Harry Litman [00:00:00] Hey, everybody, Harry here with a quick note on our offerings on patreon.com/talkingfeds . We have a new interview with Dan Goldman, counsel in the first impeachment trial on what he sees as Trump's most dangerous tactic yet of actual witness intimidation; an interview with Washington Post White House bureau chief Ashley Parker on Ted Cruz's excellent adventure, the junior senator's trip to Cancun when the state was frozen and suffering; and within a day or two, I'm going to be talking to constitutional law expert Laurence Tribe on the question, is the conviction and removal power in the Constitution a dead letter? Is there any way in which will ever be a serious threat? So you can go to patreon.com/talkingfeds to check that out and decide if you would like to subscribe. And for now, here's this week's episode.
Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman. It has been a week of intense storms, natural and political. Record setting frigid weather spread across the country from Washington to Texas, which was left with massive electricity outages, drinking water shortages and an AWOL junior senator. On the political front, immediately after the second acquittal of Donald Trump, Minority Leader Mitch McConnell took to the Senate floor to call Trump's actions, quote, 'a disgraceful dereliction of duty,' adding, quote, 'There is no question that President Trump is practically and morally responsible for provoking the events of that day.' Three days later, Trump returned fire, denouncing McConnell as a, quote, 'dour, sullen and unsmiling political hack.'
Many of the party faithful circled around Trump and denounced the handful of Republicans who left the fold to impeach or convict. The intraparty war is on, but how it will play out and what the party will look like when it's over remains unclear. Trump's post presidential life as a permanent litigant got off to a rousing start with a lawsuit brought by a member of Congress, alleging that Trump and Rudy Giuliani conspired with the insurrectionists to impede Congress's lawful discharge of its duties. And it appeared that the district attorney of Fulton County, Georgia, might be readying charges against him for tampering with the state election. Meanwhile, the federal investigation into the insurrection of January 6th has been steadily advancing and can only pick up steam when Attorney General nominee Judge Merrick Garland is confirmed this week as expected. To analyze these tumultuous developments, we have a fantastic panel of prominent commentators. They are:
Ashley Parker, Ashley Parker is a Pulitzer-Prize winning White House reporter and the White House bureau chief for The Washington Post. She has just penned a great article that is making the rounds about Ted Cruz's trip to Cancun in the middle of the cold weather crisis. Ashley previously spent 11 years covering Washington politics for The New York Times. She's a senior political analyst for MSNBC and NBC News. This is her second visit to Talking Feds. Ashley, thanks so much for returning.
Ashley Parker [00:03:59] Thanks for having me.
Harry Litman [00:04:01] Next, Norm Eisen. First time on Talking Feds, which is a surprise because we've known each other like forever. But he is a senior fellow now in governance studies at the Brookings Institution, and a globally recognized authority on law and ethics. He served as special counsel to the House Judiciary Committee during the first Trump impeachment in 2020, when almost everybody saw him questioning witnesses. And he's held a number of other important positions in politics, including White House Special Counsel for Ethics and Government Reform and United States ambassador to the Czech Republic under President Obama. He's also the author of two books with a third on the way, his most recent being A Case for the American People, The United States v. Donald Trump. Norm Eisen, thanks for coming on Talking Feds.
Norm Eisen [00:04:54] Thanks, Harry. Hi, everybody.
Harry Litman [00:04:56] And Lawrence O'Donnell, since 2010, the host of MSNBC's great show, The Last Word with Lawrence O'Donnell. Everyone knows him from there, but not as many know he has a whole shadow career in TV, including as a writer and producer on The West Wing, as well as playing President Bartlet's father in flashbacks in the show. He was also creator and executive producer of Mr. Sterling and had a role in Big Love. He got his, well start in Washington anyway, as a legislative aide and later the staff director of the US Senate Committee on Finance under Senator Daniel Patrick Moynihan from 1989 to 1995. He too is the author of two books, including one I really heartily recommend: Deadly Force, A Police Shooting and My Family's Search for the Truth, which is a great courtroom drama. Lawrence, thank you very much for coming to Talking Feds.
Lawrence O'Donnell [00:05:57] Great to be here.
