Harry Litman [00:00:07] Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman. Happy Easter, Happy Passover to those who celebrate. The trial of Derek Chauvin, the former Minnesota police officer accused of killing George Floyd got underway this week and assumed a trial of the century status. Cable stations carried it gavel to gavel with panels of expert analysts providing color commentary on the courtroom action. The trial was taking on a larger than life status as, among other things, a bellwether for the Black Lives Matter movement that was spawned in the wake of Floyd's death and the state of police-community relations in the country.
The Biden administration has been working with the private sector to develop a version of the so-called vaccine passport. The idea became a target of cross fire from the governor of Florida and others in the 'president-in-exile' camp of Donald Trump, who see it as a form of deep state government tyranny. Representative Matt Gaetz found himself in legal quicksand as he offered a shifting series of explanations and excuses in the wake of the revelation that he is under investigation by the Department of Justice for sex trafficking offenses involving underage girls. To size up and analyze these and other developments from the week that was, I'm joined by a banner trio of expert commentators.
They are: Yamiche Alcindor. Yamiche is the White House correspondent for the PBS News Hour and a political contributor for NBC News and MSNBC. She was named the Journalist of the Year in 2020 by the National Association of Black Journalists. If she is a little out of breath, it's because 30 seconds ago she was on MSNBC covering the breaking news of the fatal car crash in the Capitol. Before PBS, Yamiche served as national political reporter for The New York Times and as a national breaking news reporter for USA Today. This is her first time on Talking Feds, thank you very much for joining us.
Yamiche Alcindor [00:02:31] Glad to be here.
Harry Litman [00:02:32] David Jolly. David Jolly is the chairman of the Serve America Movement, a policy and politics analyst for MSNBC and CNN, and the former US representative for Florida's 13th District, which he served from 2014 to 2017. He served as a Republican, but left the party in 2018. A student of Congress to rival perhaps only Norm Ornstein, David has held many positions in Congress from intern to member and has worked outside of Congress as an attorney and political consultant, as well as in specialty finance. This is his first visit to Talking Feds, David Jolly, thank you so much for joining us.
David Jolly [00:03:17] Great to be with you, Harry. Thank you.
Harry Litman [00:03:19] And oh, well, look at that. Norm Ornstein. Norm Ornstein is an emeritus scholar at the American Enterprise Institute, co-host of A.I.S Election Watch and a contributing editor for the National Journal and The Atlantic, among his many other distinctions and titles. He's been named one of the top 100 global thinkers for his diagnosis of America's political dysfunction, which seems to have only gotten worse since that work. We are really lucky to say he's a regular guest on Talking Feds, thank you as always for joining us, Norm Ornstein.
Norm Ornstein [00:03:54] I'm delighted to be back here.
Harry Litman [00:03:57] All right, so topic number one for us and for the country this week, has been the Chauvin trial, which has made Norm's native Minnesota, Minneapolis even, again in the eye of the storm. Let's just start generally with your reactions to the trial itself. The first week is now history, what kind of week has it been for both sides?
Norm Ornstein [00:04:23] This was a terrific week for the prosecution, understanding that there's still a long ways to go. And it was, I think, a good week for them in a couple of ways. They had a series of witnesses first who were extraordinarily sympathetic, and I don't know how anybody with a heart could watch as some of these witnesses to the murder of George Floyd lost it on the stands of recognizing that they're facing their own pain through all of this. But also having the supervisor of Chauvin come on and say that he did not follow appropriate procedures, other police officers and the paramedic who arrived on the scene and saying that any efforts to resuscitate George Floyd were unsuccessful. He was dead at the scene, which takes away some of the ability of the defense down the road to claim at least that the death was not directly related to what Chauvin did with the nine minutes of his foot on George Floyd's neck. All of that works to the advantage of the prosecutors, and the defense, I thought did not do a terribly good job of cross-examination in most cases. Not that they had a lot to work with, but it's important to emphasize that there is still a significant amount of evidence that will be placed in front of the jurors and that there is still a burden for the prosecution.
Harry Litman [00:05:53] You're in Minnesota, and I suppose the intensity has to be even greater there than in the rest of the country, as hard as that might be to imagine. What is the feel on the ground, and is there a sense that the stakes are very high for Minneapolis and Minnesota in particular?
