Harry Litman [00:00:06] Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman. It was a week when Republicans wouldn't take yes for an answer. First, Kevin McCarthy in the House and then Mitch McConnell in the Senate came out in opposition to a bipartisan commission to investigate the insurrection of January 6th. The proposal included all the features McCarthy had demanded, but he still rejected it with a series of tissue-thin excuses that left few in doubt that politics and politics alone lay behind the resistance. The Democrats seemed left with two unappealing options: form a select committee from their ranks alone, or push through a bipartisan commission by eliminating the filibuster in the Senate. The week also brought increased legal pressure for both former President Trump and his family and the longtime CFO of the Trump organization, Allen Weisselberg.
New York attorney general Letitia James announced that her civil probe of the organization had evolved into a criminal investigation that she was pursuing in partnership with New York D.A. Cyrus Vance Jr.. James's obvious strategy: put maximum pressure on Weisselberg to make him cooperate and provide evidence against Trump and family. And the week saw plenty of action involving the Supreme Court, starting with the court's own decision to hear a case from Mississippi that might well sound the death knell for Roe vs. Wade and Planned Parenthood vs. Casey. Later in the week, the Blue Ribbon Commission convened by President Biden started its work, although there was little public expectation that it would lead to any reform of the high court selection process that has so roiled the country in the last 40 years. To break down these stories and more, we welcome a fantastic panel of expert guests, and they are:.
First, Congresswoman Mary Gay scanlon, representing Pennsylvania's 5th Congressional District. She serves as vice chair of the House Administration Committee and is also on the Rules Committee and the Judiciary Committee, where she was an early voice for impeachment in 2019. This is her second visit to Talking Feds, welcome back, Congresswoman Scanlon.
Mary Gay Scanlon [00:02:40] Happy to be here. Thank you.
Harry Litman [00:02:42] Also returning to the podcast, Rick Wilson. A Political strategist, media consultant, author and co-founder of the Lincoln Project, a political action committee formed by Republicans who oppose Trump, in which rank Rick is second to none. He has written two books about the former president, and he is host of the terrific The New Abnormal Podcast, which he bills accurately as 'blunt truth and dark humor for our world in chaos.' Rick, great to see you again on Talking Feds.
Rick Wilson [00:03:18] Great to be back with you, Harry.
Harry Litman [00:03:21] And we're thrilled to welcome a first time guest, Erin Burnett: the anchor of Erin Burnett OUTFRONT on CNN, as well as the weekly Erin Burnett OUTFRONT International, and she serves as the network's chief business and economics correspondent. In her wide ranging TV career, she's appeared on every show under the sun and moderated presidential debates. Having been on a few different shows myself, I can say that her show is a gold standard for cable news, and it's a real pleasure to be able to turn the tables on her. Thank you very much for joining, Erin Burnett.
Erin Burnett [00:03:59] Thank you, Harry. I'm really glad to be a part of it.
Harry Litman [00:04:02] All right, let's begin with the legislation to create a bipartisan commission to investigate the January 6th insurrection. So Wednesday, the House voted to establish a commission on the model of the 9/11 Commission. Thirty five Republicans joined the Democrats in the vote, a decent number, but far fewer than might have been predicted back in January. House Minority Leader Kevin McCarthy, who at one point condemned the violence and said Trump bore responsibility for it, led the charge against the proposal, committing the Republican leadership to whip votes against it. He's offered a shifting series of reasons, we have to investigate left wing protests, it's all been investigated already, and settling most recently on the mantra we don't need to relitigate the 2020 election. Rick, let me start with you. I've been following your tweets, which are great reading, by the way. You're not buying his line for a minute. Why not?
Rick Wilson [00:04:59] Well, first off, I know Kevin, and he's a mendacious lowlife of the highest possible order. Aside from that small complexity, he knows very well that he is trying to perpetuate the big lie for Trump, and to keep Trump happy, so that Trump will keep out of his business of trying to pick candidates to get a winning slate in 2022. And look, as you pointed out, the shifting narratives, the changing excuses, they're all excuses, not reasons. The idea that, 'oh, it's antifa and black lives matter that stormed the Capitol,' that's the real problem, or 'it didn't happen,' or it's some sort of outlier and we've already taken care of it — none of that is valid. It was an attempt by intimidation to overthrow a free and fair democratic election in this country. And it was an attempt essentially at a coup. And if they had had their way, if they'd got a little more luck on their side, they would have managed to disrupt it in a way that would have probably led to a vastly exaggerated constitutional crisis. You know what they say about a coup, if you don't punish a failed coup, it's just a training exercise.
