Harry Litman [00:00:09] 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. One day, former President Trump will be just a sordid footnote in the country's history books, as disgraced President Richard Nixon became shortly after resigning and leaving office. But judging from the week's events, that day is nowhere near here yet. This week brought extensive demonstration of the degree to which our political life continues to be yoked to Trump's legacy and his conduct in office. Two years after Congress subpoenaed former White House counsel Don McGahn to detail his knowledge of Trump's apparent obstruction, McGahn finally testified to the Judiciary Committee behind closed doors.
But while he may have sworn to tell the truth, it was not the whole truth; the testimony was limited to details already in the public record, raising the question how and when, if at all, the American people will learn the full story of the Trump administration's derelictions. Agents and prosecutors, meanwhile, were pursuing some of Trump's closest allies, especially Matt Gaetz, Louis DeJoy and Rudy Giuliani, all of whom looked to be at serious risk of criminal charges in the near or medium term. And the Trump legacy of suppressing voting rights and hiding behind the Big Lie and bogus concerns of voter integrity saw its fullest expression in a wildly restrictive Texas law that failed to pass only because the Texas Democrats walked out of the proceedings, but the governor promised to pursue the fight. To break down these issues and how they may play out in the legal and political arenas, we have an awesome panel of some of the most knowledgeable analysts in the country, and they are:
Congresswoman Stacey Plaskett. The congresswoman is currently serving her fourth term as the representative for the U.S. Virgin Islands at Large District. She serves on the House Committee on Ways and Means, the House Committee on Budget and the House Committee on Agriculture. And of course, as most of us remember, she served as an impeachment manager in the second impeachment trial of Donald Trump, the first delegate in U.S. history to do so. Prior to joining the House, Representative Plaskett was general counsel for the Virgin Islands Economic Development Authority, and she also served as counsel to the US House of Representatives Ethics Committee and senior counsel to the deputy attorney general at the DOJ. So she has multiple experience at different levels and branches of government. It's her first visit to Talking Feds, thank you very much for joining us, Congresswoman.
Congresswoman Stacey Plaskett [00:03:10] Thanks. Thanks for having me.
Harry Litman [00:03:11] And with her two returning guests, Jonathan Alter, an award winning author, political analyst, documentary filmmaker, columnist, television producer and radio host. Those are six bona fide titles, no fluff there. He is the author of three New York Times best sellers, including his latest book, 'His Very Best: Jimmy Carter, A Life' from 2020. Welcome back, Jon.
Jonathan Alter [00:03:37] Thanks, Harry. Great to be here.
Harry Litman [00:03:39] And one of the podcasts best friends, bar none. Matt Miller, a partner at Vianovo, a justice and security analyst for MSNBC and a prolific writer for national publications. Matt's the former director of the Office of Public Affairs for the Department of Justice and before that, held leadership positions in both the US House and Senate. Always great to have him, thanks so much for being here, Matt.
Matt Miller [00:04:05] Always great to be here, Harry.
Harry Litman [00:04:06] All right. Let's start with today's testimony behind closed doors by former White House counsel under President Trump, Don McGahn. So it's governed by strict ground rules, only Judiciary Committee members, no staffers, most importantly, only material that's already in the public from the Mueller report, so nothing new. And we won't be seeing the transcript for a week during which there may be objections. So let me start with the deal itself before getting to what might be in the testimony. So the House Democrats agree to this, it's been more than two years since they subpoenaed McGahn as the potential star witness in the impeachment proceedings, and I think they were on the verge of a successful outcome in court. Why did they agree to this fairly cramped arrangement where the public can hear him and his subject matter is so limited?
Jonathan Alter [00:05:10] I have a theory about it, Harry. I don't know whether this is true because I haven't done reporting with members of the committee or talked to Chairman Nadler or anything like that. But I have a sense that there's an appetite in both the White House and the Biden administration to return to regular order, if you will. And I'm using regular order there loosely, in the sense that there's a long tradition of good faith negotiations between the White House and the Hill over the terms of testimony, and how to navigate around executive privilege claims. And there was comity for a long time. Not always, I mean, there was a contempt citation against Eric Holder and a messy situation involving that in the Obama administration. But over the years, there has been a fair amount of agreement to work out the details, and Trump interrupted that and threw a monkey wrench in all that. And I think that both the White House and the Hill wanted to get back to that. They know there's not going to be any real fact finding here of any significance at this point, but they wanted to reestablish this precedent.
Harry Litman [00:06:23] And why won't there be fact finding? Why shouldn't McGahn be in front of the full Congress and answer everything, and there's so much the public doesn't know. Are we just supposed to leave it to the dustbin of history?
