mean, you asked me about the Capitol Police and they seem like really dedicated, nice guys. And also, by the way, I can't blame a Capitol cop for taking a picture with somebody in that situation, you're improvising. And I don't know that if taking a photo with somebody isn't calming them down. While they're taking a photo with you, they're not doing something terrible. These guys are so overwhelmed that it was ridiculous, and to me, it all points to an enormous intelligence failure by the FBI. But it seemed like the FBI had some warnings that they didn't report up the line, and I can't believe that. I didn't believe that Christopher Wray wasn't there at the first press conference. All of this seems really shoddy to me.
Natasha Bertrand [00:13:08] Yeah, I think that this is more a failure to act on the intelligence than a failure to collect it. They had ample warning. I mean, all you really need is an Internet connection to see what they were planning and what they were talking about on these chat rooms. And the FBI did collect that kind of intelligence.
Al Franken [00:13:25] The FBI has that, right?
Natasha Bertrand [00:13:28] Yeah, shockingly. But not only do they have access to what they were saying online, they also had confidential human sources that were feeding them information about what was potentially going to take place. The intelligence arm of Capitol Police apparently compiled their own report three days before the insurrection, specifically saying that Congress was going to be or could be at least a major target, that they wanted to attack lawmakers, that's according to The Washington Post last night. So it just there was a failure of imagination, I think, in what the law enforcement officials actually believed they would end up doing, but there was no failure of intelligence here. I mean, even reporters were sounding the alarm about this for weeks and weeks beforehand. And with regard to the Capitol Police taking selfies and all of that, I think you're definitely in survival mode in that instance, and there was another police officer that was wearing a MAGA hat who said that he put it on because he was trying to steer clear of violence from the protesters and he thought that would calm them down, but I think the bigger question obviously is like, OK, why aren't you putting handcuffs on these guys immediately? Maybe they just didn't have the resources for that. It's just, it's an open question.
Norm Ornstein [00:14:36] I just want to add a touch of skepticism on the latter. We know that there were a number of off-duty police officers who went into the Capitol to contribute to the mayhem, holding up their IDs to say, 'I'm one of you, it's OK.' We know that police forces all over the country have been infiltrated by white supremacists, as we see in the military as well. It would be quite surprising if you didn't have at least a few of them with the Capitol Police. I do think most of the Capitol Police, the overwhelming majority who were there, were heroic in every sense of the word, they were failed by their own leadership because they didn't have the adequate equipment or the numbers. They had the same number of Capitol police that they have any time the House or Senate is in session instead of their bolstered numbers. We know that the soon to be, if not now, I guess it was as of yesterday, resigned head of the Capitol Police has said that he requested reinforcements and that the sergeants at arms in the House and Senate multiple times rejected his request. But we also know from a number of members of Congress who talked to him in advance and said this is going to be terrible. He said, we got it under control, no problem. So how much of this is a failure of imagination?
And certainly there's a racist element here, when Black Lives Matter comes to demonstrate with what is clearly a peaceful demonstration, they bring them out in big forces with riot gear. This time because it's a bunch of non-black demonstrators, it was there just you know, they talk a good game, but they never do anything or how much of it was something that is more troubling. And I hope we get an investigation that will deal with this. I can tell you that the Capitol Police have been, as a leadership team, totally arrogant. That Tim Ryan, who chairs the subcommittee that oversees them, has tried over a long period of time to get any information or data from them, and they basically brush it aside. I know outside groups think progress, Daniel Schuman did an investigation of them. The more questions he asked, the more pushback he got. And then he got a communication from the head of the Capitol Police basically saying, 'we have you on our radar,' which is pretty intimidating thing. So there are real questions to be raised here about the leadership of this organization.
Harry Litman [00:17:04] Let me just say a few things from a law enforcement perspective. First, Norm and everyone, you're 100 percent right and it's just not clear. It's what an investigation needs to answer and will answer I think, whether the kind of friendly approach to the terrorists was a little bit spontaneous and an audible on the ground, or whether it did come down from on high. In terms of the intel and what Scoop is saying, it always looks terrible and they're excoriated after and there is a huge problem of coordination among law enforcement. But often it's a matter of too much intel, not not enough. And we now we're able to discriminate going forward and see what should have been plucked out like Mohammed Atta's flying lessons, but they look different in real time. But one silver lining or whatever you want to call it here is, as Norm mentioned, the confidential informants, the groups. What we do know, and I know this from my own experience, they are intensely social and I mean chatter on social media, et cetera. And it's going to facilitate the task of federal law enforcement to find people to talk and be able to do the whole scorecard line up of what happened. But it's going to be, I think, a very big investigation. All right. Everyone's now, of course, hunkered down for the inauguration and all over the country, Natasha described the presence in Washington, but what about the possibility of something heinous happening in a state capital?
