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. This week marked the 100th day of the Biden administration, and the president, in an address to Congress, laid out a remarkable agenda that would, if enacted, bring this country into line with the social democratic model of many European democracies. The Department of Justice, which under Trump sustained serious damage to its reputation and legitimacy, was front and center in the news. Most notably on Wednesday, federal law enforcement officers served a search warrant on former United States attorney, New York mayor and Trump personal attorney Rudy Giuliani. It was the same action prosecutors from the Southern District of New York had twice tried to undertake in the waning months of the Trump presidency, only to be rebuffed by senior officials at Main Justice.
Significantly, new Attorney General Merrick Garland did not give the White House any advance warning of the action against Giuliani. The chief focus of the investigation is conduct that Giuliani undertook in virtual plain view in Ukraine, which was at the center of the first impeachment of President Trump. Giuliani acted as a roving free agent, taking control of American foreign policy and attempting to strong arm Ukrainian President Zolensky into announcing an investigation of Hunter Biden in return for freeing up already appropriated military aid that Ukraine desperately needed to defend itself against Russia. Garland has moved aggressively in other areas to restore the traditional nonpartisan law enforcement function of the DOJ.
He rescinded fetters on the department's pattern and practice authority to investigate local police departments for habitual use of excessive force. In short order, he announced investigations under that authority into police departments in Minneapolis and Louisville. And congressmen and longtime Trump sycophant Matt Gaetz seemed to have stumbled into deeper, hotter water with the publication of a letter from his partner in crime, Joel Greenberg, admitting that they both had sex with an underage girl, which would expose Gaetz to a 10 year mandatory minimum sentence for sex trafficking of minors. To size up these actions at the Department of Justice and assess where the DOJ stands after 100 days of a new administration, we have a superb set of expert commentators and department alumni, all good friends of the podcast. They are:.
Katie Benner. Katie covers the Department of Justice for The New York Times. In 2018, she was part of a team that won a Pulitzer Prize for public service for reporting on workplace sexual harassment issues. Katie, welcome back to Talking Feds.
Katie Benner [00:03:18] Thanks for having me.
Harry Litman [00:03:20] Matt Miller, a partner at Villanova and a justice and security analyst for MSNBC, he's the former director of the Office of Public Affairs for the Department of Justice and has worked in leadership positions in both the US House and Senate. Hello, Matt. Always good to see you.
Matt Miller [00:03:38] Always good to be here.
Harry Litman [00:03:40] And Andrew Weissmann, the co-chair of Investigations, Compliance and Defense Practice for Jenner and Block, a distinguished senior fellow at NYU and an MSNBC analyst. Andrew served as team leader and Robert Mueller special counsel's office, and before that in a number of high level positions in the DOJ. He's the author of The New York Times best selling Where Law Ends Inside the Mueller Investigation. Thanks for being here, as always, Andrew Weissmann.
Andrew Weissmann [00:04:10] Nice to be here.
Harry Litman [00:04:12] All right, let's pick up with the bombshell that dropped midweek involving, yep, Rudy Giuliani. I have a sort of fact question that I thought I would serve up to you, Katie, initially. So it's been reported that the prosecutors here from the Southern District in New York wanted twice to serve a similar warrant in the last several months of the Trump administration, which would matter, of course, to rebut charges that it's somehow a new, politically driven investigation. Is that solid?
Katie Benner [00:04:47] Now, we have reportings that's solid and that former Attorney General Barr, he and his officials rebuffed those requests, basically because they felt that they could sway the course of the election. To execute a search warrant would be an incredibly public thing to do as we saw earlier this week — when the feds raid somebody's house, people tend to notice — and that having the president's own lawyer be under investigation and be under investigation in a way that was made public would raise questions that could impact the election. And so officials under Barr said no twice.
Harry Litman [00:05:23] That actually strikes me as a arguably valid application of the policy about not influencing elections and there's an irony there, isn't there? Because had it been served then and had Giuliani been in the crosshairs, he would have been a better candidate for a pardon before Trump left, no?
Katie Benner [00:05:43] True. It probably would have helped Giuliani in some ironic way, and I think you're right, it's difficult to imagine a world in which the president's personal lawyer being under investigation and having that be public wouldn't in normal times impact an election. But keep in mind, this was a very strange 2020, and there were already stories and there was already information in the public that Rudy Giuliani himself might have been being manipulated, that he may have been being used as a conduit for misinformation by Russia, and that Giuliani himself was behaving in ways that, to put it charitably, were incredibly unusual and that he was not doing himself a lot of favors in the public eye in terms of his own reputation. So you're correct to say that in normal times this could sway an election, but remember in 2020, there was very little that could happen between Rudy Giuliani's strange public appearances and his press conferences around election fraud, to the CEO of My Pillow suddenly becoming a trusted White House adviser, that seemed to really sway voters very much.