Matt Miller [00:06:37] Look, my take on this, I think at this point, the fact finding is all after the fact. The settlement here ultimately wasn't about Don McGahn's testimony because Don McGahn's testimony is basically irrelevant. The point of getting Don McGahn was never to find out new facts because all the relevant facts were in the Mueller report. It was to try to have him in before the committee in a public hearing so they could build support for impeachment, and that's obviously completely overtaken by events now that Donald Trump is no longer the president. So I think the point of the settlement, as often happens in these negotiations between the House and the Senate, both sides were afraid of a bad court ruling.
I think the executive branch, the Biden administration was afraid of a circuit court ruling that was going to uphold very sweeping powers for Congress, and the House was afraid that if they won at the circuit, the Biden administration would appeal the Supreme Court, which I think they would have, Congress would have lost to the Supreme Court. So this one is ending the same way the last similar situation ended, which is in the Bush administration when the House Judiciary Committee wanted Harriet Miers, the White House counsel, and Karl Rove to testify in the US attorney scandal. The dispute stretched into the new administration, and the new Obama administration landed this exact same type of settlement to avoid any kind of court ruling that would set a precedent that neither side wanted.
Harry Litman [00:07:53] Well, Congresswoman, tactics and risks aside, how does this strike you, just as a matter of public policy? Yes, it's not related to any impeachment proceeding now, but don't the American people have some entitlement to no more than just what's already been made public? And if a guy like McGahn, who was with him for years and knows quite a bit, isn't going to provide it, who will? Are we throwing in the towel on fact finding for the whole sordid years of the Trump administration?
Congresswoman Stacey Plaskett [00:08:25] I think what Jonathan said earlier is really key in this, that this is really just corroborating what we've already known, that this information has already been out there. Whatever McGahn is going to give us, I don't believe that there's going to be a smoking gun. And the purpose of his testimony has been concluded. There has already been an impeachment, which was what he was being initially brought forward for. There's been a trial in the Senate, and now Congress can still say that subpoenas from Congress must be upheld, that they must be obeyed. So we're allowed to get the subpoenas being obeyed by having this agreement without having, let's say, a kerfuffle, where we Democrats are at odds with our Democratic White House at the same time. And I do agree with you, Harry, that there is a general sense, I felt it from January, that this White House wants to do the work of the president, wants to do the things such as American jobs plan, his American family plan, wants to get to policy and really wants to put aside that Trump presidency and all of the criminality, the impeachment, the outside of the norm, if there is such a thing anymore of what an executive branch is supposed to do.
Harry Litman [00:09:51] I see all that. And maybe this is just my idiosyncratic view. I see all the reasons, all the value of comity, all the return to business as was. But wow, in this context. I repose the question I just did, which is, does this entail then a lack of effort on any branches part to actually ferret out the...
Congresswoman Stacey Plaskett [00:10:16] That's really un — that's an unfair statement...
Harry Litman [00:10:19] Please, go ahead.
Congresswoman Stacey Plaskett [00:10:20] ...because I think the House Democrats have expended tremendous amount of energy to make sure that they were able to interview, that they were able to question McGahn in any form. And this is something that he and the administration were absolutely opposed to. Now, what you're saying is that we, the public, want to see it. We want to see the blood. We want to see the...
Harry Litman [00:10:44] We want to see everything, not just what we already know.
Congresswoman Stacey Plaskett [00:10:46] Right. We want to see the fight. It reminds me so much of during the trial, the last trial of the president, when people were so incensed with us that we weren't going to bring witnesses, right? First of all, not recognizing that there's not going to be any witness coming on the floor of the Senate, raising their hand and providing testimony. That is going to be depositions, there's going to be cross-examination, it's going to take months for that to happen. But we, the American public, want to see these things. We want the drama, we want the theater, and what you're going to get instead is behind closed doors, people and particularly the tremendous staff at the Judiciary Committee who are just incredible bar none, having worked with them, methodically going through information and evidence in a manner that is going to tie a bow on what we already know that the president was engaged in with Ukraine and for which he was impeached the first time.
Harry Litman [00:11:46] All right I hear you, but so just to push back a little, maybe some people are looking for blood and theater, I'm looking to hear the facts. So let me ask, is there an avenue that remains where we'll find out the things that are not public already in the Mueller report? Or we will supplement with things that Mueller, who, after all, was undertaking a counterintelligence and criminal investigation, didn't look into. Is there the equivalent of some comprehensive national examination of these years in our future, or are we kind of done here? Are we kind of waiting for the historians to write the books?