Norm Ornstein [00:06:15] As a native Minnesotan who loves Minneapolis, who's always reveled in the idea of Minnesota nice, this has not been a good year, obviously, for Minnesota. But what's also true is that there is, despite having a lot of openness to different kinds of people, there's an enormous Hmong community from Laos, an enormous Somali community, and, of course, a Somali American who's now representing the city of Minneapolis in Congress. There's a history of racism, a long history of racism, and there have been issues and problems with the Minneapolis police force going back a long ways as well. So this has to play out in the context of something that is not all that pleasant, and that has repercussions that obviously will continue down the road, including the relations between the police and the citizens of the city and the state of Minnesota.
Harry Litman [00:07:10] Quite a lot to unpack there. And yes, it's all true. I did think this end of week testimony from the officers, it wasn't the dramatic tear jerking accounts that we heard all through the week. But when you think about what he could possibly be hoping to say by way of his own defense, Chauvin, this is and Nelson, his lawyer and I agree with you, it was a pretty textbook poor performance on cross-examinations in particular. This does seem to knock out one plank that he offered an opening, which is the sense that Chauvin thought he was responding as he'd been trained to do. You have the most senior officer in the department saying, no, you can't put your boot on the neck, and that's deadly force, and you can only do that if you're threatened and they weren't threatened at all. And that seemed to me to put the capper on a very good week.
We did have this series of witnesses, and on the one hand, it gave the prosecution the chance to show its big evidence again and again and again from different angles, right? But there were several of them who, as you say, were choked up about it in a personal way and seemed even to express a kind of remorse at not having intervened, or to feel almost personally culpable. David, did you kind of get that sense from the witnesses? And that's what struck me as a pretty unusual kind of testimony in the trial of this sort.
David Jolly [00:08:44] Yeah, Harry, I think what we saw from the witnesses was their recounting of what was a very human moment that has now found its way into our judicial system, and rightly so. For those on the witness stand, many recounted regret or at least the inability to inject themselves, given the presence of the officers and the position that Officer Chauvin was taking in that moment, but I think it speaks Harry, very broadly also to how the nation kind of views this case, and in many ways, the verdict itself. I mean, I think for much of the nation, the verdict will serve as a prism through which we see our own country. It's in many ways holding a mirror up to who we are as a country, and I think for those feeling unsettled, myself included in this moment, it's because you worry that perhaps there's not a conviction.
And look, I'm an attorney as well, nowhere near as esteemed as you and Norm and others, but I'm the last one to rush to judgment. But in this case, we know that a white police officer extinguished the life of a black man where there certainly was not the necessity for the use of force that was deployed in that moment. And that is clear to the observers that we saw on the witness stand this week. It was clear to some of the fellow officers as well who suggested that maybe this was excessive force, and so I think we find ourselves at another one of these inflection points in the country for criminal justice, for racial justice, for the disparate justice systems that we seem to often confront as a country when it comes to white America and black America. And the nation is expecting a conviction in this case. I think this will be one of the cultural moments that we remember as a nation, and I think the anticipation is that it's a verdict that people assume will result in a conviction. But there's a certain fear and restlessness that perhaps it doesn't.
Harry Litman [00:10:41] Yeah, and let me just say, as a former prosecutor, I worked on the Rodney King case, which is one of these cases. It's like all you need — you have all the pressure already, even in a normal case. It's hard to appreciate until you've been in that crucible what you're feeling. Then there's the big case and now there's the historic country depending on you case, and, wow, that's you're sweating bullets. Let me go back and ask you, Yamiche, about we had these different witnesses, and so we saw their whole card, as it were, again and again and again. The excruciating, interminable minutes of Chauvin's boot on the neck. Was it an overkill, would you think, to do it again and again, or was it effective because they were doing it through different witnesses? How do you think the prosecution played that kind of best card in their hand?
Yamiche Alcindor [00:11:37] It's hard to say if they overplayed it, because in my experience, it became just worse and worse and worse with each video. And there were times where I, who has covered all sorts of mayhem and who have covered a number of police killings, I had to put the TV on mute and walk away. And I think it's because what Darnella Frazier said sticks with me as an African-American woman, which is this could be my brother or my friend or me. So there's this feeling that watching this video over and over again, it felt like I was watching someone, a member of my family die over and over and over again. But it also, in some ways hammered home the idea that it's really hard to think of this as being justifiable or OK in our society. But of course, I also covered the trial of George Zimmerman and watched that entire trial for weeks and weeks and weeks and watched a jury acquit him.
So I think in some ways, as I was watching the video, I kind of my mind started going to May. Thinking, if we've all now seen this video and seen George Zimmerman die from the five different angles, that it feels like we saw him die from it this week, what does it mean to our country and to our society if in May this officer is acquitted, or if in May people feel like they just weren't heard and that this is exactly the way that we can treat people? Because I think talking to some of my African-American friends and family members, there was a two part to this. There was one that it was, watching it was terrible, and it was a reminder of just how bad this case made the entire nation feel and a reflection on why we ended up having this racial reckoning. The other portion, the feeling was this could be a warning for African-Americans, this could happen to you, and that this isn't just watching something that is completely wrong, it's this is what happens when you get out of line.
