1-on-1: Governer Gretchen Whitmar

Harry Litman [00:00:06]: Welcome to a special Talking Feds: 1-on-1. I'm Harry Litman. We continue in our series of interviews with political leaders who have been prominently mentioned as possible vise presidential candidates for presumptive Democratic presidential nominee Joe Biden.

 Today, we are speaking with Gretchen Whitmer, the governor of Michigan. Governor Whitmer has come to national attention for her stewardship of the state during the virus. Michigan has been especially hard hit and wittmer responded with a strict shelter in place order, which she is now beginning to ease in selected respects. President Trump has singled her out for schoolboy Twitter taunts.

"That woman from Michigan" and "Half-Whitmer" and Michigan has seen well-publicized demonstrations, including by gun rights advocates toting assault weapons at the Capitol. And lately, she has drawn personal threats of violence from anonymous Facebook groups. But wittmer has remained steady and engaged, and her support has stayed strong among both parties within the state, which, of course, is about as battleground as they come in terms of the upcoming presidential election. Her approval rating for handling the virus is over 70 percent. Wittmer has had a fairly stratospheric rise to the governor's office. She was the Senate's first female Democratic leader from 2011 to 2015. When she ran for governor in 2018, emphasizing infrastructure issues, she won the Democratic primary in all 83 Michigan counties, then trounced her Republican opponent by nearly 10 points. This, notwithstanding being a self-identified progressive Democrat in a state on the knife's edge of division between the parties. The Democratic Party chose her to give the response to President Trump's 2020 State of the Union address, which she delivered from the public high school that two of her daughters attend in East Lansing.

She earned high marks, quoting Jen Rubin of The Washington Post. Whitmer, "succeeded in part because she seemed so normal, so decent, and because she focused on her own life experience. The struggles of a middle class mom who, unlike a clueless real estate mogul, understands voters lives." Gretchen Whitmer, the 49th governor of Michigan, thank you so much for joining. Talking feds one on one.

 Governer Whitmar [00:02:39]: Glad to be with you.

 Harry Litman [00:02:40]: Well, we've enough to talk about for five of these conversations. And of course, we want to move quickly to the virus. But you've burst on the national scene like a supernova in these last few months. And I want to touch briefly on your background. You had two parents who worked in government. You were elected to state legislature before you were 30. Did you grow up thinking that you would aim for electoral politics?

Governer Whitmar [00:03:03]: God, no. I actually when I was younger, I thought that I was going to be a journalist, a sports broadcaster is what my initial goal in life was.

Harry Litman [00:03:13]: That was my first job wass Sports journalist.

Governer Whitmar [00:03:15]: I actually went to Michigan State University right down the street from the state capital and was working both at the Michigan State, AFLCIO and the football office at Michigan State. And I quickly kind of fell in love with public policy.

Harry Litman [00:03:30]: Wow. We fast forward through so much and such a quick ascent. But to the actual election of 2018, you won by 10 points in a state that is at best evenly divided. You're only the third Democratic governor in over 60 years. There has been monolithic Republican control of the Senate of Michigan forever, at least over 30 years. And yet you're a self-described progressive, but you ran a very sort of down to earth campaign based on infrastructure. "Fix the damn roads" as it became your watchword. But what's your sense of how you were able to appeal across party lines in such a kind of prototypically divided state?

Governer Whitmar [00:04:15]: Well, I think that in 2018, as in every other election, Michigan voters simply wanted someone who can fix the problems that we're confronting, who shows up and listens to people. I think that that's something that was really important. I went into all 83 counties in Michigan and engaged with folks. I ran for two years. It was a long, grueling campaign. But when you do that, it centers you on the things that really matter. And and that's what voters are looking for. When I talked about fixing the damn roads, it wasn't something that we poll tested. It was something that I knew would resonate because that's how everyone in Michigan talks about our roads. It's a frustration that we all have and that unites us. And I've had people literally cross the street to give me a high five because they said, "fix the damn roads." And I know they cross the aisle, too, because of it.

 Harry Litman [00:05:04]: I think you actually won for the first time ever, all of those 83 counties as a Democrat for the nomination. Well, let's go now to the big problem that nobody anticipated and everybody wants to fix. But, you know, they don't teach pandemic control at governors school. So when and how did you realize that you were looking at a pandemic of unprecedented proportion?

Governer Whitmar [00:05:29]: We were watching it happen around the world, but I don't think that it became very clear how serious this was going to be in the United States and how underprepared we were as a country until I think February. And it was in a meeting with the governors across the country and the White House, a phone call meeting, that it was incredibly sobering when the White House said, "You're going to have to go out and find all these supplies on your own." And Michigan was already have an exponential growth during that call. But we had assumed, I think, like a lot of people, that there was going to be a national strategy, that there'd be national procurement. That we wouldn't know that and ninety five masks, we were gonna have to set up a global procurement office in our state emergency operations center until that moment. It kind of hit me like a ton of bricks that we have to create this and stand this up and start trying to procure all of these items that we already weren't really dire need of. And and it just kind of changed everything in that moment for me, understanding how ill prepared we were as a country and what we were going to have to do at the state level to try to get the things we need.

 Harry Litman [00:06:35]: And of course, the federal vacuum, you know, has continued basically even to this week where the President has said, "All of the states are basically on their own. On the other hand, I take all credit and no blame." All right. So you're there without a playbook. I mean, did you put together a playbook? Did you just, you know, begin to make it up as you went along? Whom did you convene? What do you do?

Governer Whitmar [00:06:57]: Yeah. So one of the things about a global pandemic is every one of the country is confronting it. We're confronting it at different rates. You know, Michigan was on the front end and really saw the exponential growth a lot earlier than other states. And it's it's had a devastating impact on our state. We are the tenth most populated state in the country, and yet we still have the third highest number of deaths. And we have had that sad distinction for weeks on end. I think in this moment it was really important to convene the smartest minds in this state, and that means people at the University of Michigan. People at our great research universities like MSU. The chief medical executive, so that we were really understanding the disease, understanding how little we knew about it. The heads of all of our hospitals, so that we understood the pressure that was already happening on our front line, but also in this moment has been an opportunity to share knowledge with my fellow governors and learn from my fellow governors as well. I've got a great relationship with someone like Mike DeWine, Republican in Ohio, and J.B. Pritzker, a Democrat in Illinois. My neighbors who have got access to great resources as well. And so sharing our thought processes, our data, our thoughts about where we want to be headed has been really helpful as well.

Harry Litman [00:08:15]: I mean, it seems so sensible, but not every governor has done it. But your basic enclave of eight or so states of different parties, I think in the Midwest seems to have been key to the decisions you've made. As you say, tenth most populous, third highest death rate. And you were known initially for a pretty wide ranging shelter in place order year. There's some active consideration of some relaxations, but I wonder if you can give us just an example of a sort of borderline call, a tough call you felt you had to make as governor that could have gone either way about what would be essential or what would close how you actually made the final call.

Governer Whitmar [00:08:54]: The earliest first one was pulling our kids out of schools. We were one of the first states to do that. And immediately I got phone calls from my colleagues like J.B. Pritzker called and said, "What's your thought process? What do you know? What are you concerned about?" And at the time, I'll say that a lot of experts were saying, "Oh, kids are immune. You don't have to worry about kids in schools." And here in Michigan, they were saying, "You know what? Kids come in and out of households all across the state, they're convening. They're congregating. We need to do this." And so there was mixed advice from the medical community on that one. And in retrospect, I'm absolutely confident it was the right thing to do. But in the moment, it was difficult because of all of this conflicting information. I mean, with a novel virus, we're learning every single day. That was a hard one. But looking back on it, I know is the right one. When we started the stay home order, though, it was really aggressive, as you mentioned. And I think about the fact that I told people they shouldn't be traveling to their second homes. There are a lot of people that really unhappy about that. But we know that just the act of traveling means you're stopping at a gas station and touching a pump where we don't know how long Coronavirus lasts on that pump handle. And the more people that are out and about, the more likely we bring spread into areas that might not have COVID-19 already. And so this was one part of the order and it got a lot of strong reaction. We did that for a while. We've released that piece of it. But I really think that that contributed to our ability to push this curve down. And I think it was the right decision. But, you know, I've taken a lot of heat about it.

 Harry Litman [00:10:27]: Yeah. You know, at the time, the virus was strongest on the coast. But as you say, it especially hit Detroit hard. Well, it's especially hit, as you've highlighted, and very few governors have different communities very hard. And you have noted that Michigan itself, which has 14 percent African-American population, 40 percent of the deaths, have to date been of African Americans. Give us your thinking, first about why it's the case and what possibly can be done about it. You know, all these things, of course, you're juggling swords as the house is on fire. And yet you've made a point of focusing on this broader problem.

Governer Whitmar [00:11:10]: Well, Michigan was one of the first states to release racial data associated with the testing.

Harry Litman [00:11:15]: Was that your decision?

Governer Whitmar [00:11:16]: You know what? Our chief medical executive made that decision. And you know what? She's an African-American woman. And I think that us sharing that information, even though was incomplete early on, because all those questions weren't being asked when we were just starting into this crisis. But we thought even though it was incomplete, let's release it and let's keep releasing it. Make sure that every test that we take, we do have complete information on. Louisiana did as well. And I believe Illinois, too. And it became very clear that there was a incredibly disparate impact on communities of color. This isn't that great a surprise for anyone who's been paying attention, because we know that for a black woman in America to give birth is three times deadlier than a white woman. We know that there is implicit bias, that there is different access to health care. And so all of these pieces are exacerbating what our experiences with COVID-19. And it's a reality. And that's why I think it's important that we highlight it. It's important that we analyze it and that we come out of this with a strategy to eliminate these inherent disparate aspects of our health care system in and of life in America.

 Harry Litman [00:12:21]: And have you do you have any such strategy yet as far as the virus is concerned? How is it affecting your kind of day to day decisions, if at all?

Governer Whitmar [00:12:29]: Well, I've created a. Coronavirus Task Force on Racial Disparities, it is chaired by my lieutenant governor, our first African-American lieutenant governor in Michigan history. Our chief medical executive, Ginny Khaldoun, is on it as well, who I was just talking about. We think that it's important to bring leaders who can analyze this and and help inform decisions now, but also help inform policy as we move forward on the other side of COVID-19.

 Harry Litman [00:12:56]: You know, one more initiative that you've managed to do, even while trying to put out the raging fires has been your frontline program, which seems unique to me. Just tell us in a sentence or two how that came to be and what it does.

Govrner Whitmar [00:13:10]: Sure. We call it Futures For Frontliners. It is modeled after the G.I. Bill, after World War Two. We thought that this is a good way for us to acknowledge and support and show our gratitude for the people that continue to put their own lives at risk while they're taking care of others. And so this is an opportunity for post-secondary certificate or degree program that the state will make available to everyone who stayed on the front line during COVID-19.

 Harry Litman [00:13:35]: Remarkable. But now but, Governor, I mean, at least to judge by the national news and you probably get this in many of your interviews, nobody has had to manage her state in the face of such intense partisanship. You've been sued more than once by the Republican legislature. Maybe even this week, you've had protesters with assault rifles marching on the capital. I wrote about that yesterday and people were really stunned and appalled at the image of it. And of course, you've somehow attracted this special ire and and trashtalk of the President of the United States, who's taken to calling you the woman in Michigan. Did this arch partisanship, even where the virus is concerned, surprise you since, as you say, you've been working with Republican and Democratic governors all along the way? And is it making your job harder? And I guess I'll throw one more thing and it which is how do you ignore it if you do?