Jonathan Alter [00:12:27] Well, I just think it would be a terrible moment for the United States to be done here. So with the filibuster of the 1/6 commission and the many other untold stories of the Trump years to be just swept under the carpet, it would be a real blow to democratic accountability. So I'm looking for some creative policymaking here where the Congress, if its subpoena powers are not sufficient to do a proper report on 1/6, or on Ukraine, or on Russian interference or whatever the case may be, if the subpoena powers are not sufficient in a select committee, then people have to do some hard thinking about how maybe they can use the Justice Department's subpoena power with a special prosecutor. I know there are all kinds of legal territorial issues that come into play when you have parallel investigations, and that's always been true in the past, that the special prosecutor gets in the way of Congress. Congress gets in the way the special prosecutor. These have been problems that the executive and legislative branches have been dealing with for decades. We have to keep the goal in mind, and the goal here is accountability. And for people just to go, 'oh, OK, well, they filibustered the commission and there are these subpoena problems and the administration wants to talk about jobs, so we're just going to flush this whole thing down the memory hole,' would be a horrible mistake.
Harry Litman [00:14:04] Can't the department do some stuff without harming its legal position going forward, just voluntarily?
Matt Miller [00:14:12] Sure they can, but they've shown already they don't want to do that. The best chance where they could have done that would have been with the release of the OLC memo that Barr relied on in reaching his conclusion with regards to prosecuting the president. And they very easily could have preserved their legal position in the case if they had just said 'we're releasing that memo because we have the discretion to do so.' They've done that in other cases and they declined not to. So whether they will or not, part of what they always are thinking are precedent and any precedent they set being used against them, and part of it is a political question. We dealt with this a lot in 2009, which is every day we spend releasing a document that deals with misconduct in the Bush administration is a day that at that time the administration wasn't trying to pass the health care bill. So it goes, you go back to what Jonathan mentioned now.
And administrations are not always very creative at trying to do two things at one time. I want to say one final thing about this question of Congress's power, though, that we started this with. We always have to remember that when you look at this interplay between the two branches in this case, when you see the Trump administration really abusing its power, it's easy to say the way to rectify that is to give Congress more power to hold the administration accountable. It's great in theory, the problem is you give Congress power, that power is held by Congress, no matter who controls it. And I think the problem that we're trying to solve for here is not just that the executive branch has too much power, although I think it does, it's that Republicans abuse their power no matter which branch of government they're in charge of.
Jonathan Alter [00:15:36] That's for sure.
Matt Miller [00:15:37] So the Trump administration clearly abused its power to resist lawful congressional subpoenas. But at the same time, when Republicans had power in the House, in the Obama administration, they completely abused their subpoena power and asked for things far beyond what any administration had ever asked for in the past. So we have to solve for the problem that's not just the interplay in branches, but when you have one party that acts in bad faith, no matter where it is in the government. And that's why these issues are so difficult to confront.
Jonathan Alter [00:16:04] I think the workaround for the problem, as just very, very aptly explained, involves the Justice Department. Because even though under Barr it was politicized, and it certainly has been at various points in the past, generally speaking, it is not as political as either the White House or the Congress. So if there was something where the scope of the subpoena power could be limited by what the Justice Department decides is relevant, then that precedent, to my mind, wouldn't be as serious. And then the practical problem is, how do you share the fruits of a special prosecutor's probe with this select committee that I hope is going to be established? And I think that could be done in ways that set good precedents. Just because they have different turf doesn't mean that they can't figure out fresh ways to cooperate. So this would be cooperation between the Justice Department and the Hill, not between the White House and the Hill. Is that just a pipe dream, or is it conceivable?
Harry Litman [00:17:17] Yeah, and there's also rule six to navigate, etc., the grand jury material. But I tend to agree, I think, with you, Jon, and maybe others have the view that just if you're ever going to do it, if your institutional concerns should ever give way to a broader public policy imperative, it's finding out what happened here. All right. Speaking of which, the ghost of the former president was very much with us this week, because we had a lot of action in the courts involving the sort of closest circle of Trump loyalists. So Matt Gaetz's problems increased this week, and there's the prospect of obstruction charges added to the sex trafficking he's being investigated for. The postmaster general looks to be investigated by the FBI for campaign finance issues. And, of course, there is Rudy Giuliani's continuing hot water in his old district. Let's talk briefly about the merits of Gaetz. How serious does it look for him, this new obstruction charge, and why would he do something so stupid as trying to shape the testimony of the minor that he allegedly had sex with in 2017?