Harry Litman [00:05:58] All right, let's just dive in. So we're still in the days following Trump's acquittal, which I thought triggered a very interesting diversity of opinion, including disagreement among people who often are on the same page. So a few more days more hindsight, and the view of what's beginning to happen in the Republican Party, which we'll talk more about, I just thought we could all weigh in on the basic question, was the result an outrage or was it good enough? Former president will posture, of course. But did his team basically lose, and does he stand convicted in history or is it just another acquittal and he's back for more trouble? Anybody?
Ashley Parker [00:06:42] I'll just briefly say his son, Eric Trump that day tweeted out '2-0', which is certainly an interesting spin on two historic impeachments, but yes, two acquittals. And so it's never good to be impeached. It's not good to be the historic person who was impeached twice, basically in a full calendar year. So I think history is probably the key marker for which a lot of people will be judging this.
Lawrence O'Donnell [00:07:11] Well Harry, I lIked your phrase 'good enough,' because it's an echo of something that President Biden said in his inauguration address twice, which is 'enough of us.' He used the phrase 'enough of us,' and he was using that in the section of the speech which was about unity. And it was recognizing that political unity, however we want to think about in the United States, has never been 100 percent. But for the most part, if you can get 57 percent percent to agree on something, you've pretty much got unity as we know it in American politics. And that's what you got in the United States Senate. You got 57 percent vote of guilty on Donald Trump, which mirrors the public polling vote of guilty on Donald Trump. And that's the only thing I was watching for from the outset, was how many Republican votes to convict, and will they get a majority vote to convict, which we haven't seen before in our 20th century and 21st century impeachment proceedings. Bill Clinton held the record high of 50 votes to convict. And so this was a very big achievement, and clearly we can see now, the most that it was possible to achieve.
Norm Eisen [00:08:28] So I'll bring up the rear with the sunniest assessment of that 2-0 record. I thought that they were, and further to Lawrence's point, on the first impeachment, when we got Mitt Romney's vote, that was the first time in American history that a senator had crossed the aisle to vote to convict a president of his or her own party. By that metric, the second time around crew, new managers, some continuity in the brilliant staff led by Barry Berke, who kind of was the analog to Jamie Raskin as the lead manager. He was my co-counsel, and then, you know, he absorbed all my dirty tricks and was the lead counsel on this go round. He is America's greatest trial lawyer, certainly there's no better. I've been doing cases with Barry for decades and there's no better trial lawyer, and there's no more brilliant constitutional scholar in Congress than Jamie Raskin. So they were a fitting pair and a wonderful crew. They were seven times as successful by the quantitative measure in picking up seven Republican votes. I could wax on about as a matter of the trial, lawyers are all the wonderful things that the team of managers and counsel did. And I think it sets up a lot of accountability to come, including criminal investigations and civil litigation. So, yeah, I thought it was a successful accountability enterprise, and really just beginning.
Harry Litman [00:10:08] OK, so I just want to add a couple points. I guess we're all sort of on the same page because I'm also with Team Sanguine here overall. First, just a quick point to follow up on norms, as a former trial lawyer. They were really good and got high accolades, but in some ways they were even better than it appeared. There were just many ways in which the organization of the trial, the sort of dynamics, the sharing of different roles and use of different counsel, the sort of rare but effective emotional high tones of what's at stake, and as a trial team, they were really very good. But that's a great point, Lawrence said, it actually 57 mirrors the American people, and that's one metric.
But I want to suggest it even goes beyond the numbers, because in stark contrast to the impeachment, in stark contrast to the Mueller report, I think we may find otherwise — in fact, we'll talk later in the show about some of the Republican reaction — but I think he just stands convicted on the facts. And lurid facts they are, right? Even the people who voted to acquit were on tissue-thin constitutional arguments, and I think it's just established to as large a degree as you say, Lawrence, as you're going to find in in a political question, he did this thing and he delighted in it and he made that call to McCarthy, etc.. So in that sense, the defenders of Trump going forward have to start in the hole with their guy being just clearly, whether or not convicted, a seditionist. And that's what I think is the outstanding result of the trial.
Ashley Parker [00:11:55] First of all, there really are no defenders of Trump. I mean, there's his lawyers who are his technical defenders, but as someone who covered both impeachment trials, as a White House reporter covering Trump, there's just such a stark difference between the first one and the second one. And the first one, and I don't see this as any insult to the American public because it applies doubly to myself, but the Ukraine matter was complicated and it was confusing. There were difficult names that felt like you were in a Dostoyevsky novel... I was, I'm paid, I'm paid to cover this. I'm paid to understand this. And I was always having to go to the person on our team who was the Ukraine expert to ask, well, so now who is this oligarch again?