Andrew Weissmann [00:06:45] I'd like to sort of agree and disagree at the same time, which is that I think if there had been a consistent policy at the Department of Justice to broadly interpret the time period and the scope under which you could bring an investigation that might sway an election, that would be very admirable. But I don't see that as what happened here for two reasons. One, it's not clear to me that doing a 6:00 a.m. search with the FBI doing that of his home is necessarily going to be public here. There was a lot of reason to think that was made public by Giuliani and his counsel. I have seen searches done — for instance, we did the search of Paul Manafort house and no one knew about it until that was made public by people other than the special counsel.
But more than that, Attorney General Barr had said publicly that he interpreted the policy of the department in a way that would have allowed the Rudy Giuliani investigation to go forward, because if you remember, the issue came up as to what John Durham should be allowed to do. And he said that is totally fine because it doesn't involve the president himself, the vice president himself or close family members. So before we give Attorney General Barr too much credit, it would be wonderful to compare what was going on behind the scenes in the Durham investigation. And as you remember, the number two in that investigation resigned. I think it has to surely be because of the pressure to bring a case.
Harry Litman [00:08:24] To this day, she's never said a word about it. It's really interesting.
Andrew Weissmann [00:08:27] But good for her.
Harry Litman [00:08:29] Yeah, exactly.
Andrew Weissmann [00:08:31] And that matters pending, and so she did it in the most benign way, but clearly not within her principles. So she has the right to withdraw. It's not indentured servitude. So I do think there's a real inconsistency in the way this was applied.
Harry Litman [00:08:49] Wasn't the second effort post November 3rd?
Katie Benner [00:08:52] It was post November 3rd, but keep in mind, post November 3rd, we were still disputing the election. And the president at that time was saying that he had, in fact, won and that Rudy Giuliani was the head of that effort. And so there was this narrow period where it seemed like there could be court cases brought. Of course, that period fell away pretty quickly as those court cases were struck down, and even Barr himself at the end came out and said there was no election fraud. That request was brought in that time frame.
Matt Miller [00:09:21] That shouldn't really matter, though, for the purposes of the DOJ norms, because the purpose of not taking an overt action that could influence the election is the impact on voters. And even if the election was being disputed, there was no one voting anymore after Election Day. Look, I go back to your original question Harry, I can see not serving a search warrant in the 60 days before the election. And not only can I see it, I think it's the right decision. I think the department ought to be cautious and careful. But that doesn't explain why they then didn't approve an action to go forward after the election. I worked for a public official who will remain nameless, who became the subject of a DOJ investigation and had a round of subpoenas drop fifty seven fifty eight days before the election I think, it was a big brouhaha about it, became very controversial.
We thought the US attorney had violated the guidelines or the norms and said so. And to DOJ's credit, this is before I was at the department, the investigation went dark. The election came, this public official won, and the Friday after the election, subpoenas were served on basically every associate of his in every seat with which he had interacted. And, you know, that was appropriate. That is the right way to handle this because voters had been able to make their decision free from the cloud that a DOJ investigation puts over you. So I can see waiting until after the election, I don't think there's a good defense for then not making a decision or stopping prosecutors from moving forward once Election Day is past.
Harry Litman [00:10:47] All right. I hear you. Let's focus, however, on Giuliani himself and the present day. You've represented both people in public relations crises. And you, Andrew, as regular attorneys. What a terrible client, Giuliani's an incorrigible blowhard who's out there now saying all kinds of stuff in an asinine way. But his line, as I understand it, is I wasn't a lobbyist. Why not? Because I put in the contract with my Ukrainian consultants, said I'm not a lobbyist, which means there's a contract, he's getting paid, et cetera. So what's the legal line here? Given as long as he's getting paid, who cares what's in his contract, right? He's a lobbyist.
Andrew Weissmann [00:11:33] So I can tell you with the law is. So you don't care what is in a contract at all, that's like saying I have a contract that says I'm not violating the law. That doesn't mean that you're not violating the law here. I've always thought FARA was going to be a particularly difficult issue for him and an easy one for the government. The issue is, one, is he representing a foreigner? It doesn't have to be a foreign government official, it can just be any foreigner. There's going to be a paper trail. If there's a contract, that's where the contract could be useful. Not that it says I'm not committing a crime, it says who the client is. Money says who the client is. Communications that may very well be on the material that was found in a search warrant can tell you who the client is.
And then second, you want to see one of two things that the FARA statute covers. Did you lobby anyone in the US government? And that means did you try to persuade them to do something, whether it's the executive branch, which he presumably had numerous people he could be calling or Congress also, there could be numerous people. But even apart from lobbying, the other way in which you can violate the statute is if you were trying to influence public opinion. So if you are, for instance, trying to gin up a scandal with respect to one or both of the Bidens, and that is to influence public opinion in an election, that is covered by the FARA statute.