Congresswoman Stacey Plaskett [00:18:33] Well, he would do it because he is stupid. That would be the first thing, right? Gaetz is interested in being a public figure and accolades. I mean, I recall having a discussion with other former prosecutors, Kathleen Rice and Ted Lieu, several years ago saying that, 'listen, this guy needs to be disbarred, somebody needs to investigate him,' when he was attempting to intimidate Michael Cohen. That was witness intimidation way back then, so this is just a pattern and practice that this individual engages in. Who is surprised by anything ridiculous that Matt Gaetz does? He thinks he can operate with impunity, there's all kinds of discussions here on the Hill about him showing pictures to other members of Congress of young women that he may have been engaged in intimate relationships with. Let's been done with him. When are we going to be done with him?
Harry Litman [00:19:31] Maybe soon. The former girlfriend, by the way, who's now figuring centrally was, this is just one detail in his sort of Animal House past, a congressional intern. Let me stay with you for a minute, Congresswoman, because you mentioned Congressman Lieu. He's called pretty forcefully, and most recently yesterday, for Gaetz to be off the Judiciary Committee because of the ungainliness, awkwardness, of being in an oversight position of DOJ when you're being investigated. What about that? Does he need to be off the Judiciary Committee as you see it, because these charges are pending?
Congresswoman Stacey Plaskett [00:20:08] I'm very cautious about members of Congress saying someone needs to be expelled or removed. I think that's reserved for some of the most egregious of acts. I'm not to say that this is not, but he has not been convicted of this. And I understand the caution of Ted Lieu that this is someone who has oversight over the Department of Justice and this is the agency that may be, in fact, investigating him, the New Yorker in me wants him to stay on there so that he'll do something that causes another obstruction of justice case, so we can get rid of him once and for all. But, you know, I just am very cautious about members of Congress removing other members of Congress from positions. For better or for worse, people elected him to that position, and I don't think that we should be so quick to being the police of one another when hundreds of thousands of Americans have elected that individual to that position.
Harry Litman [00:21:01] Fair point. I'll just mention one thing as a former prosecutor, which is, people do this a lot. Smart people, lawyers like Gaetz try to shape testimony. Remember, one of the counts against President Clinton was his sort of gingerly approach to his secretary, Betty Currie, saying, 'oh, and Monica and I were never alone, right?' You think about where your vulnerabilities are and who your friends are, and you...
Congresswoman Stacey Plaskett [00:21:28] You just want to do a check.
Harry Litman [00:21:30] Let's focus on DeJoy for a second, because everybody was seeing now this tape from him testifying last October, where he's asked this very question and responds with great umbrage how he would never do anything like that. He knows the campaign finance laws and it appears like he's at least being investigated, and there are many employers who are saying that's exactly what he did. That is, he would basically tell employees to make contributions and then make it up to them in their bonuses, which is basically a straw donation to him, which is patently illegal. Again, though, we have the point we were talking about before with the department looking perhaps to put the whole thing behind them. Is this something that maybe the FBI just has delved into on its own, and do you have a sense of how much trouble he actually is in?
Matt Miller [00:22:24] Let me answer your first question first, Harry, which is about the FBI doing it on its own. I think it's very hard to believe that five months into the administration now that the deputy attorney general, the attorney general, are not fully briefed on this investigation. Senior member of the government, they know everything that's happening and everything the FBI's doing with pretty high level buy-in at the department. I thought the most interesting part of that House testimony was where he talked about how well he knew the campaign finance law, because that is one of the key components to proving guilt in these cases, right? You don't just have to show that you broke the law and that you intended to, but campaign finance law is kind of unique, that you knew campaign finance law specifically, and knew that you were violating it.
Harry Litman [00:23:02] And it's always the defense. I mean, this is going to be in the opening.
Matt Miller [00:23:06] It's always the defense that, 'I didn't know this was a violation, I thought it was legal to reimburse my employees and have them make a contribution.' And if you didn't know, that truly is, unlike in a lot of cases, that truly is a defense. But when you have the witness, this very accomplished person, testifying before Congress how well they know campaign finance law. That's, that is a fairly mitigating circumstance for the prosecution, I would think.
Congresswoman Stacey Plaskett [00:23:28] I love it. Jim Cooper, the congressman from Tennessee, the Democrats who question him on this, I didn't know if he realized the can of worms that he was dredging up or potentially, we know that when we find out the FBI is investigating something, it's long after they've already begun the investigation. So this has been going on for some time before it actually comes to light. I tell people when they come to you and tell you that they're doing an investigation on you, it's pretty much over, and you better get your attorney and start thinking about a plea deal. But in this instance, listen, the campaign finance laws, let's put that to one side. That reminds me more of going after a Chicago — and I know, Jonathan, you're from Chicago, but going after a Chicago gangster in the 1920s for tax evasion when he's killed a whole bunch of people. Postmaster General DeJoy has a lot more on his hands related to his obstruction of an actual election than campaign finance reform. That's the thing that we need to continue to look into. What was his motivation and what was he maybe even in cahoots with the former president, having discussions about how he was going to ensure that these ballots were not counted.