This is what could happen to you, and I think that that second reading of the video to me makes it feel like it's not overkill, because every single time I watch it and every time other people watch it, there's just as a reminder that anybody who is black and brown in this society could end up like this and it cuts across socioeconomic lines. It doesn't matter if you're in a million dollar house in DC, or if you're living in the projects in New York, if you are seen by the police as a threat, which a lot of African-Americans are, generally based on the data that I've looked at and reported on for years and years and years, that \you could end up with a knee on your neck.
Norm Ornstein [00:14:11] I thought one of the most powerful elements of testimony was a young woman from the fire department who is a paramedic, who said after it was clear that George Lloyd had no pulse, offered to intervene and was basically intimidated by the police who were there on the scene. That wasn't just some random person in the audience watching this, it was a random person, but a member of the fire department. But the second thing is and it gets to something that Yamiche said, because we've had not just Zimmerman, but all of these other cases where people of color were brutally murdered by cops and then acquitted because there is a tendency among juries to give the benefit of the doubt to police, and a belief that we weren't there on the scene, they're always under threat. And the fact that you had prominent members of the police corps in this case, including superiors to Chauvin saying, 'no, he did not follow procedures,' I think may make this different. But we also have to keep in mind that this isn't just binary. It isn't just will he get convicted or will he get acquitted?
It's also what will he get convicted of if he is convicted? And there I think the bigger question is whether he will get convicted of second degree murder or maybe something significantly less, maybe even involuntary manslaughter, where it would be a much lower sentence. And I think even if that happens, you're going to see an enormous amount of unrest and a belief that this was a brutal, you could almost say premeditated or at least immediately meditated murder of a helpless man who was not resisting. And if it doesn't result in the kind of punishment that comes to other murderers or even to people who are thrown into jail for years, especially African-Americans or other people of color, for minor offenses, you're going to see an uprising not just in Minneapolis, but all over the country that could be very, very unsettling.
Harry Litman [00:16:13] I actually want to go to that at the end, but I'd like to stick with the trial just a little bit more and return to something Yamiche said, because they did a really effective thing, the prosecution this time, and I'm comparing it to Rodney King. Rodney King basically was presented as a feral creature, high, et cetera, but they zeroed in on force as being unreasonable. Here, Floyd himself was humanized, seemed like part of a normal day. He does seem a little high, but it's like a regular normal day, not at all the kind of account the defense tried to give in the opening of a wildly intoxicated guy. But what they also did, to Yamiche's point, they really humanized the witnesses and did make them part of Team George. There were several comments along the lines of what you said. McMillan said, you know, I don't have a mother either. And it could have been me. And there were several ways in which they took the witnesses to actually advance the case that the whole thing was a completely aberrant intrusion and deadly one by an officer in a in a community, not just for a single victim.
Yamiche Alcindor [00:17:36] I think what you're saying, Harry, is really, really spot on. And I kept thinking when the first start, when the first witnesses started testifying, this is the first jury meeting the second jury. The first jury was on the scene, they were people of his peers. They were regular, everyday people, a firefighter, MMA, a nine year old, a 17 year old. And they were watching this and they all decided that this was wrong. They all decided, OK, maybe he should have not resisted arrest, the old guy saying, you know, calm down, George Floyd, get in the car. But when it gets to the point that there's a knee on his neck for minutes and minutes and minutes and he's then unresponsive and the knee is still not removed, and then the EMTs show up and the knee is still on his neck, there comes a point where all of these people say, yeah, this is not right.
And I think the prosecution saying people were so disturbed that they called the police on the police, that also stuck with me, because I was thinking about the EMT that Norman mentioned, and she said that after George Floyd was taken away by an ambulance, she stuck around the scene because she was worried that the black and brown people who were there might be under some sort of other threat. And to me, that stuck with me because of what she was trying to do is say I wanted to use the, frankly, my privilege as a white woman to stand and watch with these people because I needed to be part of this ongoing jury of people who saw all of this as wrong. And I think that that probably is also something that stuck with me, maybe it will stick with the jury, is that this was a group of people who didn't know each other, didn't at times have anything in common with each other in kind of a sense, other than the fact that they were all concerned citizens.
