Harry Litman: Welcome to Talking Feds, a round table that brings together prominent former federal officials and special guests for a dynamic discussion on the most important political and legal topics of the day. I'm Harry Litman. We begin this week with best wishes for a national holiday that didn't even exist last week: happy Juneteenth to all! It was a week with heavy action at every level and branch of government. It kicked off with President Biden's debut on the international stage at the Group of Seven Congress, where his path was paid by virtue of not being Donald Trump. Biden began every appearance with the mantra 'America is Back,' a sentiment the other economic powers openly welcomed. But general warm feelings aside, it remained unclear whether Biden had made significant headway in bringing them around toward the foundations of his world view, in particular, as it concerns the threats posed by China. The Department of Justice continued to reel from continuing reports of abuse of its law enforcement functions by the Trump administration.
More reports turned up that leak investigations may have improperly targeted Trump's political adversaries, including Adam Schiff and Eric Swalwell, though core details of the scandal remain mysterious, and both the department's inspector general and the House Judiciary Committee were expected to launch investigations. And emails disclosed by the House depicted a crass campaign from the White House to strong arm the department into supporting ludicrous claims of election fraud in the wake of Trump's loss. Prospects for meaningful, if limited, voting rights legislation seemed to rise from the ashes when West Virginia Senator Joe Manchin, the living pivot point of the Senate, released a set of provisions he said he could support. Most Democrats were quick to latch on to them, while Majority Leader Mitch McConnell promised to tie them up through exercise of the subpoena. And to break down this wild and wooly week, we have a terrific set of guests, all good friends of the podcast. They are:
Congressman Ted Lieu. He represents California's 3rd Congressional District in the U.S. House of Representatives. He is serving in his fourth term in Congress, and currently sits on the House Judiciary Committee and the House Foreign Affairs Committee. He's co-chair of the Democratic Policy and Communications Committee. Congressman Lieu is a former active duty officer in the U.S. Air Force, and currently serves as a colonel in the Reserves stationed at Los Angeles Air Force Base. Always an honor to welcome you, Congressman Lieu.
Congressman Ted Lieu: Thank you.
Harry Litman: David Frum, a senior editor at The Atlantic. He has written no fewer than 10 books, most recently Trumpocalypse: Restoring American Democracy. David served in government as a speechwriter and special assistant to President George W. Bush from 2001 to 02, and as chair of the Board of Trustees of the UK think tank Policy Exchange from 2014 to 2017. David, so glad you could join us.
David Frum: What a pleasure.
Harry Litman: And Jennifer Rogers, a CNN legal analyst, lecturer in law at Columbia Law School and an adjunct clinical professor at NYU Law School. Jen worked for many years in the storied U.S. attorney's office for the Southern District of New York, where she came to serve as the chief of the organized crime unit and the chief of the general crimes unit. Great to see you back here, Jen.
Jen Rodgers: Thanks, Harry. Always good to be here.
Harry Litman: And may I perhaps be the first ever to say happy Juneteenth to all of you. All right, a really busy week on many fronts, national and international, state and federal, courts, Congress and the White House. Let's start with the G7 summit and Biden's debut on the world stage. He seems to be getting A-pluses from many, even most corners and on every level, interpersonal, diplomatic and the like. Anyone here feel at all differently?
David Frum: It may have been a success for Biden, it was less than an unqualified success for the United States and the world. We have gone through this horrific pandemic, shutdown of world trade, one of the things that is so urgently necessary is to get world trade accelerating again. The 2010s have been nicknamed the era of 'slowbalization' because even before the pandemic of the slowdown in growth of world trade. Biden is the least trade-friendly Democratic president since World War II. In many ways, he is continuing the Trump trade policies. To my mind, reopening world trade should be agenda item number one at the G7, and it seems not to be discussed scarcely at all, because the Biden administration is, I think, deluding itself that it can have a USA only USA led approach to economic recovery.
Harry Litman: It did seem to be largely a table setting, 'America is Back' exercise, a couple of small achievements. But in what do you primarily locate, David, the supposedly unfriendly attitude toward trade? Is it that he was so focused on China as a potential adversary rather than a trading partner? What's the sort of core of the problem as you see it?
David Frum: I think the core of the problem is a reorientation of Biden's party, of which he is such a classic representative. And let me give you a data point that sort of symbolized this: from the time Biden entered the United States Senate in the 1970s until 2003 or 4, every single trade agreement presented to Congress, he voted in favor of. USA-Canada, NAFTA, the works. Starting in 2004, he completely reversed himself and voted against every trade agreement presented to Congress, not just, I mean, a turn of mind of himself. He's always been in the center of his party. And you go through the trade agreements of the periods after 2004, Central America, Colombia, South Korea, much more skepticism toward them in his party, and therefore in him. And when you interview the people around Biden, as I did during the 2020 campaign, you discovered that his advisers share that trade skepticism that has infected so many in the Democratic Party.
