Harry Litman [00:00:00] Hi everyone, Harry here with a couple quick notes. First, another real harvest in Patreon this week, five different one on one interviews, starting with: the beginning of the week, Representative Val Demings, one on one with us on the COVID Relief Bill, Florida Politics and Merrick Garland; then a really interesting one with Chicago political scientist analyzing who the insurrectionists are — and it may not be who you think; discussion with Jessica Levinson on the Eric Swalwell suit; a discussion with Jane Mayer, the very prominent New Yorker investigative reporter, on her latest entitled 'Can Cyrus Vance Jr. Nail Trump?'; and finally, Michael McAuliffe, a alum of the criminal section, the Civil Rights Division and DOJ, talking about the stance that the federal government will be taking while the Atlanta case goes forward in state court initially. So there's a little fee there, but I think it's well worth it.
But just go check it out, look at the different offerings before you decide and then you can opt out or not. OK, second quick note, Soledad O'Brien, the great Soledad O'Brien has a new podcast out called Very Opinionated, where she does a deep dove into a different issue each episode. So far, she's spoken with an Amazon worker hoping to unionize down near Birmingham, Alabama, with someone who served three decades in prison for marijuana charges that are now being dropped in other states, and Dr. Timnit Gebru, that Google researcher who was fired last fall and has done a lot of research around coding algorithms and racism. It's really an interesting series of discussions, so I recommend you check out Very Opinionated. And speaking of very opinionated, here's our episode, it's a really terrific one with three great panelists who already know each other well, as it turns out, and you can see that in the kind of lively, crackling discussion that you're about to hear.
Welcome to Talking Feds, a round 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. The week that ends had a pall cast over it by a rampage of eight killings: six of Asian women in three Atlanta area spas by an apparent lone gunman. Back in Washington, President Biden's victory lap from the passage last week of a historic $1.9 trillion American Recovery Act was short lived: early this week, he pivoted to executing on the first steps in the stimulus while going big on the vaccine for COVID, pledging that by the end of next week there will be, quote, '100 million shots in arms and 100 million checks in pockets.' The American Recovery Act passed by the narrowest of margins with no Republican support and no room to spare, but Biden's next big goals, immigration and infrastructure in particular, look to present more challenging politics. He may need some Republican support in the Senate to counter possible opposition among some Democrats, and the odds of genuine bipartisanship look long.
So we turn this week to a closer look at the goings on in the world's greatest deliberative body, the United States Senate. The Senate is now the locus of debate for the ambitious voting rights bill, S1, that falls directly on the fault lines between the two parties, attempting to bolster the right to vote and to stymie Republicans efforts to erect new roadblocks that disproportionately target minority voters. That debate encompasses the possibility that the Democrats will do away with the filibuster that has the effect of requiring 60 votes to pass new legislation, including S1. In the Senate Judiciary Committee, some nominations of senior Department of Justice officials are running into troubled waters. Meanwhile, a senior member of the Senate Judiciary Committee sent a long letter to new Attorney General Merrick Garland seeking department cooperation and for long pending prickley matters left over from the Trump years. And to unpack these contentious and critical issues, we have a stellar set of guests at the round table today. They are:
Jennifer Rubin, Jennifer is an opinion columnist for The Washington Post, she covers politics and policy, foreign and domestic, and provides especially insight into the conservative movement, the Republican and Democratic parties and threats to Western democracy. She's also an MSNBC contributor, and was previously at Commentary magazine. Prior to her career in journalism, Jennifer practiced labor law for two decades and before that graduated in the famous Boalt Hall Law School class of 1986. Jennifer, thanks as always for being here.
Jennifer Rubin [00:05:28] Nice to be back with my classmate!
Harry Litman [00:05:31] Bill Kristol: Bill, who in conversation before we started, people were remarking, everybody in Washington knows Bill Kristol. But even so, I'll belabor the point to say he served in senior positions in the Reagan and George H.W. Bush administrations, and was a professor at the University of Pennsylvania and Harvard. After serving in government, he founded the Weekly Standard in 1995 and edited that influential magazine for over two decades. He is founder now of Defending Democracy Together, an organization dedicated to defending America's liberal democratic norms, principles and institutions. He is host of the highly regarded video series and podcast Conversations with Bill Kristol. Bill, thanks so much for joining our conversation today.
Bill Kristol [00:06:21] Great to be with you. Great to be the token nonlawyer, and the voice of reason and sanity on this panel.
Harry Litman [00:06:28] Everybody needs one. And we are honored, in fact, to welcome the aforementioned senior member of the Senate Judiciary Committee, Senator Sheldon Whitehouse. He is the junior United States senator from Rhode Island since 2007, he served as United States attorney from 1993 to 1998, I think we ever so slightly overlapped. And the 71st attorney general of Rhode Island from 1999 to 2003. Before being elected to the Senate, where he serves on the Finance Committee, the Judiciary Committee, the Environment and Public Works Committee and the Budget Committee. Senator, thank you so much for being here, especially today when we have so much about the Senate to discuss.
Sheldon Whitehouse [00:07:13] It's a pleasure.