And the second one, as you just said, Harry, is just so simple. It played out on real time in live TV. The president basically asked his supporters to do something, and then they did that thing. And it led to violence that everyone witnessed in real time, including five people dying. And so regardless of whether there was an acquittal as there was or a conviction, this is just something that intuitively every single person in the country understood and no one really defended. So no matter what you thought, is it constitutional now that he's not president or does it really reach inciting an insurrection? Everybody just sort of in general, human layperson terms, agreed this is despicable what happened. And that to me is kind of the difference between the two, and how they'll be remembered.
Harry Litman [00:13:23] Agreed. Just one more quick question, so Nancy Pelosi has now come out with a call for a 9/11 style commission, even though it's simple and we know most of it, there's a lot of behind the scenes communication, some of the things we're finding out actually in the criminal investigation about people who came, their coordination or lack thereof. Is that going to take and will everybody have the stomach for that? Will we see a whole big exhuming of the rest of the facts with large scale congressional investigation, do you think?
Norm Eisen [00:13:52] Well, the big issue is we've just begun to excavate Trump's engagement or nonengagement. That'll be the challenge to see what else can be shaken loose, including Secret Service type internal executive branch information. But it gives Pelosi a hiatus which she wants, the Biden administration wants. I think America wants a break from Trump. This will not be a fast-boil investigation. So we'll all get a break.
Harry Litman [00:14:22] Will it be a public one?
Lawrence O'Donnell [00:14:24] The models for this have all been public, but I don't think the models are going to work in this case. I think there's a very fair chance that this commission will never exist, because it has to be legislated, and it has to be legislated by both the House and the Senate. And there's no reconciliation provision to get it through the United States Senate. And so in the past, it hasn't been hard to do this, because you create an appointing formula. The speaker gets to appoint three members, and the House minority leader gets to appoint one or two, and the lower number and often equal numbers. So we know right now, we know right now that if Kevin McCarthy has appointment power to this commission, that Jim Jordan is going to be on the commission. And everyone in the House of Representatives knows that, everyone.
And Matt Gaetz is probably going to be on the commission. And the only question mark is, does Marjorie Taylor Green get on the commission? And so you've got something that isn't going to work, even if you pass it and you get people pointed to it. A Jim Jordan commission is not going to work the way we have seen these things work in the past. So you'd never get a unanimous finding of the commission, which is what they're always going for. I think there's a strong possibility that it will never exist, and there's a very short version of this investigation, which is there was no fence. And it's really the last area of the federal government that you can attack quite that way. Since Timothy McVeigh, when Timothy McVeigh blew up the federal building, everything changed.
You know, you couldn't have the same access even to the Russell Senate Office Building after that. You could no longer drive a car past the White House on Pennsylvania Avenue. And the reason we've never seen this happen at the White House is that they have a reasonably high fence that is not terribly unsightly. It doesn't look like some kind of, you know, horrific imposing fence that a dictatorship needs to protect itself. It's see through, you can still take lovely photographs there. And if you have that fence around the Capitol campus, which has been considered in the past, then this could not have happened. You would have had 1300 people gathered around that fence, and I mean, you saw the video of the initial entry to the campus.
It was one of these little things that you can just pick up, that they use for crowd control and temporary situations. They use them for orderly crowds that were going through ticket lines or something. They just picked it up and they threw the fence at the cops. And without that moment of being able to pick up and throw the fence at the cops, this doesn't happen. And, of course, it's the people's house, and so there's always been this feeling about we have to leave the campus open. There's no real rationale for that. There's no reason why you would make that claim about the Capitol grounds as opposed to the White House grounds. And so there was no fence, that's how it happened.
Norm Eisen [00:17:15] I have to say that year that I worked on the impeachment in the House, I would go to the cafeteria every day to get food. And I would be amazed at what a cross-section of America it was constantly wandering through that building. Every different part of our country represented on any day. Of course, I looked at that so fondly, I never imagined that that openness would be utilized for insurrection and riot.