Harry Litman [00:24:43] And he did take a lot of measures in the months before to make it much harder to getting rid of overtime. I just want to make one broader observation, which is on the one hand, we are reliably informed this has come up before with Matt, that there's no great zeal in the department or the White House to be taking on these Trump chapters and doing criminal prosecutions. But on the other hand, there is in the Department of Justice, a commitment to workaday institutional life. And that means employees come to the FBI or whatever, and there's a bona fide investigation presented to the deputy attorney general, Lisa Monaco. And as Matt says, you know, you're informed about it, but you tend to greenlight it because that's your professional role. We can ask on a broader policy level, is this going to be good or bad for the country to be dredging things up with Trump? On the other hand, it's not like he's absent from the scene, he's very much dominant in the whole, y'know.
Congresswoman Stacey Plaskett [00:25:43] I don't think it's a matter of dredging them up.
Harry Litman [00:25:46] Right.
Jonathan Alter [00:25:46] Right.
Congresswoman Stacey Plaskett [00:25:47] But it's cleaning up the crap, right? I don't think any administration is looking for it at the Justice Department is going out and saying, let's have these investigations. They have to be done because it's right there in front of you, the crimes have been committed. Americans are aware of it, the Justice Department is aware of it, FBI, and so there has to be accountability. And you can be sure that particularly the Judiciary Committee with Jerry Nadler and some of the Democrats that are on there are going to be on top of that Justice Department to make sure that they are doing their job. And that means as well, prosecuting some of the former administration officials.
Jonathan Alter [00:26:25] Congressman Plaskett, do you think there is going to be a select committee or is this going to be done through standing committees? Because there are so many threads of this, and to bring the kind of proper national attention to it, shouldn't there be some kind of a select committee that can hold big, splashy public hearings to bring the kind of accountability that we all agree is necessary?
Congresswoman Stacey Plaskett [00:26:49] Are we talking about a select committee on January 6th or a select committee on the Trump administration?
Jonathan Alter [00:26:55] Well, that's a very good question. Maybe the way to do it is the latter, so that you have this sort of full cleaning of the augean stables. The argument from the the White House...
Harry Litman [00:27:08] Which would hate this idea, right?
Jonathan Alter [00:27:10] They would hate the idea, but I think they're fighting the last war. Like, I wrote a book about Obama's first year as president, and Rahm Emanuel and the others were always saying, 'well, don't do anything to distract from healthcare.' You know, first of all, it didn't work. And if they had distracted from health care, they would have gotten an immigration bill through, because they had, after Al Franken came to the Senate in the summer of 2009, they had the 60 votes and they could have rammed immigration reform through and some other stuff. But they had this 'no distractions!' That was their whole mantra, and government can walk and chew gum at the same time. I think it would be really bad, not just bad for historians trying to make sense of the Trump administration, but just bad for the country. We really have to rebuild these muscles of accountability that were so atrophied. And so I'm actually kind of surprised that there isn't more talk on the Hill about some sort of big select committee.
Congresswoman Stacey Plaskett [00:28:11] Well, I think that you're going to see several committees continue to look at bad policy and what was done in the last administration and work to clean up bad policy, whether that's Energy and Commerce or Education Committee or others. When it comes to the overall operations of the Trump administration, I think that we have the oversight committee and you have the Judiciary Committee. Those individuals who are on those committees are more than willing, having been a member of oversight for three terms, willing to take those on. I do think it's my preference that with regard to January 6th, that that be conducted as select committee. I have the utmost of respect for Bennie Thompson, I think he and John Katko worked so well together to put that bill together, and if it were to reside in Homeland Security, I wouldn't be mad at that. But I think to elevate it to the importance and the gravity to which an event like an attempted overthrow of the government should have, would be a select committee. I hear all the time Democrats saying, 'look at Benghazi. What the heck was that?' That was a terrible event that happened on foreign shores to a small amount of people, and the fatalities. In comparison to something that happened at the US Capitol to obstruct our very democracy, and the number of casualties and injuries of law enforcement officers, should elevate it to a select committee.