Harry Litman [00:07:14] All right, so let's jump in to HR1 and the effort to counteract, I think it's fair to say, a Republican campaign that seems really unabashed and ruthless and accelerating in efforts to impose hurdles on likely Democratic voters, especially minorities. So HR1 has now passed the House and come to the Senate, it's really loaded up, and it goes back to the Supreme Court's Shelby County decision in 2013 and really tries to restore and repair quite a lot of damage that's come since then. Now I'm thinking about the Recovery Act, where the Dems might have been prepared to compromise on some of the provisions, but the Republicans opted just to maybe grouse on the sidelines, but not try to negotiate in any way. So what about here? If the Republicans are actually of a mood to play ball, are there some prospects for compromise or are there some provisions which would give ground, and what strategy would it provoke?
Sheldon Whitehouse [00:08:25] There's likely no reconciliation pathway for HR1 or S1 as we call it in the Senate, meaning we have to deal with the filibuster. So I suspect that the way we do that is to take a couple of runs at HR1 or S1, perhaps as a complete package first, and then maybe pull out the voting rights work, give that a try, pull out the dark money disclose act part, give that a try. And after a couple of failed efforts, I think the motivation in the caucus to deal with the filibuster question might change with the actual presentation of filibuster obstruction on these important matters. But to your question Harry, the point is that during the course of that, we may find that there are Republicans who are willing to come over on some of those. I would doubt it, I hear that Mitch McConnell has told his caucus 'no crossing the line here. This is a caucus position and nobody budges on any of it,' but if you look at the numbers, particularly on dark money influence, it's like 90 percent. You don't get numbers like that anywhere. Tea Partiers and Bernie Bros agree that dark money is a nightmare, so when actually forced to have votes, things might move. It's all very TBD, but it's not beyond the realm of possibility.
Jennifer Rubin [00:09:43] Yeah, I think picking up on what the senator said, I think the test will come when they do begin to pull out parts of it. There are anywhere between four and six kind of core voting issues, voting protection issues within HR1/S1, things like guaranteeing no excuse absentee mail voting, guaranteeing a period of in-person mail voting, even some things that Republicans have wanted, like having a paper ballot trail and an audit process. And so the question is, if you pull those things out and you still can't find 10 Republicans to go along with that, you really do have confirmation that this is nothing but a retreat to Jim Crow. If you can't get 10 Republicans to avoid the obvious, which is that this party now has decided instead of democracy, let's have less democracy. Let's make it harder in particular for minorities to vote, then that really is a new territory that we're in. Then we really have only one functioning party that is a, quote, 'little D democracy party.' And I guess it'll be a test for both sides.
It'll be a test for people like Susan Collins, and there were seven people who voted to impeach the former disgraced president whose name I refuse to use. If you can't come up with those plus three more for fundamental voting rights? Maybe you can't. But then it also does turn to people like Joe Manchin and Krysten Sinema to decide whether they have to have this really inviolate opposition to any change, which frankly, has not been the history of the filibuster. The filibuster used to be 67, went down to 60 in 1975 with the vote of then Senator Joe Biden, by the way, Mitch McConnell did his best to start maneuvering around the filibuster. We now have no judges or executive branch appointees. So this notion that the filibuster is sacred, has never been touched, it's never been reformed, it's just nonsense. And I think an argument can be made that when something is as fundamental as voting rights, and one party is committed to really undoing democracy, that you should be able to find some kind of carve out some kind of rule that makes this doable.
Harry Litman [00:12:03] I think the argument will be made, and you say people like the two senators, I'm not sure there are any other than those to try to bring along...
Sheldon Whitehouse [00:12:11] There probably are, just by the way.
Harry Litman [00:12:13] Yes, you think so?
Sheldon Whitehouse [00:12:14] Yeah.
Bill Kristol [00:12:15] Yeah, I think they're more than you would think. Can I just say one thing on this? Because I don't - just to be clear what's in H.R1 and what's not. You mentioned Shelby, HR4 is not in H.R. 1 right now. HR4, the John Lewis Voting Rights Act is what addresses that. For me, I'm not as enthusiastic as Sheldon is about some of the campaign finance sides of it. And the ethics and government sides of it are fine, but that's a separate issue for me and less urgent. The urgency of stopping the rollback of voting rights. And I think from my point of view, just as a political and rhetorical matter, I can't say this would deliver Republican votes, so I stipulate that that's not a promise I couldn't... not only could I not make it any way, I could deliver any votes, but I mean, I don't even believe it will deliver Republican votes. For me, they're trying to roll back voting rights at a kind of unprecedented way in modern times, and a thoroughgoing way at the state level. We need to protect the 2020 voting system, which worked. It was a big turnout and a fair and free election. And it turns out there's a lot of popular support for that. So for me, stripping out the voting protection provisions, basically the redistricting provisions, which are going to be used otherwise ruthlessly to further polarization and partizanship and somewhat to the advantage of Republicans, there'll be states where Democrats use it, too, of course.
And then the HR4, John Lewis Voting Rights Act, if you could get that together in a package, I would be a hundred percent for it, and I would be hundred percent for breaking the filibuster for that, and I think is a rhetorical and political matter. It's a stronger argument than saying here's a 600 page bill, it's the same bill that was passed in the House two years ago, so it's not exactly a response to what the Republicans are doing at the state level. That's a bunch of liberal reforms, many of which are good, some of which are, you know, we could debate. I understand that the groups have worked very, very hard on this and they put it together carefully and to their credit, and Senator Whitehouse was key in this, they've got every House Democrat and every Senate Democrat in favor of it. So that's not nothing, and I can see that at the end of the day, they may default back to 'this is the package, and we're going to pass it.' But I think that making a real effort to highlight the voting side of it, the redistricting side of it. I understand why they don't want to put the John Lewis H.R. 4 into it right now, but I think ultimately it's a stronger package if it's addressing that issue as well and saying this is urgent and this is why we need to break the filibuster, that you might otherwise think on the whole is a good thing to have for routine legislation.