Last thing I'll say is the defense painted these concerned onlookers as a quote unquote 'threat,' and so they diverted attention away from providing them adequate care to George Floyd. When the sergeant got up there, the police sergeant, and said, 'I don't understand why that crowd would ever do that. Unless they're attacking you, they should not have any sort of impact into what you're doing.' That says, it says it very clearly that this crowd of people who, yeah, maybe they were being mean to you, maybe they were calling you a bum and saying all of this stuff and they were getting angrier and angrier, but they weren't physically attacking you and that and they didn't stop you from releasing your knee on George Floyd's neck, and I think that that to me is also underlying what the prosecution is trying to do, which is pick apart the case of the defense.
Harry Litman [00:19:56] All right. Now, as I think Norm pointed out before, trials are roller coasters. It's going to be more of a slog. There'll be the medical testimony, but it really does seem like, among other things, that we have accounts of the jury having kind of coalesced. That has to be more good news for the prosecution. We'll revisit this next week, but let's close with Norm's question here. What counts as a win and what counts as a loss? If they get the third degree conviction, which remember, they fought to keep that charge in, but they don't get the second degree, is that, as Norm has suggested, a mini apocalypse or will that be rough justice all in all, both in Minnesota and the country?
Yamiche Alcindor [00:20:41] I would say this feels like a lose-lose situation in some ways, I think it'll probably be seen as a win by activists, Black Lives Matter activists and civil rights activists if Officer Chauvin is convicted of the highest charge and he goes away for decades, I think he's facing at the maximum 40 years. But in some ways, because we've already seen all these other cases where black people were killed and it's still so rare for an officer to be charged or convicted, there's still this sense that black people are simply not safe around law enforcement. And I think that you can't unsee what happened to George Floyd and you can't — Ava DuVernay was on PBS News Hour and she broke down the video and she said, 'that officer had its hand in its pocket and he's looking dead in the camera.' And it's in some ways he seems at ease with what he's doing and seems at ease with, 'yeah, this system is going to have my back.'
That, to me, doesn't go away because he's convicted because frankly, as a black woman who is married to a 6'4'' black man, I look at my husband and I think people look at him and think he's scary and dangerous. And no matter what happens with this officer, people aren't going to look at my husband and think, 'OK, that's just a nice guy who's a reporter,' no, he's still going to be having to deal with all of the different things that black people deal with in this country when it comes to being seen as a threat. And I don't I think that sticks with us, and I don't know how that ever becomes a win for black people. I mean, that's why I'm a reporter in some ways and not an activist, because I am fascinated by the idea that this country, the way that we started, the way that we continue, it just seems like it's one big racial quagmire that I don't see a way out.
Norm Ornstein [00:22:18] Let me take this to another level, Harry, in terms of what would be a win. We saw this ginormous settlement by the city of Minneapolis with George Floyd's family. That's taxpayer money going out, it's not coming from the police, it's coming from taxpayers. And we've seen this over and over that we get these cases of police, excessive violence or deaths of people with settlements that go unnoticed by most individuals out there. And it adds to this notion that the police don't pay any price for this. The other question is one of qualified immunity, that there is no price to be paid there either. Now we have lawsuits or we have cases that may redefine qualified immunity. And we're at least getting some pressure in different communities, including in Minneapolis, to take away the idea that any of these settlements just simply come out of taxpayers pockets. You make some of that settlement money come out of the police pension fund.
You take away some qualified immunity from people who go beyond what their duties enable them to do, and we might see some real changes here. But we're far from that as well, because this goes way beyond the George Floyd case. And it's just as Yamiche said, there's hardly a day that goes by when we don't see some outrageous action against a person of color that doesn't happen to those of us who are not. And until we can bring about changes and culpability and begin to put some restraint on here, and that gets to the whole set of other issues, including the recruitment of people into the police force. Remember, we've got this other larger issue, too, which is white supremacists infiltrating police departments without any checks and balances there, including many who were at the Capitol on January 6th. There's a whole lot here to unpack that goes beyond this trial and its verdict.
Harry Litman [00:24:16] You've galloped into quite a large field, I have no doubt. But I do think immediately the real issue is going to be, is there a third degree conviction? As you probably know, there's a history in Minnesota; a few years ago, another notorious case involving a white victim and a rookie officer, she was killed and he got a third degree. And people in Minnesota have told me they've got to up that somehow. So that'll be, to me, the big question, what happens if they come in on what's seen as a compromise verdict? Will people say some justice was done or will it feel like a loss? So now, moving into another issue that oddly I found at least is a different vantage point on the kind of polarization and warring factions within America in 2021. I wrote a pretty innocuous, I thought tweet about vaccine passports, and it rained down hundreds and hundreds of nasty, threatening, vile, vulgar comments, one by Donald Trump Jr.. And I learned then that, in fact, vaccine passports are the next line in the sand for the sort of anti-mask wearing Trump crowd. Why has this become such a cause celeb? And what is in the minds of people who feel so very strongly about the vaccine passport issue?