Gretchen Whitmar [00:14:32]: It does surprise me. You know, the enemy is not one another, the enemies of virus. And it doesn't discriminate based on party line or state line. We all have to acknowledge that our best ability to combat this enemy is if we stick together and put everything we have together against COVID-19. And so to see it become so partisan is really disheartening. And I think in this country, one of the great things is we should all be able to speak our truth, to share it widely and to learn from it. Early on, I made the observation that I thought we needed a national strategy. And I think when I made that observation, it got me right in the crosshairs of the White House. And, you know, it wasn't being blatantly critical, but it's common sense that if you've got 50 states and a virus that doesn't observe state line, a national strategy is really important. When we all need the same equipment, a national strategy is really important. And so that's the frustration that I had, is that we were having exponential growth and we were running out of N-95 masks in the early days. We had hospitals that were at capacity. That's why we had to take the aggressive steps that we did in Michigan, because we didn't have all of the traditional supports that you would hope and expect to need in a crisis like this. I was just trying to make the case for Michigan and get the help that we need here. I was doing my job and it got me on the wrong side of the White House and put me into the national spotlight. And I wasn't asking for that. I wasn't looking for that. And frankly, when it happened, I started losing more sleep of it because all I need is help here in Michigan. I'm just trying to save the lives of the people of the state and do everything I can in that prospect. I don't care if people voted for me or against me. If they live in Michigan, I'm going to do everything I can to save their lives.

Harry Litman [00:16:19]: And that's sort of the broader point here. You know, a lot of people, I'm among them spend a lot of time criticizing the erratic mess and politically driven response from the White House. But in a different setting, you if you're in a war of words with the President of the United States, you have that war of words. But he's demonstrated a sort of and this isn't to trash him today. It's really to focus on your position. But he's demonstrated sufficient pettiness that I imagine you have to worry that even if criticism is unwarranted, if you respond, it actually could have a bottom line impact on Michiganders.

Governer Whitmar [00:16:57]: Yes. Yeah. There's no question. And the last thing I want to do is escalate it. And so we've really worked very well. You know, I found the Vice President to be accessible and always cordial and helpful. We've worked incredibly well with FEMA. My state emergency operations center has got someone from FEMA embedded. We have got a great working relationship. The vast majority of people that we've interface with at the federal government have really been impressive and helpful. And I think focused on doing what we're all trying to do here in Michigan. And so the last thing I want to do is escalate anything. And that's why I've continually just said, "Listen, we are not one another's enemy, the enemies of virus, and we've all got to put every ounce of energy and resource we have in to combating it so we save lives and shorten the amount of time that we're gonna go through this incredible economic distress."

Harry Litman [00:17:44]: And you continue to have impressively strong support within the state, even as you're having to have these different wars of words with the President and the legislature. But I think my sense is from the protests and just around the country, there's a greater impatience now of Michiganders for ending the restraints. And, you know, you may have hard calls ahead of you to try to minimize the second wave, which surely is coming in one form or another. What can you do now to sort of prepare citizens who have really kind of had enough and think worst at the end of the road if you determine we're not? How are you going to prepare them for more challenging measures if you're forced to re-impose them?

Governer Whitmar [00:18:25]: So yesterday I showed our sixth phase strategy for reengaging our economy safely. I've shown that we are right now in the flattening phase, which is good. I mean, it's way better than when we were in exponential growth or in communities spread. We're now in flattening. So we're in the Phase 3. There's light at the end of the tunnel. There are additional steps we will take to reengage our economy. But each of those steps depends on our ability to address, you know, a spike in COVID somewhere in our state. So it depends on our ability to test it and it depends on our ability to trace depends on our hospital capacity and our PPE. But it also depends on what people do. You know, if they're going to wear masks and continue to observe best practices, staying six feet away from others when they're out in public. Washing your hands. Not going out unless you need to. All of these sacrifices we've made in the last eight weeks have paid off and we have dropped our curve dramatically and saved a lot of lives in the process. Our ability to take the next steps depend on a sustained, disciplined and continuing to observe these best practices. Every single one of us wants to take that next step and it is dependent on every single one of us doing our part so we can.

 Harry Litman [00:19:38]: Seguing and out of the virus for just a few final questions. It has—It seems like it has to be completely consuming. And you ran for governor with a lot of important goals, not just infrastructure, but water, Flint problem, etc., which is not entirely over. Have you had to set those entirely to the side and is a 24/7 virus for you for now?

Governer Whitmar [00:20:00]: Well, it has been for a number of weeks, but you know, we've still got to make Michigan work on all of these other fronts. And so I've got wonderful directors in my departments who are continuing to do their job and I'm monitoring everything that's happening. We still are trying to work through a budget and with the legislature that, you know, is bad and challenging. And certainly we're gonna have big budget problems that we're going to make a lot of tough decisions. We're hoping that Congress takes this next supplemental seriously and gives the states the kind of flexibility and support we need. And so, you know, we are continuing to still do the other parts of our jobs, which are completely consuming. But COVID-19, has has taken a lot of additional effort and energy and focus. So we're doing both.

 Harry Litman [00:20:46]: What are your days like? Whom do you talk to? You know, you have all this responsibility while you're sort of sheltered in place yourself. You you get up and what's the day like?

Governer Whitmar [00:20:55]: So. Well, every day of the week, I get up at 5:00 a.m. It's actually my favorite time because no one is harassing me at 5:00 a.m. I can drink my coffee, check out all the news. I think one of the challenging things is, you know, I am at home the vast majority of the time. I'll go down to the emergency operations center for a press conference every once while when there's a federal dignitary in town that I need to go meet with, I will go do that. But by and large, I'm here at the house and I go from call to call to call. I whether it's talking with my cabinet--.

Harry Litman [00:21:25]: On the phone or Zoom?

Governer Whitmar [00:21:27]: Both. We have Microsoft teams, I use Zoom sometimes I use just conference call other times. It's one device or the other. You know, I think that we've been able to stay connected and it's been really important. And I don't know how we would navigate this without all this great technology.

Harry Litman [00:21:44]: Just a quick question about the vice presidential speculation, which I think has just come your way with all your success and nothing you've campaigned for. But it seems like it's right now going on behind closed doors, no interviews. Do you get the sense that it's happening? Have you been asked to submit any paperwork, for example?

Governer Whitmar [00:22:02]: I've not been asked to submit any paperwork, no. And I'm sure that things are progressing. That's what has to happen. The world can't stop. And we have to continue thinking about these important elections. But at this point, you know, every ounce of energy I have is going into doing precisely what I was elected to do. And this is where I've worked so hard to be. I'm even on the hardest days, awfully grateful to be the governor of Michigan.

 Harry Litman [00:22:28] Governor Whitmer, thanks so much for your time. And we. Wish you continued success in your incredibly important and challenging work. Thank you. Stay safe. You, too. And thank you, listeners, for tuning in to this special Talking Feds: 1-on-1. Stay tuned for more one on one interviews with prospective vice presidential nominees in the coming weeks. Talking Feds is a production of the LLC. I'm Harry Litman See you next time.

In Like Flynn

Harry Litman : Welcome to Talking Feds a round table that brings together prominent former federal officials and special guests for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. We've had one of the most tumultuous weeks since the advent of the virus. The week seem to bring an increased national impatience to resume normal life and economic activity and different states lurched in fits and starts toward resumption of normal life.

Half the states have now moved to substantially ease their shelter and place orders in many cases without having satisfied the benchmarks that the CDC has set for doing so. President Trump and the White House continued their erratic and divisive ways. The president announced the disbanding of the Corona task force only to reverse field the next day. He insisted the country must open up and soon. “I'm not sure that we even have a choice,” He said. All the while abandoning his support for aid to state and local governments in the next stimulus package and abdicating any leadership role in the reopening process, insisting that decisions be left to the states.

And the week began with the explosive revelation that there've been over 30 whistleblower complaints alleging illegal conduct within the Executive Branch, including one by the Chief Vaccine Officer, charging widespread political interference with sound science and decision-making driven by political cronyism and the president's loopy ideas about effective treatments.

And it ended with a megaton bomb announcement that the Department of Justice after many years was dropping charges against Michael Flynn. Not withstanding his having twice pleaded guilty to lying about his contacts with Russia. In what seemed impossible to explain in anything other than rank political and partisan terms.

So another fairly breathless week, but draw a deep breath now because we have loads to talk about and an amazing set of guests to talk with. They are first Anne Milgrim, a professor of practice and a distinguished scholar at NYU school of law. She is the former attorney general of New Jersey as well as a former federal, state and local prosecutor. You can hear her frequently with Preet Bharara on the Stay Tuned podcast. Thanks for being here, Anne.

Anne Milgram: Thanks for having me

Harry Litman: Next, Ron Klain, the general counsel at Revolution LLC and a former chief of staff to vice presidents, Biden and Gore, and to attorney general Janet Reno.

Also the ex-Ebola czar under the Obama Biden administration. His podcast on the virus epidemic plays twice weekly and is must-listening. Ron, welcome. 

Ron Klain: Thanks for having me.

Harry Litman: And finally, we are truly thrilled to welcome Andrea Mitchell to Talking Feds. Andrea is without doubt, one of the greatest and most respected journalists in our country's history.

She's the winner of more awards than we can list, including her 2019 Emmy for lifetime achievement in her incomparable career. She has covered Washington and the world and conducted indelible interviews with the most well known figures of the 20th century. Currently, she's the Chief Congressional Correspondent at NBC news. In addition to hosting the Mitchell reports on MSNBC. We thought she might enjoy a brief return to the other side of the table and to our delight. She accepted. Andrea Mitchell, thanks so much for joining talking feds.

Andrea Mitchell: Thank you. It's so great to be with you.

Harry Litman: Okay. I think we have to start with the jaw-dropping news about the dismissal of the charges against Flynn.

So many former prosecutors, DOJ alum, on all sides of the aisle, including, and, and me, reacted immediately without rage and suggested this eas the lowest point of a DOJ that has gone pretty glow under Bill Barr. Now that a little time has passed, how bad is it? Is it as bad as it looked yesterday? Anybody?

Anne Milgram: I think it's worse even than I thought it was yesterday. The—my initial reaction was, and I think many of us thought that it was very possible that President Trump was going to pardon Michael Flynn and Paul Manafort and Roger Stone. So it's not that I didn't see something coming. I think, I think many of us have sort of seen that this is being teed up. But what happened yesterday is, is really extraordinary and it's the kind of thing that just doesn't happen in the federal Department of Justice as a rule. I'm an alum. You're an alum. What we saw, and I want a separate process. Yeah, that's right.

That's right. Um, to separate process and substance just for a minute, you know, our colleague Asher Rangappa, made a great point of how deeply this undercuts the Mueller special counsel. Um, his office of special counsel and the regulations that try to keep these types of investigations from becoming politicized.

What happened yesterday is exactly what you don't want, which is a politically appointed Attorney General being able to just kick away a case that they don't like. And then on the substance, the argument, having read that that motion to dismiss a number of times, the argument really is essentially that there was no basis to believe that Flynn could pose a threat to national security, and that is that there are a number of sort of--it's really contortionists.

There are a number of sort of things that they're hanging their hat on. But given the circumstance where you have Michael Flynn, who's had two conversations with the Russian ambassador to the United States, um, Kislyak and those conversations subsequent to that, Michael Flynn has, has lied about what was said during those conversations to the Vice President of the United States.

There is no plausible way in my mind, and I'd love to hear your thoughts, that that is not a reasonable basis for the FBI to walk in and say, ‘Hey, we want to talk to you.’ And so what we're seeing is, in my view, it's, it's not, there's no basis in process for it being done like this and there's no basis in substance being done.

And so it feels really like the department is being gutted in a way that I just, you know, as an alum, I love it there. I believe that the men and women who worked there are filled with integrity. It breaks my heart to see what's happening.

Andrea Mitchell: And if I could jump in as an the only non lawyer among you, it's Andrea here. I was just outraged by this. As someone who's covered intelligence and the former Soviet Union and Russia and Vladimir Putin for decades, to have the president of the United States then be calling Putin immediately afterward. And contrary to the guidance, the written guidance from the White House as to what the two leaders discussed, which did not include the election interference and the Russian investigation.

The President that immediately in the Oval Office said, “Yeah, and I told him, you know, that this Russia hoax is over. And now we can basically, um, you know, start a new relationship and work on our relationship with another great power.” I'm paraphrasing, but for him to call Putin immediately after the dropping of this prosecution, and then to acknowledge that he discussed it and discussed it in total contradiction to the uniform consensus. The united consensus of 17 intelligence agencies in 2017 and since, confirming that Russia was attempting to interfere with the U S election in 2016 it's just outrageous. And it raises questions about the timing of what happened with Flynn. Sorry.