Harry Litman [00:13:07] Yeah, and we have him doing this, remember, in real time. It's one of the odd features. We're like reliving something that we already knew and happened in public. We know from the impeachment testimony that he was more than trying to influence, he was browbeating the whole ambassadorial staff to fire the ambassador to Ukraine and to try to insist that Zelensky, the Ukrainian president, say that they were starting an investigation on Biden. What is that if not lobbying? He had said before that, 'oh, it's not because I was only representing the president as his own lawyer.' That seemed already funky, but if, in addition, we have contracts and he's doing the dual service, even if it's a dual service of trying to help Ukrainian officials who are paying him, it does seem open and shut no?
Andrew Weissmann [00:14:01] Well, I do think there'll be an issue because he did represent an American that is the former president. And so what you're going to need to be able to do is tie his actions in the United States, whether lobbying or influencing public opinion to something that a particular foreign client wanted him to do. So he's going to be trying to say, 'I did that conversation for an American, not for a foreigner.' What's going to be difficult is emails, communications about what the foreign client wanted. So I think that's where you do have to get into those details and remember that government has to prove a case beyond a reasonable doubt. But it seems to me that's where the written emails and texts are going to be really critical and could be quite damning.
Harry Litman [00:14:54] Not to mention the testimony of Parnas and Fruman and others he was working with on the ground.
Matt Miller [00:15:00] Yeah. So Katie will correct me if I'm wrong here because she knows the facts of this better than anyone. But I will say, based on the public reporting of what we know so far, I'm a little bit skeptical of a prosecution here, because I don't think we've seen evidence that he had a Ukrainian client who was paying him for this work. He's had plenty of foreign clients and he made that, he made that line about ‘he doesn't lobby for foreign clients,’ he made that clear. I don't think we know yet, I don't think we've seen that he's accepted money from clients in Ukraine. So I think his argument that when he was pushing for the ouster of the American ambassador, for example, or when he was moving this information around publicly.
Yes, these are shared interests with Ukrainian officials, but he was doing them on behalf of his American client. I actually find to be a pretty compelling one, and I know that technically under the FARA statute, you don't have to be paid to be a foreign agent. You can do it just because you're aligned with a foreign government. You don't have to be paid, but if I'm sitting in the fourth or the fifth floor of the Justice Department and I'm going to bring a case against Rudy Giuliani that is wrapped up in all of these issues with Donald Trump, I'm going to want not just solid factual evidence, I'm going to want a legal theory that isn't novel. I'm going to want a legal theory that looks like something that's been prosecuted before, and I think you'd be hard pressed to find previous fair cases where the had facts similar to this. Now, look, if we find that he accepted a bunch of money from Ukrainian oligarchs as he was doing this, forget it. I think he's in serious trouble.
Harry Litman [00:16:25] Or from Russian officials, no?
Matt Miller [00:16:28] From Russian officials, same thing. But I don't think we've seen that yet.
Harry Litman [00:16:31] Although that's really interesting. Andrew, you've sat on the fourth and fifth floor, everyone has noted this had to have gone all the way up to Monaco and Garland. What Matt is suggesting is, they would have made this very blinkered assessment that it's very solid to get the search warrant here. I would have thought that in this instance their inquiry would have been more searching. It would have been we're going to have the goods on him if we get the warrant. I think it's going to look, if it ends with a whimper, not a bang, and they close up shop, I think it's a bit of a hit, no? Do you disagree? You look like you disagree.
Andrew Weissmann [00:17:10] I do disagree with that, which is that I can see Matt's point, which I think was more geared to ultimately what you would do, and whether you would bring a case. And the one thing I would say is if you're looking for the heartland of FARA cases, you're not going to find it because there are so few FARA cases. But having said that, FARA does have a lot of ambiguities at the edges, and so they are going to be looking for a clean theory under FARA not to test the scope of the statute and prosecute gray. When I was in the department, I used to say, you know what gray is for? Gray is for civil cases, that's really not the appropriate response for criminal prosecution. I do think that they at the search warrant stage, I do think that they would look for solid evidence, but I don't think that this department just I don't know Merrick Garland well, but I do know Lisa Monaco well.
If the law calls for it, and it's clear, she would approve it and she wouldn't be thinking about ultimately, does this not lead to anything and do you not go forward, because, frankly, that's what the department should be doing, and I've seen her make those tough calls all the time without thinking about how would this look later, because she'd be thinking it looks like we did our job. And I think that's her training. But I agree with Matt, but I suspect that there is some money trail that is causing this to be ferreted out, and I think that the search warrant, with respect to Victoria Tensing that was alluded to suggests that because of that relationship, it's not to say that they're going to get to the end, that they'll be able to prove it, but there clearly was enough for what I would assume with strong probable cause for this to be approved.
