Harry Litman [00:00:05] 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. The week began with West Virginia Senator Joe Manchin drawing a line in the sand, making clear he would support neither the Democrats' voting rights bill nor any sort of reform to the filibuster, which the Dems would need to advance any of their key legislative priorities. It ended with a major Washington dustup, prompted by the revelation that the Department of Justice under former President Trump had sought information on prominent political adversaries of the president in its investigations of leaks of classified information. The furor caused the Department of Justice to order up an investigation by its inspector general, which Democratic members welcomed but said had to be supplemented with a full on congressional investigation.
Of course, the prospects for congressional action run immediately into the wall that is the entrenched political standoff between the parties, and the widespread embrace of the big lie by a large cohort of Republicans. The episode, combined with recent decisions by the Biden administration DOJ, put increasing pressure on Merrick Garland to change his institutional 'stay in the line' approach, and adopt some proactive measures toward greater transparency and accountability for the Trump years. Garland has now ordered up some changes in department policy, which would make it harder to subpoena reporters and would bulk up the department's voting rights enforcement section. With Manchin's defection, that may be the most the country can hope for in the short term, as far as voting rights reform go. Meanwhile, Republicans in ever-greater numbers are pursuing restrictive state legislation and bogus audits of the November election. To delve into these topics and their broad and largely unhappy implications, we have a fantastic group of returning Feds. They are:.
George Conway, a prominent American attorney, a contributing columnist at The Washington Post, a co-founder of the Lincoln Project, and a founding member of Checks and Balances, a group of conservative and libertarian lawyers standing up for the rule of law. George, welcome back to Talking Feds.
George Conway [00:02:42] Thanks for having me, Harry.
Harry Litman [00:02:43] Joe Lockhart, the founder and managing director of the Glover Park Group and a CNN political analyst, widely recognized as one of the top communications and public affairs professionals in the country. Joe was the press secretary to President Clinton, among other prominent government officials. He's also co-host of the Excellent Words Matter podcast, and finds time to be a regular guest with us to our great gratitude. So always great to welcome you, Joe.
Joe Lockhart [00:03:13] Very good to be back.
Harry Litman [00:03:14] And Asha Rangappa, the director of admissions and senior lecturer at Yale University's Jackson Institute for Global Affairs, where she also teaches national security law and related courses. She is a CNN contributor, a cafe contributor and a former FBI special agent. Asha, thanks as always for returning to Talking Feds.
Asha Rangappa [00:03:38] Thanks for having me.
Harry Litman [00:03:39] Let's jump right in with the blockbuster report that the Trump DOJ subpoenaed the phone records of members of the Intelligence Committee and their staffs and families as part of an investigation into leaks of classified information. It's got all the earmarks of a full-on Washington scandal, but let's start here. Leaks happen, they're dangerous to national security. Congress is often the source. What's precisely so sinister here?
Asha Rangappa [00:04:12] Well, what sinister is that on its face right now, at least two of the targets, Congressman Eric Swalwell and Adam Schiff, were very vocal targets from Trump during his tenure, and so it already looks a little fishy on its face. For me, the other thing that seems a little bit off is that the Intelligence Committee also included people like Devin Nunez. Devin Nunes, who was actually referred to the House Ethics Committee for a possible leak. So I would want to know, for example, were there Republicans under investigation for this? I mean, if you're looking for the source of leaks and you think that it might be coming from the House Intelligence Committee, you should be looking at all the possible suspects, not just on one side. So I think right now, it's looking sketchy, and I think this is also coming on the heels of investigations that we know their records were being subpoenaed, we know that Trump was always wanting his Department of Justice to go after his enemies, and we know that Barr was often doing his bidding. So I don't think it's a clear cut case that it was necessarily improper, but I think it's a rebuttable presumption that it was improper, given that this was happening under the Trump administration.
Harry Litman [00:05:37] It's a little odd. We know there are like 100 targets, and the reason that Schiff and Swalwell know is they got an email from Apple saying, 'oh, by the way, we gave some information to you,' and other staffers have now been sent scurrying to their email inboxes. Asha's point is certainly well taken, Devin Nunes, I think, is second to none as a prolific leaker. And you can think of reasons why even people on that side of the aisle might leak here or in any situation, among others, just to curry favor with their journalist buddies. But we don't know, of course, yet that there weren't any Republicans in the list, and there are other things we don't know about how much Trump knew and when he knew it. Right now, is the rebuttable presumption based on facts, or how much of a scandal do we have already and how much of a need for factfinding do we have?