Harry Litman: It does seem inescapable that it's done for ranked political reasons as Anne says. Impossibly flawed in both substance and process and the, and the DOJ, uh, argument, not passing a straight face test. Of course, an incoming national security advisor who's playing footsie with the Russians and lying about it as a cause for concern. But Ron, I wonder how, how you frame the, if it's obvious that it's a political agenda, but what agenda? I mean, part as Andrea sort of highlights with the call to Putin, it looks like, in part, this kind of crazy effort to scrub out history and make the Mueller probe never have happened or rewrite it as completely exculpatory. It also, of course, serves his potential interest in not having to pardon Flynn. Barr does the, uh, the, the dirty work, I mean, there are different ways to frame how Barr is serving, uh, Trump's political interests.

What, what do you see if you agree with the notion that it's not on the up and up, what exactly? Uh, was how exactly was Barr helping out his boss here? 

Ron Klain: Well, look, I think here I first, obviously it's very much not on the up and up. I don't really know how there's any plausible argument to the contrary.

Autocratic style leaders do things just to prove they can get away with them. And I think that's what this is an example of here. I don't think there's a big elaborate, uh, theory of the case here. I think it's Trump continuing to show that only his raw power in his raw will purports to govern the country.

There is no rule of law. There are no procedures, there are no interests other than his interest. And so in this case, where you have the national security advisor, probably the second most senior position in the White House, the person whom we entrust to protect our country from foreign threats, uh, lying about his contacts with our principle geopolitical adversary, lying to elected leaders about them, and then ultimately lying to the FBI about them.

Him admitting that him pleading guilty to that him president, the Vice President, saying that's what happened here for Trump to do this as simply merely an exercise in showing us he can do it. And it sends a clear sign about what he intends to do when the 2020 campaign, which is to reward loyalty to him, Donald Trump, and nothing else, to make clear that his allies can do whatever they want to do.

And the nature and the essence of serving Donald Trump. And they will face no consequences, no ramifications, no laws. And that is the essence of autocratic leadership. And that's what we're seeing from Donald Trump.

Anne Milgram: You know, just jumping in on that for one second. One of the things that Barr said yesterday in the CBS interview, um, toward the end, he talked about what was coming, you know, he talked about he has this investigation.

This of course, was he, he's basically asked in, he's asked US Attorneys who are political appointments to basically look at all these Mueller cases, all the Mueller special counsel investigations. He's done. He has, um. the Connecticut US attorney looking at Crossfire Hurricane, which is all of the Russia investigation.

The beginning of that case with Carter Page, the FISA warrants, and of course the Russian election hacking. And then he had the St. Louis US attorney do this one on Michael Flynn. What he was talking about yesterday was, you know, he's waiting for the report from the Connecticut US attorney, but what he seen to date is really troubling.

And you know, he's asked whether he might even charge people criminally and he doesn't say no. And so to me, one of the things as bad a day as I think yesterday was for the rule of law in our country, I have this terrible feeling that we may not have, have hit rock bottom yet. And to Ron's point, you know, I think.

You know, Bill said very clearly the winner writes history, and it is very clear to me in their mind that they are going to make an effort to essentially erase, um, the Mueller probe and the Mueller investigations. And so I frankly, you know, I'd be curious to know what you all think. I don't think we're done yet.

Andrea Mitchell:  I agree entirely. And I think when the President said, “There's more to come, just wait.” Uh, again, paraphrasing what he said after the Flynn announcement. I think it does look forward to what is going to be reported on the mother probe. And I think it also could involve Chris Ray because again, the next morning he also suggested that he didn't have full confidence in the FBI director saying that he was a creation of Rod Rosenstein or Rosenstein.

So, uh, I don't know about the tenure of Chris Ray or whether he even feels comfortable in his leadership at this stage.

Harry Litman: Yeah, I mean, it's really true that all the decision makers here, I can't think of a parallel case in which every career person is either quit or just pushed to the side, and it's only not just political appointees.

I mean, the previous DC US attorney was a political appointee. Uh, but she wasn't Timothy Shay, you know, the long time pal of, of Bill Barr, and it's a certain stripe of political appointees. But by the way, answer that. What? I mean, what do you make that Bill Barr comment is breathtaking: “History is written by the winners.”

Is that like just a poke in the eye to the to the law enforcement, uh, community or, or any, uh, Trump antagonists. That that was, you know, quite a cheeky thing to say in the, in the wake of this suggesting that, you know, none of this matters except basically winning. A perfect kind of encapsulation of the Trump, um, credo.

Ron Klain: Yeah. I mean, I think to just, uh, billable that here in what Anne and Andrea have said. I mean, I don't think we've seen the end of it yet. And I do think actually as bad as yesterday was, they’re worst days to come. The fact that a trade journal Barr did not rule out prosecuting people, uh, will we see an indictment of Mueller himself?

Will we see an indictment of Barack Obama? Will we see, uh, other kinds of politically motivated prosecutions? I mean, I think the slogan: “History is written by the winners.” You know, that's a slogan that generals, not attorneys general use, right? It's just, it's a slogan that conquers use. And, uh, it's certainly not a slogan that's engraved over the front of the department of justice building.

Andrea Mitchell: It’s a slogan dictators use.

Ron Klain: It's a slogan that dictators use. And I think that, um, uh, I think that we, there are still almost six months to Election Day. And, uh, I, I, again, I just think the clear signal of yesterday is that, uh, nothing, but Trump's Will will govern our country for the next six months. And, uh, and they will make crassly political decisions about how to use the power of the Justice Department to get Donald Trump reelected.

Anne Milgram: You know, it feels, it feels very much to me. Like, you know, this is very much, it feels very authoritarian to me. And there are a couple of ways in which, in which that's the case. I mean, when the, when the law enforcement folks are investigating people that the President would like, he's a fan of investigation. Remember, you know, we've all lived through the Ukraine, um, impeachment days, and the president was essentially asking the president of Ukraine to investigate Joe Biden, his political rival. When it's used to basically look at people who he's associated with or affiliated with he does everything he can to undercut the investigations. And one of the things we haven't talked about yet, but it's worth noting, is that what happened here is not only that the dismissal is extraordinary, just the fact that Bill Barr brought in an internal DOJ US attorney, a political appointment--a political appointee--to look at what had been done in the Flynn case. And then to basically get the internal--these were, these are internal decision making documents. You know, when I was AG or even when I was senior in the Department of Justice, there are times where you have these conversations, which is, should you charge this case?

How should you charge this case? Should you approach this person? That's all normal. Barr released those to the defense lawyer and then essentially created this sort of public, um, argument for him to then go and dismiss the case. So there, I mean, I would almost call it leaking documents. And again, it goes back to this view of: they think that there's a deep state, they have vilified the men and women who are the day to day law enforcement folks who are on the frontline and making, I think, very difficult decisions.

They're far from perfect as all of us know. But you know. Again, the inspector general had looked at the question of, was the Crossfire Hurricane, the 2016 election case open legitimately, or was it biased? He found no bias. And so, you know, Barr is taking these like multiple bites at the apple to try to get to the result that he wants.

And it really does. I mean, I think this will have devastating and lasting impacts on the department and really on the view of law enforcement. Which in many ways is just, you know, I think tt's going to be the outcome of this. And the President doesn't care. His goal is to exonerate himself, his campaign and his, his associates.

Andrea Mitchell: And you know, I, I see this as a layman, but as a, as a journalist and a citizen, as an attack on the rule of law, at its most profound and fundamental level. And I do think it's analogous to the systematic attack on science in the current pandemic. But also in environmental issues throughout the administration, throughout the agencies, against professionalism, but in particular against the expertise of scientists affecting, you know, the EPA and other agencies.

And now we see it so importantly and so critically during the Coronavirus. And the fact that he would be willing, that they would be willing to attack the professional, you know, nonpartisan people who have been leading the Department of Justice and the culture of the Department of Justice brings us back to some of the rhetoric of his inaugural address.

And it's very disturbing to say the least.

Harry Litman: Yeah, I mean, this is perhaps highfalutin, but you know, they'll write books about this in the future. But it's also, you know, of a piece with, with Barr's comment that that history is the propaganda of the victors, I think is what is the statement he was referring to.

There's almost an attack here on the actual notion of objectivity, truth, science across the board, and a replacement of it with raw power as I think you know, you have pointed out. All right. I, I, there, um, uh, to second where Anne started, I can, I think everyone now in the panel sees it in some ways it's even worse than yesterday because, you know, we have these sort of vague predictions and something to watch that we haven't hit rock bottom.

And this is just preparing for an even more extensive demolition job and everything that Meuller has done, and even most outrageously, the prospect of, of criminal, uh, attack, assault on, on people whose main, um, sin or crime will have been actually investigating the President. So, um, the, the, the bottom line is an, you know, an attempt to just, um. Power through any kind of lasting criticism dating back to 2016 so we'll, we will look glumly at the possibility that, that, that there are even more shoes to drop. And I think we leave it here for now. Um, and I'd like to move to the current state of play with the virus, which would have been front and center, but for the stunning announcement of yesterday.

Um, so what's your sense of sort of where things stand? It seems to me we're looking at a kind of a patchwork pattern here. Some states are easing dramatically, some marginally, some not at all. Um, and the, the States that, um, uh, there are some States that are opening up that clearly haven't reached the peak of their curve.

Is this just kind of a short term, political calculus that they haven't thought through? What, you know, what is, what is driving the, the disparate, um, results, especially in certain red states that are opening up when they seem to be, uh, premature in doing so? 

Ron Klain: Well, I’ll start. I mean, first of all, we do have this bizarre circumstance where there are States where the disease is going down, but still the level of incidence remains very, very high. New York is a good example of that. It's going down there, but there's still an epidemic raging in New York. Other states where the incidents still is lower compared to New York, but they're going up and so it's the exact wrong time to, uh, uh, to be reopening things.

The fact of the matter is that on April 16th the President in the briefing room allowed Dr. Fauci, Dr. Burks, to lay out a three stage process for reopening and stage one was 14 consecutive days of decline before you even begin to reopen. And virtually no state that has reopening has hit that standard.So--

Harry Litman: And in some, some of the opposite, right? You know, Texas and Georgia..

Ron Klain: Right. They're, they're opening while going up, let alone for a little, not 14 days of decline, but actually door opening while going up. And look, I just think this is a decision by some of these governors, uh, as a result in small, no small part because of the President abandoning his own guidelines.

I mean, he is cheerleading states that are opening in contravention to the guidelines he announced three weeks ago. Okay. So there's no rationality to that. There's no policy to that. There's just a naked calculation that, uh, you know that the economy is bad and somehow this will fix it. It's not going to fix it.

And that, uh, and that he's responding to his allies, his, uh, his, his base that, uh, have turned this into an issue of kind of libertarianism and, uh, politics. And as a result, uh, you know, he is, he is creating a, both a healthcare disaster and an economic disaster. And that's the last point I want to make on this area, which is you know, the president thinks he's fixing the economy by telling these states to open up. But in fact, what we're seeing already is that states are opening up and consumers aren't showing up because still 80% of Americans think it's too soon to open their state. And so what he's really doing is he's making the economic situation worse because people are losing confidence, they are doubting that it's safe because it isn't safe.

And as a result, instead of waiting till you really could open up safely, he's creating this worse anxiety, getting workers sick, getting shoppes sick, having shoppers stay home that's going to make this last longer. Opening too soon is not only bad healthcare policy, it's bad economic policy. It's going to make the economic crisis worse than it would have to be.

Harry Litman: Yeah,I mean, and especially if you pause it, some kind of substantial second wave consumer confidence is the name of the game, and it could, it could freeze people up for four months to come.

Andrea Mitchell: I just, I would just say it's also bad politics. 