Katie Benner [00:18:55] Yeah, absolutely. And keep in mind the probable cause of a crime, but that doesn't mean that it's necessarily provable. I mean, I think that it would be like saying a journalist shouldn't report as much as possible and as aggressively as possible unless there's a story at the end of the day, we report out stories all the time that come to nothing, but we still have to do our jobs. I think prosecutors are in a similar position where if you have probable cause to gather more evidence to see if there is a crime, you should take those steps and not be worried that at the end of the day somebody might be innocent. That's literally the legal system at work, and that's OK.
But to Andrew's point, the Townsing search warrant, that is really interesting because Demitri Firtash, her client, was petitioning the Justice Department around the time that a lot of this Ukraine stuff was happening. When we go back to impeachment one, and I don't remember if it was Parnas for Fruman, one of Giuliani's associates said in an interview that he received money from Firtash as he searched for evidence that could hurt Biden in the election. So you are seeing the beginnings of a money trail between this oligarch and other people who are around Giuliani that could be interesting. And again, the other thing that I think this shows is how much was going on behind the scenes at DOJ during impeachment one, and around that time that we really didn't understand. All of the action seemed to be happening at the State Department.
All of the hearings were State Department people, all of the shenanigans seem to be with the three amigos and their associates. But what you are starting to see through this case around Giuliani and some of these other actions is that meanwhile at the Justice Department, they are trying very hard to balance the fact that the president has embroiled the attorney general in this by saying on a heated, controversial phone call that Attorney General Bill Barr was working with Giuliani to try to help win the election, something that Barr denied, that the Justice Department the same time is investigating Giuliani for his actions. And Barr is also trying to balance the White House interests and his own interests and that what was happening behind the scenes was clearly — it was an incredibly stressful time for the department.
Andrew Weissmann [00:21:00] So I have a follow up on that, which is really for people like Matt and Katie, which is I'm so curious as to the documents that were not turned over in the first impeachment. As you know, they stonewalled Congress, a remarkable event in a democracy. But now you've got a different administration that can see everything. And I would assume that any good journalist is doing a FOIA as soon as the administration changed. But I think if those documents still exist and I've been in government and it's extremely hard to get rid of those documents, if somebody were to try to do so, there's just way too many places for those to be and something we worried about in the special counsel, if our office disappeared, would our documents will be there? And the answer is, I think yes, because it's just too hard to get rid of them. And my view is like I'm dying to see what was going on behind the scenes because I think there's have to be fascinating and potentially, obviously incriminating.
Matt Miller [00:22:00] I suspect some of it will come out over time via FOIA. I don't think you're suddenly going to see the department rushing to turn over all of these documents to Congress, even about a previous administration, because I remember very well from my time there what goes around comes around. And if you decide that something is responsive involving the previous attorney general to Congress, guess what? In two years when Congress flips over and you have Republicans crawling around asking for the same documents from you, you've set a precedent you might not want to live by. It's not the response everyone likes, I know, but you will probably see — you've already seen it actually in the department's posture on one of the legal cases regarding Congress. But I do think you'll see the department less forthcoming than people would think about documents, just because it's a Democratic administration now and a Republican one previously.
Harry Litman [00:22:47] Yeah, I really agree with that. Nevertheless, it's an interesting and important facet of this and possibly cases to come. We have a threadbare and in some cases elliptical record of all the things that happened in the Trump era, and I don't see the big commission going anywhere. So to the extent this also helps supplement the historical record, it's an independent good development.
Matt Miller [00:23:18] Honestly Harry, I would say quickly, one idea that I haven't heard anyone broached, but it's occurred to me is you could see the attorney general ask, say, the inspector general and the Office of Professional Responsibility to do a joint investigation into the politicization of the department from top to bottom as a kind of one off thing, because the degree to which DOJ was abused so outstripped anything we've seen really going back to Watergate. I can see the issues with that, but it would serve, I think would certainly serve the public good to have that kind of transparency and accountability,
Harry Litman [00:23:51] Although, query how would fit in with Merrick Garland's general approach, which we'll get to in a moment. I want to follow up with Giuliani, also a sort of a nuts and bolts question. So two parts, I guess, assuming they just stick with FARA, now that they have the materials, what would you think would be the timeline to make a charging decision? And then second, this is raw speculation, of course, but where could this lead? What other potential criminal charges can you see that pulling this thread might unravel also?