Harry Litman [00:06:06] Is that President Ceausescu? Well, OK. But let me tease this out a little bit and ask you, Congresswoman or Erin, is this all about Trump? Is he still the kind of pied piper in absentia or is it really more about, independent even of Trump, McCarthy's calculation of the only possible road to a 2022 victory?
Mary Gay Scanlon [00:06:33] I don't I don't know about his calculation, except to the extent that it intersects with Trump. I don't know about being a pied piper, more like a puppet has become the puppet master, because it certainly seems like many of our colleagues just won't make a move without his approval. You mentioned the shifting set of excuses or reasons why they wouldn't endorse a commission that, at the end of the day, essentially was what the Republicans had proposed in the immediate aftermath of January 6th. What we heard in the final hours of debate was that the scope had to be broadened to include an investigation of the 2017 baseball shooting. Not like they didn't have control of both houses of Congress and the White House during that time. It really has been extraordinary, the lengths to which McCarthy and the Trump supporters will go to silence every possible questioning of what happened on January 6th and why, so that we can have a shared understanding of the truth in order to prevent it from ever happening again.
Harry Litman [00:07:38] I mean, by the way, there's a lot of important details we really do not know about it leading in and going forward. It does seem scandalous for a democracy that they're not being brought into the public eye.
Erin Burnett [00:07:51] It's incredible how there's no shame sort of the hypocrisy of it. Y'know we were looking back to Kevin McCarthy, not only as the congresswoman says, had sent a letter to Nancy Pelosi saying, 'right, I want equal subpoena power. I want the same number of Democrats and Republicans on the commission.' He got all that, right? He got every single thing he asked for, but we actually look back at Benghazi, right? When he had wanted a commission and there were eight investigations going on during the Benghazi, McCarthy still felt the need to have another one. Right? So when he said yesterday, 'oh, we just don't need one, we have the Senate,' his own support for Benghazi completely goes against that. And his reason back in the time of Benghazi was, we need to get to the truth for the American families who've lost their loved ones. And he did, and we did the documentary on Benghazi. I felt that deserved the investigation it got, four Americans died, five Americans dead around the aftermath of the Capitol. And yet Kevin McCarthy doesn't think that those families deserve answers. So the hypocrisy of it's pretty incredible and his lack of caring when it's called out, I think is quite stunning.
Harry Litman [00:08:54] There is this brazen shamelessness, right? And does it seem as if he's fooling anybody? And by anybody, I even include the electorate. Is it just a naked pretext or is somebody somewhere actually buying this? Because, look, this is the guy who wants to be the next speaker of the House. Can he actually establish such a record of whoppers like this? And so you can't possibly trust him?
Rick Wilson [00:09:23] Look, Harry...
Harry Litman [00:09:26] Oh, you idealistic Democrats.
Rick Wilson [00:09:28] Oh, you sweet summer child, as my grandmother would say. You know, this is a post-shame party. So they're not playing to an audience beyond the people that are watching this on Fox News or the people that are watching this on their Facebook pages of Eagle Patriot Patriotic Patriots for Palin or whatever they call it, right? These people understand that what drives many Republican voters today is — and I don't mean to be flippant about this, it's owning the libs. So even if the lie is outrageous and stupid and harmful, if it upsets the libs, Kevin's base will be like, 'yeah, he showed them. You're not going to play by their rules of civilization and civility and bipartisanship.' They love that. They love the fact that there's an extended middle finger out there.
Harry Litman [00:10:18] Right. Although on the other hand, right, thirty five votes against. That's not that many, but about a sixth of the Republicans in the House, which is a lot more than voted for the second impeachment. McConnell would never brook that sort of dissent. Is that leadership eroding?
Mary Gay Scanlon [00:10:36] I hope so.
Harry Litman [00:10:37] You're pretty close. You're closer than any of us.
Mary Gay Scanlon [00:10:40] Well, you said initially something about it wasn't that many, or might have been expected to be more. I'm not sure that we could expect it to be more. I mean, based on January 6th itself, it should have been everybody voting for the commission. But as you said, we're in a post-truth Republican Party. The fact that it was more than triple the number who had the courage to vote for the second impeachment, I think does show some progress. The fact that it was folks who come from more moderate districts felt that they had to support it. It was really frustrating in the wake of January 6th, even in the morning of January 7th, to hear that some of our Republican colleagues reportedly said, 'well, you know, I don't really believe there was a problem with these electoral votes, but I feel like I have to vote to take the vote down because I'm scared.' Like, really? Well, join the crowd because look what your guy has whipped up.