Al Franken [00:18:42] I think that the big headline here is just how big this MAGA anti-government force, terrorist force is in this country. That was a lot of people, and also how coordinated they were and how widespread they are around the country. And so, yeah, we have 50 state capitols. I don't think I'd have the capitol open that day and have it pretty locked up. But this, just the extent to which we have right wing militia and these anti-government forces and that this kind of almost succeeded on this one day. And it seemed like it was a real concentration of the leaders of those different militias there in one spot, which again takes me to the intelligence. And as Natasha was saying, all you gotta do is be online. It just seems like a giant, giant intelligence failure and a giant failure of imagination. But as far as these on Inauguration Day, this is going to be tense is Lansing, it's going to be tense in Sacramento, it's going to be in St. Paul all over the place. I was in D.C., I was in the Capitol. I saw more troops there than I had seen when I was in Iraq or Afghanistan. I mean it is an armed city, and I feel like they know what they're doing and I feel like it's going to be safe, but my goodness, this is very disturbing from the standpoint of where this shining city on a hill seems to have a lot of security problems.
Harry Litman [00:20:22] That's exactly it. And by the way, of course, that's the goal of terrorists, right? Everybody's jumpy and cities are in the kind of military lockdown, that's part of how they achieve it. So have we seen a pivot point here in this country, are we becoming like Israel or other countries that just have to adjust to the permanent presence of terrorists within? Guards at the school and restaurants and the like?
Natasha Bertrand [00:20:49] Well, I'll just say that I was speaking to Mark Hertling and he, with regard to the IED thing and all of the threats that we've seen to the Capitol and other state capitals, and in recent weeks, he was pondering the question of whether this indicates that there's a new insurgency in this country and whether that means that, to your point, we need to now anticipate cycles of violence moving forward just from this kind of latent insurgent movement of the right wing and the white supremacists. And that's not going to go away during Joe Biden's administration. So I think it's a really interesting question. You know, I don't want people to freak out and think that all of a sudden we're in the middle of an insurgency in the United States, but at the same time, these actors have proven themselves to be very violent, whether it's plotting to kidnap the governor of Michigan, whether it's storming the Capitol and very willing to die, frankly, a lot of these people say that they are not afraid of death, and that they will fight to the death for this country. And maybe that's all bluster, but at the same time, it's what you'd expect to hear from a terrorist, right? So I think that it's definitely a question worth considering in how we address it moving forward.
Norm Ornstein [00:22:11] Y'know, I think there are two groups, or maybe more, of people here. Some are those who have been motivated by Trump and in other ways, just as Natasha said, to believe that this is a noble cause and that they're trying to save the country from the left wingers who are illicitly taking it over because the election was stolen. Some are white supremacists who've been angling for a long time with the wish of creating a race war, having the country go down in flames so that whites can reclaim their place in the society. You have a group of people, some of whom have talked openly about it, who stormed the Capitol, who thought that because the president had told them to do it, there wouldn't be any difficulty here at all, that what they were doing was absolutely legal because the president told them to do it.
But also, if they got into trouble, he'd pardon them anyhow. Now they're calling for specific pardons for it. We talk about intelligence failures, thank God we had intelligence that uncovered the plot that could have kidnaped and assassinated the governor of Michigan. And also keep in mind that the Republicans in the House who voted for impeachment now are saying that they're wearing body armor and that they're frightened for their own lives. So this is not a problem that's going away in the next few weeks. I would say, and we'll get to this topic in more detail, that if Trump is taken out of the picture, at least through a conviction, that one of the great incitements, the threats that could lead to greater violence, will at least be reduced a little bit because much of this is coming right from Donald Trump and his direct acolytes.
Harry Litman [00:23:53] Yeah, I think that's the big question. And has he let the genie out of the bottle and it's more powerful than he is? If Trump were out of the picture, would they just be moving on because they're indomitable? Or is it really tied to his particular case as a charismatic leader?