Katie Benner [00:24:28] On timing, I would never say how long it will take to end an investigation, because it really just depends on how much evidence is found and what other roads need to be traveled in the investigation. But one thing to keep in mind is it's very likely that Giuliani is going to say that because he is a lawyer and he was the president's lawyer, that there is some sort of legal conversation to be had about whether or not the federal government can have the information they took. We saw this in the Cohen case when another of Trump's lawyers had his files taken by the FBI and a special master was brought in to basically determine what could or could not be used. And that took a few months. So we might see a delay there as there are negotiations around, you know, what the FBI can actually obtain. And even if Giuliani weren't fighting about it, a filter team would still need to be brought in to go through everything, and just make sure that no privileged information was part of the investigation.
Andrew Weissmann [00:25:21] Yeah, I was going to say the same thing in terms of timing, which is I have no doubt that filter team process was proposed and put in place to the judge who signed this.
Harry Litman [00:25:32] To the judge who signed this warrant on Giuliani?
Andrew Weissmann [00:25:35] Yeah, I mean, we did that. When you know in advance that there is going to be attorney client information, you have really strict procedures. They could have gone so far as to propose that the same former federal judge that Kimba Wood appointed do this as well. That would be an extraordinary step that they it was done in the Michael Cohen case. So they could have done it here, and they have that as a process to make sure that there is no privilege issues. So that, I think does take a while to get through that material so that could be months.
Harry Litman [00:26:09] When would that actually occur? At what stage in a proceeding would that occur?
Andrew Weissmann [00:26:13] It would happen immediately.
Harry Litman [00:26:15] In the other instance, it was post-charging, was it not?
Andrew Weissmann [00:26:18] Well here what would happen is, the material that is found, the search itself would be done by the clean team of agents not involved in the investigation. They would give the material to a clean team of prosecutors and potentially the same or similar special master to go through that process. What this could lead to, obviously FARA, potentially tax charges, this is all very speculative. The concern about tax charges is that anything that's relatively recent, it's going to be too early to bring those charges in the sense that you don't know how he actually has reported things and what kind of extensions he got. And tax charges can be very difficult to prove because of the mens rea heightened standard, potentially election fraud charges. But again, these are all speculative. To me, the clear one that in terms of keeping this focused at something that seems I won't say likely, but seems like something that you would really want to explore, is FARA.
Harry Litman [00:27:25] Fair enough. But I do want to point out, Fruman and Parnas, among other things, they actually have been indicted for campaign finance violations and that had to do with this whole plot, roughly speaking. So it was a tangled web he was weaving, I'll just put it that way. One more question as a kind of close out, and it brings to mind the different events this week with another Trump buddy, Matt Gaetz. We seem to be learning of things that, as happens normally in an investigation, that we didn't know about. And the interesting point about the Rudy prosecution, it's all stuff we saw play out before that is now being re-presented or stitched up as a crime. You could imagine there's a lot of unfinished business right from the Trump administration, Manafort, Stone, Flynn, including people who have been pardoned. There are potential other offenses, what's your sense of the general interest in the department at looking anew at the possibly criminal events in the last two years of the Trump administration?
Katie Benner [00:28:38] I would take issue just with the way you formulate the question, because keep in mind, both Giuliani and Gaetz were investigations that began under Bill Barr.
Harry Litman [00:28:45] Excellent point, yeah.
Katie Benner [00:28:46] So, it's not that this is a new administration that wants to take a fresh look at behavior that was going on during the Trump administration. These are investigations that began under the Trump administration, where prosecutors under Bill Barr wanted to take a look in real time at things that were happening under the Trump administration.
Harry Litman [00:29:03] Fair enough. So that suggests no possible connection one way or another with other new investigations. They would start afresh for events that happened back then.
Katie Benner [00:29:13] Yeah. And keep in mind, you have an inspector general that's been given many referrals. There are a lot of places throughout the federal government where investigations into things that happened under the Trump administration are occurring. It doesn't necessarily have to be a criminal investigation, and I think that's important. I mean, Andrew's book is a great example of this, there's behavior that's bad, there's behavior that's criminal, there's behavior that undermines democracy. Not all of those things can be charged.
Andrew Weissmann [00:29:38] I would add to that that it's important to think of investigations that are bubbling up from the field versus investigations that might be of importance and directed to be started from the top down. So if you have an office that has a righteous investigation, I think that there will be people in the leadership department who are loath to quash that if it's meritorious, and just say 'we think that's wrong and you shouldn't go into that.' I think that this will be a time where career prosecutors have enormous flexibility to bring cases — again, assuming that it's done properly, and not for political reasons and not a fishing expedition, et cetera. But assuming that which is a low threshold because that's the norm at the department, I think that you're going to see that and that these kinds of investigations that Katie's referred to are not ones that you're going to see the leadership saying 'we're going to quash those.' I think it's a very different matter if you're saying Merrick Garland or Lisa Monaco are going to be actively promoting the criminal investigations with respect to activities during the Trump administration.