Harry Litman: Got it. Congressman, do you buy that analysis of the party itself?
Congressman Ted Lieu: First of all, you can't actually do increased trade without increased infrastructure. I know that there is so much trade trying to come in through the ports of L.A. and Long Beach right now that there is massive congestion. There is a lot of delays. So we can't actually handle the world trade that just started right up after this pandemic. We need to drastically improve our infrastructure. And then on the world stage, Biden was amazing. He was in stark contrast to the former president who went to Helsinki and kneeled before Putin. Biden stood up to Putin, I think that is the story that people watched and saw.
Harry Litman: Trump not only kneeled, but he sort of slapped everyone else in the face. And that's an ongoing concern, right? We heard a lot of concern during the Trump years that the allies will be unnerved even after Trump, thinking it will happen again. In the words of maybe the single most quotable statement in the history of Talking Feds, David Frum said, 'they now know that the tequila is in the liquor cabinet, and the quaaludes in the medicine chest, and they could be mixed again.' How does he go about, apart from his personal example, say you can trust in the ongoing stability of the United States.
David Frum: You cannot go back to the way things were before, because people will remember. People remember that the Trump presidency happened, and that changes everyone's perception of the United States. One of the things I would really caution the people who are around Biden, though, is you can have this rebound effect. If you compare Biden to Trump, obviously, he can look good very easily. If you compare him to the needs of the moment and especially the global economic needs of the moment, that's where he can fall short. So I think he needs to have a trade-opening agenda. I think he needs to understand that America's economic recovery depends on economic success everywhere. And he needs also to, I think, confine some of the China rivalry, and to understand that, look, the Chinese authorities do a lot of dangerous things, a lot of things the United States doesn't like. They have not been transparent about the pandemic, there may be an even worse story lurking back there. All of that is true, but there is no global economic success without also Chinese economic success. That is not a problem for the United States, that's just a precondition of global growth going forward.
Harry Litman: And what about that? That does seem to be the sort of epicenter of a potential conflict here. Famously, Angela Merkel, who I realized in preparing for this episode, has been chancellor no less than 16 years, has advocated thinking of China as an economic partner first, is Biden looking to change that orientation among the G7 and be more arm's length and wary of China? Especially given your position on the committee Congressman, maybe I can put this to you, and is there significant ambivalence within the Congress about that changed role? Can he do it? Can he turn the ship around toward a greater wariness as determining policy vis a vis China?
Congressman Ted Lieu: I believe the U.S.-China relationship is the most important relationship in the 21st century, if it goes badly, it's gonna be bad for both countries and the world. So we have to manage this very carefully, and we have to make sure there's no blowback to Americans who happen to be of Asian descent from the rhetoric that we're seeing in America. So there's a very clear delineation between the Communist Party of China and Americans who happen to be of Asian descent.
Harry Litman: Let me follow up with just the contrast or is there one how much room, as you perceive it, is there between the U.S. and the rest of the G7 in terms of the attitudes they want to have going forward toward China?
Congressman Ted Lieu: So on the House Foreign Affairs Committee, it's very clear to me that not every country agrees with every other country on their views, and so what you try to do is you learn to segment, right? On the views and issues you agree on, you work with that country. So, for example, regardless of your view of the Iran deal, China is a critical partner in the Iran deal. And we work with China on terrorism issues, we work with China on environmental issues. And then we're going to disagree with them on human rights issues and other issues, and the way we resolve that is diplomatically.
Harry Litman: Let's turn to Russia, which had a bigger role with Trump. Jen, I wanted to get your thoughts about this three hour meeting. How did it play? It seemed to me that Biden was being very clear-eyed and kind of arm's length with Putin, but we saw very different rapport under Trump. Did you have a sense of how both Putin and Biden emerged from this kind of three-hour somewhat steely meeting?