Al Franken [00:24:10] And let's give credit where credit is due. And that is not just Donald Trump, but to politicians like Ted Cruz and Hawley and Ron Johnson and these Republicans who kept insisting that the election had been stolen, and for no reason, against all evidence that we saw. And there's a plot against Whitmer because of COVID. We were told by Ted Cruz in July, I believe that well, you watch on November 4th, no one will talk about COVID again, this is all just a hoax. And you heard that from the president as well. And so this has been a project of Donald Trump's. And, you know, it's no wonder there was a riot on the date that it was, it was the day that they were going to certify President elect Biden and they were there to stop the steal. There is no steal. There was nothing. By the way, Cruz and Holly and the rest of them, Ron Johnson, they need to have ethics investigations against them, they should be expelled. They caused this. They knew what they were doing.
Harry Litman [00:25:37] It's now time to take a moment for our sidebar feature, which explains an important topic in the news, that topic today is whether a presidential pardon, in particular Trump's of Manafort, Steel, Stone and other cronies who may have inculpatory information about him could also constitute a crime. And to explain it to us, we're really fortunate to welcome Rob Marshall. Rob is an Academy Award nominated film and theater director, producer and choreographer, best known for directing the film version of Chicago, Mary Poppins Returns and Into the Woods. He's received many awards for his direction, including the Directors Guild of America Award for Outstanding Directing of a feature film for Chicago, along with five Tony Award nominations and four Primetime Emmy Awards. So I give you Rob Marshall and can a presidential pardon be a criminal offense as well.
Rob Marshall [00:26:40] Can a presidential pardon constitute an obstruction of justice? Since losing the election, President Trump has gone on a pardon spree. His pardons have included Roger Stone, Paul Manafort and others involved in special counsel Robert Mueller's investigation of the Trump campaign's relationship with Russia in 2016. Could those pardons themselves be crimes, specifically attempts to obstruct justice? The short answer is yes. Trump has arguably used the pardon power to influence the course of justice during his administration. He has seemingly dangled pardons, i.e. held out the possibility of a pardon to encourage witnesses not to provide damaging testimony against him. He has also executed the related commutation power in the case of Roger Stone, to remove the pressure that might have induced Stone to cooperate. Trump has argued that a presidential pardon cannot constitute an obstruction of justice. His lawyers wrote special counsel Robert Mueller in connection with the Russia probe that he couldn't have obstructed justice given his constitutional power to simply terminate the inquiry or exercise his power to pardon. Trump himself weighed in on Twitter with his legal opinion that, 'as has been stated by numerous legal scholars, I have the absolute right to pardon myself. But why would I do that when I have done nothing wrong?'
But Trump's position doesn't hold water. Obstruction of justice under federal law occurs when a person has specific intent to interfere with a pending proceeding, such as a trial or grand jury investigation. It's clear that a president can have the corrupt intent. Imagine, for example, that Trump had made express private statements to Manafort of the sort that his public statements hinted at, offering him a pardon if he refused to cooperate with a probe of the president, and both parties proceed to follow through with the bargain. So if a president satisfies all the elements of obstruction of justice, especially corrupt intent, he can be guilty of the crime. To hold otherwise would be to assert that the president is above the law. It would also contradict history: Richard Nixon was impeached for obstruction of justice, for ordering the FBI to stand down on the investigation of the Watergate burglars and paying off the defendants to keep them quiet. Of course, the case of the president can present challenging legal and practical questions of enforcement, but that's a separate question. And in any event, in Trump's case, an indictment for obstructing justice would come after he leaves office. For Talking Feds, I'm Rob Marshall.
Harry Litman [00:29:15] Thank you very much, Rob Marshall, for explaining whether a presidential pardon can also be a criminal offense. Rob is currently directing and producing the new live action version of The Little Mermaid set to release in July 2021.
Let's talk a minute about the president, because we had an impeachment of a president this week, the fourth ever, half of them belonging to Trump. First, what was this 25th Amendment? Was it a gambit? Everyone knew that Mike Pence wasn't going to go that route, but they served it up first. What were the tactics there?