And I would like it to come out that way, but I also understand that a lot of political dynamics pushing for an up or down vote on H.R. 1, it just politically, rhetorically easier to make the case, I think publicly that this is preserving voting rights and preventing a rollback from 2020 which worked. There was a poll in Texas, of all places, yesterday, it's quite interesting, Texas voters are very happy about the 2020 election, including Republicans. They thought they had a good experience voting, given that there was a pandemic and they thought it was fair and free and the votes were counted, and they liked the fact that there was early voting and absentee voting and so forth, which tells me that the Trumpification of the Republican Party, which is very bad, has not fully penetrated to every Republican voter out there. There are actually Republican voters who don't think you should be against voting. There are fewer Republican voters honestly, I think who think dark money is a huge problem. I understand the substantive arguments on that, but who worry about the free speech aspects of that and public financing of campaigns, I'd say that's an easier one for Republicans to attack and seems a little less urgent. So I'm sort of on the narrower might be stronger in this case, understanding that it may not be so easy to get to narrower, though, in the practicalities of the legislative process.
Sheldon Whitehouse [00:15:48] Well, the fortunate thing is that our Republican friends are probably going to give us lots of chances to vote on this as a package and in segments and to manifest their blockade. And the Senate is not a test tube that is isolated from the rest of the world. As those votes play out, then the the magic starts to happen and we see what's really possible.
Harry Litman [00:16:12] Yeah, that's what I wanted to ask. It's not clear to me what the rhetorical strategy even is. McConnell has come out and said certain things about the filibuster. Fine. I see. I see that. But in some of his more obstructionist moves, he at least offered some argument, I am thinking about, say, the stalling of the justices and maybe they were contradictory. You know, I was really struck by the Supreme Court argument a couple of weeks ago where the lawyer for the Republican Party said, look, politics is a zero sum game. We're fighting this because we need the votes. And that seems so clearly the case, and I'm not even aware of what else they say. If it comes down to substantive debate, what virtues can they possibly pretend, you know, exist...
Sheldon Whitehouse [00:16:57] Voter fraud! The great hobgoblin, voter fraud.
Harry Litman [00:17:00] There you go. There you go.
Sheldon Whitehouse [00:17:01] That's a tired Hobgoblin now.
Bill Kristol [00:17:03] Well, federalism, I mean I mean, look: I myself would not be so worked up about all this if they weren't trying to suppress the vote. We did have a pretty good election in 2020. We did not have this legislation passed in 2020. So we can't take the prima facie position that somehow if this doesn't happen, we could never have a free and fair election in the United States of America. This is where the urgency comes from, is that the Republicans are trying to do something really unacceptable and that this is the remedy to that. Otherwise, we're in a normal legislative debate about a million issues having to do with election administration, with campaign finance, with ethics in government, which have been debated a long time, in which people have all kinds of positions on. But the Republicans, what they did in pushing the big lie, what they did after November 3rd, what they did on January 6th, that is the strongest argument, in my opinion, the decisive I get really for the voting side of this legislation.
Jennifer Rubin [00:17:53] By the way, the the comment you referred to at the Supreme Court is what they now say, 'saying the silent part out loud,' meaning you're not supposed to say that. You're not supposed to admit that you're trying to suppress the opponent's vote when you're up at the Supreme Court. If it's possible to offend Justice Barrett, that might actually do it, so not a good example of Supreme Court advocacy. I would say this, it is already having an effect on the debate that's going on at the state level, because as we're all talking about H.R. 1/ S1, there are debates going on in Georgia and Texas in a whole bunch of other states over the specifics of the legislation. And exactly what Bill was saying, that there are a lot of Republicans who sort of like some of these voting innovations and they don't want to give them up. And there's also a lot of evidence out that it wasn't the vote by mail that put the Democrats over the top.
Republicans for a long time have been able to use voting by mail very effectively. I spent the first part of my life in California and the Republicans had that completely wired in California. So as a result, you're seeing is even at the state level, the more focus we have on the federal level on this, the less acceptable, for example, a ban on Sunday voting. That is the quintessential suppression of African-American vote. How could that be about fraud? It's in-person voting, and gosh, why would you pick Sunday? Well, maybe that's because that's been a tradition in the African-American community for forever. So in essence, outlawing Sunday voting is the quintessential Jim Crow kind of legislation and that seems to be struggling now in Georgia. That may not make it in the package.
Harry Litman [00:19:36] That would be the only thing that doesn't, that's quite a statute. And you underscore a really tricky political problem because, you know, in the big debates we've had and we'll be having over the next few years, you have a national position of Republicans and a national position of Democrats. Essentially, the evil you're combating here is state by state, and often in the reddest states where the local state electorate don't care so much about what Georgia does. There's a bookend here that goes from state legislators to the US Supreme Court, which is where the voting rights provisions have gone to die sort of forever. They're not even being a fundamental right to vote. And the Senate is in between, but courts not necessarily going to listen. And then the local Republican Party in red states might not either.