George Conway [00:06:32] I think it's impossible to tell how big a scandal it is until we have more fact finding, and thankfully, the deputy attorney general announced today that there's going to be an OIG investigation and the inspector general put out a statement that there is going to be investigation into all of this. And I think how that all comes out is going to tell us whether this was abuse. If you're conducting a leak investigation, you're gonna have to have to take a look at who had the material, and who had the motivation to leak the material. And on that level, it makes sense that you would look at Democrats on a congressional committee, but the problem is, it really does raise the question of abuse when you're doing it to your political enemies, you have to have something more than just this speculative suspicion that, 'well, these people didn't like the president. Therefore, they must be the ones. And therefore, we're going to go out and get their personal information and their metadata and those of their children,' which was apparently...
Harry Litman [00:07:30] Right, what about — pretty crazy there, huh?
George Conway [00:07:33] You're taking an awful risk if you're at the Justice Department making this kind of request. And it's one of those, if you're going to shoot at the king, you better not miss kind of deals.
Joe Lockhart [00:07:42] I'm the nonlawyer on the Talking Feds, so I find it completely ironic that while the White House was stonewalling legitimate congressional subpoenas, they were secretly subpoenaing the records of the investigators. If that doesn't give you a little chill, then I'm not sure you are that committed to our democracy. I don't know what the inspector general is going to find, and there's a larger challenge for the Department of Justice right now, and they are calibrating this in real time, which is they want to return things to normal. They want to take politics out of this, and anything that looks like they're going after Trump will be perceived as political. On the other hand, we all speculated, some of us knew, I was just speculating, that Trump was using the Department of Justice as a personal weapon against his political foes and against the media. We're now learning that that wasn't just speculation, that there is some evidence of that, and in order to root that out, you've got to investigate. So I understand why Merrick Garland is, I think, struggling with this, but he just can't ignore what happened over the last four years. If people aren't held accountable the next time a rogue president comes in, and we could be three years from that right now, all of this will be repeated over and over again.
Harry Litman [00:09:06] It really does feel as if he is on the hot seat. He wants to just walk one foot in front of the other and he proffers Edward Levi, the post Watergate AG as his model. But of course, Levi comes into office and the Nixon chapter socially is basically closed. He's resigned, he's given the big wave, everyone has condemned him, whereas Trump is so much with us. And it does feel as if the pressure redoubles on Garland week in week out to not play it so straight. One possible approach, let's just stay in our lane and after time things will be OK. But when revelations like this come out and there's the crying need, as George put it, for factfinding, especially given the dysfunction and polarization at the congressional level....
George Conway [00:09:56] Well, Ed Levi had these advantages as you point out, but not only was Nixon gone and waved bye-bye, it was also the fact that Congress had pretty much investigated a lot of the wrongdoing. There was so much that involved the Justice Department that the Congress had investigated, and in addition, the last couple of years of the Nixon administration, you had guys like Elliot Richardson as the attorney general, and there was actually a functional Watergate investigation under the purview of the Justice Department, leaving a part a few days interregnum between the firing of Archibald Cox and the appointment of Leon Twersky. There wasn't as much bad that had to be cleaned up on day one.
Asha Rangappa [00:10:41] Well, and one more thing about Levi, Levi was the one who implemented the attorney general guidelines, which were the rules under which investigations were to be conducted, basically putting in guardrails precisely because one of the abuses that Congress had investigated were rogue investigations, including of members of Congress. And so there is a heightened scrutiny — there should be, in terms of opening investigations on members of Congress, politicians, even the president, and so I think a big question of this fact finding mission is going to be, we've heard this phrase before, 'were these investigations properly predicated?' Was there actually credible information or allegation that a leak had occurred that may have come from this person? And so there has to be a tie in there, not just there's some classified material that's in the paper and we think that it's so and so.
Harry Litman [00:11:39] Well, that's true, but leak investigations by their nature are sort of needle-in-haystack operations, and you do cast a wide net. It's so hard to know, but you very rarely do go after Congress. Just to follow up on Asha's point, there was one other thing then. There was some modicum of balance and political sensibility in the Congress. You had the church commission, and Republicans, both before and after Nixon's fall, willing to say there's a problem here and step up in a bipartisan way. Same thing happened after Gonzales and the US attorney scandal. I mean, there was a kind of shaming of him and it really took a toll. It feels to me now that the political culture is so completely polarized that that's no longer the case. And there's a whole tribe now, and Barr and Sessions will laugh at the attempts to try to hold them accountable, and the natural body for this Congress is basically going to be MIA, which puts the pressure even more strongly on Garland. I mean, the DOJ normally wouldn't be, 'oh, come look at our books and here's what we did,' but he may be the only game in town. And how does that change his public responsibility?