Jen Rodgers: What was kind of interesting to me, just as an observer, is they're going to come out and say things that they may or may not believe, right? I mean, who knows what their impressions really are. But Putin came out and said, 'he's professional, he's serious, we can talk to him about things,' who knows whether it will hold, but it does kind of go against the narrative of what, as he said, has been in the press in his country and hours of this bumbling idiot. And certainly that's what former President Trump wants us to think about President Biden, and Putin is saying, no, no, he knows what he's doing. He's very smart and we will have to deal with him. Who knows what that does, but I think at least if you are a Trump supporter and you watched for four years this love affair between Trump and Putin, maybe that at least gives you some pause. Hey, wait a minute. Here's Putin, who's the BFF of our guy, saying that Biden is not a bumbling idiot. He doesn't have dementia. He's smart, and sharp, and professional and someone who needs to be dealt with seriously. Hopefully some of that will take hold here.
Harry Litman: I really like the way he handled it. I thought he really basically put him in his place, which is as someone who's not a formidable economic threat, but a thug really, with cyber capabilities. And something that I was very impressed with, even though it was the one supposed misstep of the whole trip, he fields a question from a CNN reporter, 'how can you be confident he'll change his behavior?' And Biden looked at her and snapped somewhat and said, 'I'm not confident he'll change his behavior. When did I say I was confident?' And I think that kind of stood in for almost a Biden approach, or you could say doctrine, where he is pragmatic and looking for advances, even small ones with partners, but not starry-eyed. So that exchange and how it implicitly positioned Putin in the next few years, I thought was salutary.
David Frum: China and Russia problems are very different. So China's an economy about 80 percent the size of the United States, more or less. Russia's economy, maybe the size of Italy. Chinese behavior, although often very worrying and repressive at home, is usually quite goal-oriented and cautious. Russian behavior has been increasingly aggressive, wild and reckless. China has been — and they do a lot of bad things to the United States. They steal intellectual property, they were not transparent about the pandemic. And maybe the pandemic started with their own negligence and carelessness, either in a lab or in a market. But they don't aggressively interfere in America's internal democracy the way the Russians do. One more point: there is no policy toward China that doesn't depend on cooperation with other allies, because they are just too big for the United States to manage alone.
Russia is a situation the United States should be able to handle alone. I'm going to mention here something that goes to all of our individual responsibilities, because one of the Russians' tools are these cyber attacks. There was a story that appeared in ProPublica, a very important investigative website about two weeks ago, where they had a lot of intimate tax information about some very wealthy Americans. And it was interesting and a real story, but ProPublica acknowledged that they couldn't be sure that this information was not released to them by virtue of a previous Russian hack a year ago of U.S. government computers. Well, I read that and thought, I get why ProPublica wanted that information and wanted that story, but really? Really, you're going to be unaware of whether you're getting your scoop because of weaponized Russian hacking and leaking after 2016?. Caution everybody, be a responsible player in your own sphere as well as demanding responsibility from others.
Harry Litman: Strange bedfellows, to be sure. It was, I think in some ways, a friendly and successful debut, but as everyone says, he had a low bar after his predecessor and it really was not so substantive. So the rubber will be hitting the road. Let's shift gears, we've had another rock'em-sock'em week at the Department of Justice, and probably nobody wishes more fervently than Merrick Garland that the stench that Trump's administration left there would just go away. But these stink bombs keep turning up, and it does fall to him and the department to respond. Let's start with the fallout from the harvesting of information, in one fashion or another, as to members of Congress — adversaries of the former president: Swalwell, Schiff and McGahn and Comey. So first, there is a deep disconnect here I'm not sure has been resolved. Is it clear that the department's subpoena records from Schiff and Swalwell sent to Apple a piece of paper with those names on there? Or did it issue subpoenas for others and just inadvertently harvest the records of the members? Because if it's the former, it's mind blowing how it wouldn't have triggered all the notification and process requirements that it seems not to have unless people are lying. So I think there's a central tension that hasn't been resolved.
Jen Rodgers: I agree. I mean, if that has been resolved, I don't know about it. I have not seen anyone who has definitively said that it was a subpoena with the name Eric Swalwell on it, as opposed to, as you said, getting the numbers that, let's say, an aide to a committee called, and then getting the subscriber information for those numbers, one of which happened to be Eric Swalwell and, of course, others. And yes, getting a subpoena for the phone records of Eric Swalwell would be a bigger deal and would certainly trigger all the way up. Everyone would be notified, but to me, even if you're a relatively low level or mid-level DOJ trial attorney, when your agent calls and says, 'hey, the subpoena returns are back, we know who that guy was talking to.' And you look at the list and you see the name Eric Swalwell or Adam Schiff, I got to say that info is going up anyway. Even if it came about...
Harry Litman: Do not pass Go, do not use the bathroom. Go to the fourth or fifth floor immediately, right?
Jen Rodgers: Yeah, so either way, I feel like there should have been higher level people at DOJ who knew about this. And the fact that they're saying they didn't is either untrue, or troubling, or both.