Jennifer Rubin [00:20:26] The state dynamic is very interesting. You have in Georgia, for example, you have some moderate Republicans who are not comfortable with eliminating no excuse mail voting. They say, gosh, I got elected because I got a lot of mail in voting in my very deep red corner of the state, so putting a focus on these kind of core voting rights helps delay and complicate Republicans' Jim Crow crusade at the state level, I think. And that's a good thing because you want to hold them in abeyance for as long as possible. But it's not a permanent solution because they will come back forever. And now that you have a party that has fundamentally committed itself to non democracy, you have to do it. And I would only add that the benefit of taking a smaller kind of package, that Bill and I seem to be pretty much in agreement, is if you do so frustrate those a couple of senators or maybe there are more of them on the Democratic side that finally say, OK, we're going to get away with the filibuster. Then once you've gotten rid of the filibuster, then maybe you can get to some of the things that Senator Whitehouse is concerned about. So you use the tip of the spear, you use the most effective, sharpest argument you can to pierce through, and then maybe you've opened up some more possibilities down the road for campaign finance reform, for a whole bunch of other things.
Sheldon Whitehouse [00:21:48] And the thing that we don't know yet is as we close in on 2022, how the Republican Party will fare with moderate, swing, independent voters once it's branded itself as the party that doesn't want people to vote or doesn't want certain people to vote. That could be a really Pyrrhic victory for them in all of this.
Harry Litman [00:22:10] Yeah, that's a great point, and it counters what I said because maybe so the local dynamic, but they are justifiably getting this national brand. I also think that the filibuster has this kind of sanctity or import within the Senate. I don't think it's that big a deal for the American people, I think the voting rights arguments do resonate, but especially these sort of in terrorem, sky is falling rhetoric from McConnell. I don't think that it's likely that the Dems would suffer much from getting rid of the filibuster. Disagreement here?
Jennifer Rubin [00:22:49] I think what we just saw in the rescue plan is the fundamental reaffirmation of the truism that process doesn't matter to voters, it's the result. And they overwhelmingly love this big rescue plan, whether you think it's the right number or the wrong number. They love it, and they don't give a darn that there wasn't any Republican to vote with it. They're cashing their checks. They're getting their kids ready to go back to school. So what the heck do they care?
Harry Litman [00:23:16] On a bipartisan basis.
Jennifer Rubin [00:23:17] Exactly. Overwhelmingly. So I think we should stop using the United States Congress as a barometer of national sentiment, even for the Republican Party. They are so off the balance beam that I think there's a lot more to work with in the country, which is why Biden talks to a lot of governors and a lot of mayors. There are reasonable Republicans that just don't happen to be in the office space that Senator Whitehouse works. And he's got the worst of the worst,
Sheldon Whitehouse [00:23:46] And particularly on this, and to what we were saying earlier about the moderate, the independents, the swing voters. So here's Mitch's threat, that he is going to completely disable the Senate and turn it into a scorched earth wasteland. He's got an awful lot of members who are up in 2022. Do they want to own that kind of conduct after we've done the rescue plan, stopping the infrastructure bill, potentially, does that lead to a government shutdown? There's a real price to be paid once you're actually on the Senate floor executing on that Mitch McConnell threat. And I don't know how this works out, but I strongly suspect that if we were to call Mitch McConnell's bluff, he would have to back off in a hurry because he can't carry that policy into the election and support his candidates. It's just untenable. So we'll see, I'm not always the best prognosticator, but it seems like a hell of a bad place to go into an election.
Bill Kristol [00:24:38] I very much agree with that. I thought that was a weird... I've known McConnell some over the years. He usually doesn't make grandiose threats like that. It's not a good threat to make. I mean, you're saying as the leader of a party with 50 senators that you're going to destroy the United States Senate because you lost one vote, you don't like. People look at them and think, 'what do you, what are you doing?' And I don't believe he can take his fellow Republican senators with him on that, it'll last for two weeks, they'll have some, you know, force quorum calls, and then people are going to say, wait a second, we need to get all kinds of things passed here, and we can't be the party that's literally stopping the United States Senate from doing its business because they changed a parliamentary rule, a procedural rule from a 60 vote to a 50 vote threshold when there already are some 50 vote thresholds, when this rule didn't really exist until 40 years ago. And the way it is now, when it was usually used before that against civil rights bills and et cetera, et cetera. So I'm, I think this is a sign of weakness on McConnell's part. I don't know what he's seeing. I don't know who he's talking to.
Sheldon Whitehouse [00:25:34] Or panic.
Bill Kristol [00:25:34] Yeah, a little bit of panic. That it's not the argument you want to make, the argument you want to make is the high toned consensus compromise argument for the filibuster. And you want to quietly maybe say to Chuck Schumer, to Sheldon Whitehouse and others, 'hey, I'm going to make your life really - to Joe Biden, I suppose, 'you want any confirmation, we can tie these up for 30 hours each,' or whatever the rule is, 10 hours each and so forth. But to make that threat publicly strikes me as a sign of weakness, which makes me wonder what private conversations are happening, both with, I suppose, Sinema and Manchin, but also on the Republican side here, and whether they don't feel some pressure on the voting issue and some of the others perhaps to not simply be the party of no, and a party that's going to be having all voted against, as Jen says, a popular COVID relief bill, they're going to then be all voting in lockstep against...