Joe Lockhart [00:13:02] Between 1974 and now, we're highlighting people. But do you have someone named John Dean who was willing to go up to the hill and tell people what he knew? If I had a choice of putting one person in the room, and that person had to tell the truth, it would be Don McGahn. And I don't really know where McGahn ends and Pat starts, but the White House counsel is situated in a place where they had to know all of this was going on. We know they had reservations about lots of things, they leak that out on a regular basis, that they were uncomfortable. And remember, and I know this from the Clinton days, there's no privilege here. They did not work for the president, they worked for the presidency. And when it comes to a question of whether the presidency abused the powers of the office and the president did, they have no protection. And I think the most interesting thing, and Asha and George might have a better sense, is what are they trying to get now from the Hill out of McGahn, and from the counsel's office perspective?
George Conway [00:14:03] McGahn testified very recently, and the transcript was revealed just the other day. And the problem with the inquiry of McGahn was, it was a settlement of extensive litigation that went up and down the D.C. District Court to the court of Appeals, and bounced around in the court of Appeals on a couple of issues, and they settled it. And the settlement was that they could conduct an interview of McGahn that would be transcribed, but they could only ask him about things that were publicly described in the Mueller report. Now, there was some great stuff in there, but it wasn't anything new. And you're absolutely right that there's a lot of questions that could be posed to people who were in the White House counsel's office during McGahn's tenure and thereafter, probably a lot thereafter, particularly to me.
I'd like to know more about what discussions they had about the Ukraine scandal, frankly. And I'd like to know what exactly the conversations were between Pat Cipolloni and Donald J. Trump on January 6th 2021, when apparently, according to one press report based upon anonymous sourcing, Cipolloni told president that if he didn't get out, say something about the insurrectionists and get them out of there, he could be criminally liable. I'd like to hear more about that. And so, yeah, I would — there really ought to be an investigation of basically everything that went through the counsel's office, and I totally agree with Joe: it ain't privileged. They work for us, not for Donald J. Trump.
Harry Litman [00:15:30] That could be interesting dinner table chat. And there are huge holes all over the historical record. Plus, let me just add from my time in the department that the OIG report is no cure-all. First, it probably takes a year or 18 months. The IG can't subpoena non-DOJ employees, and the basic task of distinguishing between bad political motivations and legitimate law enforcement motivations is really no easy matter for the IG with its legal tools. One other point, Joe I want to raise, at least for us to consider, it might be that Trump had next to nothing to do with it and that rather the sort of loyal, sophisticated soldiers that especially Barr was, we hear that Sessions was recused, they didn't need to get Barr's orders or OK. If what they wanted to do was make trouble for Trump's enemies, they could do that without actually involving the White House. That might be what a really Roy Cohn type figure might do in the first place.
Joe Lockhart [00:16:36] But I think that's giving Trump a little too much credit. What we do know about Trump is he doesn't have impulse control. So whatever thought he has, however unsophisticated, comes out of his mouth without a filter and he has no respect for the Constitution, just look at what he said. I'm not making a partisan point, he believed the president was king. And he got to office, he was pretty pissed off to find out that there was a Congress, that there were other branches of government because it wasn't clear that he knew about them.
Harry Litman [00:17:05] And he did specifically complain about Schiff as a possible leaker of this very Russia stuff.
Joe Lockhart [00:17:12] Yeah. So I don't buy into the idea that this was done with a nod and a wink because Trump never nodded and never winked. He said it. Here's what I think the problem is, is nobody right now wants to take responsibility for any of this.
Harry Litman [00:17:26] Exactly.
Joe Lockhart [00:17:27] And it's because people have conflicting motives. DOJ just wants to get out, they don't want to talk about this anymore. They just want to talk about how things are better now. The Hill has a legislative agenda they're trying to get for it, I don't know that they want to get mired in this. And Biden in the White House most of all doesn't want to touch this, because they want to keep focused. But somebody has to stand up, and I've always — my experience in almost 40 years in Washington is generally the adults work in the White House, or at least with the public facing figures. And I think this White House is going to have to step up and show some more leadership on getting to the bottom of some of these things, because if they don't, no one else is going to take responsibility for this.
Harry Litman [00:18:15] Yeah, we know that the adults there, Ron Klain and others are thinking if we do this, it's going to take away maybe severely from what we're trying to do with infrastructure, economy, et cetera.
Asha Rangappa [00:18:27] I don't understand that, 'let's move on or move forward' mentality, because we've seen this before, right? Obama did this with, for example, the CIA torture program. And it was let's not relitigate this because it'll become political, dadadada — and that never works out. When you don't have a reckoning, it doesn't go away. It just rears its head again, we've seen this over and over again. I mean, we've seen this with some of the worst moments of our history, we've seen it with the political past, but it's really only the Democrats that do this. If the tables were turned, this would be like the nonstop central issue from day one. And I don't know that's the right thing, but it would certainly be effective and it would keep the public's focus on it, and I think you would get some answers.