David Jolly [00:25:50] Harry, I think what we're seeing politically is particularly Republican leaders are framing this issue as a freedom issue, which is what they do when issues get particularly complicated and when the regulatory powers of the state come in. If you think about the Second Amendment, for instance, there really are no proposals out there that would rip guns away from law abiding citizens, and so Republicans can't fight on that ground, so they frame it as a freedom issue, and they they define freedom as absolute. And so that is the message that Republican leaders are deploying, and so it shouldn't surprise any of us that then Republican leaning voters or those who at least are influenced by the voices of leadership on the Republican side have made the vaccine passports, the vaccine cards an issue fundamentally about freedom. If we take a step back, the entire COVID experience has really been a presentation of kind of the academic approach to the powers of the state and the role of the state to balance the public health of the collective versus individual freedom, versus an interest in protecting and shoring up a national or state based economy. And if you were to be dispassionate about it, you can kind of go governor by governor and see where they struck that balance.
Harry Litman [00:27:05] Starting with your governor, who's most out front here, right?
David Jolly [00:27:09] Yeah, in Florida, certainly, Governor DeSantis, he diminished the public health interest and he really injected all of his energy into the economic interest. And this vaccine passport question, it's just kind of a thread that's continuing from that approach to the entire pandemic. They will wrap it in individual freedom and they will wrap it in the economic burden that a vaccine card could take. But if you talk to people concerned about public health, a vaccine card seems like notionally a good idea, right? We require students who enroll in our public schools to provide proof of vaccinations, and the reason why is the state has determined that that's a collective interest of the state to protect the public health of our youngest children. But in this case, Republicans have kind of turned that concept on its head.
Harry Litman [00:27:54] Is it just they needed something and this was the next one, because when people were really up in arms about the closing down of the economy, say, and Trump wanted to open it up, I was with the scientists, but I understood the basic notion of what was at stake. This really seems like small beer and they're making a big deal about it. The right that they want to have is not to have the vaccine, OK, but then not to tell other people? You want to be in a concert or a dining hall and know that other people have been vaccinated and they're advancing passionately the right not to tell you? I wonder if they're sort of overplaying their hand at having chosen this one as the next big liberty issue.
Norm Ornstein [00:28:41] This is entirely manufactured Harry, and it's a reflection in some ways of what's happened in the right wing community, I won't call it the conservative community, and the Republican Party. I still have a whole series of yellow books of vaccination records that I had to use whenever I traveled. And they're still required if you go to certain parts of the world, and it started with smallpox and the smallpox vaccination, but it included others, and it was widely accepted, across the spectrum. The other part of this, though, that makes it so ironic in a way, is that if you want to open up the economy, the vaccine passport is one of the best ways to do it.
You want to enable people to go to restaurants and not have to limit it to a tiny portion, show that you've been vaccinated and you've opened it up. We now have the CDC saying today, admittedly with a qualification, you probably shouldn't travel, but you're free to travel if you've been vaccinated. So the idea that this is some call of freedom and that it's now been taken, of course, with conspiracy theorists, that it's got a microchip embedded in it and it'll follow you around, shows just how loony this is, but how much it is deliberately manufactured to be divisive, to play on tribal instincts and to create something where they're losing on other issues.
Yamiche Alcindor [00:30:05] I just did a story for a News Hour about vaccine hesitancy among the GOP. Republican men are the most hesitant based on our reporting demographic in this country when it comes to vaccines. And a lot of this goes back to the idea of President Trump and the beginning of this pandemic, and the way that he polarized the pandemic and the virus. The language that he used, the way that he refused to get vaccinated in public, the way that he was slow to finally getting behind the idea of vaccination. So now we are in this vaccine passport, this is going to be the latest kind of jostling the tribalism that Norm was just talking about. I think if you ask Trump supporters, I've just talked to a bunch of them, they would say this comes down to freedom. They don't want the government telling them, or private people telling them what to do, but they also want the freedom somehow to be in these private places, like concerts, like airplanes, all of these different places that are privately owned.