Congressman Ted Lieu: I find it difficult to believe that they would subpoena Intelligence Committee staff and not assume any members of Congress would be caught up in that. I think they would have known that that was a likely possibility.
Harry Litman: All right. So if we have a disconnect, and the congressman posed one as well, that we want to try to resolve, so we seem to have two possibilities afoot. One is the department was quick to order up an investigation by the office of inspector general, and then it looks as if Congressman Nadler and his committee will be coming into the fray. Let's take each in turn, how much of a promise do you see for the inspector general himself, Michael Horowitz, getting to the bottom in a definitive way of what the hell happened here?
Jen Rodgers: So normally, I have great confidence in Horowitz and his team. I think they do great work, they really do dig in, they take their time, they do a very thorough job. The only issue with an investigation out of that shop, of course, is that they have no jurisdiction over former officials. So, if you want to know the answer to the question of did Bill Barnow, did Rod Rosenstein, et cetera, you're not going to be able to talk to them. Now, that doesn't mean that there are people there who worked on it who would have had conversations with others, I mean, you still may be able to get at that question in a different way, but they don't have the jurisdiction themselves to call those folks in and question them directly. But I do think that there is a lot that can be learned from Horowitz and his team, and they are very good. There will be a lot more information available when all of this is said and done with his investigation, although, again, they do take their time in getting them, so we won't know anything from them for some time.
Harry Litman: Right, 12, 18 months. But back to Congressman Lieu's point, presumably someone even at a mid-level who's still in the department and subject to being questioned by the inspector general, did have his or her spider-sense go off. And, 'what were you thinking? How did this happen? How did you find out about it?' Could be fertile responses, but limited. All right. So on the Nadler side of things, are the hearings going to happen? I know the Democrats, there's always a little bit of ambivalence about whether they want to be seen as permanent investigators, yet this is pretty big. Will it happen? What will it look like? Do you have a sense of whether we're going to have this sort of big, televised pageant or something small, or nothing at all?
Congressman Ted Lieu: So first of all, I agree with Jen that Inspector General Horowitz is a good person. I think he's going to do a good investigation, and his jurisdiction is limited, which is why the House Judiciary investigation's so important. We can issue subpoenas, and not only that, in the House, the Republicans cannot block the subpoenas, whereas in the Senate they have a 50-50 committee structure where Republicans could, in fact, block the subpoenas. What's interesting to me is both Sessions and Barr publicly have essentially put themselves at a distance from what happens. They're saying they really didn't know what was happening, which in and of itself is sort of disturbing too. First we have to just get additional information and evidence, which is why we recently submitted a document request to the Department of Justice. And before we hold hearings, we're going to have to understand the scale of what happened.
Was it just these few individuals and some journalist? Was it wider than that? Who else may have been targeted? But I do believe we will have hearings at some point, and I also think we do need to look at legislation. There is a much broader issue here, which is basically the Department of Justice in both Republican and Democratic administrations have done the same thing, which is essentially to maximize presidential power. And the problem with that is that the last four years showed us that a lot of presidential power can be abused, and norms can be shattered. And so we want the DOJ to stop doing that, and to stop taking their view that their client is the office of the president, or the presidency, or the executive branch, and instead it should be the Constitution and the separation of powers. Because when you keep maximizing presidential power, invariably you're going to get a future president that will do exactly what Trump did, or worse.
Harry Litman: I've written a fair bit about this and thought about a preferred approach to the breaking of the norms, was just to restore the norms and comply with them and hope that would restore momentum and probity to the department. But now it looks like he's being pushed out of that lane, having to actually make some reforms.
Congressman Ted Lieu: Harry, the problem with the norm is the norm was to maximize presidential power. The current department of justice can't even bring themselves to recognize the validity of congressional subpoenas to senior executive branch officials. That is just not acceptable. They need to understand the separation of powers. They can't have a system where Congress has no oversight over senior executive officials. So they can't go back to that norm, they've got to shatter it. They've got to stop maximizing presidential power.
Harry Litman: It'll be really interesting to see how they play it, by the way, going forward. Will they even slightly stonewall? David, your thoughts on this? Generally, the need for readjustment. We saw this post-Watergate, it's obviously one of the things that concerned Bill Barr that Trump's abuses would lead to a weakening of executive power. Do you see a major adjustment among and between the branches in the offing?