Norm Ornstein [00:30:47] One thing is, there were three ways to get Trump out of there for the final 10 days where he had the full powers and has the full powers of the presidency. The first and most clean way is just to have him resign. I think when Mitch McConnell said, well, you know, I'm kind of open on the impeachment issue and I will let my members decide, that was much more to try and get Trump to get him out of there, which would serve his own interests as well as those of the country. The second, which is also a fairly clean way, is the 25th Amendment, which is at least for a period of time, the vice president and a majority of the cabinet could push him aside, even if he objected that there's a time frame for Congress to either put him back or keep him away. And while it wasn't going to happen, I think that Nancy Pelosi had a very sound political strategy, which is to say, we'll give you 24 hours to do your duty, and if you don't, then we have no choice but to move forward. So, of course, Pence wasn't going to do it, although he had every reason to do it after Trump came so close to getting him killed.
Harry Litman [00:31:59] It does seem like Trump is so alienated from everyone in the party now, that there is no figure like Goldwater to Nixon in '74 to walk up and have a quiet talk with him.
Norm Ornstein [00:32:14] I think the one figure who will, when all of this is over, claim that he did that is Lindsey Graham. And Lindsey Graham is going to try to erase the stain that he has. So many of these people are like Lady Macbeth, 'out, out, damned spot.' And that stain is not going away, but Lindsey is going to say, look, I understood how horrible he was, but I knew that if I played golf with him and I sucked up to him and I said all these things about him that I could whisper in his ear and he would listen to me, and that's ridiculous. But he's going to try and do that. But you're absolutely right, Trump has deliberately surrounded himself with nothing but sycophants. And you could see by the fact that as he's on his way out of office, who does he bring into the White House to consult with? The My Pillow guy who's telling him with his talking points, you can do martial law and you can find ways to get around this and keep Biden from becoming president. And that's where we are in the final days of this sorry episode in American history. Sad to say, like Al and me, he's a Minnesotan. It's a crappy pillow, too.
Al Franken [00:33:28] I don't know if it's a good pillow or not. I haven't tried the pillow. Might be a good pillow.
Harry Litman [00:33:33] All right. What are the complications for Trump that, though - so now we're going have a trial after he's out. I don't see any pardons happening of the insurrectionists, for example. What's it going to look like and how does he defend it when he has to be an ex-president on trial?
Norm Ornstein [00:33:53] I am so hoping he comes in to testify. That would be the end of him. So I would say there are a few questions here that we don't have answers to yet. One, when will Nancy Pelosi send the impeachment to the Senate? She has some real leeway here, and waiting a little bit is a smart move.
Harry Litman [00:34:13] Because?
Norm Ornstein [00:34:14] Well, one, it would be a good move to get through, at least in the early days when there is a Democratic majority that can control the hearings and the floor votes for his top nominees, cabinet, subcabinet and others, to move those through as quickly as they possibly can before you do this. Second, some of these investigations are going to go forward without being done by the Senate that will give us perhaps more damning information about the role that Trump himself played in this, and others may talk more about it. We may learn of coordination that he did with members of Congress like Paul Gosar, Andy Biggs and Mo Brooks, maybe with Josh Hawley and Ted Cruz and some others, that would add to the momentum for having a conviction. At the same time, you can't wait forever. But once you start, you can spend a period of time in a trial with investigations. And remember that as we wait, he's been impeached. If he pardons material witnesses to his trial in the Senate, not only are they at best. Highly questionable, clearly obstruction of justice, but it puts the spotlight on them so that when they're called to testify in the Senate, they have no Fifth Amendment protection and they are under threat of perjury, and we may get more information there. Waiting a period of time to see what he does on that front also is not a bad idea.
Harry Litman [00:35:48] Is Pelosi very much coordinating with Biden?
Norm Ornstein [00:35:51] I would be surprised if she wasn't talking to the Biden people because they've got an agenda. The first part of that agenda, and I would say that one of the most significant elements of those two elections in Georgia is the ability to move forward with his cabinet and subcabinet and other nominees instead of having them slow walked, as they would likely be, at least in some cases with McConnell. That's a really important thing for him to get moving. And at the same time, there's the question of his big COVID relief stimulus package, where they'd like to get a quick vote on it, and you may want to coordinate to make sure you can do that and not have it caught up in an impeachment trial.
Harry Litman [00:36:31] Do they want this? It was such a serious offense, there's no way around it. I'm sure they see that. But is this an unfortunate event for Biden for getting off the dime with his initial agenda, or are they good with it for the kind of solid repudiation of Trump?