Lawrence O'Donnell [00:17:45] Well, you know, they've already restricted access a great deal by building this underground visitors center that people have to go through the normal processes of getting in the buildings. You didn't have to do that 20 years ago, so they have they have over time significantly upgraded the restrictions on getting into congressional office buildings and getting into the Capitol. They've really heightened those restrictions over time and since 9/11. And the final one is the one that has always been resisted, which is just the fence. And I understand why it's been resisted, I wouldn't want to. And, you know, we always we have this silly phrase that's constantly, constantly repeated in this country, but that is basically 'we are better than this.' No, we're not. We're not better than rioting at the capital. We might have thought that on January 5th, it turns out this is what the country is. It's capable of big riots at the Capitol, violent riots at the Capitol. You know that now. So now you don't really have any justification about not putting up the fence, except your own kind of refusal to recognize what this government's relationship is to a large enough number of people who are capable of being violent to theCapitol.
Ashley Parker [00:19:04] I don't disagree with you necessarily, Lawrence, but like the human element that I think often gets lost in these debates is that D.C. is actually a real city. Everyone loves to hate D.C., but it's a real city with real humans living it, and I'm one of them, and the idea of a fence, while it very well may turn out to be necessary for for safety, just saddens me so much, right? Because the Capitol is where I went with my family to watch the fireworks on the Fourth of July, and where my stepdaughter goes sledding in the winter, and what I run around in the mornings when I can sneak away and where my toddler likes to play on the lawn. And it just, just feels so kind of tragic to block off, sort of like another part of the city's majesty. But it may very well turn out to be necessary.
Harry Litman [00:19:50] Yeah. And while we're thinking about it, I'm sure they're thinking very seriously, you say it's the last bastion. But the Supreme Court, a bunch of those guys could just could rush up the stairs and be in the chambers in no time flat.
Lawrence O'Donnell [00:20:05] It's what we do with our embassies all over the world. We can't plop down an embassy anywhere without putting a stronger fence than the White House has around it. Because we recognize that people have not such favorable feelings about our government around the world. Well, it turns out well, that's true here, too. And actually, I agree with you completely about the kind of Central Park quality of the Capitol grounds. And I'm not saying this lightly, when I worked there, when it was my neighborhood, I would have hated it in every way. And I will hate having a fence if it comes to it, by the way, I doubt that it will come to it. I don't think they'll do it. But it's the obvious reason why this happened. The temporary fence is still up and now they're saying it's going to stay up for a few more months. Why does it have to stay up for a few more months? Why? And then when those months are over, why can it come down? Like what's, what game is being played here? Who's pretending that when you take that down, the fantasy is restored?
Harry Litman [00:21:03] I mean, look, it's part of it's not just government, right? Life has changed so much in the last 20 years in every public space you go into, including office buildings. I see your solution here, I just want to underscore this very, I think, trenchant point that you made, Lawrence, on the whole topic, which is we may well not see this commission because otherwise we'll have these circus hearings. So we'll we'll we'll look to that. All right. This is a good actually segue to the next thing I want to talk about, which is the whole civil war within the Republican Party. And let's just focus first as a segue on McConnell. And so he gets up right after, it's obviously planned, right after the acquittal that he votes for on phony baloney legal grounds that were already settled anyway. But he then has this really excoriating speech of Trump, and one presumes that McConnell never acts out of real feeling, whatever that would even mean, but out of political calculation. So what exactly was his political calculation with this straddle? Does it look as if it hasn't worked, or is the jury's still out on that?
Norm Eisen [00:22:19] Well, I'll offer a legal perspective and let others weigh in on the politics. From a legal perspective, it was a powerful jolt. In some ways, a more powerful one than if he had voted to convict, but then stayed silent or muted afterwards, because it is a statement by the most powerful, arguably highest ranking Republican left today that will be hung around the neck of Trump and Trump's followers and anyone Trump endorses. And so I just thought it was laying down such an important marker in these legal, and I guess to some extent legally tinged political battles to come. I thought it was very valuable, and it doesn't exonerate McConnell's terrible hypocrisy, voting against an impeachment because the defendant was no longer president, when it was McConnell's fault that the trial did not begin!
Harry Litman [00:23:20] Oh, technicalities technicalities, right?
Norm Eisen [00:23:22] So that was classic McConnell hypocrisy, but I thought the statement was extraordinarily valuable and important.