Harry Litman: Yes. Well, that's, that's right.I mean, that's what I was going to, why does it seem, first, why does it seem to track red bull lines in the first place? But second, doesn't it seem like an obvious kind of situation in which a couple months from now he's gonna be, you know, looking to, to have, to have, uh, owned a, um, uh, a policy of opening up prematurely that's been potentially disastrous.

Andrea Mitchell: Absolutely. And he's doing it primarily in battleground states. That's where he's either planning to go, is already beginning to go or inviting people in, other than the invitation to Cuomo. Which was predicated by, by Andrew Como asking if he could come in. It is such a bad health policy. There is no question, as Ron just pointed out, that there's not a single state that has met that 14 day objective guideline, advisory, whatever you want to call it. Not only that, but according to the doctors, the public health scientists whom I've been interviewing, they believe that actually 21 days is the more appropriate amount of time to expect a declining incidence of infection before you begin opening up. There's no question that there can be some partial reopenings in some areas, let's say, of the large Western states, but certainly not in the Southern belt and not in dense areas and not in Florida and not in parts of Texas. And you're seeing in Oklahoma and in Texas, individual mayors, certainly in Georgia, the rebellion against what Governor Camp declared without having any notification to the major mayors--Atlanta and the other big cities completely blindsiding them and doing it for political reasons. Some of these governors are doing it because the minute they open, they don't have to pay unemployment insurance journey workers who are too afraid to show up.

It is also creating hotspots now throughout the plain states and in the Midwest around prisons and around meat processing plants where the death and sensity and the lack of testing and the lack of protective gear has made it impossible for workers on these front lines to be safe. So you have a, basically a conflagration of a lack of protection and frontline workers who are often in the lower economic groups who are exposing themselves and their family and creating hotspots where none would have existed if they had taken more time and done this correctly.

Anne Milgram: I think it's such a good point. To Andrew's point on um, you know, the way that this works, I mean, if you open up too soon and people have to open up businesses or risk that they no longer will be able to get unemployment insurance or have a legitimate basis to file for, um, some of the loans.

I mean, it, it really just creates this devastating cycle of, you know, essentially illness and financial crisis. And I guess one, one thing. I'm sitting here listening, and again, I'm not a health expert, of course I'm, I'm sitting here listening and I was thinking a little bit about this question of attacking science, attacking the rule of law and basically challenging what we believe is true by trying to, we've seen the President repeatedly try to frame issues in a way that is at odds with actual facts and data and reality. And so, you know, from, from his initial, “the virus isn't going to come here” to this sort of what feels very political to me as well, this stance of “it's okay to reopen” even though, you know, people can look around them and see, at least for us, you know, we know, we know people who've passed away, we know many people who've been ill. It just feels so out of touch with reality. But it's almost this ultimate touch of, you know, can the president tell people that the moon is green and they will believe him? Um, and it looks like it's that the Republican governors at this point, some of them will. And so I sort of, I, you know, I don't know Ron, like, what's the, or Andrea--like, what's the, you know, what's the go-forward in a situation where I think what the President is doing is so at odds with the science and the data, and the American public is really left on our own in some ways to figure out what the right courses?

Ron Klain: Yeah, I think, Anne I think it's a great question. I think though we're seeing in the political data some of the answer to that question, which is that how voters feel about Trump's handling of this on both the healthcare side, on the economic side, correlates largely to one question: Do they know someone who's become sick with COVID? And the warning sign for president Trump here is that because of what he's done, more and more Americans are going to know someone who's been struck by COVID. And in fact, specifically because of what he's done, more and more Americans in Red states are going to increasingly know someone who was struck with COVID.

And so I think the handwriting is on the wall here that while I absolutely agree, he has, uh, had his success in these three years telling people that red is blue night is day. Don’t believe what you read. Don't believe what you see with your own eyes. Don't believe the fake news. Don't believe the scientists.He now faces a challenge where people increasingly know someone in their lives who matters to them, who got gravely ill or who died because of his mishandling of this virus. And I do not believe he is going to be able to spin that away. Or tell people who've had that experience in their own lives, but this didn't actually happen.

Harry Litman: Yeah, and I, you know, that is the question. I hate  even to dwell on the politics and to his and his wrong headedness, but he's had this odd kind of, uh, uh, two faced approach where he, as you say, Ron is clearly cheerleading for the states that are opening up. And yet he's made a point of saying that really it's all up to the states and they'll make their individual decisions.

And that seems to me to be setting up the argument down the line, well, you know, it was this governor's fault or that governor's fault. It had nothing to do with me that they opened up and everybody, uh, died. Um, Ron, back to you because of your experience with Ebola. I was reading recently that with the Spanish Virus of 1918, the second and third waves were worse than the, than the first ones. I assume you really studied at the, at the time, you know, that, that kind of possibility. Uh, you know, what will determine, I guess, the severity of the, of the certain, uh, subsequent, uh, waves of, uh, sickness and, you know, can the country absorb it If we go into a whole new lockdown and we seem to be back at square one?

Ron Klain: Well, you know, Harry, it's a, it's a, it is an absolutely important point that particularly with the Spanish flu epidemic of 1918-19, the second wave was worse than the first one. Now, it's really important to stress that we aren't even through the first one yet. I mean, as a, as a, as I said in some places, the first one is actually not even, uh, halfway over.

So talking about the second wave to me seems really premature. And indeed, we may not experience a second wave in part because we never get rid of the first wave. I mean, I think if you look at some of the charts here, I've said repeatedly, one of the most deceptive concepts we have right now in public life is the idea that this epidemic looks like a parabola like you studied in high school geometry. Goes up, comes down very smooth, very even. That's not the way this is working. It went up very quickly and a lot of places, it's going down very slowly. It's nowhere near the X axis. It's not like your parabola that kind of comes down and then there's a second hill.

Ron Klain: What's happening now is we're looking at what, what epidemiologists call it, endemic disease.

Something that doesn't really go away but stays with us, uh, persistently and continually. Now, that may drop off to a lower level. But I think it's hard to really know what the second wave looks like until we see what the end of the first wave, if it ends is. I mean, look, we had, we just finished a month April, where more Americans died of COVID in a month than died in Vietnam in a decade. And May may be worse than April, which is stunning. And so, yes, I do think we have to worry about reoccurrence of the disease. But right now we haven't licked the thing in its first iteration in any way, shape or form.

Harry Litman: And I sense, I wonder if you agree, a kind of a national, as I said, up front impatience, but just the kind of feeling that people, for whatever reason, have, have begun to take on the view that, ‘Oh, we're kind of coming out of this.’ And it, you know, in, in that kind of situation, if they learn that, you know, actually we're maybe somewhere in the first half of the game, uh, you know, could be a, a kind of a national, uh, crisis. 

Andrea Mitchell:  Harry, this sounds like: mission accomplished.

Harry Litman: Yes, yes.

Andrea Mitchell: The banner on the, you know, on the aircraft carrier. We are in the beginning of the middle of this from everyone I've talked to and in terms of a resurgence, it's almost anticipated in the fall. And one fear is that it could come back in a mutated form. Which would not be as vulnerable to whatever vaccine does rise to the top where thee was several vaccines.

So there's all of that. If it comes back, you know, slightly modified a vaccine might work. Ron, you may know more about this than I, but that's what the doctors we interview are talking about. But, we don't know in what form it might come back in because apparently what ha, what came in from Europe was slightly different than what had come in from China. It did mutate to some extent according to the health advisors who were talking to Andrew Cuomo.

Ron Klain: Yeah. I do think it's fair to say that there's some evidence that there are two different strains of this virus. Some of the vaccines that are being explored would be effective against, either it might well be affected against the change virus.

I think the challenge with the vaccine is a different one, in my view. The challenge with the vaccine is, first of all, it has to be scientifically discovered and tested. That's hard. I mean, I think we, we, we, we believe in our scientists. We have great scientists working on this, but, uh, you know, this is a problem that has not been solved. So that's the first challenge. But in some ways, the bigger challenge is going to be making that vaccine and then getting it in people's arms.

Andrea Mitchell: Distribution, right.

Ron Klain: Distribution and acceptance. So first of all, you got to make it, and we're talking about billions of doses of a vaccine. That's a big manufacturing challenge. I mean, one reason why the flu vaccine each year is not so great is because to get it ready for the fall of 2020 they start making it more than a year in advance to make a flu vaccine. So now we're gonna have to make a lot of this COVID vaccine once it's ready. That's going to be a big challenge.

We're going to have to get it to people. That's going to be a challenge, and we're going to have to get them to take it. And on that front, I know that seems like, of course people will take it. There's no, of course to that. Okay. President Trump today said, “Maybe I'll take it, maybe I won't.” We see the people out there protesting for opening are closely aligned with the anti-vaccine movement in this country.

So there's going to be a huge push from the anti-vaccine movement to say, people shouldn't take the vaccine, it's some corporate conspiracy. There are already people out there protesting the signs that Bill Gates invented the virus so he could profit off the vaccine. There's literally zero truth in that, of course.

And so I don't think we should underestimate that the same kind of things we're seeing right now around reopening we will see a year from now around the question of whether or not people should take this vaccine. And so we have a lot of challenges ahead. Before this vaccine is widely administered, widely distributed.

And the last challenge is this. As we know, the Trump administration has really been attacking global health authorities and has been unwilling to work with our European partners on this vaccine solution. And so I think in the Trump administration, there's a big assumption that the vaccine is going to be invented here, tested here, made here, and under our control.

But if in fact it's invented it and tested and made in Europe, and we're at war with our European allies. Uh, you know, scientific war, economic war. We may not be the first ones in line to get that vaccine. We may not even be in the top 10 in line to get that vaccine. And that's gonna be a whole other struggle if that's what happens.

Andrea Mitchell: Let me just raise one other thing wrong, which I know you think about, which is the rich poor divide because with a global pandemic let’s assume the best case scenario where the vaccine is discovered and is somehow, you know, scaled up in a reasonable amount of time. What is going to be available to the countries in Africa and other less developed countries that don't have access to it? And how do you cure a pandemic if you're not immunizing a good portion of the world?

Harry Liman: And possibly even here. I mean, the tale of two cities is emerging. This kind of dovetails with something Anne said with the, the whole, um, experience here. I was speaking earlier today with the governor of Michigan. 14% of Michigan's populations, African-American, 40% of the deaths from the virus have have come from, uh, among the African American population. It's just part and parcel of the overall problem that certain people have to be on the front lines and they're, they're the ones who are weathering the biggest part of the storm. Okay. Um, we, um,  this also will, uh, especially, uh, with all the pressure to reopen will look very different, um, at least in a couple months from how it does now.

I wanted to leave just a little bit of time to talk about the, uh, fuselage of whistleblower complaints about corrupt or illegal conduct by the administration. In its programmatic responses to the virus. So it most, um, uh, prominently this week, Dr. Rick Bright, who'd been the director of the Biomedical Advanced Research and Development Authority. Basically our guy for viruses and vaccines, excuse me, our guy for vaccines, um, who had filed a whistleblower complaint alleging he was shoved to the side because he expressed concern about efforts by the administration, uh, to promote Trump's cockamamie ideas about, um, hydroxychloroquine and, and he alleged sort of naked cronyism and patronage award of contracts.

You know, the whole thing that we've worried about over the last three years, but with the overlay of really life and death, um, considerations. Um, uh, Andrea, I, you know, we've seen some very incendiary whistleblower complaints come to nothing in the Trump administration, including arguably Atkinson and the impeachment. We've seen Trump retaliate illegally against them with impunity. What happens here? Will this one stick?

Andrea Mitchell: Well, the, he won the first round with the Office of Special Counsel saying that he has been improperly retaliated against and should be restored to his job, but our White House correspondents are suggesting to us that the President will heed the Office of Special Counsel, which has an advisory function as much as he heeded Robert Mueller or anybody else. He's already removed two key whistleblowers and downgraded a very fine career civil servant in HHS by putting somebody political in overheard, so she's no longer the acting--

Harry: And done that in plain sight. That's, that's been so striking about it.