Harry Litman [00:11:34] Can I stick with you for one second on this and just ask, do you have Republican colleagues on the floor who — the equivalent of water cooler conversations where you say, you know, you don't buy any of this, do you? And they say, 'yeah, we don't buy any of it, but we have to?'
Mary Gay Scanlon [00:11:48] I didn't have those preexisting relationships. I came in 2018 with a mandate from my district to act as a check and balance on forty six, the form guy. So I didn't have those kind of relationships. I happened to have the closest relationship I have with Republicans in the House tend to be those who have been willing to acknowledge reality, and either voted for the second impeachment or had the courage to vote on Wednesday for the commission.
Erin Burnett [00:12:17] So Harry, I spoke to one of the ones who voted, one of the thirty five, and it — not one of the names that you would expect, right? Not someone who voted for impeachment. It was Carlos Gimenez from Miami-Dade and he'd been a former sheriff there. So he voted for the commission, and he said because he was very laser focused on security lapses, he was very much keeping it in that tone. But when I asked him, what does this mean, you're going against Trump and he's going to come out and slam you, which he did all thirty five of them the next day, right? And you're going against your leader, what I found was amazing was his sort of trepidation to upset Kevin McCarthy.
He was very clear, he's a great leader, and I think he's going to be a great speaker of the House in about a year and a half. So I don't know what tightrope someone like Carlos Gimenez is trying to walk, right? And it may be one that is impossible to stay on the rope and not crash. But he's sort of trying to 'OK, I'm going to be for the commission, I'm going to try to avoid the Trump thing, but I'm going to try to stay close to McCarthy,' when he kept trying to say McCarthy allows all points of view to be heard, obviously he didn't want to talk about the Liz Cheney situation. But it is interesting some of the calculus that some of these folks used to get to that vote.
Harry Litman [00:13:24] Yeah. So it's not just mendacity, but the ruthlessness of it. That's a page they take from Trump too.
Rick Wilson [00:13:30] Sure. I mean, I tell my Democratic friends this all the time. There's a very good chance, because of redistricting and a number of other factors that the Republicans will win the House in 2022. But Kevin McCarthy is actually missing something: Kevin still has imperfections in the eyes of many Trump voters and Trump elected officials, he's not perfect. You could end up with someone much worse than Kevin McCarthy as speaker, because this is a party where Kevin keeps trying to put a Band-Aid and a cold compress on a sucking chest wound. And the divisions are deep, and as the Congresswoman notes, you know, she came in in the 2018 wave where the Democrats captured forty one seats. And at that point, a lot of the people that I had worked with or that I was friendly with either retired or got beaten.
Those people were the ones in the first two years screaming at me on the phone, sobbing at night on the phone, like, 'how do I do this? This guy is evil. These people are crazy. If we don't stop this, the lunatics will run the asylum.' Well, the lunatics are not only managing the asylum now, they own the property, they are completely in charge of it. You will see worse than Kevin, I think, in the future, and you will see this level of ruthlessness, a dedication only to power become the defining characteristic of the party. It's not just like the old fashioned, amoral political consultants proposing a clever trick. This is now, there's no policy underneath that. There's no ideology underneath it, there's no philosophy underneath except own the libs, and win, and worship Trump.
Harry Litman [00:14:59] That is what's so striking, the utter absence of anything besides this. Let's skip over for a minute to the Senate. So, McConnell first indicated openness to the proposal, which, as Erin says, gave them everything that they asked for. Now he's come out in opposition and he does seem to have a tighter grip on his caucus. So does it mean that the proposal is doomed unless the Dems are ready to blow up the filibuster?
Mary Gay Scanlon [00:15:25] I thought that he left himself a little bit of wiggle room. His statement actually said something about in its current format. So if there's enough hue and cry, I don't know that there will be, I hope there will be, but I think he he left himself an out if he wants it.
Erin Burnett [00:15:40] I think that's a really interesting point. Richard Burr, obviously, who had voted to convict in impeachment trial, has already come out and said he's against this. Which I think to the Congresswoman's point, obviously if they change the language or the scope in some way, I suppose that could be back on the table. But it obviously looks pretty bad if you don't even have the people on board who voted to convict in the impeachment trial. We can all do the math.