Whatever the next iteration of this is going to continue to happen, it's going to continue to replicate itself, because at every step of this pandemic, from the very beginning, it's been a polarized thing in America. First, some people thought it was a fluke because the president said it was the flu. Then when we finally got around to thinking, OK, this is a really big deal, it's well, how do we actually deal with it? Should we wear masks? There was the whole Republicans don't wear masks, Democrats do. So at every single step of the way, it's going to be polarized. And I think whatever the next iteration of this is, this is going to continue to replicate itself because that's the society we've built. It's indicative of a deeper schism that Norm is talking about.
Harry Litman [00:31:39] That seems really right to me, OK.
It's now time to take a moment for our Sidebar feature, which explains some of the issues and relationships that are prominent in the news today. We wanted to explain the Department of Justice's Petite policy, which could come into play in the event that the Chauvin trial is seen as failing to vindicate the federal civil rights interests at stake. And to tell us about the Petite policy, we are happy to welcome Julie Cohen. Julie is a documentary filmmaker and television news producer. Her new film, My Name is Pauli Murray, which follows the life of lawyer and activist Pauli Murray, just premiered at Sundance. Julie also directed and produced RBG about Supreme Court Justice Ruth Bader Ginsburg along with her partner, Betsy West, as well as eight other documentary features. She lives in New York with her dynamic husband, Paul Barrett, and their dashing dachshund, Bo.
Julie Cohen [00:32:42] The Fifth Amendment to the US Constitution, which says, 'no person shall be subject for the same offense, to be twice put in jeopardy of life or limb,' prevents the government from prosecuting the same person twice for the same conduct. In general, the government only gets one bite at the apple. If a defendant is acquitted, he can't be indicted again for the same crime. It surprises a lot of people to learn that that provision doesn't apply to a second federal prosecution in the wake of a state prosecution. So, for example, the double jeopardy clause doesn't prohibit a prosecution for drug distribution in federal court after a state law prosecution, for the identical conduct. That's because under the Constitution, the state and federal governments are separate sovereigns.
So for constitutional purposes, it's as if the state prosecution happened in an entirely different country. But this result feels unfair and unsatisfactory; for the criminal defendant and even the public, it certainly feels like a double jeopardy violation. So the Department of Justice has developed guidelines that stake out a compromise on the double jeopardy question. These guidelines, known as the dual and successive prosecution policy, or the Petite policy after the clause that generated them, create a presumption against a second federal prosecution for the same conduct a state government went after. But the Petitt policy leaves a narrow out. It authorizes, but doesn't require, a second federal prosecution if the case involves a substantial federal interest that the state prosecution left demonstrably unvindicated. The policy also requires a senior DOJ official's approval to pursue a second prosecution.
A classic instance in which the Petite policy might be applied is a state prosecution tainted by unlawful bias. For example, in the Rodney King case in which the department concluded that the state's prosecution, which resulted in an acquittal of the Los Angeles police officers who brutalized King, justified the federal retrial that ended in their conviction. But a case ending with an unfair result doesn't suffice to trigger a second federal prosecution. Most everyday acquittals won't leave a federal interest demonstrably unvindicated. The Petite policy is a backstop for those rare cases in which there has been a genuine failure of justice that glaringly disservices a federal policy, such as the federal interest in racial equality. For Talking Feds, I'm Julie Cohen.
Harry Litman [00:35:10] Thank you very much, Julie Cohen, for schooling us on the Petite policy. One more note about Julie, before starting her own production company, Better than Fiction, Julie was a staff producer at Dateline NBC, where she was nominated for four National Emmy Awards and won the National Gracie Award.
All right, last issue to discuss is Matt Gaetz. A little hard to know where to start, but, you know, as a lawyer, I think, like, has nobody told him he has a right to silence? It's been comical, the flailing that he's done in the last few days. It doesn't change the elemental and dangerous fact, he is clearly a suspect in a federal investigation of sex trafficking underaged females. But I'm not even sure what he's trying to say, and there is a kind of weird stew of Florida politics and this Greenberg guy that seems somehow to be at play, maybe in a way the rest of us don't understand. Actually, let me — as we have a great expert, a native of Florida here, can I start with you, David, and just can you give me your sense of the context of this, including the whole Florida aspect?
David Jolly [00:36:31] Sure, sure. You bet, Harry. And I think it's always important because when you have a high profile political figure, people have opinions and they like to throw this into the political arena. But I think we have to start with the fact that should the case prove out to be true, which it appears it is, we have to acknowledge that there's an underage victim in this case, a child who was below the age of consent. And so we can't kind of skip past the gravity of the story that we're talking about.
Harry Litman [00:36:58] Maybe several.