Harry Litman [00:29:49] It's now time to take a moment for our Sidebar feature, which explains some of the issues and relationships that are prominent in the news. This week, we wanted to do something a little different in recognition of the beginning of Pride Month. So we are very pleased to welcome Evan Wolfson, the founder of Freedom to Marry, who now teaches social change at Georgetown and at Yale, has been recognized by Time magazine as one of the 100 most influential people in the world. Rather than asking him to expound on an important concept in the law that we draft, Evan is going to give us some thoughts on where the LGBTQ movement should now focus. So I give you Evan Wolfson and the future of the LGBTQ movement.
Evan Wolfson [00:30:42] Since we won the Freedom to Marry in 2015, our work to win marriage has proven to be the gift that keeps on giving. Public support has grown every single year since the victory, as people have seen with their own eyes, families helped and no one hurt. We now have a majority of even Republicans and nearly every religious group, and more than 1.1 million gay people have gotten married in the United States. But epic as this transformation is, there's still so much more to do. On defense, we need to block the attacks that we're seeing, waves of anti-gay and anti-trans legislation in state legislatures, as well as abuses in other parts of the country. We've seen an effort to use so-called religious exemptions to try to carve out licenses to discriminate from the gains we have won. And with the right wing solidly in control of a packed Supreme Court, there may very well be bad decisions that will erode some of the gains we've made, and that we will have to fight to correct. On the affirmative, of course, winning marriage, while important, is not the only arena of life that matters.
We want to secure the Equality Act, federal civil rights legislation that will cement protections on the basis of sexual orientation and gender identity that will help all Americans, not only in the areas of employment, public accommodations and housing, but in credit, in education and so much more. And we need to see similar bills enacted at state legislatures. And of course, we don't just want nondiscrimination laws, we don't just want good laws. We want good lives. We need to send a message of affirmation and support to every person: young or old, gay or non-gay, trans or non-trans, no matter what part of the country they live in, and no matter what area of life they're daring to dream big in. We want people to be secure and able to pursue happiness, the American dream. So we have a lot of work to do. Fortunately in this work, the marriage lift and marriage conversation, the marriage advance has brought ever more allies and assets into the work, businesses and others standing with the LGBT community as we fight to get our country where it needs to be. Plenty more to do, but lots to celebrate. For Talking Feds, this is Evan Wolfson.
Harry Litman [00:32:49] Thank you very much, Evan Wolfson, who's the author of the book 'Why Marriage Matters: America, Equality, and Gay People's Right to Marry,' which Time Out new York magazine called, quote, "perhaps the most important gay marriage primer ever written." And I can say I knew him when, i.e. when he was Secretary General of the student United Nations as a high school senior in Pittsburgh, P.A.
Harry Litman [00:34:21] All right, I want to spend some time now on the state of the overall struggle in voting rights in the country. So first, Texas is now the latest state to vie for the title of most nakedly-partisan and nasty restrictions. This is a state that already ranked near the bottom in turnout, but Governor Greg Abbott, a major Trump supporter and 2024 presidential hopeful, and his lieutenant governor have led the charge for this breathtaking set of constraints. And it was foiled temporarily because the Dems just left, a stratagem we'd heard about over the last few years in different venues. Does anyone know about the Texas law and is that the end of these efforts or does Abbott have more cards to play?
Matt Miller [00:35:06] As the resident Texan on the panel, maybe I'll take this one. The legislature adjourned, the governor can call a special session of the legislature at any time, and he has the sole power to designate what topics they can consider in a special session. He said he is going to call another one, he's got this and a few other bills he wants them to reconsider. The Democrats can walk out again, and they can do it as much as they want, though, to be really effective they typically need to leave the state, something they've done in past battles, because the governor can send the Texas Rangers out to go find them and literally drag them onto the floor to be present. They don't have to vote, but they have to be present. So they've in the past, they've gone to New Mexico, they went to Ardmore, Oklahoma one year.
Harry Litman [00:35:46] I'll bet he would do that, huh?
Jonathan Alter [00:35:47] Oh, he'll do it.
Matt Miller [00:35:48] He absolutely would, he absolutely would. But he's threatening to veto the legislative appropriations bill, which would deny the members their staff, their salaries, not a big cudgel, they only make $7200 a year because they're part time, but would kill the pay for all of their staffers and might be the thing that keeps them around. There's a little gamesmanship going back and forth, we don't know exactly how it will play out yet. But I think what we're going to see is the Democrats in Texas clearly get the stakes here, and were willing to play hardball. And I think there is a divide in the Democratic Party right now to people who get the stakes of this fight over voting rights and democracy and people who don't. And people who are willing to use every tool that they have to fight the Republicans' attempt to give themselves the power to overturn elections and keep voters from turning out to the polls, and people in the party who just look at it as one other issue that needs to be worked through on a long list of issues where we need to find compromise. And as a Democrat, I hope that the people in our party will see what the Texas legislators did this week, and find some spine and some backbone because of it.