Rick Wilson [00:16:00] I promise you, all of these guys who were these uncomfortable Republicans who were resigning or retiring like Burr, Portman and others, in their heads, their calculus now has shifted. They don't care about their legacy, they care about their lobbying gig. And I promise you, Mitch McConnell has told them, 'don't darken my door if you screw with me on this.' And McConnell's enforcer, Josh Holmes, who is the most powerful person in McConnell's world, has been whipping these people to tell them, 'don't you dare do this, we can't afford this. This is going to be politically disastrous if we have to dig through this pile of radioactive political waste,' which is why Chuck Schumer, who is wildly — I mean, I'm no fan of Mitch McConnell, but I'm an objective observer of the Senate. Mitch McConnell is vastly better at this job than Chuck Schumer.
He doesn't care about anything except power, he is absolutely amoral, he's totally ruthless, he's a brilliant tactician, and so I think Schumer should just say, 'all right, so you want to do it?' And make them filibuster by the strict rules, make them stand on the floor and speak to only matters that are germane to the bill, grind it out, turn it into a public spectacle, because, you know, I recall the Republicans spent 860 of hearing time on Benghazi, which, as upsetting as it looked at first, turned out to be a nothing burger. And they don't want to spend five minutes looking at an attempted coup against the American system of government, so it tells you a lot about them.
Harry Litman [00:17:28] Their choice would seem to be a select committee that I think would still have subpoena power, as I understand how it works, and it'd be all Dems, and so it would look more partizan, but that's the only option. Doesn't that seem a lot better than just quietly caving?
Mary Gay Scanlon [00:17:43] I mean, I feel like we have to go forward with something, but a select committee set up by the Dems does not solve the underlying problem, that we don't have a shared version of the truth anymore, so that the country can move forward. It doesn't break through the Fox News bubble. So I think the danger to our democracy is real, I think it's continuing, and if we can't get the other party on board, we're still in really troubled waters.
Harry Litman [00:18:09] Is it the best of a bad situation to have some kind of committee and some kind of investigation?
Rick Wilson [00:18:16] You've got to do it now. You know, my family is from an agricultural background and eventually, as my great uncle would say, you've got to go out and cut hogs. It's an ugly, messy job, but eventually you got to go — at least, my parents used to send me up there to build character on the farm in the summer.
Harry Litman [00:18:32] You actually slaughter the hogs?
Rick Wilson [00:18:33] I've actually slaughtered hogs.
Harry Litman [00:18:35] That piercing yell is like nothing I've ever heard. This is an aside, but it's on — it is hell itself.
Rick Wilson [00:18:40] You will never forget it. It ain't pretty. But eventually you got to cut hogs, and these guys got to cut hogs. They've got to go out there and make McConnell's vulnerable senators, make McConnell's people stand on the floor and defend the indefensible. He's got to make them go out and do this. And at some point, even for them, the spectacle gets to be too much. They may be shameless, but they are not stupid. They know that at some point when people are seeing nothing else except Ted Cruz on his fifth hour wearing a pair of Depends on the floor, trying to read from the phone book that this thing is not, it's not pretty for them. And the reason they don't want this is very simple. They know how bad it is, they aren't going to like it. And Congresswoman Scanlon has seen this, they're not going to like this. They're not going to look good from this. Nothing's going to go well for them, especially for a couple of guys like Josh Hawley and Ted Cruz...
Harry Litman [00:19:36] Remember him, right.
Rick Wilson [00:19:38] ...who, by the way, these guys were, if not in bed with the seditionists, they were at least going out and having sleepovers and painting each other's toenails. And this is not going to be pretty for them if it starts unwinding.
Harry Litman [00:19:48] Erin Burnett, do the Dems need to cut some hogs?
Erin Burnett [00:19:52] I mean, I would agree with that. I would say that y'know also, I guess if you look at it through the longer lens, you need some kind of a document or a thing that pulls all of us together for the history books, for people to read, and it would always be contextualized, of course, with the partizan that it came from, but over time it would become the reality. Sixty seven percent of Republicans, I think that's the latest CBS poll, still don't believe that Joe Biden won the election. You're not going to speak to those people. You're probably not going to speak to those people, even if you get everything you want with equal subpoena power and all that. So it seemed to me that just looking through the longer lens, ultimately the Democrats should take whatever they can get, after they force what Rick is saying.
Mary Gay Scanlon [00:20:31] I have to agree with that, because now the House administration committee has had a number of hearings with the inspectors general from Capitol Police and from the architect of the Capitol looking at the response on that day. And then we've got the law enforcement looking at the crimes that were committed, but we do need that overarching story and someone in particular to look at the causation.