Sheldon Whitehouse [00:26:23] Wait'll the defense bill comes up.
Bill Kristol [00:26:24] Yeah.
Sheldon Whitehouse [00:26:24] Are they going to really jam the defense bill? I don't think so. Bring it on!
Harry Litman [00:26:30] It does seem that they're committed to a high speed chicken game and he's got to turn his car first. But all right, I wanted to segue into the Judiciary Committee business in particular and the courts. Senator Whitehouse, you sent a letter this week to newly confirmed Attorney General Merrick Garland raising four or five pieces of big leftover business. It'd be a separate episode to go through all of them, I did want to underscore your last point. It had a kind of was almost like an appendix, but this troubled record of OLC, I thought that's a really big issue, but it's hard to know what to do. But you specifically zeroed in on what had been, I thought, a kind of black eye that no one's really addressed, which is the phony baloney FBI "investigation," quote unquote, you suggested a fake one rather than a sincere one of Justice Kavanaugh in the wake of Dr. Ford's testimony. We had an FBI show a couple of weeks ago where this very point came up. And just the complete anathema to the FBI have been told, 'oh, do an investigation, but don't follow where it leads.' And that is what happened, they were sharply constrained. So I just wanted to serve it up to you and ask, what are you hoping could happen? Should happen? What is to be done? You have some very outraged Democrats wanting to talk impeachment, et cetera. But what is feasible?
Sheldon Whitehouse [00:28:05] Getting answers, I think ought to be feasible. This was a peculiar situation. I was, as you said in the intro, I was a U.S. attorney. I was an attorney general in a state where the AG has all the criminal prosecution responsibilities, and the idea that an investigative agency is affirmatively blocking and turning away information that people are seeking to bring it, about an investigation going on in that agency? That's very unusual behavior. And we all noticed, Senator Coons sent his letter saying, how do we get information in? Why have you drawn up the drawbridges and closed all the shutters? So then they came up with this tip line so that they could allow information in. And in two years, I haven't been able to get them to tell me, was this a real tip line? Did you ever follow up on anything? What are the rules that it operated under? And we didn't even get answers as to why we weren't getting answers. So all of this takes the prosecutor's mind and makes you more and more suspicious. And it matters because every single person who comes before the Senate for appointment clears an FBI background check. And we trust the FBI background checks, and we understand that they're amenable to White House influence. But if the Kavanaugh investigation set new boundaries or new traditions or precedents for White House influence in an FBI investigation, we need to know about that so we can properly evaluate every other FBI investigation that is going to come our way.
Harry Litman [00:29:32] So you want to know the information about why the drawbridges were drawn up or you want to know the information about what was on the tip line? What did the witnesses have to say or both?
Sheldon Whitehouse [00:29:42] I'm less interested in the latter, other than as evidence of the fact that there was real information in that tip line, assuming that there was, and then the FBI refused to follow up on it, even though they have an entire tip line procedure for how you follow up on tip line information. And if they didn't follow it, I want to see the back and forth with the White House about how that was decided and who told them not to, and whether they pushed back and how it all played out. You've got a very difficult situation for a so-called independent agency. Now, I'll give Wray credit for one thing. At the outset, he put up a little flag and he said, not in these words, 'this ain't a real FBI investigation. We're serving as the agents for the White House when we do this, I wash my hands of this result.' So we know that it's something different, but exactly how different from real FBI will work and exactly who told them to stop it prematurely and not follow up on leads and all of that? I think that's really important for us and for posterity to know.
Harry Litman [00:30:43] So I agree. Bill, maybe I'm being presumptuous, but you've been in the middle of a White House and I've dealt with them glancingly. I like to really see it in chapter and verse, and on this date, so-and-so called so-and-so. But isn't it quite clear that the White House, probably through the White House counsel, just issued a command and the FBI kind of beaten up badly already, capitulated?
Bill Kristol [00:31:08] I really don't know what happened. I have a sense of what might have happened. I think generally, though, I'll make just two quick points. Turning over the rocks of what happened in the Trump administration in terms of relationships with agencies and orders from White House that are either questionable in terms of propriety or in some cases questionable in terms of legality...
Harry Litman [00:31:28] Yeah.
Bill Kristol [00:31:28] It's very important. There'll be a lot of people who will say, let's not dredge it up. But I suspect if I were sitting in the Biden White House, I might have a little more of an attitude of, you know, the last thing we need is to be relitigating stuff from 2018 and 2019. But it is important going forward. I mean, Bob Bauer and Jack Goldsmith have a whole book with a whole bunch of proposals, which I'm very sympathetic to about presidential power, intra-executive branch relationships, White House DOJ being a part of it. There you go. And you know, it would inform, I think, the Senate. I think it's a legitimate legislative purpose to say we need to know what went wrong or what didn't go wrong, to know how we might structure legislative remedies or have better oversight and so forth. And I think we are going to discover just from people I've talked to and believe me, I wasn't talking to a lot of people in the Trump administration, but the ones who left, the ones who came to help us at the end and opposed Trump and we don't know what happened there. So I think it's a little worse than we think in a lot of these agencies, and a lot of these areas.