Harry Litman [00:23:29] I mean, presumably he wants in some way because fund raisers have told him that Trump is just no longer a possible leader of the party or for whatever reason, he wanted to not prompt a full on schism, but nevertheless try to stake out a claim for the GOP going forward to be rid of Trumpism. And, you know, in three days, Trump comes back with even harsher language, and war is on in other words, and you know, Sasse and Cassidy and others who voted to convict are getting hell in their own backyards. So I think McConnell, maybe it's a play for the future, as Norm says, but at least for now, it seems as if he hasn't achieved the kind of straddling solution that he's hoping for, no?
Ashley Parker [00:24:24] I mean, I don't know how successful what he has done will be. We'll have to see, but the thing you have to keep in mind is the only thing McConnell cares about is winning, right?
Harry Litman [00:24:33] Right.
Ashley Parker [00:24:33] And in a certain way, the way the elections played out was a little bit liberating for him. Under Trump, they lost the White House, they lost the House, and most importantly, they lost Georgia in a way that cost McConnell his majority and can be very squarely and fairly blamed on Donald Trump. And so the dynamic McConnell is dealing with in the Senate is totally different than the dynamic McCarthy is dealing with in the House. And Trumpism in many ways is bad for the Senate, right? Like Trumpism for McConnell can recreate a 2010 landscape where safe Republican districts, Republican senators get primaried and lose from the right, so far to the right that they put up the slate of unelectable candidates, costing them the majority again, whereas McCarthy, having Trumpian candidates and in Trumpian districts means winning. Now it means winning, and then having a conference that includes Marjorie Taylor Green and having to sort of deal with that broad spectrum between her and Liz Cheney. But McConnell is just facing a totally different dynamic, and has an incentive to want to move past Trumpism.
Harry Litman [00:25:36] He does, but not everyone agrees, right? Let's take Graham in the Senate saying McConnell has deeply miscalculated. Trump's the most consequential Republican, we're never going to win back Congress without him. Of course, Graham is for God knows for what reason, but he's the guy who wants to be the new Trump. So not everyone agrees, and yet, I mean, I would have thought this harkens back to our initial conversation that that would have been the smart, even necessary move. But it doesn't look like he's divested the Republican Party, Senate or House of Trumpism, no? As Trump says, 'our historic, patriotic and beautiful movement has only just begun.'
Lawrence O'Donnell [00:26:19] Well, I think Mitch McConnell might be leaving the final flushes of the toilet to criminal juries in Georgia and in Manhattan. And I think he's much more attuned to Donald Trump's future than Lindsey Graham is. You know, Lindsey Graham, his worldview is bound by the borders of South Carolina, his political worldview. Mitch McConnell's has to include states like Georgia, which he hopes to win a Senate seat back in two years, states that can go either way as every leader of the Senate does have. So I think, I think the McConnell bet on where Trump is going over the next couple of years is the better of the bets.
Harry Litman [00:27:01] As in, into the toilet.
Lawrence O'Donnell [00:27:02] Yeah, I mean, he's going to be I mean, Lindsey Graham thinks that this 74 year old man who is visibly unhealthy, Donald Trump at age 78, having lost a presidential campaign and knowing the pain of losing, that that cowardly man is going to run for president again. No, he's not. He's going to be a convicted felon by that time, he's going to be on the verge of bankruptcy because of that. There's all sorts of things that are coming in Donald Trump's future. I think, and this is a separate podcast that I believe could have 50 episodes, which is the Mitch McConnell podcast. The complexity of Mitch McConnell is something that has flummoxed me every day of the Trump presidency. You know, back in the primary days of the Republican campaign of 2016, when it didn't look like Donald Trump was going to get that nomination at first.
And I, I used to think when I'd hear him say these insane things about what he would do, like raise tariffs and things, I used to think, 'oh, it would be so much fun to see this idiot be president,' because then he would discover that Mitch McConnell and Paul Ryan are actually in charge and he isn't. And then he becomes president, and I discover Donald Trump is in charge and Paul Ryan is afraid of him. First time in history that the speaker of the House is afraid of a president, speaker of the House has always been more powerful than the president, always. First time in history that a Senate majority leader is afraid of the president. That's never happened before. It's an amazing thing to see, because they have power over the president. The way it's always worked in the past was the president is asking the speaker and asking the majority leader what is possible in their respective bodies, and they try to get some version of that.