Harry Litman [00:20:53] Yeah, I really got to say I agree. And to me, the ultimate indignity of the Trump years is not that he manipulated the courts and abused the rule of law, or that everyone escaped criminal punishment, it's that literally we still don't know what happened in some really important junctures almost from the day he assumed office. All right, let's leave that for now and we'll see whether the Dems are in a hog-cutting mood or not. I want to go turn now, we're doing, I guess, a lot this week with the former president.
So this week, the New York A.G., Letitia James, announced she'd opened a criminal investigation, not just civil anymore of the Trump organization, and then, perhaps more importantly, had joined forces with Manhattan D.A. Cyrus Vance Jr.'s criminal investigation, and it's now emerged she's pursuing a criminal tax investigation of Allen Weisselberg, the longtime chief financial officer of the Trump Organization. So, Erin, you've done extensive reporting here, including hosting Weisselberg's former daughter in law. So first Weisselberg himself, do we have a pretty good sense of the nature of the criminal charges against Weisselberg that James is pursuing?
Erin Burnett [00:22:09] So, I can tell you what we know sort of from our reporting at the network and also from Jennifer Weisselberg, who was at the inauguration with Allen's son, has been married to him for 14 years, and then in 2018 divorced him, so she's ex-daughter in law, is that it's tax related in nature and that much of it focuses around payments and how payments were disclosed. So one of the things they're looking at as an example is tuition paid to Columbia Grammar, which is a very expensive elite school in Manhattan, and that Donald Trump would write a tuition check for one of her children and Allen Weisselberg the grandfather would write for the other, and that all of this was fundamentally a way to avoid gift taxes and create income reduction so that it's very much focused on taxes when it comes to Allen Weisselberg specifically, which is the investigation Jennifer Weissenberg has thus far been cooperating with. I will tell you one other thing she said, though vis-a-vis Trump from what the information she's now handing over, a lot of it is connected to cash generating properties, very much cash properties, which she described to me as money laundering from her point of view. But that's an ice skating rink in Central Park and the Central Park carousel. So those are the the pieces that she says are under focus right now from her meetings with the D.A.
Harry Litman [00:23:26] Weisselberg's such an interesting figure here. On the one hand, he's right out of central casting for a cooperating witness, mild mannered accountant who knows where all the bodies are buried. On the other, it sounds like he had to sign off on a lot of funky deals with Michael Cohen and others detailed. And that itself could be criminal, but she is looking at his own taxes. So the notion is he himself was foolish enough to have played fast and loose. Let me ask this question. It's pretty clear why James would want to partner with Vance, who has the tax returns, a long criminal investigation, the higher profile criminal investigation. But that doesn't normally happen with these two entities for a number of reasons. What does Vance get out of the arrangement? Why is he willing to buddy up with Letitia James, given how far along his own investigation is?
Rick Wilson [00:24:20] From my time working in New York, I have a small amount of visibility into the various cultural and political and legal competitions between the different offices. I certainly am by no means an expert on it, but at some point I think that there's a belief that you have to unify all the information that's out there, sort of like the allies in World War Two. You've got to — everybody's got to storm the beach at one time, in part because I think they know they're not going to get a lot of bites of the apple of this thing. They're going to have to go at it, they have to score a big hit.
Erin Burnett [00:24:52] Vance is also going away, and he's widely expected to make a charging decision by the end of the year.
Rick Wilson [00:24:57] Right, right. Right.
Mary Gay Scanlon [00:24:58] There's got to be so much there, though, I mean, usually we hope that our public servants are operating somewhere in the range between the ethical and the legal, but Trump's the guy who's operated his entire career in that gray area between the legal and prosecutable, sometimes crossing the line. You're talking about the New York possible criminal liability, we've still got the investigation going on with the D.C. A.G. about what went on with the Trump inaugural fund. And that's something that I've been interested in since I got into office, and that was the first bill I introduced was to try to bring more transparency to that process.
Harry Litman [00:25:30] Not to mention 10 civil suits, Fulton County, Georgia, and at least some possibility they'll at least investigate January 6th itself. James, I think, stands out here because she really did make these statements during her campaign that seemed to think she had it in for him. If she does go for broke and if she does win, will the public accept it? The first ever indictment of a former president? Will it play as just politics and just be a big stomp on the hornet's nest, or if the evidence is strong, will people buy it?