Andrea Mitchell: Just for her report on the shortages and the lack of preparation, a very fine report. I've talked to people who are former HHS secretaries in different administrations. This is someone who started under Clinton and was there through Bush and through Obama and had a stellar career.

And Atkinson is also very highly regarded. So at the DNIG. So, we now have two, at least two and really three whistleblowers removed. And now Rick Bright. I think he's going to have to end up in court because he's won this first round. But it is, as I say, advisory, and he's got good lawyers and he's got a pretty impressive whistleblower complaint. Which alleges not just that he was retaliated against on hydroxychloroquine, but he has outlined a series of seemingly detailed allegations of cronyism, lack of competitive bids, waste, what you would really call fraud in the awarding of contracts at BARDA and at HHS more broadly. And that mirrors the reports in both the New York Times and Washington Post about Jared Kushner's parallel taskforce and his recruitment. A very bright and eager young graduates to come as volunteers and some left and obviously are quietly whistleblowing and telling reporters about contracts that were awarded without any kind of competitive bidding. A ventilator contract for $69 million where not a single ventilator was achieved by New York state. They thought that it had all been vetted, it hadn't been. And just a complete combination of incompetence, cronyism, and political partisanship and what'd you'd have to call corruption and bureaucratic ineptness in the face of a pandemic It is--

Anne Milgram: Yeah. I mean, I think what Andrea just detailed, I mean, it's, it's a great encapsulation of what we're seeing. What also struck me on Dr, um, on Dr. Bright for what it's worth is reading through the complaint and just the fact that in, at the end of January and the beginning of February, he is literally screaming at the top of his lungs about the lack of personal protective equipment and the need for the N-95 masks for healthcare workers.

And you sort of read this detailed explanation of all the calls, all the emails, all the meetings, and that, that's sort of his boss who was a political appointee and a former Senate staffer. And, um, you know, Secretary Azar, like they're just the repeated efforts to keep him out of meetings, to silence the conversation, to disregard requests for funding.

And it really is, I mean, on top of all the, what, what appears to be if true, deep, deep fraud of the awarding of contracts, there's just this basic moment of reading it and thinking: how could you not have understood that someone who is an expert in vaccines is telling you we don't have enough equipment for our frontline healthcare workers and and other first responders.

It just, it was really chilling to me to see that in writing, that we had an opportunity to do a better job than we did and that not only that, but we've, the President has now ousted the person who was telling him early on, this is serious and we have to do better.

Harry Litman: And of course, the alternative hypothesis is they definitely saw it, but they understood that as between, uh, opting for science and the right thing and going crosswise within the political, um, pipeline ending with, with Trump, they, they knew which way they had to go.

Um, okay. So we, what we have, I, you know, he's only asked for, and probably the only thing the regulatory scheme provides for him is reinstatement, uh, you know, query, if that's going to be even practically possible. He does have, as Andrea pointed out, really sophisticated counsel, Deborah Katz, who actually represented Christine Blasey Ford in the, uh, in the Kavanaugh embroilio.

Um, but we've got. Um, you know, I think this is, this might play out first at the political level. There's a, he's going to be in front of the House and, uh, next week I think on the, on the 14th. How do you see that playing out and how likely is it that the Democrats are gonna, you know, try to make real hay with this?

Ron Klain: Well, you know, Harry, I actually think it's interesting in some ways. This first plays out with Alex Azar. Now, I think Secretary Azar is in a very interesting situation here, which is he's tried to position himself, even if he's made some mistakes as a pretty straight shooter. He's got very establishment credentials and he's not really a Trumper in the classical sense.

He obviously, you know, has got excellent legal credentials and, and you know, really tries to portray himself as kind of a, you know, Republican establishment figure. A little different than the rest of the Trumpers. And, uh, you know, and it falls on him in the first instance to decide whether or not he is going to follow this opinion from the Office of Special Counsel and, uh, reinstate Bright to his position. Now he could, I guess, hide behind an edict from the White House not to do that. But I think this really is going to be a moment of real key decision for Alex Azar and kind of where he goes from here and what he, what his trajectory is, uh, from here. Doctor--

Harry Litman: Well, if he's reinstated, do you think that ends it or do you think there's an effort to have some kind of oversight of what happened? Let's say he's reinstated tomorrow, do is the hearing on the 14th not go off?

Ron Klain: Don’t know. No, probably still goes off. I mean, I suppose, uh, he's in a slightly different position if he's reinstated we'll have to see. Uh, I do think that to Andrea's point here, uh, whatever happens with Dr. Bright, uh, it is part of a broader picture here that, uh, does sweep in also this reporting, uh, over last weekend from the Post and the Times about Jared Kushner's efforts here at the White House.

And the, and the whole thing reflects this view, uh, that has been emblematic of the Trump administration now is having life or death consequences by the President, by Jared Kushner, by others that the government's filled with knuckleheads. That their buddies from the private sector are just better, smarter, that these kids with great credentials who are at Boston Consulting or McKinsey can run wings around the people at FEMA and so on and so forth and all these things.

And that mindset has been a disaster for dealing with this. You know,  when I came back to the government to run the Ebola response, uh, I viewed it as my job to take, uh, have the strategic guidance come from Tony Fauci, come from Tom Frieden, let the medical experts set the strategy, and then let the career experts in the government who whizzes at procurement, who are whizzes at making things work, cut through the different roadblocks in their path to get them to do the job here.

And the idea that you'd replace all that expertise with a bunch of 20 somethings from McKinsey, uh, is crazy. But it reflects the core philosophy of Jared Kushner and Donald Trump, and we're all paying the price for that now.

Harry Litman: Yeah. I mean, you could call it irony. You could call it tragedy. A guy like, like Dr. Bright has been in the government for years waiting for exactly this moment. He's literally the person the United States has selected in the event that there's a, you know, comes to pass exactly what has, and he is, um, uh, disabled under the most, um, alleged any way, rank, uh, patronage and cronyism.

All right. Um. Wow. That was a fast 50 minutes. We have a, just a couple minutes for the, um, Talking Feds, a final feature of five words or fewer, where we ask all the participants to give an answer to a listener's question in five words or fewer. Uh, today's question really picks up what on the discussion we were just having, uh, from Martha Angler on Twitter, which is: Will Dr. Bright's allegations be the subject of hearings in Congress? And, um, uh, we, we, we all need to answer it in five words or fewer, although, or what has never been clear. So anybody, uh, anybody wish to hazard a, a first pithy answer.

Ron Klain: Sure. Um, my answer is: Yes, you betcha. For sure.

Andrea Mitchell: Yes. The Democrats can't wait,

Anne Milgram: And I would say, um, they should be.

Harry Litman: Yeah. Well, I, I can't resist this wave of optimism. I'll go with them: Damn right, they will be. All right. Thank you very much to Ron, Anne, and especially Andrea. And thank you very much listeners for tuning in to Talking Feds. 

RETURN TO THE DOUBLE AGENT BAR AND GRILL: INTELLIGENCE, NATIONAL SECURITY AND CORONAVIRUS

Harry Litman [00:00]: Welcome to Talking Feds, a round table that brings together prominent former federal officials and special guests for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman—I’m a former United States Attorney and the legal affairs columnist for the LATimes opinion page. We are at a significant inflection point in the country’s all-consuming struggle with COVID-19, and the country itself seems to be dividing along its seams.

 In the last few days, states like Georgia and Texas have begun a process of ending their shelter-in-place orders. It’s not tied to any scientific or medical assessment—for instance, two weeks of declining numbers of cases—but rather comes down to people being sick of the restrictions and in acute need of resuming economic life. And like everything else in the country during the last 3+ years, the divergences among states track preexistent red-blue division and fault lines of support or opposition to President Trump. 

So in other states where orders remain in place, we’re now seeing the breakout of demonstrations, typically by Trump supporters, and with organized support from deep pocketed far right activists. Much of the blame for the polarization lies directly at the feet of Trump and the White House, who, when not dispensing unvetted advice like maybe people should swallow bleach, continue to whip up the anti-government sentiments of the base and dole out critical equipment according to raw political calculations.  It’s the same Trump playbook except here the botched and politicized plays pose serious danger for human life.

No aspect of the Trump Presidency is immune from Trump’s divisiveness and base self-interest.  And that goes in spades (CAN ONE STILL SAY THAT?) for intelligence and homeland security, areas that need above all to run on candor and credibility. Talking Feds listeners remember that we’ve approached these areas in a special way, namely in complete unmediated discussion among the experts.  And so again today, we are back as flies on the wall in the Double Agent Bar and Grill, the fictional watering hole where high-level intelligence officials and former officials gather in no-holds-barred back and forth discussion about what’s on their minds. So we return now to the table in the back where a phenomenal group is airing their frustrations at the Administration’s srong-headedness on the virus.  They are Kate Brennan is the editorial director of Just Security and a senior fellow at the Brent Scowcroft center on international security at the Atlantic council. Frank Filgiuzzi who is NBC news national security contributor. Frank is the former FBI assistant director for counter intelligence. Juliette Kayyem a national security analyst at CNN. She's the senior bell for lecture in international security at Harvard Kennedy school, and she served as president Obama's assistant secretary for intergovernmental affairs at the Department of Homeland Security. And Sam Vingorad, also a CNN national security analyst and the former senior advisor to the national security advisor under President Obama.

As we fade in to the table in the back, Frank is describing his appearance an hour before on MSNBC to discuss the president's declaration that whatever his intelligence officials tell him, he knows that the virus originated in a lab in Wuhan, China.

Frank Figliuzzi [03:51]:  You know, it's funny how intelligence seems to intersect with just about everything. So, you know, just when I thought, well, I won't be on, uh, anytime this week, here comes the request to talk about Trump's, uh, assertion that he's seen intelligence, uh, indicating that this virus came from the lab and, uh, Wuhan. And so I was trying to deal with, um, you know, statements that the media is construing are inconsistent between the DNIS office saying, ‘Hey, it's naturally occurring virus. We don't see any evidence of enhancement or weaponization.’ And, and then the president is saying, “Well, I think, you know, I've seen something saying it came from a lab.” Those are not mutually exclusive, although there's virtually no evidence that it came from a lab, but, during the anthrax attacks, we learned that it was coming from likely Fort Dietrich, Maryland in a laboratory. So, they're not mutually exclusive. Do I think Trump is exploiting this for politics and finger pointing at China and we're going to get endless bashing of China until the election? You bet. But I was just trying to correct the record. That's something can be both natural and come from a lab at the same time.

Sam Venograd [04:55]: This is Sam and you know, Frank, your explanation makes a lot of sense. I think the president kind of, gosh, what's a polite way of saying this? Uh, make stuff up oftentimes, but in general, in terms of what the information could have shown. You know, oftentimes there is raw intelligence that may include a source talking about, um, you know, a particular issue, um, you know, a manmade weapon or this, this or that. I think the real issue here, and we saw this play out a little bit with the Kim Jong-un  scenario, may be the difference between kind of raw intelligence and the low confidence assessments and a high confidence assessment by the DNI, by the intelligence community. That includes verified intelligence.

And I think oftentimes in the media, we mix this up and just talk about intelligence when I don't know what Trump's are or didn't see, but it is possible that there was some stream of reporting that did indicate that this was coming from the lab, manmade or what have you. The issue is that the ODNI issued a really unprecedented statement. Correct me if I'm wrong, Frank, I really haven't seen anything like that about an ongoing intelligence product  as long as I can remember. But we have to kind of disaggregate between raw intelligence, low and medium confidence assessments, and then a coordinated assessment by the US intelligence community. Like, for example, what we saw in January 2017 with the Russian interference intelligence community assessment.

Frank Figliuzzi [6:24]: Yeah, I, I, you're right. Sam. And, uh, he could be seeing a nugget of information. I would assume, and I'm in the, I want to caveat this by saying I, I'm not in the community anymore, but I would assume that there's been some intercepts of interest or even human reporting, especially early on that would just for example, just have Chinese officials in the very early stages discussing amongst themselves, ‘Where did this come from?’

Could it have come from us from the lab, and I'm sure that's sitting somewhere on a shelf and maybe the president saw that and is taking liberties with it.