Natasha Bertrand [00:36:51] Personally I think it takes some of the pressure off of, say, a Biden Justice Department to open cases into Trump. I don't know. I think that there's been conflicting ideas about how aggressively Biden should push for accountability and investigations of Trump and his family and things like that. And so I think that letting Congress do it and letting the Senate hold a trial is probably something that Biden would be inclined towards, especially because they're trying to work out a system whereby there would be confirmation hearings in the morning and then Senate trial of Trump later on in the day/in the evening. So they're trying to work out a system where they can walk and chew gum at the same time here. Yes, it is kind of a distraction, but also it might actually work to the White House's favor because they don't have to get caught up in a potential executive branch investigation into Trump and his family.
Al Franken [00:37:52] I've heard a lot of walking and chew gum kind of comments, and sometimes I, maybe I misunderstand the aphorism or saying. To me, when you say someone can't walk and chew gum at the same time, that's saying they're really stupid, because walking is very easy and so is chewing gum. Everybody on the planet, almost everybody can walk, and almost everybody can chew gum. It's hard to do an impeachment, and it's hard to do...
Natasha Bertrand [00:38:23] I didn't make up the analogy!
Al Franken [00:38:24] I'm just saying, I've heard it a lot. It's like, why can't they do the impeachment and the COVID thing? Well...
Norm Ornstein [00:38:29] That's a piercing point.
Al Franken [00:38:33] Sometimes a cliche gets turned on its head. Having an impeachment and at the same time doing at 1.9 trillion dollar COVID package, while at the same time confirming your appointments. That's, that's harder than walking and chewing gum. That's all I'm saying.
Harry Litman [00:38:52] Yeah. So we're more like being on a unicycle and juggling, but also they can do it. But at what consequence?
Norm Ornstein [00:39:03] You know, there's one other point to make, though, Harry. If you're going to take the long view from the Biden administration, you've got a 2022 election ahead, and it is critical for you that you don't have it come out the way midterms normally do, where the party of the president loses. The Republicans are vulnerable in the Senate. And an impeachment trial is no wonderful thing for those Republicans, they have a deeply divided party. A Pew poll, which is a very good one that just came out, shows Trump's approval at 29 percent, which is the lowest ever for a president leaving office. But remember that 29 percent is basically the hard core of Republicans who are with Trump no matter what, and there are a whole lot of others who are now appalled by what happened. You have Republicans who are going to have to confront the reality of a president who incited a mob to insurrection, and that's going to be very tough for them and divisive for them as well. So there is a tough, pragmatic political side to this where you are not going to be terribly unhappy that you have a minority party with its own house divided.
Harry Litman [00:40:15] Yeah, that's a great point, and it makes them have to stand up and be counted on this. All right. You know, we've touched on this in the last discussion, but it's a pretty big-ticket item on its own, that is the 140-plus members of the House of Representatives and the 12 or so led by Cruz and Hawley in the Senate apparently are being charged with potentially aiding the terrorists. But then more broadly, all of those who embrace the big lie, they really are at the core of the problem. So let me serve up an argument by Joe Lockhart, who says, 'lost in the impeachment debate was this whole big lie, and the baseless claim remains the primary source of domestic discord and potential future violence and political chaos. So until the president and Republicans are forced to reckon with that and presumably repudiate it, there's very little chance that our politics can or will return to the pre-Trump era.' I just wanted to ask you to react to that, because there's a lot of force. I do think the big lie propels it, but I also don't see most of the people who propagated it really doing a mea culpa. They'll just try to paper it over or forget about it.
Norm Ornstein [00:41:40] I'm skeptical that we're...
Al Franken [00:41:42] I'm not sure they have a real motivation to admit there are, because if you look at the percentage of Republicans who believe the lie, it's sufficient in the polling that I've seen.
Harry Litman [00:41:56] Still. One more point to add, Norm, because you made this point about the 29 percent, but of course, that might translate their immediate calculations will be at the primary stage and that might translate to 60 percent, 70 percent of Republicans still. And they might decide to tack in that direction for 2022.