The Trump people got away with a lot because they were regarded as fools and goofballs, and Trump couldn't keep his mind on anything for more than an hour. Some of that is true, but some of them were pretty purposeful and pretty hard nosed. So I think when we find out about the relationship between the White House and DHS, the White House and DOD, especially at the end, the White House and DOJ we'll discover some pretty disturbing things. And they just, we just need to know them for the record, the way we had to know what happened with Nixon and the CIA and so forth. And it didn't form then the reform agenda. This is a total footnote, 30 seconds on McConnell, was just thinking about it since Merrick Garland was mentioned, ironically, and there we are again: when McConnell ran the extremely effective stopping of Garland in 2016, when he pushed through Justice Barrett in 2020, he didn't bluster. You know, you think about his style. It was very calm, very 'we shouldn't do this in an election year' in 2016, and then in 2020 the opposite, you know, 'they elected us to do this.'
But whatever, kept everyone we talked to all of his members very assiduously and kept them on board and tried to keep the heat down in a sense, rather than - which makes me again come back, coming back to what we were discussing earlier, thinking that this incredible rhetoric about scorched earth is a bit of a desperation. I wonder how much erosion is happening beneath the scenes there on McConnell's side, Sheldon said earlier that McConnell is reported to have told the conference 'this is a red line for all of us,' but I wonder how many that were quietly coming to him and say, 'look, we can't just be literally at this point for rolling back voting protections. We can beef against public financing of elections.' That's the kind of conventional Republican position they've never paid a price for politically, I think. I do wonder what's going on with that bluster by McConnell.
Jennifer Rubin [00:34:00] Part of it may be that he thinks that Sinema and Manchin can be bluffed off. Going back to Bill's point, though, about the FBI. This is absolutely, I think, critical. We do not know the degree to which the White House corrupted various agencies and individuals. We don't know the specific individuals who did that. We don't know where legal lines were crossed. And in order to just for the sake of reforming the system and imposing either statutory or executive order kind of restraints, we have to figure out who did what and how they did it. We still don't know how exactly it came to be that the Justice Department determined that what Trump was doing with Ukraine was perfectly OK, no problem here, and you really don't have to send the whistleblower complaint to the Congress. You have to identify everybody along the chain. Some of those people may have engaged in illegal behavior. Other people, you can say, well, what in the future is going to prevent this from happening again?
So just as you would have, and perhaps this is being done from the bottom up with an inspector general, inspector general should be looking from the agency standpoint as to how they were ordered about, and what laws or what ethical lines were crossed. You have to look at it from the White House side, too. We can't just throw up our hands and say, well, because we don't want to make it seem like we're trying to impeach a Supreme Court justice, and we got so many things to do, we really shouldn't look at that. The whole purpose of Bill and I coming to the political point that we did is that democracy is in serious peril here. We've gotten to the point where one party is engaged in such slash and burn techniques that the fundamental structure of our government is at risk. So at least for me, this is the important stuff. We really do have to figure out what happened because we got to make sure that this doesn't happen again. And people like Don McGann never gets nominated or confirmed for anything in the future. And there may be lots of people who fall into that category.
Sheldon Whitehouse [00:36:20] Remember that at the end, the Obama administration decided it wasn't going to look into anything that had taken place beforehand. It was 'we're only going to go forward. We're not going to look back.' And you got to believe that a lot of the Trump people, when they came in, took a lesson from that, that they could get away with stuff because Democrats don't look back. And it's open season now that we're in there, and if we have a second administration that then emphasizes and amplifies that, 'don't worry, we're never going to look back,' then in future administrations, that opens the aperture for more and more misbehavior. Setting aside the analogy of the ship's captain with an explosion and fire on board, as soon as you put the fire out, the first thing you do is you go and do a damage assessment to make sure your ship is seaworthy, and to see what repairs are priorities and to know what the risk is for other ships made on the same model. And we can't not do this, in my view. So I'm delighted to hear both Jen and Bill share that view.
Harry Litman [00:37:15] All very well put, and I share it completely. To me, and I've said this repeatedly throughout, the ultimate outrage has been not a looting of criminal responsibility, but our actual lack of full knowledge of what the hell happened in so many respects. The only point I was making about the specific FBI issue is that I think they are more than other places we can surmise. I think it's probably the number one imperative that is to know the historical record, as we did with 9/11 or the Warren Commission. And I just want to underscore the sort of nuanced point that both you now and Bill have made, which is it's all in all, not so much in the White House's interest for Biden, at least in part, it's a diversion from some of the things he wants to do. So you'll have to sort of take with a grain of salt, potential reticence or potential propounding on the White House's part of the sort of leave it behind us viewpoint.
Sheldon Whitehouse [00:38:16] Biden's courts commission will be a good measure on that.
Harry Litman [00:38:20] Well, actually, this is the one last place I mean, there's so much to talk about, including your, I think, favorite topic Senator, dark money in the Supreme Court. But with the time we have, I wanted to focus just on this Supreme Court commission, anything that's really going to happen there and what will actually be on the table, especially in the current composition of the Senate?