Joe Lockhart [00:19:16] Well it runs at odds, I think, with a political strategy that is trying to keep the public singularly focused from Biden's perspective on what he's already accomplished vis a vis COVID, and also infrastructure and rebuilding the economy, the whole Build Back Better, and it is a zero sum game when it comes to the media. If they're focused on one thing, they're not focused on something else. And I think the White House believes, and I don't disagree with them, that if they get mired in what happened in the past, they've already spent the 'I'm different than Trump' dividend. They get nothing out of that. The only way they get the stuff done on the Hill is to keep public pressure on lawmakers, and by going and looking at the past, that just hardens the lines as opposed to giving some incentives for Republicans to come across and get some things done.
So it is a very hard political situation, we all sat and watched people rampaging through the Capitol. Believe me, I know that there are hundreds of FBI agents doing really good work investigating the people who were there. I don't, frankly, care about the people who were there. I care about the people who sent them there. And until I get those answers, I believe that our elected officials have abdicated their responsibility. And that's not — listen, I'm as hardcore partisan as anyone, this is not a partisan idea. And you don't have to be — after 9/11, this is saying, 'hey, Bush is getting an advantage out of this, so let's not look into it.' Or as a Clinton person, I was saying, 'don't look into this, because somehow they'll blame Clinton for this.' Everybody wanted to know so that it wouldn't happen again, and right now it seems like people don't want to know.
Harry Litman [00:21:00] Or at least individual political branch or entity staying in its own lane is focusing small on the reasons it's narrow or short term interests are against it. Here here to what all three of you said, but especially Asha, there's an imperative here for democracy, of accountability and transparency, and we are nowhere near it. And that, to me is the been the sort of ultimate outrage of the Trump years.
George Conway [00:21:28] I get that Biden has a domestic program that he wants to get through, and there's a limited amount of bandwidth, as Joe points out. But the fact of the matter is, I didn't vote for that. Millions of people like me didn't vote for a Democrat because he was a Democrat and would do Democrat like things. I voted for him because that was a vote for the rule of law. That was a vote for somebody who would restore the rule of law, and I'd like to see that be a little bit more front and center of the program. I get that they're doing it by not behaving in the way that the prior people did, but there does have to be some kind of review of what happened, and why it was bad, and why we don't want to do it again, and there needs to be, in certain cases, some kind of punishment or things that were done that were wrong.
Harry Litman [00:22:12] Bingo. I mean, that's it exactly. Is it enough to just stay now and get good as Garland wants to, or is it not? And let's look more into the other ways in which the Garland approach has been controversial or we see what's going on, and that is the series of decisions that the department has made that took some by surprise staying the course on Trump-era positions like in the Jean Carroll case. Let me just ask about that, because that's a very different kind of situation. What's going on there, that you've had a series of decisions and most notably the defamation case against Trump and DOJ saying he was acting in the scope of his employment where they don't switch course. Why is that coming to pass? What does it show about Merrick Garland?
George Conway [00:23:06] I have a bit of a nuanced view about that case and what Garland did there. I think that what Garland did was incorrect. I would not have done that. I would have withdrawn the appeal in that case and let the district court's decision against the Justice Department and against Trump stand. It's somewhat understandable why he acted the way he did there. And the reason is that there's what I consider to be bad case law from the D.C. Circuit that is very favorable to the Justice Department and to defendants in these kinds of cases, and you're asking Garland to go against precedent from his own court and from his own colleagues there. In the situation we have with the Carroll case, what happened with Jean Carroll was she was allegedly raped by President Trump almost two decades ago, I don't remember the exact date. And she told her story in 2018 or so, and then Trump went out and said that 'I don't know this woman,' which was false, because there was a photograph of him with her.
And then he said, 'I didn't do it,' and basically that she's lying and she's not my type. And so I actually found Jean Carroll, her lawyer, Robby Kaplan, and they sued Trump for libel because he called her a liar. The litigation was going on for quite some time, and it was about time for Trump to be deposed and to have a blood sample taken or some kind of a DNA sample, and all of a sudden the Justice Department pops in, intervenes, removes the case to federal court and says the statement that he made about Jean Carroll happened while he was president, and therefore the United States should be substituted as a defendant, and the case should be dismissed. And they lost in the district court, and now the case is on appeal in the Second Circuit. And the problem is there's this case, this precedent in the D.C. Circuit, Garland's old court, where there was a congressman who was or so, he was asked the question about his wife. And what happened was the wife had moved back to North Carolina and there was all the speculation back in North Carolina about whether or not something was amiss in the marriage, and he went and he talked to his local media.