Norm Ornstein [00:42:17] This has been a problem for the Republican Party. It was a problem because they had this rogue guy who put them in the wrong place. And once he's gone, we can be back to where we were and business as usual. But there's another reality with most Republicans in the House and at least some in the Senate: this is not a traditional political party, Harry. It's a cult. It was a cult before Trump where the motivating factor for so many members, even doing things that they knew were ridiculous and wrong, was the fear of being shunned or excommunicated. That's still there, but now you have a whole lot of true believers. The House Republican conference has probably no more than two dozen members who understand how bad this has been, and how awful Trump is, and the rest, a whole lot of them believe it and others are scared to death of that primary.
And we know that a significant number of them are scared to death for their own physical safety. Now, does that change? Is there going to be some epiphany here? No. What McConnell is counting on is that by the time you get to 2022, that the Republicans who were turned off by Trump will revert to their tribal identity and will, as so many of them did in votes for the House and Senate this time, even if they voted against Trump and they'll be back in line, and that the Trump people will be past it and that they can use a kind of campaign where they say you can't let those evil Democrats who are socialists and will destroy our way of life continue without a check and balance. That's the gamble here, but the fact is the party has gone so far down the cult path that it is not coming back any time soon.
Natasha Bertrand [00:44:04] Well, and don't forget, the Trump family is not going anywhere either. Ivanka is already positioning herself to run against Marco Rubio in Florida and Don Jr. is thinking about running for office. Laura Trump is also apparently positioning herself to run for elected office in North Carolina. I don't think that Donald Trump himself is going to run again in 2024 especially, this is part of the reason why so many Democrats feel it's so important to have this impeachment trial because it will bar him from running again for office if he is convicted, but these - the Trump children, Ivanka, anyway, are being kind of groomed to be the white washed face of the Trump family moving forward and carrying on that legacy. And I think that there are, given the name recognition, they stand a chance. So I think that a lot of Republicans also don't want to completely distance themselves because they could be ascendant in two or four years.
Harry Litman [00:45:03] So all three of you think, if I, if I hear it right, that even if Trump himself is disabled by a vote post impeachment or a criminal conviction that keeps him from running, you think the overall effect on the, on the political divide is marginal? That fair? You think this plague remains on our house as long as the House of Trump is active.
Natasha Bertrand [00:45:30] I think so.
Norm Ornstein [00:45:32] That remains to be seen.
Al Franken [00:45:33] I think you have to pay some attention to how completely discredited Trump is in the eyes of the Republican Party, which is comprised of a lot of his followers. And I don't, I think the jury is out on - literally on that right now, that I don't know whether he, a very Trumpian landing on his feet happens.
Norm Ornstein [00:45:58] I think there's some serious legal jeopardy for the Trump kids. We know that Ivanka and Don Jr. should have been convicted a long time ago, that it was only because Cy Vance Jr., the D.A., basically overruled his own staff with what appears to be pretty ironclad evidence that they misled and bilked people who were trying to buy condos in one of their buildings in Soho, and subsequently to his decision not to prosecute, he got a $10,000 contribution from Trump's lawyer, Mark Kassovitz, for his campaign. I don't think he's going to do that again because he's got a tough opponent next year. And their business dealings are just like their father's: reckless in a belief that they could get away with almost anything. So they may fight face serious legal jeopardy in New York and that could sidetrack them. At the same time, Florida, which after all, elected Ron DeSantis, which has the villages, which has all of these people in Miami-Dade who voted for Trump. If I were Marco Rubio, I'd be very nervous. If Ivanka Trump does not get prosecuted, does not end up with some kind of sentence, she could win. She can certainly beat him in a primary and very possibly win.
So I'm not entirely certain that the Trumps are going to be out of the picture. I would say that the reason Donald Trump wants to run again, not with any intention of actually running, is because that's one of his major income sources, now that his own brand has been soiled and so many of his suppliers and enablers in the business are moving away from it, they'll pull in a huge amount in contributions that he can use for almost any purpose that he wants. At the same time, it's not just taking away his ability to run again, if he gets convicted and they strip him of the perks of the former president, the huge sum of money that he could use, a million dollars a year in travel, a big staff, and all the money we know he's taken from taxpayers already by overcharging the Secret Service for golf carts while he's golfing for accommodations and meals, tens of millions of dollars that have gone right into the Trump coffers, that's what he's counting on as well. So there's, there are other reasons to get him not just convicted, but to strip away his ability to run and his ability to bilk the taxpayers.