Harry Litman [00:36:56] It does all seem part and parcel though, of what is going on nationally, and that's why we focus on it. And I wanted to ask your sense of whether the narrow and cynical, I think it's fair to say, Republican strategy of restricting voting rights and playing the big lie, whether it's sort of losing momentum. So I'm thinking about the special election in New Mexico where the Democratic candidate won handily. Does it feel to you like they're losing their grip a bit, or is it every much a sort of clear and present danger going forward?
Congresswoman Stacey Plaskett [00:37:33] Well, as much as I love to tout our win in New Mexico, I mean, I don't think that's indicative of what's going on in the country. Yes, her numbers were better than President Biden in the election several months before, but my new colleague is a known entity in New Mexico when she was running for that position, and really fits the district very well. I think what we're going to have to do is continue to raise the temperature. I'm really grateful to the Texas Democrats for stepping out the way they did, but I think this is going to take tremendous grassroots effort of the organizations that are already out there on the ground trying to get the Senate to do the right thing. And at the end of the day, this will ultimately be about the filibuster.
Harry Litman [00:38:20] That's how you see it? It's shaping up that way?
Congresswoman Stacey Plaskett [00:38:23] I think so, which is so ironic, right? Because the filibuster was created to stop the very thing that now we find it bumping up against, which is the ability for individuals to vote. For expanding individual civil rights, protecting civil rights of American citizens, and the filibuster was created as an impediment to that, and now is being utilized to continue to thwart the efforts of Americans to expand and protect the right to vote.
Jonathan Alter [00:38:56] So Harry, I don't see how the Democrats win on this. I'm talking about an H.R. 1. They don't have the votes to change the filibuster, and they don't have the votes to get even Joe Manchin's voting rights bill through. And by the way, Manchin's bill is almost certainly unconstitutional, as defined under Shelby County vs. Holder. And I don't know what you guys would think, but the legal experts I've talked to said there's basically no chance that bill, if it passed, which it's not going to, would be upheld by the Supreme Court. So I think, again, it's a little bit like investigating the Trump administration. And I think that conversation should start by making a distinction between making it harder to vote, which, you know, is wrong, but the regulations on how open the polls need to be at what hours has been a local matter. I mean, I was talking to Mary Frances Berry the other day, the great civil rights activist, and she said, 'why do they have such a problem with the polls opening at 1:00 p.m. on Sundays? First of all, until very recently, nobody in the United States voted on Sunday, but also church gets out at 1:00 p.m, right?'
So these kinds of arguments which get a lot of public attention, are not really the most important arguments. The most important arguments are about what happens after the election. And what we have now is one political party dedicated to challenging any election return that doesn't go in their favor. They want to, quote, 'audit any election that they lose.' So we need federal legislation, which I think you would have a fighting chance of getting 10 Republicans in the Senate to go along with. Those guys know that what's going on in Arizona now is dangerous, really dangerous, and we have to put a stop to it. And while there aren't the votes for everything in H.R. 1, redistricting and reviving the Voting Rights Act in the John Lewis bill, there aren't the votes for a lot of that. But there might be the votes for preventing a true banana republic, which is what happens if one side doesn't accept the election returns.
Congresswoman Stacey Plaskett [00:41:12] I don't know, Jonathan, if I agree with that. I think about even the John Lewis Voting Rights Act, right? Which would just restore a piece of the Voting Rights Act of 1965 to respond to the protections that were eliminated by the Supreme Court in 2013 in Shelby. And we don't even have all of the Democrats signed on as cosponsors of that in the Senate. And so I'm not clear if we narrow the focus, if we're going to get Republicans who really see this as dangerous, because I think that they are so at this time, blinded by their allegiance to the personality cult, and to their desire to retain power, that they think they must support this narrative, that I'm not sure if they're going to be able to even, if we narrowly create a bill, that they'd be willing to support that.
Jonathan Alter [00:42:03] You're probably right. You can never underestimate the cult of personality that they've signed on to. And they all faced a character test and most of them, except for Mitt Romney and Liz Cheney and a few others, have failed the great character test of their generation. And so it's, it's a little bit naive to expect that they will change. So to my mind, it will take the 2022 election. I don't think that any of these bills are enough to prevent a huge backlash from Democrats, where if you had a presidential election year turnout in 2022, it would be a tidal wave, because you're not going to see it on the Republican side. If you had presidential election turnout on the Democratic side because of anger at what black voters' parents and grandparents sometimes died for, and then if you can make voting rights a first tier issue in the midterms, which I think is very doable, then when they come back at the beginning of 2023, maybe you've gotten the attention of some of these Republicans. That's not really the way for them to go, because they're not going to be able to voter suppress their way out of their problems.