And so the folding of Mitch McConnell, he's a senator that I worked with when I was in the Senate. And let me just put this one marker down as a point for an audience that most of them probably won't know this. And it shows you the degree of my confusion about who Mitch McConnell is, because he was one of the most reasonable Republicans working in the Senate when I was there. He was a conservative Republican, to be sure. There were definitely more moderate Republicans and actually some liberal Republicans in those days that we worked with very happily. But Mitch McConnell was the chairman of the Senate Ethics Committee, and they had to handle what we would now call the very first Me Too case in the history of the United States Senate. And it involved the chairman of the most powerful committee in the Senate, the chairman of the Senate Finance Committee, Bob Packwood, ok?
Republican from Oregon, and Mitch McConnell, as the Republican chairman of the Ethics Committee, recommended the expulsion of the Republican chairman of the Finance Committee. And when he privately made that recommendation and shared it with the leadership, Bob Packwood just resigned because he knew he would be expelled. Here's the important thing: at the outset of that investigation, I can tell you with absolute authority, there was not a single senator, not a Democrat, not one who believed Bob Packwood was even in trouble. They believed that the Senate Ethics Committee would kind of take care of this and it would go away. They'd go slow with it, they'd took a few years, which they did, and it would go away. When you tell that story today, it has no application to the person who you're watching today, right?
It doesn't make the slightest bit of sense, and the first glimmer I saw of the Mitch McConnell I used to know was in that speech after the verdict. Which for me, I believe will be the most enduring speech of the entire proceeding, because when you get 50 years out from here and historians are looking back and writing about this, sure, there will be these powerful moments and emotional moments from Joe Neguse and from others. But what they're going to find is this Republican leader of the Senate who worked with this Republican president for four years on everything that they wanted to do together, and that this senator stands up and says he was guilty of everything, of everything. And that will be the most condemning and convincing single thing that historians read in that Senate trial 50 and 100 years from now.
Norm Eisen [00:31:26] McConnell is a genius, I have to tell a little McConnell story that sheds light on the complexity of the man. I have historically had good relations with him, and the complexity is not confined to the areas that Lawrence outlines. He has one of the most interesting records on civil rights. Not consistent, but people will tell you he has at times been a shocking ally, and when I was nominated and I had to move through the Senate, he was helpful to me. There was some Republican opposition, and I will never forget from the White House watching my vote on C-SPAN and McConnell stood in front of the desk, and as every Republican senator approached to vote, he gave them a thumbs up or thumbs down because he was tallying that there would be enough votes to get me through, for which I'm grateful, but not so many that it would embarrass the Republican opponents to my ambassadorial nomination. I had so many nice exchanges with him when I was on the floor of the Senate for the first impeachment trial. And he's one of the great protean figures.
Harry Litman [00:32:35] I want to just stay with the politics of this for a minute. Is this all kind of good for the Democrats if the Republicans are squabbling this way? You know, to have that sort of deep schism and civil war, or is it bad because it makes the whole place sort of more dysfunctional and makes it harder for Biden to just have a productive Senate to partner with?
Ashley Parker [00:33:00] It's a good question. Certainly, I don't think the Biden people would turn down that 2010 scenario I mentioned previously where a Republican gets primaried by such a fringe extremist candidate that a Senate seat that might have stayed Republican or gone Republican goes Democratic. They would welcome a larger majority. But on the whole, when you talk to the Biden people they want to move past Trumpism, and by Trumpism I don't just mean the former president, but I do mean him, but I also mean sort of the dangerous misinformation and the incivility of discourse. And it's an interesting question on if this will work as a strategy, but the Biden campaign largely ignored Trump fairly successfully and rode that strategy to the White House. And in talking to them now that they're in the White House, my question was kind of like, 'well, can you still do that in the White House?' And their answer is very much absolutely, and we can do it moreso. We now never want to engage with him, right?
We're not running against him, we're running against coronavirus, we're running against the economy, we're running against climate change. Now, is that the correct theory of the case? We will see, but they very much sort of correctly understand that the Biden presidency will rise and fall on their handling of coronavirus and the Biden presidency, and anything that complicates bipartisan efforts isn't good for them. Anything that complicates, you know, they're trying to get vaccines in arms, and if there is a faction of the people who doesn't trust vaccines because of sort of MAGA nation writ large misinformation, that's bad for them. And when you look at the polls of the not insignificant portion of Republicans who don't believe Biden is the legitimately elected president because of Donald Trump's false, baseless claims, that's bad for him. So I think there's a world in which Republican and Democratic and presidential interests all align in that a huge swath of the country would like to move past Trumpism.