Sheldon Whitehouse [00:38:43] I don't think the full membership is either clear or perhaps it hasn't been announced and whether it's going to take public comment or how it's going to behave, whether it's going to be a public commission, none of that is clear yet. So it's very, very hard to tell. But what will be telling as a measure of the Biden administration's interest in digging into what went wrong, will be the purview of this commission. If they're just to say, 'here are 10 things you should think about with respect to the Supreme Court,' and that's the end of it, that's going to be a pretty strong signal if they're going to say, look, we've got real problems here, there's never been a country in the world and there's never been a moment in American history where the turnstile to the Supreme Court was given to a private organization which, while it controlled the turnstile, was allowed to raise tens of millions in anonymous contributions? What could possibly go wrong with that, right? And it's unique in world and American history, and if they're going to kind of wash over that as if that was a big nothing, that's not a great sign.
Bill Kristol [00:39:39] I think that's well said and powerfully said, and I think it does distinguish I would say there have been judicial where I came to Washington in '85, and was here for [unintelligible], we can debate all that, Clarence - I mean, there's so many fights about the courts and individual judges and also the courts and judicial questions of jurisprudence, but it's one thing to have these debates and even some hardball, and even people claiming, perhaps legitimately that things were done, that shouldn't have been done in individual cases. But I do totally agree that beginning in 2017, really, it just took on a totally different cast. I mean, in 2005, President Bush nominated Harriet Miers for the - once he bumped up Roberts for the chief for Chief Justice Rehnquist died, for that seat. We opposed it, I don't know if Jen was here yet but I certainly opposed it, and but I sort of just look for their distinguished conservative justices out there. And this is kind of ridiculous to appoint your own personal lawyer. And then and the Federalist Society was against it, they were with Bush because they were more political.
But at the time, you could actually have debates and discussions about different kinds of conservative jurisprudence, liberal versus moderate versus conservative. You know, by 2016, it was - and this is part of the general decline, obviously, of the Republican Party and the conservative movement, as well as part of a broader maybe hyperpolarization and partizanship. But I think that was much more specific on the conservative side. It just did become pure power politics, pure as a private organization raising money off it, and spending money to then make the case, McConnell just jamming people through right and left. All those nominees were equally qualified? No Republican senator ever thought on this one I can't, this one isn't quite right. I mean, the whole notion of sort of being serious about advise and consent just collapsed. And of course, that kind of culminated, depending on your point of view, either in the Kavanaugh confirmation or the Barret confirmation, but more Kavanaugh probably because Barrett, whatever, you know, whatever McConnell did, there was no issues with her really.
Sheldon Whitehouse [00:41:30] Well, remember, there was that one. There was that one. The guy who was up for a US district court...
Jennifer Rubin [00:41:35] Yes!
Sheldon Whitehouse [00:41:36] Who didn't know what a motion in limine was.
Bill Kristol [00:41:38] Right. And that one and they had to withdraw that, yeah.
Sheldon Whitehouse [00:41:42] And of all people, John Kennedy of Louisiana took him to pieces. It was a slow disassembly, was one of the best pieces of legislative destruction of a witness that I've ever seen. It went totally viral and that was the one they had to get rid of. And Kennedy was scolded for it.
Jennifer Rubin [00:42:01] And you remember it because it was the only one.
Bill Kristol [00:42:03] I mean, there is something wrong with the system now. It's what I think, 20 years ago it was problematic, perhaps, but the combination of lifetime tenure, pure polarization and partizanship, the spending of money in very direct ways to support some of these candidates, the secrecy with which the process works within the Justice Department...
Harry Litman [00:42:21] But also Federalist Society. I have to say, this is getting pretty inside baseball, but this is not the public image that they had put out for their 20 years. And I know Federalist Society members who basically all cop to it. They say, you know, yeah, you couldn't brook a word of dissent about Trump among these supposed constitutional serious thinkers. It just wouldn't happen at their big confab. So that was quite the Faustian bargain I think.
Sheldon Whitehouse [00:42:51] One thing to add to Bill's parade of horribles that the court is also the arrival of purpose-built amici. It used to be in the old days that when an amicus curiae filed a brief, a friend of the court, it would be like the American Medical Association. And they'd come in and say, 'this is the view of our doctors.' And now there are literally by the dozen, these pop up groups that have anonymous donations behind them, that have no real function, whose job it is to come in and file amicus briefs in little flotillas. And when you look behind them, you very often find that there are common funders behind all the little flotillas, which they don't want to tell anyone. So that practice itself is in dire need of a bit of like what was the river that was run through the Aegean stables? Was it the Stix, or which...
Harry Litman [00:43:39] Yeah, the Herculean task, although I don't think the court actually - I think the court's sensitive to who these political folks are and read certain things more carefully, but I don't think they weigh it by the pound, as it were.
Sheldon Whitehouse [00:43:50] And they have asked for a look at this amicus problem, that is now being pursued by a committee of the judicial conference.
Harry Litman [00:43:56] All right. Just a couple of minutes to focus still with the Judiciary Committee on confirmations. Biden lost one so far, but Garland's most important senior officials, Lisa Monaco, Vanita Gupta and Kristen Clarke, at least there's some betting odds that Gupta and Clarke are maybe in some troubled waters. Let me again turn to you first, Senator, and ask Vanita Gupta, a former civil rights division chief now being nominated for her third position in the department, assistant attorney general and Kristen Clarke to her old job, Gupta's old job in the civil rights division. Are they in varying degrees of trouble?