David Frum: I don't believe it's ever possible to restore a norm once the norm is broken. A norm is that thing that we do, because it never occurs to anybody that you can do anything else. Once the thought is there, 'hey, I don't have to obey this, and nothing, no one can do anything about it,' it's gone. So the way societies typically respond to broken norms is they take what used to be informal and taken for granted, and they formalize it. They turn it into positive law. Now, that has negative consequences because a norm is always more flexible, more adaptable to reality; a positive law is clunky and rigid. That's the way these things have to go. Second, I think one of the things that Americans need to study, is how do peer democracies handle law enforcement? None of our peers put so much power over criminal law into the hands of the chief executive of the federal government. The way the Germans do it, for example, their equivalent of the assistant attorney general for the criminal division, their chief prosecutor, is appointed by the interior minister in consultation with the president of the state.
The chancellor has no role, and if a German chancellor were to make some suggestions to the chief of prosecutions about who should be investigated and who should not, the chancellor would be the target of the next investigation. There's similar kinds of breaks in other — in the Australian system and others. So Americans have the Department of Justice they do because, look, this is the oldest continuously-functioning federal system, oldest continuously-functioning constitutional system without major changes among the pure democracies, and that means it's just a lot of stuff here. That is the way it was, because that's the way people thought in 1870 it should be done, and no one's really revisited it in a major way. I think we really need to have a big think about the fusion of politics with prosecution through the American political system. I personally consider, for example, an enormous scandal that in states prosecutors are often elected, and the judges they argue for — in front of — are often elected. So everyone has incentives to do things that will look good in a 30-second ad and not sound bad in a 30-second ad, but often protecting rights and upholding systems can be made to sound very bad in a 30-second ad.
Harry Litman: I think that's right, and I think also, for reasons we probably don't have time to explore here, there's a one-way ratchet, if not absolute, general, wherein once you give a little bit more power to prosecutors in particular — harder on crime, mandatory minimums — scaling back becomes not impossible, but a matter of the stars have to really align. I just want to underscore one thing you said, I guess this is slightly in favor of norms, but your brief, David, seems to be it doesn't matter because we have to legislate. But a very good signal lesson here that played out over the last four years and more, it's really hard to anticipate the next situation where you'll need the legislation. I'm thinking in particular of the independent counsel statute passed in the wake of Watergate gave a lot of power to an independent counsel, and gave rise to Ken Starr and others that I think were subject a lot of criticism.
So we reversed field, put it in the power of the attorney general, ultimately department regulations, and that gave us Robert Mueller and the ability of Bill Barr to put the boot on the neck. So it gets really hard to try to legislate, but that's just a side piece. All right, one more quick thing I wanted to ask about the DOJ, which is the revelations toward the end of the week that the president himself and Mark Meadows and others at the White House were orchestrating a direct and very aggressive campaign from literally his first hours in office on the then deputy attorney general, but acting attorney general after Barr's departure, Jeff Rosen, to investigate these allegations of election fraud and put the department's weight behind them. And you've seen in the last few days a variety of department alumni just totally dumbfounded and thunderstruck by this. What has it been about this, given the litany of abuses of the last four years, that has made old department hands even more stunned than they had been to date?
Jen Rodgers: Partially, it's just the audacity of it, right? The ham-handedness of the attempted interference, you can see Jeff Rosen in your mind's eye, like sitting at the computer knowing that these emails are someday going to get out, and wanting to be very clear about what was happening here. But I think it's also that, unlike a scenario when, say, the president wants to put his thumb on the scale for or against a particular person in an individual criminal case, like we saw the president do time and time again, this isn't even what DOJ does. DOJ prosecutes criminal behavior, they vindicate the Voting Rights Act, for example, you know, in civil suits.
They represent the people, the government, citizens. They don't represent private entities, and the president's campaign, an individual person who wants to sue because they allege some nonsense about voting machines, that is a private interest. That is not the sort of thing that DOJ even does, and we know that because the campaign did sue and they lost. And then they turn around and want DOJ to step in because they have free manpower that the campaign wouldn't have to pay for, and they have more credence than these campaign lawyers that they drug up — Rudy Giuliani, Sidney Powell and the like. So, this is not even what DOJ does. So I think that's why you see alums just saying, in every way on every aspect of this, it is outrageous and audacious and unacceptable, and that's why you see people's heads exploding.
Congressman Ted Lieu: At the impeachment trial, I was given this section of the administration's efforts towards the DOJ in lead up to January 6th, and we did present evidence of their pressure on Rosen. We didn't have some of the exact emails that later came out, and it is even crazier than we had thought at the time where they're talking about Italian satellite technology that can somehow magically change voting machines. So for Mark Meadows and other folks in White House who actually believe that could be true is also deeply disturbing.