Kate Brannen [6:54]: This is Kate. I feel like with Trump, you don't even need to do this level of analysis. He could have just read, like, you know, there was a lab in Wuhan that handled these kinds of viruses and he could have just decided like, yeah, that's enough for me to go on. Like ok, that seems like enough evidence to assert this. So I feel like it could even be something we've all read in the newspaper that he's just decided is proof enough for him to make these wild allegations.

Frank Figliuzzi [7:18]: Yeah if Jared, if Jared mentioned it, it's good as gold. So it's probably, it's probably the case, but imagine how this, where this positions the intelligence community, they're really between a rock and a hard place as they've been throughout the tenure of this administration.

But they want to be honest brokers of the truth to the White House and tell them what they know. Tell them what they don't know. But everything they give him runs.--there's a risk that he twists it. It perverts it to his own cause. And the irony is at a time when the world needs China to be as transparent as possible, and scientists need to find out what this virus looked like from day one and who patient zero really was, our president seems really intent on pissing off China to the point where they're just going to close down completely.

Sam Venograd [08:01]: Yeah. And that's where, you know, that's where the politics come into play. But it's interesting, I think, Frank, you and I talked about this on a previous podcast, but Trump clearly has thrown the intelligence community under the bus multiple times and really cherry picked  intelligence to suit political needs rather than, than policy ones. The interesting twist here is that currently the guy that he's appointed to serve as the acting DNI, the acting director of national intelligence is Rick Grinnell, a Trump loyalist. So it really goes to show that even when one of Trump's henchmen is leading an agency or department. He's not going to listen to that agency or department. But Rick Grenell, despite being a Trump pick, can't control him. Um, and with respect to what the administration is doing towards China right now, we have a reality here, which is that we are dependent on China for a lot of things right now. Whether that be medical equipment and other supplies related to coronavirus or just supply chains related to our economy more generally, as well as Frank, as you just mentioned, information about the virus. So this is kind of like the worst time to be ostracizing China.

We have had such an incoherent approach to China throughout the course of this virus. You know, we were. Placating Trump was placating China, and then we were calling it the Wuhan virus and the China virus. Then extensively, the Chinese may have threatened to cut off supply chains and we were back to a truce in the war of words. Like, I have intellectual whiplash trying to figure out what the national security team is going to do towards China next. And I think that really speaks to the lack of any national security. leadership coming out of the West Wing right now, save for whatever Trump views is in his political best interests. That seems to be kind of the compass for where Trump goes on China.

Kate Brannen [9:50]: It's so tied to November and them trying to come up with something to campaign on. Like, it's not, uh, keep America great cause the economy is rubbish. And, um, no one I think would be like, whipped into a frenzy about the wall right now. So, I think part of it too is clearly like coming up with a new enemy and I had someone to blame for this disaster that they've essentially allowed to unfold.

Juliette Kayyem [10:17]: Yeah. I mean, if you think, this is Juliette. You know, this is a White House that does Homeland security response based on elections. I've never seen anything like it where, I mean, I've never seen anything so obvious like it. I mean, obviously, you know, politics have been around crisis management since, since the beginning. But, you know, the idea that a president would based on a Republican senator, rather than a Democratic governor distribute ventilators or say that the Democratic governors are not going to have to, you know, be nicer to him for him to provide additional assets for the response. It's just, you know, this is not a straight shooter. This is not a person worthy of, of the title, as I would say. But we fight a pandemic with the president we have, not the president we want. So we move forward. And I think they're looking at the demographics of these women who, uh, are worried about their parents as well as their children. And elderly who are worried about whether this president cares whether they live or not, to the extent that his disciples seem to go on air and suggest that an 80 year old dying is perfectly fine because they were going to die anyway. Um, so I, I just, it's hard for me to think that anything that Trump does isn't laden with politics at the stage and the politics related to 2020. Including not just China, but the distribution of supplies and all the other goodies that are coming down the pike.

Kate Brannen [11:38]: The other problem is with all things Trump, they're like completely incoherent dueling narratives where this has been a huge success and everything's great, and they have really strong death totals. And also it's completely China's fault for everything that's gone wrong and the disaster that we're in.

Frank Figliuzzi [11:57]: And my concern is, you know, that we're going to, in a way, repeat kind of the Ukraine IG report scandal. But yet we're not. By that I mean, you know, you talked about the DNI  issuing a statement that I think was rightfully designed to calm people down. Hey, there's no scientific evidence that this thing's weaponized and calm down.

And so now he appears to be at odds with Trump who wants to say, ‘Hey, it came from a lab and we'll figure this out.’  But Trump's removed the inspectors general largely. And not only the one that was Glen fine, who was supposed to oversee the stimulus money, uh, but, but also the intelligence community, IG. So here we are likely, there's, there's presidential daily briefings that clearly show this was brief multiple times by some reports a dozen times to the White House. And there's probably someone queued up and maybe multiple people queued up ready to make or have already made an IG complaint that says, ‘Hey, I briefed this and are we’--what do people think about whether or not we're ever going to see such a complaint see the light of day?

Juliette Kayyem [12:58]: I think, Frank, this is such a good point. I think this is worse than, uh, the intelligence leading up to 9/11. As we know from the books and the 9/11 commission, the Bush White House was guilty of nonfeasance, right? In other words, they just couldn't get their head around the fact that Bin Laden, you know, so he got the USS Cole that was in Yemen, right? This was a very different thing, would actually attack in the Homeland. This to me is so much worse because it's a, it's a president who's, who's getting the intelligence and performing malfeasance because he's actually going out to the American public and on Fox News and to reporters and saying the exact opposite of what he knows the intelligence is telling him. This is not, uh, negligence, right? This is a man who knew that this was not contained. That we had essentially nine or ten weeks to get ready. That did not get us ready, didn't prepare us, the American public, which is a huge part of pandemic preparedness. Like, didn't prepare governors and mayors who were having major events well into late February, early March, including Mardi Gras, where the governor of Louisiana said, “You know, no one told me.” So to me, this story is so reflective of why we are where we are right now. But also of the sort of stench that sort of comes out of President Trump in the sense of just affirmatively lying. We better be happy if it's just 75,000 dead, cause no one I know who's working this now believes that that number by the end of the year short of 200,000 is real.

Sam Venograd [14:37]: This is Sam. Just to Frank, on your excellent question about oversight. I think that really depends who's in the Oval Pffice and who's in the Senate next year. There, at an appropriate time, there needs to be oversight about exactly what Juliette is talking about, which is intent here. You know, during 9/11, the president didn't intend as far as we know, to put American lives at risk. It wasn't kind of a witting act to expose Americans to harm. Here, we know that the president had access to intelligence indicating the truth about the threat of the virus and disregarded it for, I guess, again, I'm not going to pretend to understand what goes on in the president's head, but. Because he didn't want to rile up the economy.

Even though, obviously the economy is in a much in much worse shape right now. He didn't want to get into it with China and he had other political things that he needed to take care of. So the president knowingly disregarding warnings, not just from the intelligence community -- from Peter Navarro, from health experts, from members of the media that were not on Fox News. There was a knowing disregard for information that could have saved American lives. And then to Juliet's point, there needs to be oversight over the politicization of preparedness and responsiveness. So, whether that oversight happens, whether the DNI IG is allowed to do his job. Whether the House and Senate Intel committees are allowed to do their jobs. I think, unfortunately, that just really depends whether Trump wins reelection, because under this president, the administration will do what they did during impeachment hearings. They'll stymie any oversight efforts and calls for documents, calls for witnesses, et cetera. Uh, so I think that's, that's unfortunately really what it depends on.

Kate Brannen [16:17]: On that point, Sam, I was remembering the other day that in the early days of this, the intelligence chiefs were supposed to go to the Hill and give their, the global threat assessment, which happens every year. And the Trump administration basically shut that down and said it's not happening. And whether or not they were going to brief on the pandemic threat, it would at least have been an opportunity for lawmakers who are paying attention to the news to ask about it. And an opportunity for the public to maybe just put it on their radar.

And it feels like such a classic example of, Trump shutting down access for Congress and to perform their oversight role. But also, like, clearly a real missed opportunity in terms of us becoming slightly more aware in February of what's coming down the pipe.

Sam Venograd [16:59]: I couldn't agree more, Kate. And from what I recall, there was reporting at the time that the DNI canceled that worldwide threat assessment, which is given every year, because they didn't want to upset the president. I remember being on air on this last year when the intelligence community, uh, talked about several topics which upset the president.

One was that North Korea was never going to give up their nuclear weapons because they were critical to the regime's survival. And then their assessment on Iran led president Trump to say that the intelligence community should go back to school and that the intelligence community was naive et cetera. So I you, we can all see why they're, the IC might be worried about upsetting Trump. The unfortunate part is that the intelligence community and I, I was not a part of it--just work closely with the IC--does not function based upon presidential emotions. Their job is to provide unbiased information, speak truth to power, and adhere to other ethics. So I totally agree. I think it is almost impossible that if this briefing had gone forward the Coronavirus would not have come up because we know that the IC was tracking this issue at the time. We also know that the intelligence community has been tracking the threat of a pandemic every year and has warned about this, but it kind of just all goes back to what unfortunately is the new norm under this administration. Is that intelligence and information is whatever the president says it is, rather than the unbiased product of experts that are seeking to advance national security.

Frank Figliuzzi [16:27]: So how many people think the next DNI between now and the election is a guy named Mike Flynn.

Sam Venograd [18:33]: Oh, God.

Juliette Kayyem [18:35]: That was so interesting. I mean, everyone thinks that elections are important. This one seems particularly important. We don't need to get too political, but I do want to raise a choice ahead, only for purposes of the world that I am in, which is not the intel world, but the Homeland security response world, which has its own challenges right now, obviously. The, the issue for the next president,  I should just, place us where we are right now: We are opening up too soon. Uh, opening up in quotes. This country is opening up too soon. 

Well, I do know where they're getting from that somehow we've succeeded. Um, uh, we are nowhere close to where any nation opened up. This is an experiment. We're living in a real time. And anyone who. Is arguing for opening upneeds to just state clearly that, that, uh, that there will be more deaths.

And so hiding behind, you know, all the, all the euphemisms that we hear people say about, you know, open up the economy and, um, and everyone's getting cranky is just, you know, I mean, let's just be real, we're just making a choice. And that's what countries do when it comes to security. I will say though, it's going to be a grim year and will continue to be a grim year. But the news of the day of is, of course both--or the news of the last 48 hours is of course--there's going to be more tools to fight the virus.

This gets to, you know, it depends on who the next president is that if you think that this only ends as I do really ends, um, uh, with the vaccine, you know, we're going to live funky, and we're just going to live differently and we have to accept that.

But if the vaccine is the ultimate sort of the viruses dead, uh, the next president will be overseeing the largest and fastest, uh, and probably most pressing vaccine distribution program in the history of mankind. I don't even mean in the history of the United States. People often ask me,you know, “What are you scared about?”  I said I'm worried about a lot of things. I'm only scared about one thing, and that would be that thendecision for the vaccine is based on the same politics that the decision to ignore intelligence was, which is not any way to run a vaccine program.

So choices about who goes first, second, third, fourth, and last in terms of vaccine distribution are ones that only a federal government makes.

Frank Figliuzzi [20:41]: Juliette, are there models for, or plans for how you are supposed to look at distributing a vaccine? Is there something on the shelf?

Juliette Kayyem [20:49]:  Yeah, as I, as I like to say, the plans were there, no one read them. I mean, we did this for H1N1 is very different. And, but I think that's actually a better model than Ebola, just because of its impact in the US. But we have a system that's called, called the pod system. It's, this is really wonky, but points of distribution, those exist in each state. It's delivered to the state. The federal government does prioritization standards. So because the vaccine, you know, it doesn't come in one box. It's just, you know, as a wave of manufacturing comes through. And so you always first as our first responders and our military, for obvious reasons, and border, uh, as the case with H1N1. And then you have to pick which states get it first.