Harry Litman [00:30:53] Yeah, it's a great point. And it figures to be a tenet of the Garland administration, which we'll talk about in a moment. In fact, doesn't it seem clear that the whole clumsy attempt by Barr to fire Berman was likely related to this very investigation? Can we say that now? I guess, Katie, I'm looking at you as the reporter, on your sphere again. I'm getting a lot of pushback on all my questions, and I want to say it's very good. I'm — it's very good, and a mark of true friendship!
Katie Benner [00:31:23] We're an incredibly uncooperative group of guests.
Harry Litman [00:31:26] No, no, it's great! So is it not, the jury's out on that, as it were?
Katie Benner [00:31:31] I would say that it probably is not the sole reason why Berman was pushed out. I mean, from people close to Berman, from people close to Barr, from people across all these different officials, we've heard that they truly disliked one another for quite some time. And that you saw in the run up to his ouster, two things come together. One, his recalcitrance to get in line had come to a head over a variety of issues, possibly including this one. And they seem to have a solution to their problems, they had a person who both Donald Trump and Bill Barr liked an awful lot, who they could just slot in, who was willing to take that job. So, of course, it didn't work out that way.
Harry Litman [00:32:09] That's why it's great to have the experts here.
Harry Litman [00:32:13] It's now time to take a moment for our Sidebar feature, which explains some of the issues in relationships in federal criminal law or that are prominent in the news. Today, our topic is conjugal visits in the federal prison system, and our reader is Justin Robert Young, who's a podcast or journalist, comedian and writer. Young as the host of the Politics podcast, as well as the political history podcast Raise the Dead. And he also co-hosts the weekly comedy podcast Night Attack with magician Brian Brushwood. So I give you Justin Robert Young on conjugal visits in the federal prison system.
Justin Robert Young [00:32:58] Conjugal visits are widely misunderstood by the public. First, they are very rare. Only four states allow them: California, Connecticut, New York and Washington. Federal prisoners are not allowed conjugal visits in any facility. Second, they're not just about sex. The purpose of these programs is to provide contact between inmates and their family, not just spouses. Programs are officially called extended family visit programs, and they apply to all immediate family members. In Connecticut, children must accompany a spouse, and in New York, over half of the visits do not include a spouse. They permit an inmate to visit with his or her family, depending on the program, for periods between an hour to three days.
Inmates can qualify for these visits as often as once per month. These visits occur in trailers, small apartments or freestanding family cottages. The areas are set up as small, family centered homes, frequently with two bathrooms, a kitchen and a living room. Visitors can bring outside food or ingredients. The apartments are often stocked with a television, G-rated movies and family games. Visitors and inmates are searched before and after the visit, and the inmate and visitors are subject to periodic inspection during. Conjugal visit programs were first enacted over a hundred years ago in Mississippi, at the notorious Parchman Prison Farm, a prison that provided a convict labor system that led to the entrapment of generations of black men. The warden believed that sex could induce the black prisoners to work harder in the prison-run fields, and allowed black prisoners time each Sunday with family members or prison procured prostitutes. Later, limited to family, it was extended to white prisoners in the 1930s, and women in the 70s. By the 1990s, 17 states had enacted versions of the program.
Studies have shown that visitation programs can help reduce recidivism significantly. In addition, family visitation programs are correlated with a significant reduction in prison sexual assault. These programs can also be beneficial because they provide a powerful incentive for prisoners to maintain good behavior, and earn visitation privileges. Recent trend, however, has been to eliminate these programs. The states usually cite costs as the basis, but frequently critics of the programs view them as coddling prisoners, and a sign of weakness toward crime. In 2003, the Supreme Court unanimously concluded that there is no constitutional right to in-person visitation of any form. By 2014, only four programs remain nationally. More recently, criminal justice reformers have begun to advocate for greater visitation opportunities. In 2018, Mississippi began to permit a three hour special family visit program that applied to children and grandchildren, and a bill in the state legislature would reinstate conjugal visits for married inmates.For Talking Feds, I'm Justin Robert Young.
Harry Litman [00:36:25] Thank you very much, Justin Robert Young, for that explanation. Young also has recorded four comedy albums with Brian Brushwood, two of which debuted at number one on Billboard's comedy albums chart.
Harry Litman [00:37:36] Perhaps the clearest example of the scrubbing of the Trump years and the return to the status quo, including especially the point that Andrew was making before about the re empowerment of the career professionals, is Merrick Garland's rescinding of the limits on pattern and practice investigations that Jeff Sessions had imposed. Matt, you're probably pretty familiar with pattern and practice authority, can you just give us the quick skinny on what this is, and what Garland did to give more freedom of action to career professionals?