David Jolly [00:37:00] Yeah, maybe several. So Joel Greenberg was this, was the tax collector for one of the largest counties in the state outside of Orlando. He emerged on the scene in 2016 just as Matt Gaetz was emerging with a national profile during his election to Congress. And they were kind of kindred spirits. What the relationship was, we're all kind of learning in real time, but they emerged as compatriots in this new kind of brash Trump-GOP world. Joel Greenberg quickly got into trouble, though, in all sorts of ways. Skip forward to his first indictment, it was for stalking a political opponent, creating false social media narratives that his opponent had engaged in inappropriate behavior with a student. And ultimately, Greenberg gets indicted for that. That begins this thread that starts to get pulled. He's later indicted for charges of forgery, I believe illegal use of of public property, self enrichment, using funds, but ultimately leads to Greenberg's indictment for causing a minor to engage in a commercial sex act.
What we learned is this is now a very serious investigation, and it appears that Joel Greenberg was using his access to the driver's license database within the county, not only to access information, but apparently to falsify documents as well, and then come in to the Matt Gaetz relationship. And apparently Matt Gates was somewhere in this universe. And again, because we don't have all the information, I'm going to choose my words carefully. But it certainly appears that Matt Gaetz had knowledge of this or may have been involved, and that is the investigation now that involves Matt Gates. Understand, you have in Joel Greenberg, somebody who's willing to share information if it will result in lesser charges against him, or certainly a lesser penalty if he's convicted. I will say politically, for those who know Matt Gaetz, and have known him in Florida politics, he's a son of both wealth and privilege in Florida Panhandle terms, which is a little different perhaps than terms, we use wealth and privilege in other communities.
But his father was a very powerful political broker in the state Senate, the Senate president kind of handed his son a state House seat, and then when Jeff Miller retired from the Congress in 2016, I believe, Matt Gaetz just kind of walked right into that congressional seat. And for anybody who knew Matt, you knew Matt was a powder keg arriving on the scene in Washington. And it was only a matter of time before scandal found him or he found scandal. In this case though, it's a scandal, as I mentioned at the beginning, that involves a real victim in this case. And I personally believe that an indictment is somewhat imminent, that this is going in that direction. I think most Florida politicians, certainly Republicans believe so as well, because notable is how few people are willing to support Matt in this moment.
He was somebody with very few friends in Republican politics, but the few friends he had were very powerful. He was one of the closest relationships Ron DeSantis has, we know of Matt Gaetz's public relationship with Donald Trump, but in this case, neither Trump nor DeSantis are even willing to come to Gaetz's defense. Gaetz, as has been said by a lot of attorneys, I think, including you, Harry, he should shut up. He should get off Fox News. He should resign the Congress, and he should recognize that he is facing a significant legal matter should he get indicted.
Harry Litman [00:40:27] And I'll add one more person to the mix who doesn't seem to be coming to his rescue, which is Kevin McCarthy, there's the sense among Republican leadership that this is going south and fast. He does seem to be offering some kind of technical, something like they were 17 when we dated, but by the time they were on the plane, they were 18? Does either of you, Norm or Yamiche, make heads or tails about what he's trying to say? And is it completely made up?
Norm Ornstein [00:41:00] He's got a number of smokescreens here that he set out, including this bizarre apparent effort to get him and his father to help with what appears to be a now dead individual who was in Iran, but it has little to do with the case against him. One thing I would add about Matt Gaetz, there were many stories, and David may have more insight into this as well, that when he was in the Florida legislature, he had set up a game with other male lawmakers, a point system, if you slept with a staffer, or if you slept with a fellow legislator and even more if you slept with a married legislator — this man is a pig, and a monster by any set of standards, whatever happens to him in this case. And while it's striking that few people have come to his defense, the main two are Jim Jordan, who is the last person you would want vouching for your credibility, and Marjorie Taylor Green, who is the next to last person you would want vouching for your credibility —
Harry Litman [00:42:04] I might switch those two around, but I take your point...
Norm Ornstein [00:42:07] Jim Jordan, because, of course, he has his own scandal with a ton of Ohio State wrestlers saying that when he was an assistant coach there, he did nothing while they were being sexually abused. But at the same time, let's note that the Republican Party has not condemned Matt Gaetz. Has not condemned these charges, has not done anything other than through silence, tried to get distance from him, which itself is pretty appalling.
Harry Litman [00:42:35] Yeah, although they're holding their breath a little. We've talked kind of throughout this episode of the different fault lines and deep ones within American political life. The charges sound lurid, but is part of what's going on here just kind of payback or deferred resentment for Gaetz's defense of Trump these last few years, or is that trying to put a kind of political gloss on what's just a basic down the middle scandal?