And obviously they were, they were Republican States. But it was obvious that it was going to be the border states like in the, like it didn't even cross your mind. And this is the thing that scares me is those decisions are--have to be made by White House. Cause you, you've just got a supply chain, you know, in real time.

And you're just saying, ‘Okay, came in, where are we sending it to?’ And boy, what I've seen in the last 12 weeks, I have no confidence that those decisions will be made on science. You know, these are hard decisions. I mean, Frank, like the one I stay up late at night about is, you know, the decision that someone's going to have to make Is when once you pick which States and where, you know there's population choices. So do you pick elderly to go first because they're more likely to die. Or do you pick 30 and younger because they're more likely to be transmitters? You, you answer that question and you get to be president, right? I mean, these are not easy questions.

Frank Figliuzzi [22:21]: Boy. Yeah. You just, now you've got me worried cause I, you're right. If the president continues and wins reelection, I could see this turning into, just as he handled the PP, as you were saying, I could see this a free for all amongst the states who are bidding. Trying to get the highest bid in for vaccines from different companies and then the federal government confiscating those shipments. That would be a mess.

Kate Brannen [22:43]: I'm sitting here in Brooklyn. I've got three little kids all under the age of seven, and I've just got my eye on September and thinking about school and, you know, what, what about childcare? What about, school in September, what does this all look like? That's what's keeping me up at night. But I'm curious what other people have on their minds and probably a more security, um, intelligence, context than just who's going to take care of my kids?

Frank Figliuzzi [23:06]: So I got to tell ya, I, from where I come from, with the law enforcement/Intel background, I'm just continuing to watch protests unfold that are really getting troubling. And there's one that's going on in the LA area and, uh, it's out of control. What are they protesting? They want to go to the beach. And, we're seeing long guns and assault weapons showing up in state capitals. We're seeing people that have violent militia backgrounds. We're seeing symbols of hate. We're seeing, we're hearing hate speech by these, some of these speakers. This isn't so much about liberties as it is about looking for a cause and there's people looking for a fight. And I'm very concerned, um, that these are going to go violent and, and actually that can be contained by law enforcement, but quite frankly,, these are spreading the virus. There's no question about it. And so you've got, you've got that issue. And then if you start introducing, there's been some sign in the last 24 hours that counter protesters are showing up. Well, that's a recipe for disaster. And so I've got, I'm pretty attuned to that right now.

Kate Brannen [24:05]: This is Kate. I saw the protest. A photo of the protest that was in Albany, either today or, yeah, I think it was today. And it was like puny. It was really small. And, um, I was reassured living in New York City that that's the case, and I thought it must be tied to the fact that it's not an abstract issue here. It's certainly not an abstract issue in New York City, but I think across the state, I mean, it's more abstract, um, in the northern parts of the state, you know, versus Long Island and stuff. But it's not abstract here. And it just feels like that so many parts of this country are intent on experiencing this, like in person, they have to see it with their own eyes. And I would just implore-we don't have a president who's conveying this message, which is: take New York's word for it. Like you don't bring this to your, to your town or to your local hospital. And to believe to believe the science and to believe the scientists. And of course that's not the message coming from the White House. And it's just so depressing to think that other places are going to have to go through what New York went through. It's like if we've sacrificed as much and this many people for nothing, it's just hugely depressing.

Sam Venograd [25:12]: And this is Sam. I play the long game here, and for me, what I'm most worried about is the longer term national security impacts of this stuff. Like namely, I'm thinking about how other countries have gained in credibility while we've been weakened during this period. So whether it's through selling disinformation. the image of the United States is disorganized. Foreign governments, I think arrivals in particular feel like they've gotten one direct insight into vulnerabilities in our infrastructure and in kind of the US governance experiment. B) the image of the United States has turn is generally from a leadership and credibility perspective.

And then finally, the fact of the matter is that we had to grossly reprioritize resources to meet the emergency, to meet the coronavirus response. That's everyone from the intelligence community to the Pentagon, to the State Department, to USAID and humanitarian assistance. I am deeply worried about all the work we weren't able to do during this period.

You know, North Korea didn't stop producing nuclear weapons during this period. Terrorist groups didn’t stop planning. Iran's nuclear program is advancing the launch of a satellite into space last week that was more technologically advanced, the list continues. So we will mitigate this, this, this pandemic, eventually, Juliettw has a much better sense of when that will be, but then national security recovery from this could could take a generation.

Frank Figliuzzi [26:36]: This is a great point. From a counter intelligence standpoint, there has been so much that our adversaries and our allies can learn about us during this period. And watching a leader under crisis is probably the best way to evaluate his capabilities and his administration's capabilities.

So, if you're Russia, China, or for that matter, if you're in the UK or anybody, just sitting back saying, how is this guy Trump responding and what, how capable is his government? You're seeing things like, Oh, they removed a US Navy, captain of the, of the USS Roosevelt because he was trying to save his sailors.

Oh, okay. Um, then they got so confused. They ended up removing the guy who removed him. Oh, and the President is going to speak at the West Point graduation here, thereby endangering their leaders, their future leaders, lieutenants in the army who are going to have to fly back into a hot zone, New York City and then quarantine for two weeks so that Trump can deliver a speech to them. So the Commander-in-Chief will endanger troops’ lives for his own ego. These are learning moments, um, from a counterintel perspective for the world. And, they're not learning much good about us right now.

Juliette Kayyem [27:44]: I think for me, our supply chain is starting to show tremendous stress. So I think about it from a Homeland security perspective, not just for health and medical related equipment and gear and assets. But now of course, what we're starting to hear about meat and other critical infrastructure, Homeland security focuses its response on making sure our critical infrastructure holds up. And one of them is food, and food security. There's just too many people sick in this country.  That's having an impact on everything, from the critical infrastructure of food and agriculture supply to also public safety is a critical infrastructure. You're seeing the numbers out of New York. At one stage, 25% of New York police department was either infected or had to be isolated. They've had more deaths then occurred on the day of 9/11. That does not include the later deaths related to, you know, the smoke and dust inhalation.

Kate Brannen [28:37]: I was going to return to it what Sam was talking about too, of just about leadership and American leadership and what's been lost. You know, thinking about the election and the analysis that was going on before any of this happened. You know, the world was sort of watching to see if Trump going to get reelected and if he doesn't, then maybe it was a not an anomalous event. And you know, the US can kind of claw its way back to a position of respect and leadership. But if he gets reelected, obviously it's, you know, it's time to sort of write off the United States longer term.  I think that with the Trump administration's response to the pandemic and the extent to which, you know, we've had this out of control outbreak in this country. I think that's accelerated that process of just, you know, a diminishment of the United States in the world's eyes. And the way we're handling it now with the protests. You know, Trump continues with the ‘inject disinfectant into your lungs.’ I mean, it's just all like beyond parody. And I think that the world is sort of reshocked by it. What's going on here.

Juliette Kayyem [29:42]: I think there is going to be a narrative about the United States based on a response and that is of a society so polarized, and this could all change, right? But a sense that America does not operationally function either.

That's the thing that sort of gets me on the Homeland security. It's not just the intel, it's say, how the hell do we not have enough masks? I'm just asking a basic question here. I don't understand it. Like it's, it's a, it's a commodity that's easy to make and it's one that we knew we needed.

And I mean, I know I can answer that, right? We didn't invoke the right tools. We did not compel the companies.. We were selling it abroad in January and February as if we weren't gonna need it. But that to me is going to be one of the legacies. You know, that, that the pipes were working, so to speak, is going to be long gone.

Kate Brannen [30:30]: That's such a good point, Juliette. I think that  this has exposed that we're in this mess partly because of him, but from our healthcare system to the inequality it is exposed to. Um, you who's dying, who's able to get healthcare. It's a country with much more serious sort of deeper problems that it has to solve before it can be taken seriously.

Juliette Kayyem [30:54]: Yeah, you know, the crisis hits a nation as it is, not as we wish it to be. Right? There's lots of things we wish right now, healthcare, better workers' rights, no racism as we're starting to see against Asian Americans and others. But those will be exacerbated over the months to come. And the problem with having a president who's guided this response as a sort ofnin the articles of Confederation fashion rather than in the United States of America fashion, is that how to get out of this is going to be 50 different ways. And so, you know, while states have been, I've been very critical of the sort of open up, don't open up dichotomy. I'm not happy that states are opening up. I think we probably have another month in us, but, I accept where things are heading, but I do think that Republican governors are opening up more carefully than they're giving credit for.

Democratic governors are opening up more carelessly than they are being criticized for. It's complicated, but most, not all, not all. I would say 45 of them are actually taking itt relatively seriously. The plans I've seen, um, are more thoughtful. I mean, you know, they're, but they're all based on this fantasy that somehow we have flattened the curve nationally and we just haven't. And so, whatever we see happening right now, I just worry about the months ahead. If you extend the death rate to the end of the year, which is, it seems to me the legitimate thing to do, all the modeling that the White House is doing ends in August, July, or August. There's no way we don't get above a hundred if not closer to two to one 50 or 200 and most people are now looking at those numbers. What does it mean for a nation? 

Sam Venograd [32:31] : Well, I think also, you know, Frank, you touched on the counter intelligence aspect of this, but from a, from a direct level, foreign adversaries got direct insights into two related things.

One is how easy it is for this cookie to crumble. You know, you kind of assume that the most powerful nation in the world, it will take more to cause mass chaos, such horrific divisions and such panic. Here we saw kind of the breakdown of governments and we're still seeing it happen right before our eyes.

So that's kind of lesson number one. Lesson number two is, I think that foreign intelligence services have gotten, in addition to having kind of direct insights into the president's mania, not only because of his daily hour long press briefings, and I'm putting briefings in quotes, but also got direct insights into vulnerabilities in our infrastructure, like where our soft spots are.

And where it is easy to cause problems, disrupt supply chains and that sort of thing. And I think that's normally the kind of stuff that foreign intelligence services have to work a really long time for, to get access to that content. And that was, that was something that was very new and just kind of an added bonus for them during this period.

Frank Figliuzzi [33:41]: Yeah, I, you know, we, we thought we would have learned our lesson in the 2016 presidential election where a foreign nation interfered with our election process and did it very cheaply and it was on the cheap. It wasn't very sophisticated. You know, we've indicted a couple of dozen Russians, including a dozen Russian intelligence officers, and so for very little money, they messed with us and social media propaganda and hacking it.

Now, we're doing it all by ourselves. We've got people protesting at state capitals and beaches. I've got to tell you, the Russian Intel services must be just sitting back and going, ‘Wow, we didn't do any of this there. They're, they're killing themselves.’ And it's,you're right, it doesn't take much for this to crumble.

And we are still that vulnerable experiment. And this thing is an over, uh, we, we are likely looking at a resurgence of the virus. And I don't even know if it's correct to say a resurgence as, as many, many of you have said, we're, we're just at a plateau. So, I think if you're a fly on the wall in the Kremlin or in Beijing right now, you're going. Yup. They did this all by themselves.

Kate Brannen [34:46]: I also have to put myself in my shoes before this happened.I was looking at 2020, pretty freaked out because I thought, you know, that there's a contested election possibly in our future in the United States.

Um, and what's going to happen to this place when that happens? And. That's still sitting there emits this. So, it's crazy to think now we're going to layer a pandemic on top of that, but that still is,a real possibility.

Juliette Kayyem [35:11]: We're about to enter into a stage never seen before in American history or American crisis management, which is, we will be recovering while we are living with the enemy. And what I mean by that is most of the time a hurricane comes, a tornado comes, you know, you respond. That's what first responders do. And then the recovery happens after the tornado or the hurricane or the terrorist attack is done.

We're about to experience one, two, maybe more years, where we are living with the enemy and we're dancing with it, we're managing around it, we're whackamoling in it, we're socially distancing from it. And the good news is there'll be more tools to work with it, right? There'll be treatments and better testing and, and, uh, better ways that we live. But it's going to be a very, very interesting couple of years. And, I don't think this president has prepared the American public for what's in store. The way we live, the way we work, the way we play, the way we love, even.

So that's what I think about a lot. I think we can do it. I'm pretty optimistic. We we can do it. It's just, it would be nice to have a president who understood, uh, how different it is.