Matt Miller [00:38:10] Sure, the basic question is whether a police department or other law enforcement agency over time has shown a pattern or a history of acting in a racially discriminatory manner, of violating civil rights laws. So it's not a question of, did a particular police officer act outside the law in one particular case, it's does this department have a history? And the Trump administration, like the Bush administration before it, just did not want to bring those type of investigations and in fact, change the policy to restrict the use of consent decrees, which are often the result of these investigations. And by that I mean, you go through and at the end of an investigation, you find a number of violations, and the department will enter into a consent decree to put in place new, hopefully improved practices at the police department. And what Garland has done is change the policy to again allow the department to enter into those type of consent decrees. But then also, he's just in the past week launched two new pattern or practice investigations, one into Minneapolis, one in Louisville. And I think signaling that the Justice Department be aggressive in using the civil rights division to investigate police departments and other law enforcement agencies that are violating civil rights.
Harry Litman [00:39:24] By the way, what about starting out with Minneapolis the day after the convictions, all the convulsions they'd been through? It seems kind of harsh. Can we assume that it was preceded by a kind of behind the scenes diplomacy? Minneapolis knew it was coming, maybe even wanted it? Or is it really in the immediate wake of the convulsive trial and convictions?
Andrew Weissmann [00:39:51] I assumed it was so that they didn't interfere with the jury. If I were the judge overseeing that case and they did that while the trial was going on, the court rightly would have conniptions.
Harry Litman [00:40:02] Fair enough. But I'm just saying, the day after? Minneapolis has kind of been beaten black and blue over the last year, as it were. Wouldn't the department be sensitive to that, or?
Katie Benner [00:40:12] Well, that was something that we've reported and others have reported that Bill Barr was sensitive to. There was discussion about whether or not Minneapolis should be put under consent decree when Barr was the attorney general. Problems with the Minneapolis Police Department were documented and they were many. We know that the pattern and practice investigations that Matt just spoke of are oftentimes based on a collection of publicly available information and almost a pre inquiry that sort of lays the basis for even officially opening a pattern or practice investigation. But that Barr felt that because of what had happened with George Floyd, the protests afterward, how completely taxed those officers were dealing with the protests, that it would be crushing to morale to open that kind of investigation. He really just didn't like the idea of it. So clearly, those sorts of considerations were made, but at the same time, to Matt's point, these things don't just come out of the blue. The Justice Department isn't going to simply because of a court outcome, then make an announcement without having done some legwork beforehand and felt that it was necessary.
Harry Litman [00:41:12] Local officials sometimes really chafe at this. When I was U.S. attorney, my initial meeting with the mayor, I tried to offer a pleasantry about the Pirates, and he right away, 'you've got to get this decree out out from under us.' And he was a good progressive mayor. There are, I think, are some jurisdictions that kind of welcome them, because they force by oversight of a court expenditures on certain practices that you can say they're not policy calls, we're forced into it. OK, but one more general question about policing and Garland, assuming the Floyd Act doesn't pass, and I think that is one of the ones, there are two or three statutes that the tussle over will implicate whether the Democrats are going to push back on a filibuster. But assuming it doesn't pass, Merrick Garland becomes kind of the most important person in the federal government as far as regulation or reform of police practices goes. How far can he go? What else can he do, other than this pattern and practice, especially in a setting where there's been no legislation?
Katie Benner [00:42:20] Matt would probably know this extremely well, but he has money. I mean, the federal government and the Justice Department give police departments a tremendous amount of grant money. And using those carrots to try to change police behavior is something that the department has long done under administrations from both parties. I mean, Republicans have favored the grant making approach to pattern and practice and consent decrees, but that is another tool. And then, of course, there is the idea of like commissions and working together and trying to build law enforcement bridges around other types of work, like counterterrorism work. But I feel like those are the big tools.
Matt Miller [00:42:53] You're exactly right. The department has a carrot and stick, and the carrot is money that often comes with strings attached or money for best practices training and that sort of thing, but also the stick. I will say one more thing about this stick, the pattern of practice investigations, that I think sometimes people on the right don't understand either because they just don't understand it or they don't want to understand it, that someone like Bill Barr would say, 'we can't conduct these investigations because they will hurt police morale at the time that there is unrest in the streets.' Oftentime the reason there is unrest in the streets is because people think there is no accountability for police officers, and that these shootings happened again and again and no one ever does anything about it. And the Department of Justice coming in and saying, 'listen, we know you don't trust your local police department.
We know you've had issues. We hear you. We're going to investigate. We're not promising you an outcome, but we're promising you justice, and we're promising you accountability, and we're promised you that if there is a crime or if there are practices that are inappropriate, we will look into them, and we will do something about them.' And in a way, the Justice Department can be a community and a police department's best friend, because Ferguson is the best example of that. When there were riots in the streets of Ferguson, Eric Holder flew into town, announced that there was a federal civil rights investigation into the killing and a pattern of practice investigation, and demonstrations ended that night. So I do often think people misunderstand the impact that the department can have with these probes.