So, the reason why she moved back to North Carolina was that she didn't really like Washington and plus, we lived across the street in Washington from this Muslim group. And they support Hezbollah and they're really bad, and he said a bunch of bad things about the Muslim group, which is the Committee on American Islamic Relations, and they sue him. Ballenger, the congressman, 'you libelous, calling us terrorists, basically.' And the D.C. Circuit upheld the Justice Department's intervention in that case on behalf of the defendant and dismissed the case because they said, well, congressmen have to respond to press inquiries, and that's the same problem in the Trump case. He was making a statement about something that allegedly occurred decades before he became president, has nothing to do with his presidency, and shouldn't be protected. And that, I think, was the rationale probably in the civil division and through Garland, just like, 'well, this is going to save defendants that we have to defend in a lot of cases, it makes it easier for us to defend these cases.' Now, the problem is, if I were in the civil division, I would say, 'hey, guys, this is a bad case to take up. You lost in the district court, take the L in the district court. Don't have it go up to the Second Circuit where you could get another loss.'
Harry Litman [00:26:15] And I should tell listeners now, George was considered for solicitor general and knows how these work. I think in general, people are not realizing just how much of this is process driven.
George Conway [00:26:24] Thing about the law is, sometimes bad rules and bad results occur that are totally defensible, and this is one of those circumstances.
Harry Litman [00:26:33] Right. So Joe or Asha on this case or more generally, were you surprised at some of these stay the course decisions? And do you see him as bending over backwards too much?
Asha Rangappa [00:26:45] What you have with the Justice Department, and you alluded to this earlier, Harry, and I forgot how you phrased it, but I I tweeted it earlier. There may be situations where just sticking by your norms of DOJ are fine, but we are not in a normal situation. I described it as a car with bad alignment, which has just been like veering off into the dirt road for a while. You finally have like normal people take the wheel, and they've just steadied the wheel. So now you're not maybe continuing to veer off.
You're going straight, but you're still not back on the road. And so this is a bad case to just follow norms. There's a certain amount of, to kind of undo some damage, to maybe depart a little bit and use discretion and judgment on whether, as George said, is this the case that you really want to defend this proposition on? Because I don't think you relinquish the right to, you know, appeal the same principle later in another case, it's not like this is your last chance. And I think in this case in particular, I mean, it was defamation, but there's this underlying sexual assault situation that involves power differentials when you have these kinds of claims, and you basically have somebody with the largest megaphone in the country belittle and bully a victim who is alleging that he assaulted her. I mean, this is just like the worst case to kind of preserve that idea. It's not just a reporter or well-funded organization or something like that.
Harry Litman [00:28:20] And a sixty one page, well reasoned opinion from a respected district court judge, yeah. Joe, I mean, all of these decisions are drawn a lot of heat and disenchantment from the left. What's your sense of the White House's view of Merrick Garland at this point? Obviously, they wanted to portray him as the shining, down the middle guy. But do you think there's some quiet worry or discontent about his political antenna over there?
Joe Lockhart [00:28:52] I don't know. But if there isn't, it's a five alarm fire for the Democrats in 2022. Activists in the Democratic Party right now could not be more disappointed in the Justice Department. And they feel like in a very different way, and very different motivations, or maybe shared motivations, something that George said, which is they voted for finding out what Trump did, and holding those people accountable and throwing them in jail and throwing the key away. That's what they voted for, and if they don't get a measure of that, they're going to stay home in 2022. They're not going to go vote for some crazy Republican congressman, but they'll stay home. There's no such thing as a nonpolitical job in Washington, D.C. It doesn't exist. Attorney general is a political figure. What differentiates the Trump era from any other that I experienced was you had no good faith actors in DOJ and the White House and the Republicans on Capitol Hill, they all operated in bad faith. So there was no way that people would be held accountable.
So I think they should be concerned, and I think Garland is surrounded by some people who understand politics, and understand how you can both be an effective attorney general, but someone who is responsive to what the public wants to know. I think it's a fairly simple strategy to get out of all of this, which is continue to do the things, make the decisions based on the rule of law and apolitically, but you got to start showing some more leg on the investigations that are going on now. That is a beast that should be fed. I can't believe that I haven't heard the attorney general in public really talk about this, that the FBI director, it feels like you're pulling teeth when he's got more agents probably working on this than anything else. And his answers are bland, and so I think from a political perspective, you can uphold the best practices of an attorney general, but also let the public know what they're really interested in without compromising those investigations. I can't see how being more transparent on that would make it harder to bring these cases. And if that is the case, I want to hear that. I just don't want to sit back and be told, 'we'll let you know when we have something to tell you.'