David Frum: Trump was operatic and undisciplined and sloppy and craven, so never maximized his opportunities. But I think a lot of people look at those events and take comfort by saying, 'see, the system worked. Trump was stopped.' No, Trump failed, because he set himself impossible tasks and didn't have any discipline. But again and again, we see the system did not stop him. He tripped over his own tied shoelaces. And it is really worrying how weak the institutional pressures on the president were, and if Trump had not been self-sabotaging, he would have done a lot better. And so when we look back on this, it's always fascinating to look at the baroque, psychic and moral and intellectual problems of Donald Trump. But I think the real story here is all the people around him who are sometimes trying to do their best and congratulating themselves that they were averting even worse outcomes, just let things go, that had you told them in advance, they would have said, that's it. That's the end of American democracy. This is utterly unacceptable. This could never happen. No one should even go one millimeter along this path. And they went a long way down the path, the president just fell on his face.
Harry Litman: I think that's really right and trenchant. And sort of the story from... I'm going back to March 2017 and the Comey firing, when people basically adopted a mindset of, wow, absorbing and taking these blows because he's a mad man and we have to let him go to a certain extent. And just on this one, it seemed to me to both encapsulate and even advance all the worst parts of what they had done it over the several years. As Jen says, they have no real role here, but the biggest thing is he is brow-beating the department. And by the way, he does have this lurching, spasmodic quality, so he just didn't calculate well. But he almost installed a lackey who would have done his bidding, and he was deterred at the last minute by hearing that there would have been resignations en masse.
But the really nauseating aspect to me is they were adamant about having the department go before courts and lie, invest in an obviously false tell courts with the DOJ imprimatur that the earth is flat and dragons are dwelling there and something has to be done, I think is what is making everyone who used to serve in the department completely thunderstruck. It's time now for our Sidebar feature, which explains some of the issues in relationships that are prominent in the news today. We're going to be talking about mandatory minimums in the federal system, and we are very happy to welcome Amanda Knox. Amanda Knox spent almost four years in an Italian prison following her conviction for the 2007 murder of Meredith Kercher when she was 20. In 2015, she was acquitted by the Italian Supreme Court. Known burglar Rudy Guede was later found guilty of murder, after his bloodstained fingerprints were found on Kercher's possessions. So I give you Amanda Knox on mandatory minimums.
Amanda Knox: Mandatory minimums. Judicial discretion in determining the sentences of convicted offenders has been a perennial source of debate. On the one hand, wide discretion permits judges to try to fit punishment to individual circumstances. On the other hand, it can lead to vast disparities among similarly situated defendants sentenced by different judges. In the federal system, a set of guidelines provides a sentencing range based mainly on the offense and the offender's criminal history. In most cases, judges have discretion to depart from the guideline range, by imposing either a higher or lower sentence than that suggested. In some offenses however, Congress acted to keep judges from imposing what it saw as overly light terms, as well as widely disparate ones. For those offenses, Congress has created mandatory minimum penalties. Where a mandatory minimum penalty applies, a judge may not impose a sentence lower than the minimum set by Congress. Most mandatory minimum laws were passed in the 1980s as part of get tough policies on drug distribution and associated violence.
Congress has since added mandatory minimums for child pornography and a few other crimes. Today, 26 percent of all federal convictions carry a mandatory minimum penalty. The average sentence length for offenders convicted of crimes with mandatory minimums was 141 months, or nearly 12 years. Importantly, there are two chief ways in which offenders can get partial relief from mandatory minimums. First, an offender may escape a mandatory minimum by providing substantial assistance to the government in another investigation. Second, an offender may qualify for a special safety-valve provision that Congress passed in 1994 to reduce sentences for some low level, nonviolent drug offenders with minimal prior records. Mandatory minimums have come under increasing fire in recent years. Critics claim that they result in unjust penalties for many nonviolent drug offenders, and that they perpetuate racial disparities in the criminal justice system. Several prominent organizations have launched high-visibility campaigns to institute partial or wholesale reforms of the mandatory minimum laws. For Talking Feds, I'm Amanda Knox.
Harry Litman: Thank you very much, Amanda Knox, for that explanation. Since being acquitted and returning to the U.S., Amanda has become an author, activist and journalist. Her memoir, Waiting to Be Heard became a best seller, and she currently co-hosts the podcast Labyrinth: Getting Lost with Amanda Knox and her partner, Christopher Robinson. Together, they delve into stories of getting lost and found again through interviews, philosophical rants and playful debate with fascinating figures.