Erin Burnett [00:26:05] From a pure strategic point of view? And the congresswoman can answer your political question, but strategically, they're trying to get, it seems very clearly, Allen Weisselberg to flip, right? So that he would be the one telling the story, not his ex-daughter in law. She believes without a question, without a beat or a pause, that he will absolutely flip on Trump. And I think that it seems, again, this is based on her perception from meeting with prosecutors and investigators that what they're trying to do is get his son. So they're trying to prove that Barry Weisselberg was working with the Trump organization his entire life, has been stealing money, skimming off the top, all kinds of things.
And that Barry Weisselberg, Allen Weisselberg's son, someone who spent his whole career at the Trump organization, she was married to him for 14 years, she's been literally with him in this family since she's 19, so 28 years, and she believes that's what it is. So they're going to get Barry Weisselberg, and then Allen Weisselberg, the goal is to get him to flip, which she says is no question, that he will absolutely do that. So obviously that leads you to Trump, but it also gives you to your point, a person who's going to tell a story, who would take away the political issues of Attorney General James, because it would be Allen Weisselberg.
Harry Litman [00:27:13] Not just to Trump, but possibly Trump family members. But it seems to me a — very much from the outside, but my prosecutorial instinct is they really got to get him. All roads lead through Weisselberg, then it maybe fans out. So in a sense, she's taking a gamble. No one has cracked him yet, 73 years old, primary loyalty not to Trump himself, but to the father. You can see the pressure would be strong. All right briefly, this wild card, there's a possibility that if New York tries to do this, that Florida Governor Ron DeSantis will try to harbor him and will have a perfect absurdist and completely illegal by the way, there's a clause in the Constitution that says he couldn't, but he might try to play out the string and litigate, and hope to get through to the next election. Anybody have any thoughts on whether we'll see some absurdist play like that?
Rick Wilson [00:28:08] As today's Florida man, you've got to ask yourself an interesting question. Ron DeSantis, more than he likes breathing air every day, wants to be president. So you have two options if you're DeSantis, it's a kind of a gamble. Do you protect him and possibly get Trump off the hook so he runs again in '24, which he wants to run again. Trump wants to run again. Or do you say, I love Donald Trump, but I can't break the law, and Trump goes and gets extradited, therefore putting him in legal jeopardy, therefore in Ron DeSantis' mind opening up the path forward. Now Donald Trump, if you're listening, Ron DeSantis has your life in his hands.
Mary Gay Scanlon [00:28:44] Now, all I can think is that Florida is not ...
Harry Litman [00:28:51] Starting from two thousand, my God. All right, another one to follow closely. I do think Erin points out that Vance will be leaving, and I do think he would want to make the charging decisions, not necessarily preside over the trials, but the ultimate charging decisions might well take some time, depending on litigation and the like. So I think that means he's got to be in something of a hurry up offense and they'll make their play on Weisselberg soon, if at all.
Harry Litman [00:29:26] It's now time for our Sidebar feature, which explains some of the issues and relationships that are prominent in the news. Today, we are going to talk about how the District of Columbia and Puerto Rico could become states under the Constitution. And to do the explaining, we have the great fortune of welcoming one of America's great actresses and comedians, Cecily Strong. Cecily has since 2012 been a cast member on SNL, where she has created a series of indelible characters, including the girl you wish you hadn't started a conversation with at a party, and Jeanine Pirro that are hilarious and heartwarming at the same time. For her work on SNL, she was nominated for an outstanding supporting actress Emmy in 2020. Cecily also can be seen in Ghostbusters, The Boss, and can be heard in the animated comedy series The Awesomes. And now I give you Cecily Strong on D.C. and Puerto Rico statehood.
Cecily Strong [00:30:33] How did D.C. and Puerto Rico become states? On April 22nd, the House of Representatives voted to make D.C. a state. That represents a step to D.C. becoming a state, but how does the territory become a state, and how might this play out for D.C. and Puerto Rico, another territory that may soon join the union? The Constitution gives Congress the power to admit new states. It exercised its power by passing a law admitting the state just as it would any ordinary legislation. Like ordinary legislation, the law needs to get at least 51 percent in the House, survive any filibuster in the Senate, and be signed into law by the president. Historically, there have been two main routes that territories have been admitted into the union.