Harry Litman [00:31:22] I think we're all of a like mind. I want to add one important practical point, there are lots of things they can do voluntarily that don't really prejudice them in litigation. But I think part of what's been going on is you come into office and you've got a relentless court calendar. 'Holy cow, we've got the case coming up where the court has said we have to make a decision,' and you wind up having a default mode of, 'OK, we'll just stay the course for now.' But what he needs to do, and I think he recognizes this is have a separate kind of operation from the press of a court calendar that is outside of the context of individual cases making broad policy prescriptions. He's indicated, for instance, that he is going to be doing that already with reporters, right? He might have to quickly stay the course in cases, but he is now going to promulgate guidelines or policies or rules about how the department should do it. And perhaps in a similar way, he can just separate out the relentless response to demands from courts to state positions with a broader, more public policy driven promulgation of policies.
George Conway [00:32:39] So it's got to be really hard, because not only are you dealing with cases that have been litigated for a long time, and you have to get up to speed on them, and you've got people in the Justice Department who are wedded to the positions that have already been taken. And then you've got all this other stuff that just bubbles up that you may not have known about, that all of a sudden, it appears in the newspaper, all of a sudden you get a memo about it, and the next day it's in the newspaper. Like, I'll bet you they didn't have a lot of time to think about all these leak investigations.
Harry Litman [00:33:07] That's right, and they serve up the people or people think, 'oh, it's a whole new DOJ.' But you know what? The Civil Division, as you've mentioned, George, and the appellate — they're executive power hawks, because it's just in the interest of the department. It's not in a Bill Barr way, it's just...
George Conway [00:33:21] And I never served in the justice department, but I can imagine it's like, you see something in the paper, you get wind of something — it takes days to drill down to find out what the hell's really going on. You've got to read the papers or have somebody read the documents close, and then you've got to bring the people who are actually working on the matter up there and you ask them to explain what's going on, and you have to know enough about it to be able to sort of poke holes at what they're telling you and to ask the right questions. And that takes time.
Harry Litman [00:33:50] Right, you can't preempt what the AG or acting SG's going to do. All right, we will see whether he tacks in the direction you're talking about, all of you really, but especially Joe, in coming weeks. OK, it's time now for our Sidebar feature, which explains some of the issues and relationships that are prominent in the news. And today, we're going to talk about what are the contents of the Democrats' voting rights bill, whose prospects seem much diminished now in the wake of Joe Manchin's declaration that he opposes both it and any reform to the filibuster. Today, what is in the Democrats voting rights bill, S1, and it's going to be explained by Arthur Phillips, the internationally best selling author of three New York Times notable books, his first novel, Prague, won the Los Angeles Times Art Side and Bomb Award for First Fiction, and the other two, The Song is You and The Tragedy of Arthur, which were both shortlisted for the IMPAC International Literary Prize. Arthur also has written for a number of TV series, including Damages, Bloodline and Tokyo Vice. Arthur Phillips on the contents of S1:
Arthur Phillips [00:35:13] What is in the Democrats voting rights bill? On May 12th, the Senate voted to advance the Democrats' voting rights bill out of committee. That action moves the bill one step closer to law, but it's not clear that Democrats have the votes to pass this legislation. The bill, known as For the People Act, is similar to the bill passed in March by the House of Representatives. Both of these bills will fundamentally expand the franchise in this country. Many of these changes respond specifically to Republican attempts in Georgia, Florida and throughout the country to suppress the votes of people of color, and other perceived Democratic constituencies. The following are the main provisions of the bill: states must establish an automatic voter registration system that registers any voting eligible citizen in government databases; states must permit same day voting registration; states must allow at least 15 days of early voting; states must employ nonpartisan redistricting commissions to reduce the danger of partisan gerrymandering; citizens will have the right to challenge gerrymandered districts — this attempts to reverse the result in [Rucho v. Common Cause], in which the Supreme Court held that courts have no role in addressing partizan gerrymandering;
Super PACs and dark money groups have to publicly disclose their donors; Facebook and Twitter must publicly report the source and amount of money spent on political ads; the first ethics code for the Supreme Court; prohibition on the practice of congresspeople spending taxpayer money to settle sexual harassment cases, and presidential candidates must disclose their tax returns. The bill, numbered S1 in the Senate and H.R. 1 in the House to underscore its importance, is the Democrat's most potent way to push back against the flurry of voting restrictions that Republicans are enacting across the country. So if the Democrats are unable to attract enough Republicans to secure 60 votes, the number needed to overcome a filibuster, there will be significant sentiment among the Democrats to eliminate the filibuster, notwithstanding that many will see that as an extreme move. For Talking Feds, I'm Arthur Phillips.