Harry Litman: We wish to welcome you to Manchinland, the prospect for significant, if not quite omnibus voting rights legislation went up when Joe Manchin, who had seemed to leave the playing field after expressing opposition to H.R.1 and S.1, the big voting rights bills, came out with a proposal of his own that endorsed some points from both sides. How wide-ranging and attractive is it as an alternative to what has been on the table, lo these many months? Years, really?
Congressman Ted Lieu: I'm glad to see forward movement protecting our freedom to vote. None of this is going to matter if the filibuster is not changed. And so, even if 50 Democrats agree on Joe Manchin's proposal, it's not going to pass unless Joe Manchin and other senators agree to remove the filibuster to allow a 51 vote passage of voting rights legislation. So we're going to have to see. Now, I do want to make a second point, which is there is a difference between the laws that these Republican legislatures are passing now, which are bad, compared to the Jim Crow laws from before, where it would literally stop you from voting. So if you couldn't count the number of jelly beans in the jelly bean jar, you just couldn't vote.
But these laws don't actually stop registered voters from voting. So if you're registered to vote in one of these states, you can vote. And I think this would be a massive effort to get pissed-off voters to go ahead and vote next year, because they don't want to have their vote suppressed. And in Georgia, for example, where they're trying to criminalize giving water to voters standing in line, I'm going to fly to Georgia and I'm going to give water to voters standing in line. And I think a lot of people are going to be doing that. You're gonna have mass civil disobedience, and so I think you might have a backlash against Republicans, and we can have very high voter turnout next year.
David Frum: Also, I would say this is not any kind of excuse for any of the things that the state Republican parties are doing, but they are a little less strategic than some people think they are, because what the kinds of laws they're doing achieve is to favor voting by people who are well settled, the well-educated, the homeowners, people who don't move a lot, people with something of a stake in society. Exactly the kind of people have been moving most strongly into the Democratic column since 2016. And the people they disenfranchise, yes, they include African-American voters who are a loyal Democratic constituency, but they also are less affiliated to settled way of life, young Latino men who are one of the groups that have been moving most strongly into the Republican Party. And so the idea that you can say, let's make PTA moms a more powerful voting bloc in American life, which is the essence of what the Republican plans are, that may not work out for them the way they think it's going to.
Harry Litman: Right. But even to the extent it does, let's go back to Manchin for a second, because some of the things he does addresses exactly this problem, it seems to me. If Election Day is a national holiday, then a lot of people who work and can't get to the polls will be able to. If there are 15 days guaranteed of absentee voting, some of the same would-be voters might be able to. There are things for Republicans as well, but to the extent this passes and therefore preempts some of the most pernicious aspects of state voting rights proposals by Republican controlled states, I think it is pretty constructive. Let me just put it this way, in maybe sheer political terms. Stacey Abrams, certainly no temporizer, generally, on voting rights, came out quickly to welcome and even endorsed the Manchin proposal. What is she thinking and why? And I guess especially with what the congressman says, let's include this gloss about the filibuster if it's not reformed, dooming it anyway.
Congressman Ted Lieu: I do think David has a very good point about the Republican laws that are being passed. It's not clear what their effect is going to be. Many of them try to restrict their own voting. Until this pandemic, Republicans generally voted more by mail than Democrats did. And especially in California, we'd see these elections where when the absentees rolled in, Republicans were always way ahead, and then Democrats caught up in day of voting. And so the pandemic sort of reversed that, but once the pandemic goes away and we go back to what normal patterns are like, it's not clear if these Republican laws benefit Republicans or Democrats. They do tend to suppress the vote, but it's not clear who they're exactly suppressing. I do support the Manchin compromise because, one, it may have a chance if, in fact, they can get rid of the filibuster, and second, it does protect the freedom to vote, which I just generally support. But again, it's not clear whether these Republican laws are going to be doing next year until we see it in action.
Harry Litman: But doesn't it also at least set up the dynamic where as opposed to not coming even to the floor, you have legislation that's there, and it forces the Republicans into exercising a filibuster and being seen as obstructionist, and then it's hard to know what that pressure might do and whether it'll force some kind of compromise. Are you pretty persuaded that now that McConnell has come out and has made it a big deal, another reconstruction era move on his part, that the prospects for peeling off even two or three Republicans are nil?