Sheldon Whitehouse [00:44:39] I think they could be if Democrats started to abandon them. I think the primary reason for their trouble is the geography of their positions in the department. I think Gupta is in whatever peril she's in, only because she was the head of the Civil Rights Division, and as assistant will oversee the civil rights division, and Kristen Clarke is going to come in and run the civil rights division, and when you look at the pivot that the Republican Party has made from substance to voter suppression, it's going to be a vital issue. And so the more they can dirty up the United States Department of Justice civil rights division, that it's going to be litigating against this nonsense in courts across the country, the better off they are. And here's Vanita Gupta, who every single, even the most conservative law enforcement organizations have recommended, who the Koch brothers operatives have recommended. I mean, you don't get better recommendations than she has. And yet that civil rights experience and her oversight of the civil rights division, which people assume will be to strengthen it and to make it argue powerfully against the voter suppression thing, that's the I think the rationale here, you could pull them out and put two new people in. They'd find new arguments. Be the same.
Harry Litman [00:45:52] Well, let me ask you, Bill and Jen, about this, because that suggests that it's part of the whole agenda that at least McConnell is saying no compromise is possible on. So you would think normally it might be a matter of some horse trading, et cetera. But on that way of looking at things, they're unyielding in their opposition.
Jennifer Rubin [00:46:11] Well, we don't know yet. And I think the inability of any Republican, including Tom Cotton, to suggest that somehow these law enforcement recommendations, endorsements were obtained through nefarious means, as if the sheriffs association could be bullied into supporting Vanita Gupta. It got pretty stupid and pretty silly. So I think in that regard, they may have kind of blowing themselves up, but I don't think they're going to stop trying. And just to build on what the senator said, it's not just that department or division, the Civil Rights Division. It is the framework that civil rights have a special place in our constitutional structure and that, for example, the court made a terrible error in Shelby. And they want to make that a radical position. They want to make what we used to think is mainstream civil rights and civil rights litigation into something that is radical, foreign, a threat to their members.
When in fact, it's their position that has become so off the balance beam. So I think it's personal, I think it's geographic, and I think it's intellectual as well. If they had their way, there would be no civil rights division in the Justice Department. They would just let everybody kind of fight it out there. So I think they are kind of laying the groundwork to disparage anyone who has a, quote, 'progressive record on civil rights.' And this is what is so bizarre to me, because I'm at least old enough to remember the good old days when amendments to the Civil Rights Act were unanimously approved. This used to be a completely bipartisan endeavor. You didn't have a Republican Party that was dedicated to voter suppression. Now we do. So I think it behooves the Democrats, and I've written a bit about both of these nominees to really look at the facts and to take on their Republican colleagues in a way that perhaps they don't always feel comfortable doing. But to call them out for this and to say, no, these are not radical people. They also, by the way, happen to be women of color. They are not advocating radical positions. We see what you have done, we see how these campaigns are kind of wandered through the chain of conservative right wing media.
It goes to some blog and then it goes to Tucker Carlson, and that goes to the Fox quote, 'News' people who aren't news people, and then it's kind of out there in the mainstream. And I think it's important to reveal this and to explain that this is part of a whole and that the questions and the accusations they're making are absolutely groundless. The nominees in these situations are helpless. They cannot strike out. They cannot talk back. They cannot defend themselves. So it's up to the members, and first of all, the members have to be there. I know Senator Whitehouse is there religiously, but not all of his colleagues are, frankly. And sometimes that poor nominee is sitting there with a field of Republican attackers and practically no defense either from the chairman or from the Democratic side. And they got to stop that.
Sheldon Whitehouse [00:49:28] The other thing that's telling here, I think, is telling anyway, is that with McConnell out as majority leader and with Trump out as president, the machine for pushing judges through has no outlet. So you either have to mothball it or you have to repurpose it. And guess what? Where did Leonard Leo, the Federalist Society judicial selection operative, go? He went to the so-called Honest Elections project, a voter suppression initiative, with all the money and the backers. And who's running the ads against Vanita Gupta? Judicial Crisis Network that used to run the anti-Garland pro-Gorsuch, pro-Kavanagh, pro-Barrett ads. So the machinery that was managing and driving the judicial selection process for whoever the donors are has now pivoted perfectly to voter suppression. And guess what? There they are. Right in...t's almost it's weird. It's kind of being done in plain view, and yet we don't see it.
Harry Litman [00:50:22] All right, we have just a second left for the Five Words or Fewer. Our question today comes from Sibylle Fine, who asks us to opine: Was Atlanta a hate crime? Anybody, five words or fewer is the only constraint.
Sheldon Whitehouse [00:50:39] Don't know yet.
Bill Kristol [00:50:40] Yeah, terrible crime.
Jennifer Rubin [00:50:43] It could be. That's three.
Harry Litman [00:50:46] With all my friends here.
Wow, we are out of time. Thank you very much to Jen, Bill and Senator Whitehouse. 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 with national experts 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 segment. Thanks for tuning in, and don't worry: as long as you need answers, the Feds will keep talking. This episode of Talking Feds was produced by Jennifer Bassett, Rebecca Lowe Patton and Matt McArdle. Our editor is Justin Wright. David Lieberman and Rosie Don Griffin are our contributing writers. Our consulting producer is Andrea Carla Michaels. 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 Littman, see you next time.