Harry Litman [00:37:14] Thank you, Arthur Phillips, for that explanation of S1. Arthur's most recent novel, by the way, is The King at the Edge of the World. And did I mention, he's a five-time Jeopardy champ?
Harry Litman [00:38:34] Joe Manchin, the filibuster strategy; Joe Lockhart, among others, you've tweeted about this and the whole possibility of any kind of action, presumably in a mainly Democratic-controlled fashion on the big ticket items, especially voting rights. So, Manchin, let's just focus on him for a second. He's the pivotal figure, and he came out with this. It seemed to doom hopes of passage of any kind of muscular voting rights bill with his editorial. What's up with him? What's your take, anyone, on his apparent dogmatism, not just about the voting rights bill, but the filibuster itself, which really does put the Democrats behind the eight ball?
Joe Lockhart [00:39:21] I think you've got to separate those two. And I've always separated the filibuster from voting rights. And I actually thought Manchin was going to be strong on voting rights, and was very disappointed in his op ed and his position. Those of us who are old enough to remember Republican senates or Democratic senates when you're in the opposition, the filibuster is a good way to slow things down. And I understand why, particularly the senior senators who've been there a long time don't want to get rid of it. I only joined the let's get rid of the filibuster recently because I've just come to realize that, as I was saying before, there are no good faith actors among Republican leadership and they're not interested in reaching agreements. They're interested in regaining power and destroying the party opposite it.
Harry Litman [00:40:11] And making Biden look to be a failed president.
Joe Lockhart [00:40:15] Yeah. I made the case on Twitter that Joe Manchin can be a Democrat, and can be a Democrat that I believe I'm in the same party with and be against getting rid of the filibuster. I don't want to be in a party with someone who isn't for voting rights. I just don't. And I think that puts into question his bona fides as a Democrat. And particularly given what's going on around the country where you have pivotal states for both 2022 and 2024 jamming through a bunch of things without a whole lot of public notice that make it harder for people to vote, all because Donald Trump and his people convinced the vast majority of the Republican Party and their voters that somehow the election was stolen.
And that's the justification, well the election wasn't stolen, so the justification for doing this is false. And this is one of those areas where I think we need a federal response, and we need to beef up voting rights. And I just couldn't be more disappointed in Manchin because that's a fundamental issue. It should be for everyone, but it's certainly as a partisan Democrat for me, as a Democrat, and I encourage everyone to read his op ed and scratch their head just like I did, because it was not a particularly intellectually sound argument. It made no sense. I think that Joe Manchin likes the idea of being the guy in the hot seat who has all this power.
Harry Litman [00:41:44] That was your point in the tweets. I thought it was really indisputable, and it'll be interesting if, in fact, it backfires and he becomes kind of persona non grata. This is a little bit of an aside, but a really interesting one. I wanted to focus on you Asha, Joe mentions the whole sort of Big Lie movement. You wrote this week, a very provocative essay likening it to a terrorist ideology. I wonder if you could just spell that out a little and explain how you came to that view.
Asha Rangappa [00:42:15] So the piece that I wrote, which is for Preet Bharara's Cafe newsletter, was basically talking about how effective terrorist ideologies have a very particular narrative. It's like a formula, and the formula is designed to both inspire people, and then also help them rationalize and justify the actions that they're going to take. And the three components typically consist of number 1, having a righteous cause that you're fighting for and clothing it in something that is some kind of moral or patriotic or religious duty. The second is using that duty as a justification for indiscriminate violence. You're allowed to eliminate all the opposition because the cause is that important.
Harry Litman [00:43:02] And indiscriminate means you're just going on any victim just to frighten everybody.
Asha Rangappa [00:43:07] Right. This isn't like declaring war and like putting on uniforms and abiding by the laws of war and all this kind of stuff, right? This is what separates unlawful combatants as we call people in the war on terror. The third component, and this is really important, is that the victors are promised a return to some ideal future or utopia. If you look at fundamental Islamic ideology, it is the global caliphate where the faithful will be rewarded, the twenty three virgins in heaven, in the white power movement, it's going to be the pure racial utopia. And this is where the Trump language and where it's going is very, very dangerous, because this whole idea of reinstatement and there was already a commenter today who studies QAnon who is saying they've now changed from 'waiting for the storm' to 'waiting for the return.'
It's like this kind of messiah that's going to come back and take the throne, and this will be — the skies are going to part and everything will be alright in the world. So the big lie is the justification or the cause. The violence is you have to take action. The military is not going to protect you, you know, all these enemies are out there, and then this is what is promised to you at the end. And so I was trying to make that parallel and say that we need to take this seriously, and it really doesn't matter if it's not actually going to happen, that's not the point. Most of these kind of ideologies are premised on a fantastical outcome that is unlikely to actually come to fruition, but they're dangerous nonetheless.