Yamiche Alcindor [00:43:09] I almost see two parallel things happening. One, you have a serious federal investigation that is underway and you have people like Katie Benner at The New York Times and her colleagues who are getting more and more information from their sources. I mean, reading the latest story where they could where they had the little receipts from the Cash App, I mean, those type of details are scandalous. They're controversial. They're also hard facts that The New York Times is literally just digging up and and reporting as a sort of in some ways evolving investigation. Then, of course, you have the political side, which is what Norm and David have been talking about, and I think the political side is interesting because, yes, you see someone like Matt Gaetz who did it — he has about as many friends as Ted Cruz has, and you see that there are people standing up for him, and also that his credibility has already taken a hit because he stood up and said so many different things that are demonstrably false, including during his defense of President Trump, but also what he just said other things, and I think you're starting to see people on the right take, really read the room and say this is not the person that I want to go down with.
And I think to me the most, probably one of the most fascinating things, apart from the details that we're getting every single day of him showing nude photos to his colleagues in the Capitol and all sorts of terrible things, is that you also see in some ways the right wing media starting to turn on him. Tucker Carlson saying that this conversation with him was one of the most weirdest things that he had experienced and his face when Representative Gaetz said, 'well, you remember going to dinner with that young girl with your wife?'
Harry Litman [00:44:47] 'Yeah, you remember don'tcha?'.
Yamiche Alcindor [00:44:48] It was it was this moment where you can see the close relationship between the right wing media and Republicans meshing on air. Tucker Carlson wanting to just back away as quickly as possible, but even with his saying that it was a weird conversation, it's still — that dinner seemingly probably happened, and that in some ways underscores this larger issue of right wing media, including Fox News meshing and being so close to politicians, it's in some ways this shared demise if something goes wrong.
Harry Litman [00:45:18] Yeah. And by the way, they're not criminal suspects, but I'm sure there's many males in Congress sweating bullets now because they were cavorting with him and trading the pictures.
Norm Ornstein [00:45:32] It's important to note that this investigation began under Bill Barr at the Justice Department, that there was pressure apparently on Barr to drop it, which he did not. We have stories suggesting that Barr made sure that he was never photographed next to Matt Gaetz while this was going on. Imagine if this had started under the Justice Department in the Biden administration.
Harry Litman [00:45:55] Which I think is what Gaetz was first assuming when it came out of the box, yeah.
Norm Ornstein [00:45:59] We might be getting a very different reaction, and to this point, after the interview with Tucker Carlson, Fox has had radio silence on the Gaetz case. They focused on many other things. They don't want to touch it either at this point, but the fact that it started under Bill Barr is a very important element of the story.
Yamiche Alcindor [00:46:20] I would also just say, if I could almost zoom out all the way to just society, there's something that that really makes me pause and really think about what world we're living in, in post-MeToo era or during the MeToo era, when we've already had these robust conversations about how not to to be abusive to women, how not to commodify women's bodies, that after all of this, we could be being served by members of Congress who found it OK to be looking at nude photos of women while in Congress. It just to me, that to me just feels wrong. It just feels like, why are we not past this part of our existence where men are passing around naked photos of women in Congress, let alone your regular life, which is problematic. But in Congress?
Harry Litman [00:47:09] Yeah, I mean, there's a chance this gets bigger. Let me just say, as a prosecutor trying to sniff it out, there's clearly a there there. But is it sort of a single victim in some hotel receipts or is it a really pretty big course of conduct over a few years? Where does Greenberg come in? We don't know that, and that's part of what's taken so long. I think if it was just a question of whether she's 17 or 18, it wouldn't have been eight months to go. All right, we are out of time on this breathless discussion. Thank you so much, we just have a second left for our final feature of Five Words or Fewer, where we take a question from a listener and each of us has to answer in five words or fewer. A very interesting question here from Noah Redlich, who asks, 'Is populism in the United States today a left wing or a right wing movement?' Five words or fewer, anyone?
Yamiche Alcindor [00:48:08] I can answer, I would say both.
Harry Litman [00:48:11] Four words left, yeah.
Norm Ornstein [00:48:13] Both, but more right than left.
Harry Litman [00:48:16] One over, OK.
Norm Ornstein [00:48:17] Both, more right than left.
David Jolly [00:48:20] I would say neither.
Harry Litman [00:48:21] Interesting, and I think I'm going: These days, mainly right.
Thank you very much to Norm, David and Yamiche, 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, patreon.com/talkingfeds , where we post one-on-one discussions about special topics exclusively for supporters.
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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 filmmaker Julie Coen for her explanation about the Department of Justice's Petite policy. Our gratitude, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I'm Harry Litman, see you next time.