One method has Congress first pass what is called an enabling act. The enabling act gave preliminary approval to statehood, and authorized the territory to draft a constitution and apply for statehood. Once the application was submitted, Congress voted to admit or reject the state. The other route is known as the Tennessee plan. Under this route, the territory takes it upon itself to organize the Constitution and elect a state-like government. It then holds a referendum on statehood, and uses the results of that referendum to petition Congress for admission. Both D.C. and Puerto Rico have sought admission through this Tennessee plan method. Indeed, the case for making them states is compelling: both D.C. and Puerto Rico are larger than several previously admitted states, and each have held local referenda in which the populations have chosen statehood. Many of the arguments against statehood are simply partizan concerns that the states would elect Democratic representatives, if not outright racist appeals to suppress the votes of nonwhite voters.
Some have argued that the Constitution precludes the admission of D.C. as a state, because it authorizes a federal district as the seat of government. The current admission legislation appears to avoid this concern, however, by reserving a small two mile federal district surrounding the Capitol, and converting the rest of the city into the 51st state called Douglas Commonwealth, in honor of Frederick Douglass. One potential issue with this plan is that the 23rd Amendment currently gives three electoral votes for president to the federal district. Should the rest of D.C. be admitted as a state, the Douglas Commonwealth would be entitled to three electoral votes. That would leave the residence of the federal district, essentially the president and his family, in sole control of the other three electoral votes. The admitting legislation calls for the repeal of the 23rd Amendment, but unless that happens, that could make for some awkward electoral math. For Talking Feds, I'm Cecily Strong.
Harry Litman [00:33:07] Thank you so much for that explanation Cecily Strong. Cecily is set to star in the upcoming Apple TV plus series Schmigadoon!, which will premiere on July 16th, 2021.
Harry Litman [00:34:30] Let's turn to a different sort of commission, the Supreme Court commission held its first meeting this week. Thirty six members, blue ribbon as it gets, bipartisan, and by the way, on a week in which the court decided to review a case that really, truly might result in the overturning of its abortion jurisprudence, starting with Roe. Now, their charge is just to evaluate the reforms that are already out there, but no participation from Congress. So let me ask you, Congresswoman. Any chance that something comes of this? Is this just a recipe for a five hundred page report with plenty of footnotes that no one ever reads?
Mary Gay Scanlon [00:35:12] I think it's worth taking a look at. I understand there's the political context, and of course, when FDR tried it, it resulted in the switch in time that same nine. For decades, as someone who's had cases in the federal courts and going back to when I was a college student studying political science, what we've known is that our federal courts are grossly overburdened, and it's really hurting their ability to deliver justice. So I am a little bit intrigued by this idea that we need to up the members of the Supreme Court to match the fact that we've had to up the number of circuits around the country, and that it could provide for more efficient administration of justice. There's certainly no magic about nine, and it's been less, and different numbers over time. So I think it's worth taking a look at.
Generally, I'm an institutionalist and I would hate to throw over the applecart, but maybe that's happened already. I think certainly what we saw with McConnell's approach to Merrick Garland and judges in general, we've seen a complete abandonment of the norms of how our government works with respect to the appointment of judges. So there may need to be a rebalancing. We'll see. I mean, some of it depends a little bit on how these judges perform, whether any of them need to be impeached. So there's a little bit that needs to play out still, but the fact that the court is just taking up this abortion case, I think is going to put increased pressure on it. To the extent that this is being pushed as a culture war, wedge issue at this point in time, I don't think the right has any idea what young people and young women in this country are going to do if they try to overturn Roe vs. Wade.
Harry Litman [00:36:49] How about you guys? Do you think the current system is broken? Is the selection process and the political controversies in genders so out of control that something's got to be done to change the way we select justices?
Mary Gay Scanlon [00:37:07] If you mean that we need to change Mitch McConnell because he's the one that really weaponized the system.
Harry Litman [00:37:13] If you think of this as a Mitch McConnell problem, starting with the outrage of Merrick Garland, it starts to seem more contained. And the challenge to the reformers is to make a case that it's not just embittered payback for what really is, I think, accurately described as the theft of a seat or two, depending on how you look at it at the Supreme Court.
Rick Wilson [00:37:38] You know, as a conservative, I am always hesitant to make sweeping alterations to fundamental national institutions. Whether or not there's — I agree, there's no magic in nine, but here's my worry. And if I were Republican and you guys prevail and make it a 15 seat Supreme Court, and you end up with another roll around where you got a Republican president, Mitch McConnell is 100 years old and Speaker Taylor Green, they pass a bill to expand the court from 15 to 37, and they name the entire Bowling League of the Federalist Society to the bench.