Harry Litman [00:48:25] So that's the question. Selfies disabled, will people still have to kiss his ring because he'll have the power to primary them? Or will that really be the cutting in half anyway of Trump's influence on the Republican national scene?
Norm Ornstein [00:48:44] Donald Trump is a marketing genius, that's the one thing that he has instinctively. And my guess is he will market himself as a martyr, even if he has to cope with terrible legal problems in New York and maybe even Georgia, and that some share of the public, a significant share of Republicans will believe that and will stick with him enough that there will be Republicans in Congress who feel like it's in their own interest to kiss his ring or some other part of his large anatomy. So he's not going to go away completely, even though for the vast majority of Americans, I believe he will be utterly discredited and beyond any doubt is going to go down as the worst president in American history. And I would say one final thing, which is when the dust settles at some point on the pandemic, the misconduct of Trump and those in his administration, that resulted in hundreds of thousands of unnecessary deaths, of terrible mayhem because of the mental trauma that will follow, because of the physical trauma for millions with the aftermath of having gotten COVID, that is going to be a stain on him forever that will come close to equaling the stain from his misconduct as president more generally.
Al Franken [00:50:11] I agree with Norm. It's just hard to fathom him because I've always thought from the time he said, "I like people who weren't captured," I thought that was the end of him, and I just have been wrong, wrong, wrong, wrong, wrong. What's amazing is, sort of did he have it all the way to the end and then on January 6, just finally blow it? And that's my question. It's, it's either one way or the other. And I don't know what the answer is.
Harry Litman [00:50:42] I just wanted to follow up on the money point. You're totally right, like for this scandal, this big lie itself, he's raised like three hundred plus million dollars to toy around with. But we're going to find out, I think, fairly soon, he either is or isn't in real financial extremis. He may in fact, have way more money due than he can actually raise, and part of all his motivations might turn out to have been trying to stay slightly ahead of the debt collectors. If that's the case, I think it will come home within the next few months.
Norm Ornstein [00:51:22] One other final point to Harry on that front. Remember that there is a whole lot of evidence, probably some of it really damning and incriminating, in the bowels of the White House in deep freeze and elsewhere that we hope he and his minions will not be able to destroy. We know that they have these recordings that he did from The Situation Room with foreign leaders that were so unsettling to them that they took the unprecedented step of putting them in a deep freeze. When those come out, and we may find out of a more direct collaboration with, for example, MBS in Saudi Arabia,' you protect my holdings, maybe give me another hotel. And don't worry, you can kill Khashoggi and there won't be any fallout from it.'
Or communications with Erdogan and with Putin. And there may be things that he said or did when it comes to the child separation or some of these other areas that will be so damning that ultimately even a lot of his acolytes and supporters will have to get more distance from him. At the same time, we know now that Deutsche Bank and some of these other entities that participated in money laundering with him, once he's out of office, may want to get their own distance from him by coming up with more damning information about his collaboration with Russian mobsters and others. So there are more shoes to drop here than just the involvement in insurrection.
Harry Litman [00:52:57] Great point. All right, we have just a few minutes for our final feature of Five Words or Fewer, where we take a question from a listener and each of us has to answer in five words or fewer. And today's question comes from Ross Levinson, and it is: 'Will trump ever again run for public office?' Five words or fewer, Natasha?
Natasha Bertrand [00:53:21] No, but his children will.
Harry Litman [00:53:23] That's perfect, that's five words.
Norm Ornstein [00:53:25] Exactly five words. You nailed the landing, Natasha.
Al Franken [00:53:28] And mine is, 'I dunno.'
Harry Litman [00:53:32] How many is that? Three or one. I'm also with Natasha.
Thank you very much to Norm, Al and Natasha, and thank you very much, listeners, for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter @TalkingFedsPod to find out about future episodes and other Feds-related content. You can check us out on the web, talkingfeds.com , where we have full episode transcripts. And you can look to see our latest offerings on Patreon, where we post discussions about special topics exclusively for supporters. 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 Dawn Griffin are our contributing writers. Production assistance by Matt McArdle. Consulting producer: Andrea Carla Michaels. Thanks very much to Rob Marshall, Pittsburgh native and Falk School alumnus, for explaining to us how a presidential pardon can also amount to an obstruction of justice. Our gratitude, as always, to the amazing 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.