David Frum: I think a lot more of this has to do with state politics than it does with federal politics. The big power of these laws is not necessarily to tip control of the federal Congress, which is already biased in the Republicans' favor in so many other ways that maybe you don't need — you don't need to ice the cake as well as bake the cake. But in especially those states are so crucial in 2016 and 2020, in Pennsylvania, in Michigan and Wisconsin. Those are states that have Democratic governors where Democratic candidates for the state legislature get more of the vote in total than Republican candidates do, and yet the Republicans have control, and often big control, of the state legislature. North Carolina and even Texas are moving in the direction of Michigan, Wisconsin and Pennsylvania, of being, in a theoretical world, very competitive states. And I think a lot of what is going on here is about heading off those possibilities, not so much to control national outcomes, but to control state outcomes.
Harry Litman: Yeah, I totally agree that we have preemption here. And also an important and interesting aspect of the Manchin proposal, doing something about gerrymandering. Now, in the past, you might have thought that would be hard, and could run into the Supreme Court's counterman, but Supreme Court has already said we are totally hands off on gerrymandering. So presumably if legislation outlaws or constrains it, the court will be silent. That would be a huge game changer.
Jen Rodgers: Gerrymandering is a voting issue, but it's also an anti-corruption issue, and so I think that's the one piece of this that anti-corruption advocates are saying, let's at least try to get this done right. That would make such a huge difference, and working in incremental steps, obviously, you want the whole kit and caboodle all the time. But if you can get something that major done on gerrymandering, that would be a huge step forward in the fight against corruption.
Harry Litman: Any final thoughts, especially about timing? We're given the impression that the Dems feel they have to move quickly, is that right?
Congressman Ted Lieu: You have to move quickly in order to give the states the opportunity to implement these changes prior to their 2022 elections. So, for example, if the gerrymandering piece gets passed into law and they've got independent redistricting commissions, they can't just set up those overnight. And so you do have to give time for states to do this.
David Frum: Also, 2021 is a redistricting year, which occurs once a decade. It doesn't usually happen that you have wave elections in years ending with zero. I think before 2010, 1930 was the last one. So Republicans are able to use their success in 2010, and that was an authentic Democratic success, to set the table in 2011 to ensure that even when they did not do so well in future elections, they would retain control. Democrats didn't do well enough in 2020 to overcome what the Republicans achieved in the elections of 2010 and the redistricting of 2011, so it's going to be perpetuated in 2021, and this time without the democratic mandate, even the shadow of one that was there in 2011.
Harry Litman: A really good point. All right, let's end where we started with President Biden, who we're told is really partial to bipartisanship, and has been getting some flack maybe on the left for sitting back, trying to eke out teeny little inroads in Republicans who, by and large, are not playing at all. But you can see a world if this goes through, and maybe there's a plausible infrastructure bill where it looks as if his model, whether by dint of his own efforts or otherwise, succeeds. And we're seen as, lo and behold, having real important actual legislation, even having been dealt this down the middle, a divided hand. What about that as a sort of a possibility for the president?
Congressman Ted Lieu: Currently, there's a two track process happening on infrastructure, where there is a bipartisan track as well as a separate reconciliation track that would require only 51 votes. And I think it's good to let both of these processes play out so that members in the House and Senate can look at the two packages and see the differences, and then make a decision.
David Frum: I think Biden is also, in some ways, the victim of an argument that some Democrats are having with the shadow of President Obama. In 2009-2010, Democrats really did control the whole political system. They had not only the presidency with this president committed to hope and change, but big majorities in the House and at times as many as 60 seats in the Senate, at other times, 59 seats in the Senate. And I think a lot of Democrats look back on this, we didn't achieve as much as we should have in 2009 and 2010. And so they're now demanding that president Biden, with a much less advantageous set of circumstances, do in 2021 what President Obama did not do in 2009.
Harry Litman: Really good point. All right, we've just a couple minutes for our final feature of Five Words or Fewer, where we take a question from a listener and each of us has to answer in five words or fewer. And today's question is from Tess Mott, who asks: 'can and will the Democrats force McConnell and the Republicans in the Senate into an old-fashioned Mr. Smith comes to Washington filibuster.' So will they, in fact, make the Republicans stand up in the well and talk forever if they want to do the filibuster? Five words or fewer.
Jen Rodgers: Well, if Manchin and Sinema say so.
Congressman Ted Lieu: Depends on Manchin Sinema, Rosen.
David Frum: Nope.
Harry Litman: Yeah, would be fun, but no. Thank you very much to Congressman Lieu, David and Jen, 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 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, and our consulting producer is Andrea Carla Michaels. Thanks very much to Amanda Knox for explaining to us how mandatory minimums work in the federal system. Our gratitude, as always, to the amazing Philip Glass, who graciously lets us use his music. Talking Fed is a production of Dalito, LLC. I'm Harry Litman, see ya next time.