I think those things can concatenate and can start to get out of control, that worries me. I think we do need some ability to increase the capacity of of the courts broadly. You know, the courts are also famous for not giving people everything they want. Look, five years ago, Republicans thought John Roberts was a rock star. Now he's a traitor, RINO, scumbag, Antifa, George Soros, cuck shill, they hate him now. And I've already seen mumblings from my Federalist Society buddies who are like, 'well, you know, aside from abortion, Barrett may not be as solid as we thought.'
Harry Litman [00:38:45] The real thing is they've all been selected from an environment of who's more conservative than the other. And we do have a court now — this hasn't happened in over 50 years, depending on how you look at the Warren Court and the liberal side. But it is bad for the court to have this kind of supermajority. There was a very important case last week, not the abortion case, but the Ramos case where Justice Kavanaugh wrote and Justice Kagan just completely shredded him, but they didn't have to do anything. There's no requirement to really engage and stay rational, and that's just not a good spot for the court to be, not to mention that it's out of step whether you view it jurisprudentially or politically with the American people, that's always a difficult spot for the court. But I agree, my thought is that this won't go anywhere and I think maybe that's what Biden had in mind with grabbing it and doing the commission. Does anyone disagree with me that basically there will be no changes to the Supreme Court as a result of this commission process?
Rick Wilson [00:39:50] I think you're correct.
Erin Burnett [00:39:51] I think you're correct, and I would also note that putting aside looking at this from a non sort of are you a liberal, are you a conservative, and does it reflect the way the country is, when you look at what happened during the election, Trump got all his justices, as he called them, right? And they didn't go on his side of all of that. So when it came to these moments of history making, are you people of integrity, are you gonna call it like you see it? They did that, and I would hope that would give people some confidence in the integrity of the people that are being put in there, right? Even though Trump perceived them to be his people, they were not.
Harry Litman [00:40:23] They are pretty gosh darn conservative, though. Let me just ask you quickly, Congresswoman, there are tools in Congress for trying to surgically prevent a reversal of abortion rights jurisprudence. Have you heard any discussion about that being possibly undertaken?
Mary Gay Scanlon [00:40:41] I think there's a lot of interest in it, and it's being mentioned as if they go there, then Congress will have to move. But I think the hope is not to overturn 50 years of jurisprudence.
Harry Litman [00:40:52] All right, we just have a minute or two for our final feature, Five Words or Fewer, where we take a question from a listener and each of us has to answer in five words or fewer. Steve Moorewood asks, and I don't know if it's tongue in cheek, but here you go, serving it up: is there intelligent life in the universe? I think this must be prompted by the UFO news, but in five words or fewer, expert commentators, is there intelligent life in the universe? Anybody?
Rick Wilson [00:41:23] Five words or fewer? Yes, but not on earth.
Harry Litman [00:41:28] Exactly, you stole everybody's line!
Mary Gay Scanlon [00:41:32] Similar, yes outside the Republican Party.
Harry Litman [00:41:37] Erin?
Erin Burnett [00:41:38] I say, yes, and they're watching us.
Mary Gay Scanlon [00:41:41] Ooh...
Rick Wilson [00:41:42] And judging.
Harry Litman [00:41:45] I'll say, well, if Obama says so!
Harry Litman [00:41:54] Thank you very much to Congresswoman Scanlon, Rick Wilson and Erin Burnett, and thank you very much, listeners, for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter, @TalkingFedsPod , to find out about future episodes and other Feds-related content. You can check us out on the web, talkingfeds.com , where we have full episode transcripts, and you can look to see our latest offerings on Patreon, where we post discussions about special topics exclusively for supporters. And these aren't outtakes or simply ad-free episodes, though we do have those there, but original one on one discussions with national experts. Just in the last few days, we've posted discussions with Steve Vladeck on an important Supreme Court decision, Kate Shaw on the court's decision to review the Mississippi abortion case and Jen Rubin on the Israeli-Palestinian conflict. That is really a wealth of great stuff there, you can go look at it to see what we have and then decide if you'd like to subscribe. Submit your questions to questions@talkingfeds.com , whether for Five Words or Fewer or general questions about the inner workings of the legal system for our Sidebar segments. Thanks for tuning in, and don't worry: as long as you need answers, the Feds will keep talking.
Talking Feds is produced by Jennifer Bassett, whom we now can call the Webby Award winning Jennifer Bassett, congratulations to her on that well-deserved recognition, 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 to Greg Lipstone for his help, and special thanks to the great Cecily Strong for explaining the possible paths to statehood for the District of Columbia and Puerto Rico. 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 ya next time.