Andrew Weissmann [00:44:23] I think there are two other things to keep an eye on. With respect to Vanita now being confirmed, Anne Milgram being nominated to head up DEA. One is the use of funding to pull apart some of the hegemony that the police have with respect to so many different functions. Vanita actually spoke about this during her confirmation, that funding can be used, that social services and other types of government actors are responding and taking some of the load off of the police, and so you broaden the group of people who are servicing the public. And the second is an area that Vanita and Milgram in particular have spent a lot of time on, is the use of data, and trying to better use data to have smarter policing. Anne was famously the New Jersey attorney general when Camden really implemented a unique and novel set of practices to try and deal with the crime wave there. And I see that being something that she and Vanita are going to really try and figure out how to do to scale in appropriate places.
Harry Litman [00:45:37] Great point. All right, I'd like to — just a couple of minutes to open the aperture and look at Garland in general. If it's not too early to say, we heard so much during the Trump administration under Sessions and Barr about low morale at the department. People quit, people resign from cases. Now we have Merrick Garland, everything shipshape all of a sudden? Is just his showing up enough? What do we know about where the department's career staff is?
Katie Benner [00:46:11] Harry, this is a bunch of lawyers, what do you think? Everything is not all shipshape, there's complaints every day! But that said, I think one of the big differences is that Garland, Monaco and Gupta all said in their confirmation hearing that they were going to trust the judgment of career employees, which is a message that they didn't hear as much under Barr, I think is an understatement. And I think that we've also seen that in action, right? With things like the request to get a search warrant for Giuliani's home and office, for example. We're seeing less of the Department of people of career people in the department hemming themselves in. We didn't actually see, for example, on policing Sessions or Barr necessarily rain down edict saying 'you can't investigate the police.' It was just their posture that was very telling, so if I know that my editor hates stories about police, I'm just never going to pitch them, right? It's a self-censorship, and I think that we're seeing that lift, which is one of the reasons why we're seeing some firm action being taken in places that we didn't see under Barr. And so that is a big shift.
Matt Miller [00:47:19] I think he's off to a good start. I kind of think about the attorney general job, y'know I was there at the beginning with Holder, that there are three things you have to do as AG: one, kind of set a clear vision and agenda for the agency and follow through. And he's done that, you sort of talk about the he wants to focus on civil rights and domestic terrorism, I think you've seen an impact from that so far, not just on cases, but also on policy. The AG can't, your tenure can't be defined just by cases. It has to be defined by policy as well. You have to manage the relationship with the White House well, you can't be a hack like a Bill Barr or an Alberto Gonzales. You need to be independent, but you don't want to be on an island either like Janet Reno, so the department's interests aren't heard on a policy level and across the administration. And I think it's too early to judge how that will play out, because we're at the beginning, but I think so far, so good there. And then I think you have to run the agency and not let the agency run you. And I think on that one, if it's too early to judge, you can't really do that until you have all your people in place. I did chuckle a little bit when that Giuliani search warrant was executed on the same day that the president was giving a major address to Congress.
Harry Litman [00:48:28] And by all accounts, they didn't tell the White House.
Matt Miller [00:48:30] No. Well, they shouldn't have. But if you have full control of the agency, you might have done it the day before, the day after, rather than the day the president was speaking, but it's early still.
Harry Litman [00:48:42] All right. We just have a minute left for our Five Words or Fewer feature. Today's question comes from Paulina Rossi, who asks, why did — ooh, this is interesting — why did Greenberg's letter to Trump, the one ordered up by Stone, essentially confess to a crime and inculpate Matt Gaetz? Five words or fewer, Katie, you want to give it a whirl?
Katie Benner [00:49:09] Anything seemed possible at the end of the Trump era.
Matt Miller [00:49:14] Because he's an idiot.
Andrew Weissmann [00:49:16] It's pretty hard to refute that.
Harry Litman [00:49:20] I'm going with: Nasty idiot.
All right, thank you very much to Katie, Matt and Andrew, and thank you very much listeners, for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter, @TalkingFedsPod , to find out about future episodes and other Feds-related content. You can check us out on the web, talkingfeds.com , where we have full episode transcripts, and you can look to see our latest offerings on Patreon, where we post discussions about special topics exclusively for supporters. Submit your questions to questions@talkingfeds.com , whether it's for Five Words or Fewer, or general questions about the inner-workings of the legal system for our sidebar segments. Thanks for tuning in, and don't worry: as long as you need answers, the Feds will keep talking.
Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wright. David Lieberman and Rosie Dawn Griffin are our contributing writers. Production assistance by Matt McArdle. Our consulting producer is Andrea Carla Michaels. Thanks very much to Justin Robert Young for explaining conjugal visits for federal prisoners. 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.