Harry Litman [00:34:51] It's a good point, to the extent that Sasse in Nebraska or Cassidy in Louisiana are being woodshedded, it suggests that there's at least a big contingent in these local Republican parties that must continue to adhere in one fashion or another to the big lie.
It's time now for our Sidebar feature, which this week is about constitutional limitations under the Eighth Amendment's prohibition on cruel and unusual punishments for criminal sentences and conditions of confinement. And to tell us about that topic, we are very happy to welcome Mike Farrell. Mike is an actor, director, producer and political activist, best known for his role as Captain B.J. Hunnicutt on MASH, for which he won an Emmy in 1980. Under the Egis of his own production company, Mike has produced a number of feature films, including Robin Williams' Patch Adams. I give you Mike Farrell on constitutional limitations on punishments and conditions of confinement.
Mike Farrell [00:36:05] About 2.3 Million people are behind bars in the United States today, a greater proportion of the population than in any other country in the world, with the possible exception of China, about which little is known. Our courts traditionally give a lot of leeway to prison officials to set prisoners conditions of confinement, but the US Constitution's Eighth Amendment, which prohibits the imposition of cruel and unusual punishment, sets some limits on the way prison officials may treat prisoners. The Eighth Amendment also forbids legislatures from imposing disproportionately harsh criminal punishments. The Supreme Court has held that the Eighth Amendment requires a very rough proportionality between the seriousness of the sentence and the offense.
For example, the Eighth Amendment prohibits the government from imposing, say, a 56 year prison term for a minor offense, such as forging a small check. And recent court decisions have held that states may not execute those who committed any crime, even murder, if a minor at the time. Nor can they impose a sentence of life without parole on a juvenile or a sentence of death on the intellectually disabled. The Eighth Amendment also imposes narrow limits on the conditions of confinement of a prisoner. For the most part, federal courts are not supposed to interfere with state officials, so long as their treatment of prisoners is reasonably related to legitimate genealogical interest. However, states treatment of prisoners may not involve wanton and unnecessary infliction of pain.
For example, the Supreme Court found a constitutional violation when a prison official handcuffed a prisoner to a horizontal bar, exposing him to the hot sun for several hours. But the Eighth Amendment line is fairly lax; it does not preclude practices that many other democracies have outlawed. Start with capital punishment itself! While a number of Supreme Court justices have concluded that the Eighth Amendment categorically outlaws capital punishment, a majority of the Supreme Court has never so held. Indeed, during the last months of the Trump administration, we've seen a spate of executions of federal prisoners for the first time in 17 years. In Europe, by contrast, the death penalty has been completely abolished, except in Belarus and Russia. And Russia, having declared a moratorium on executions, has not conducted any in 24 years.
The Eighth Amendment also permits a state to place prisoners in solitary confinement for 23 hours a day. Today, we hold 75,000 inmates in solitary confinement, sometimes for years, and they account for fully half the suicides among prisoners. President Obama questioned the efficacy of solitary confinement. The U.N. special rapporteur for torture called it torture, and said it should be limited to 15 days maximum, after which psychological damage may become permanent. And Justice Anthony Kennedy, before retiring, raised the prospect that the Constitution might forbid it. But again, the court as a whole has never so ruled. Thus, solitary confinement remains a feature of many state penal systems. In Europe, by contrast, the trend is toward sharply reducing its use and imposing limitations on its duration. For Talking Feds, I'm Mike Farrell.
Harry Litman [00:39:15] Thank you very much, Mike, for telling us about that important topic. Mike's been an outspoken activist for various political and social causes, including the death penalty and immigration.
We got a few minutes now, I'd like to talk about the trickle that's going to be, I think, by all accounts, a flood of litigation involving the former president. I think from what Lawrence said, I think he figures to be a civil defendant, criminal defendant or prisoner for the rest of his life. One interesting lawsuit that happened and one that seems possibly to be ripening toward market. And I just wanted to talk briefly about them, so there's first this Bennie Thompson suit under, let's get nerdy a little bit on 'em, Norm... USC 1985, Section 1. And there was a kind of at least poetic justice there, given it's the Ku Klux Klan Act. And Norm, how about the quick skinny on what that suit is, and whether you think it's a serious prospect to have Trump at least have to be deposed?