Harry Litman [00:44:40] Got it. All right, let's zero in on the voting rights itself. So with Manchin's defection, I guess a sort of two part question. First, is there any way effective kind of national legislation here? Some Democrats are trying to pick up the pieces, others are saying it's so ineffective. And then second, does what he did put wind in the sails of the Big Lie movement? You have this crazy farce of a audit going on in Arizona, but now there's some talk that other states are also controlled by Republican legislatures are going to be doing copycat audits. So do we see now in the wake of Manchin, A. nothing really effective the Dems can do and B. a kind of reinvigoration of the Republican efforts to perpetuate the big lie notion?
Joe Lockhart [00:45:39] I think there is no reason for optimism on a piece of national legislation. That was difficult to do in any circumstance, and I think Manchin has effectively killed that. You just have to look at his op ed. He didn't go through the voting rights bill that the House passed, which there are things in there that you could get rid of and still protect voting rights, you can in any bill. He didn't say, 'I don't like this. I don't like that.' What he did is he made this bizarre argument that because there are partisan divisions, you can't solve a problem unless you have a bipartisan solution, which is ridiculous. If a Democrat is acting in bad faith, Republicans can't fix the problem unless Democrats join them to fix the problem. That's just not how the world works, but it is how the world works now.
Harry Litman [00:46:31] Imagine if we said that, say, in the civil rights era, for example, even even leaving aside this Republican.
Joe Lockhart [00:46:37] You can imagine if post 9/11, because the Republicans had the White House, if one of the parties decided we're not going to change our intelligence operation because we think that can hobble the other party, if Democrats said 'we're just not going to work with you on this. We're just not, and if another terrorist attack happens, it's on your watch.' Well, that's exactly where we are now, so to get to your second question, I think not that they needed any wind in their sail on going forward and restricting voting, but this will probably be another gust of wind because there is no downside for state-elected Republican officials now to stand up for people's right to vote.
Harry Litman [00:47:24] Except the embarrassment of lying all the time.
Joe Lockhart [00:47:27] We are, we are living in an era where politicians cannot be embarrassed, where politicians cannot be shamed. We've got the grandson of Barbara Bush who's now Trumpier than Trump after Trump dumped all over his family. And he's not embarrassed, he's not shamed by this. It just doesn't exist.
Harry Litman [00:47:54] So, George, last word to you. What do you see as the medium-term prospects for this whole Big Lie movement? Does it burgeon, does it actually take on more speed? We keep waiting for it to collapse of its own weight because it's undergirded by a complete fantasy, but we nevertheless watch it take on momentum, thoughts?
George Conway [00:48:17] Would be burning even if the former guy weren't pouring gasoline on it. I agree. They're not acting in good faith. I think to some extent, a lot of these voting rights or voting bills to restrict voting aren't doing things that are quite as terrible as some make them out to be, but they are absolutely being done in bad faith and they are designed to restrict voting without any benefit. I think it's a fire that's burning with — he's basically created this lie that is now self-sustaining. He doesn't even have to do it that much. He doesn't really have the ability to project disinformation the way he used to, yet this information is flourishing because election security, I think that it's just going to keep going on. The scariest parts of it are these audits that are designed to cast doubt and to further the lie and also these provisions and some of these state bills that are designed to allow the results to be challenged more easily and are stripping people of their supervisory authority basically to impose a different result. And those are the scary aspects, some of these structural changes that are made in states about how elections are reviewed and challenged.
Harry Litman [00:49:34] There we have it for now, not a sunny prognosis for many of us, I think.
George Conway [00:49:38] No!
Harry Litman [00:49:38] We just have one minute left for the Five Words or Fewer feature, where we take a question from a listener and each of us has to answer in five words or fewer. Today's question from John Cassar, and it is, 'will Trump be reinstated by August?' Five words or fewer, anybody?
Asha Rangappa [00:50:00] No.
George Conway [00:50:00] No!
Joe Lockhart [00:50:01] August is not sweeps month, so in this fantastical story, I guess my five words are: nothing is impossible, stand by.
Harry Litman [00:50:12] I'll say, only in his own mind. That's all the time we have for what's been really a great discussion. Thank you very much to George, Joe and Asha, 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.
In the last few days, that's meant a conversation with Amy Howe of SCOTUSblog about the blockbuster cases that will come out in the next few weeks at the end of the Supreme Court term, and Matt Miller with, I think, the most accurate and sophisticated and nuanced discussion about the Department of Justice's decisions to stay the course in some cases, which have so consternated many progressives. 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, 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 Arthur Phillips for explaining what's in S1, the Democrats' voting rights bill. Our gratitude goes out, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I'm Harry Litman, see you next time.