Harry Litman [00:43:15] That goes directly to the final point I wanted to raise here, which I was very struck how the president, in commemorating the scandalously unknown episode of the Tulsa massacre, the hundred year anniversary, wrapped it in this notion, called it an assault on democracy. And I think actually, Congresswoman, I mean, you've been instrumental, along with the CBC, in just bringing it into national attention. I wonder what your thoughts about both Biden's rhetorical stance were, and whether you think there's a viable path toward reparations for the ancestors of the victims of the Tulsa massacre?
Congresswoman Stacey Plaskett [00:43:56] Sure. I mean, first, let me say, Jonathan, I agree completely with you that we as Democrats have got to turn out, whether it's through fear or anger or whatever in 2022, and that's going to be the demarcation. That's our Rubicon, that's our Spartan stand against what the Republicans are going to do. And as for what has been happening with the Tulsa massacre and the recognition of that, is I think that along with Sheila Jackson Lee, who has been relentless in her H.R. 40 reparations bill, is this notion that just raising awareness as to the importance of African Americans to the creation and building of this country and what has been the quantifiable loss to communities when we have discussions about — there was that discussion in the Senate between what is equality and what's equity, and that black people are looking for equity, not just equality at this point.
I think that the reparations discussion is really important, and I think that all Americans are really aghast at what happened there in Tulsa, Oklahoma, now that they know, and because they are able to quantify it, that's a real litmus test for the notion of reparations to those individuals who are survivors and to those families as well. But I think that discussion is going on all over the world right now. We've seen in Africa where Germany and Belgium are having discussions about reparations for their former colonies. In my own home of the Virgin Islands, which were previously owned by Denmark, the sale of the Virgin Islands to the United States gave Denmark the money that moved them out of their depression and into now becoming considered the happiest country in the world, without not a nickel of that being spent on the people that were still residing in those islands. So I think this is a discussion that's happening everywhere, and that I'm just really grateful that we have not just the individuals who experienced it, but allies like our president, and like you Harry, even bringing this up right now on this discussion is really important.
Harry Litman [00:46:08] Well, there are more or less direct ties where reparations come up. Massacre is the word, the community was razed and this was a really special storied community. All right. But that's for another time I think, though I'm glad we touched it briefly. We just have a minute left for our final feature on Talking Feds of Five Words or Fewer — there are a lot of F's in that sentence — and our question comes from Bill Bridges, who asked about — this happened just yesterday, but it comes to what we were talking about in the Republican strategy, 'why did former Vice President Mike Pence decide to distance himself from the Big Lie when other Republicans,' like McCarthy, I think would stand out, 'continue to embrace it?' So five words or fewer, what's going on there? Is it a deeper schism on the right wing of the Republican Party? Let's start with Matt Miller there.
Matt Miller [00:47:06] No real choice, still pathetic.
Jonathan Alter [00:47:10] He wants to be president, and you can't be president actually elected in a general election if you believe the Big Lie.
Harry Litman [00:47:17] That was the footnote to it, but yes. All right, Congresswoman, five words or fewer here?
Congresswoman Stacey Plaskett [00:47:22] Who said he distanced himself?
Harry Litman [00:47:25] Ooh, yeah. So I'm going with that, sort of hedged schizophrenic, but it's reality.
That is all the time we have for today, thank you very much to Congresswoman Stacey Plaskett, Jon Alter and Matt Miller, and thank you very much, listeners, for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts, and please take a moment to rate and review this podcast. You can follow us on Twitter, @TalkingFedsPod , to find out about future episodes and other Feds-related content. You can check us out on the web, talkingfeds.com , where we have full episode transcripts, and you can look to see our latest offerings on Patreon, where we post discussions about special topics exclusively for supporters. Submit your questions to questions@talkingfeds.com , whether it's for Five Words or Fewer or general questions about the inner-workings of the legal system for our Sidebar segments. Thanks for tuning in, and don't worry: as long as you need answers, the Feds will keep talking.
Talking Feds is produced by Jennifer Bassett and Rebecca Lowe Patton. Our editor is Justin Wright. David Lieberman and Rosie Dawn Griffin are our contributing writers. Production assistance by Matt McArdle. Our consulting producer is Andrea Carla Michaels. Thanks very much to Evan Wolfson for his explanation of the next steps for the LGBTQ movement. Our gratitude, as always, to the amazing Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito, LLC. I'm Harry Litman, see you next time.