Norm Eisen [00:40:30] A very serious threat to Trump. It's Representative Thompson suing Trump, Giuliani, the Proud Boys and the Oath Keepers. Section 1985 is a well-known grounds for civil litigation. What's unusual is that it's Section 1985-1, which is a prohibition on conspiring to prevent anyone holding an office of the United States from discharging their official duties...
Harry Litman [00:41:04] From doing their job, right? It's like perfect for this.
Norm Eisen [00:41:07] It's very seldom deployed, very clever. They've got great litigants on the poetic justice front. It's called the Klan Act because it was passed after the Civil War because the Klan was running rampant, blocking reconstruction by fighting federal, state and local officials in reconstruction, and the poetic justice of having the NAACP litigating the case as counsel for Congressman Thompson and also one of the great, great civil rights lawyers, my friend Joe Sellers at Cohen Milstein.
Harry Litman [00:41:44] There's no doubt that on top of everything else, there's really high powered counsel here. And, you know, it is sort of perfect, right? He's injured, it's questionable how much of a case he'll have to make about that. But he cowers under the desk and is forced to be close to congressmen who aren't socially distanced, and two of them get COVID and he's 72. Anyway, so a lot happening there. So today the US has really bumped it up a bit and begun to bring more expansive conspiracy charges against groups, in this case, the Oath Keepers who were involved. So does this seemed a reasonable prospect that a Merrick Garland-led Department of Justice will use the mayhem of January 6th as a way to actually go at and decapitate these groups themselves and not simply the individual offenders of January 6th?
Lawrence O'Donnell [00:42:47] I think we'll be hearing a lot about that in his confirmation hearing. Before the insurrection of the Capitol, people like Lindsey Graham were planning on basically threatening Merrick Garland at his confirmation hearing about any possibility of investigating anything involving Trump. And now, of course, the air has gone out of that argument. And so obviously the Merrick Garland Justice Department will be taking on all of this, and I don't see why they would put any limitation on their scope.
Harry Litman [00:43:17] Is there anything else that Garland will face? His hearing is on Monday, any serious issues or flack he'll have to navigate?
Lawrence O'Donnell [00:43:24] Not anymore. I don't think so, not since the insurrection at the Capitol. Without that, this would have been a very Trump-protective hearing — to no effect, by the way, because of course, he would get confirmed anyway — but it would have been all sorts of negative energy, to put it mildly, coming at him from the Republican side about how dare you even think about investigating anybody named Trump.
Norm Eisen [00:43:47] I think it says it all on the Garland hearing, that the right they're starting to pick on some others wrongly, but they're giving him a pass.
Harry Litman [00:43:57] So in everyone's view, Merrick Garland is astride the Justice Department a week from today?
Lawrence O'Donnell [00:44:03] Uh, yeah. There's no problem with his confirmation at this point. Again, it's just a question of how many Republican votes will he get.
Harry Litman [00:44:09] We're just about out of time, we have just a couple minutes for our Five Words or Fewer feature, where we take a question sent in by a listener and impose a condition on ourselves that it be answered in five words or fewer. And today, the question comes from Carolyn Kasten:
Carolyn Kasten [00:44:31] Hey Talking Feds! Do you think that Trump will see any charges from New York State, and when do you think that will happen?
Harry Litman [00:44:38] Five words or fewer, anybody? Everybody.
Lawrence O'Donnell [00:44:42] Yes, after they get the tax returns.
Norm Eisen [00:44:45] Yes, before the end of 2021.
Ashley Parker [00:44:49] I'm skeptical.
Harry Litman [00:44:52] Got three words left over, can I use your three words?
Ashley Parker [00:44:55] All yours.
Harry Litman [00:44:57] Yes, Supreme Court must rule. They've been holding it forever, and nobody knows why.
And there's an end for now. Thank you very much to Ashleigh, Norm and Lawrence, 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. 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. Our consulting producer is Andrea Carla Michaels. Thanks very much to Mike Farrell for explaining federal constitutional limitations on punishments and conditions of confinement. Our gratitude goes out, 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.