Harry Litman [34:46]: And there's an end, we leave for now. Kate, Frank, Juliet, and Sam with thanks for letting us eavesdrop on their conversation at the double agent bar and grill. 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, including our series of one-on-one conversations with prospective vice-presidential selections by democratic nominee to be Joseph Biden. And you can also check us out on the web, Talkingfeds.com, where we have full episode transcripts.

Submit your questions to questions@talkingfeds.com whether it's for our five words or fewer feature 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, Anthony limos and Rebecca lo Patton, this episode edited by Justin, right.

David Lieberman and Rosie Griffin are our contributing writers production assistance by Sarah Philippoussis and Sam Trachtenberg. Thanks as always to the amazing Phillip glass who graciously lets us use his music. Talking Feds is a production of  LLC. I'm Harry Litman. See you next time. .

THE WHISTLEBLOWERS' MOMENT

TF 36: The Whistleblowers’ Moment

Printable Version

Harry Litman [00:00:07] Welcome back to Talking Feds. Prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. I'm also a whistleblower lawyer and my legal practice, while part time, has been exclusively representing whistleblowers under the False Claims Act, which you may have heard of. It's also known as Lincoln's Law. It was passed in the wake of the Civil War when, in Lincoln's words, unscrupulous contractors would sell the Union Army sugar but it would really be sand, pants that fell apart in the rain, crippled beasts and the like. But in the last 30 years or so it's had a great resurgence and has returned over 60 billion dollars to the federal treasury. We are in the age of the whistleblower officially. In fact, we're in the very day in the week of the whistleblower in the midst of the Year of the Whistleblower. A whistleblower complaint has succeeded where the Mueller report did not in initiating a bona fide crisis in the presidency and bringing the prospect of impeachment to the fore. We are expecting today Wednesday October 2nd a whistleblowing complaint from the State Department. There is a tax whistleblower on the scene and this is all with respect to the Trump administration, there's been an explosion as we're going to hear in whistleblower activity generally in recent years. So who are whistleblowers and what is this burgeoning phenomenon? To discuss we have three superbly qualified experts. First, Eric Havian. He is a partner in the San Francisco office of Constantine Cannon. He has 25 years experience representing whistleblowers under not just the False Claims Act but other statutes. He is, to my mind, the finest whistleblower attorney in the country. He's also a bona fide Fed having served as an Assistant United States Attorney in the Criminal Division of the U.S. Attorney's Office in San Francisco from 1987 through 1994. Eric Havian welcome to Talking Feds. 

Eric Havian [00:02:34] Thanks, Harry.  Nice to be here. 

Harry Litman [00:02:35] And what's been your biggest or most noteworthy case, whistleblower case, and under what statute would you say? 

Eric Havian [00:02:45] Probably the most significant one, it's not biggest by dollar volume, but there is a case that we had representing a whistleblower, it seems timely now because it involved national security. A Case involving the company which in this case was TRW, manufacturing a defective fifty dollar component for black spy satellites. They knew it was defective. They knew it had issues when one of the satellites was getting ready to launch. They saw the government who were NRO which was launching it saw some anomalies. They asked the company,  "Is anything we're seeing here? Something we need to be worried about? They said, "No, it's fine." Satellite went up. It went blind a little while later. Government has some pretty large damages. The company ended up paying three hundred twenty five million but tellingly the amount of damage was actually much greater than that. But the reason they only paid three hundred twenty five million dollars was because the government was terrified of a case that would go in open court and reveal national security secrets. So, in a way, there was a little bit of extortion going on there. 

Harry Litman [00:03:44] We're also joined by Rob Vogel. Rob is also one of the most prominent and experienced whistleblower lawyers in the country. He's a founding partner of Vogel, Slade and Goldstein which he started just five years out of law school. He is also the former Taxpayers Against Fraud whistleblower lawyer of the year. And prior to that he was a trial attorney in the commercial fraud section of the Department of Justice's Civil Division. Welcome, Rob. And what is Taxpayers Against Fraud? 

Rob Vogel [00:04:17] Taxpayers Against Fraud is an organization devoted to representing the interests of the community of lawyers and Whistleblowers involved in False Claims Act cases. 

Harry Litman [00:04:30] And finally we welcome Tom Mueller to Talking Feds. Tom is neither a whistleblower lawyer nor a Fed. He is, however, one of the worldwide experts on whistleblowers and whistleblower statutes. A former Rhodes Scholar and summa cum laude graduate of Harvard, he is the author of "Crisis of Conscience" whistleblowing in the age of fraud, which was published yesterday by Penguin Random House. Tom, welcome. 

Tom Mueller [00:04:59] Thank you, Harry. 

Harry Litman [00:05:00] Your previous nonfiction book was entitled provocatively. "Extra Virginity". It was about fraud of a different sort. Can you give us the summary of that in essence? 

Tom Mueller [00:05:12] Great olive oil is one of the great foods and the keystone of the Mediterranean diet, but it's very hard to come by because of a range of criminal actors who make a lot of money by selling cheap stuff as extra virgin olive oil. So I learned a lot about the world of food fraud and I think that predisposed me to look into whistleblowing and the much broader range of misconduct that they call out. 

Harry Litman [00:05:36] So let's start there and whistleblowers in general. You know, who are they? Eric and Rob you've been representing whistleblowers for more than 50 years together. Tom, you interviewed 200 plus whistleblowers just in broad strokes, what character traits or background do they share, if any? Are there any generalizations you can make about whistleblowers? Who are these people who now everyone is just beginning to hear about? 

Tom Mueller [00:06:05] You know, each whistleblower had an arc of experience that they said quite often, "Well, I wouldn't have blown the whistle if I had been ten years younger or if I'd been married and so on." But I did feel like there were certain bedrock characteristics in their whistleblowing that underscored that they needed to not only go away from misconduct but stand up and try to stop it. And one is a certain inflexibility ethical inflexibility that black and white people they quite often say--. 

Harry Litman [00:06:31] Rules is rules. 

Tom Mueller [00:06:32] "I'm a rules kind of person." Yeah, you know, "I'm a rules girl," as one of one of them said. That that doesn't necessarily mean they're the life of the party. I think being someone who's even a contrarian or at least willing to challenge authority and challenge the loyalty of the group is critical. 

Harry Litman [00:06:48] What about that, Eric? I mean, you don't think of them as necessarily being you know the most popular people in the third third grade schoolyard? 

Eric Havian [00:06:55] No no. They were the ones who got beat up because they wouldn't budge from their position. But you know, I mean Tom's absolute right. The other thing I would note in terms of a common denominator, Rob I'm sure you've seen this too, it's just a myth that they do it for the money. The money can be important. In fact, the money can be an essential feature. That's not why they do it. They never come to us or virtually never before they've been screaming and yelling and waving their arms inside the company, trying to go within channels and it's only, they only come to us as a last resort. I mean isn't tha--

Harry Litman [00:07:28] And by the way, we should just say that there are some like, we're gonna be talking about the Trump whistleblowing which are under schemes that don't even provide for money. But it is true that most of your work as lawyers is under statutes that do give the whistleblower a reward. 

Rob Vogel [00:07:41] So the False Claims Act provides that somebody who reports the fraud against the government can get 25,30, 15, 15 to 30 percent is the range for the recovery of whatever the government brings in as a result of the case. And so actually some of the whistleblowers we deal with in the False Claims Act arena actually are doing it for the money and some of them are doing it for revenge. And that's an important factor here. You know, in the national security whistleblower field -- the money not important at all in the national security field. But most of them are doing it because of a conscience issue. They see something that they just deep down know is wrong. They are nonconformists. They are rule-oriented and they need to get this right. 

Harry Litman [00:08:26] And is that sort of what you mean by, is it revenge just against some rule breaking in the system? You think of revenge as being more personal as having been beat up in the schoolyard as it were. 

Rob Vogel [00:08:38] When I say revenge I mean in response to being wronged by the people they're blowing the whistle on. And most often it's retaliation against them for having tried to do the right thing. So it's a blend of revenge and conscience. Sometimes it's revenge for something unrelated. Now in this present context of this whistleblower complaint the person who stands out to me as very dangerous from the Trumpian standpoint would be John Bolton who was recently said to be fired, the morning after he actually offered his resignation. So you know he could have an ax to grind in that sense and--. 

Harry Litman [00:09:18] Almost anyone in the intelligence community. Trump has been famously not just dismissive but disparaging of them. You've said, Eric did I hear you right, and Tom is that your experience as well, that usually before they come to you and the legal system, they've actually tried to do the right thing and go within the company, the system, the government et cetera and been... well gotten what sort of response generally? 

Eric Havian [00:09:44] Yeah, I mean there's there are studies that actually have documented that that's exactly what happens, that they go internally first in the vast majority of cases and then they come. And you know they love -- one of the things that's so great about this job is our clients love us because not because we're so loveabl, although of course we are, but really because we're the first people who have actually listened to them and that's what they're craving. They crave someone not to just slap them down and say you're not a team player but someone who will listen with an open mind. Now, you know, most of the time we have to tell them we don't think you really it's in your interest to file this case. You just don't have all the facts or whatever but they're still grateful.

Harry Litman [00:10:26] That's something people don't know, right? We hear about the big verdicts, but those are you know really really the exception. And there's a lot. Well it's it's a tough road being a whistleblower, would you say? 

Tom Mueller [00:10:38] I've heard constantly in the interviews that I've done for my book that the whistleblower would say, "I just couldn't get anyone to hear me. I kept saying the same things." And they began to kind of question their sanity and I think they're co-workers. The reason that some people are sent for fitness for duty psychological exams is because their co-workers are thinking, "This person must be crazy because they're torching their career." There is a genuine disconnect and understanding and simply cannot understand what this person is doing. 

Harry Litman [00:11:04] Let's be more concrete. So what is a typical response from the company, the entity. What are, what are you--

Rob Vogel [00:11:11] Let me give you an example. One of the whistleblowers who I represented was the medical director of a company and he was fresh out of his medical training and he discovered that his company was selling a defective product. He raised it with the board of that company and they unanimously said that there was no reason to disclose this defect to the FDA. They also said they were going to fix the problem. He bided his time for a few months and he realized that they were not fixing the problem. And so he, at that point decided, to contact counsel and he ended up contacting me. And this was about now three months after he had already raised it with the board. He brought it back to the board and they again voted unanimously not to do anything, with him being the lone dissenter. In our first conversation, what he said to me is, "Am I crazy?" And I had to explain to him that actually he wasn't. That this was a pretty common phenomenon, at least in my practice, where people who worked for companies that were thought to be reputable, thought their company would not do such a thing, and they must be the only one who thinks that this rule, and it's a very fundamental rule, you know like don't produce a product that kills the patients or don't backdate all the documents. You know, for an accountant. That they're the only one who actually thinks that this matters. 

Harry Litman [00:12:41] I mean, I can chime in on that from my own experience. There are instances of, really you know, wicked or creepy pushbacks on the whistleblower. But this notion of paralysis is what I've seen a fair bit. That someone, they'll be faux responsive to the whistleblower, "We're thinking about it. We'll take care of it." A few months will pass and then, basically, they've spoken to some lawyer or somehow gotten frozen and without really disparaging him, but obviously seeing him now as arm's length, an outsider, someone to fear and that vibe, of course, when that happens in a workplace, you know it right away. It's just nothing ever happens. Tom?

Tom Mueller [00:13:26] Part of the reason that it's so destabilizing as a whistleblower too is that sense of almost, "Am I the crazy person here? Everyone else is saying black and I'm seeing white." Until they find someone like Eric or like Rob, to be able to talk and have them say, "Oh, yeah. This is standard we see this all the time." People are making money decisions instead of health decisions. Untill they hear that voice, they can really begin to question their own sanity. 

Harry Litman [00:13:51] Why is fraud so rampant? You know, so Rob in your situation, it's not as if the board as a whole did this, you know, greedy and malevolent decision but somebody did in some part of the company and it's then the company as a whole that gets scared to make it right. I mean, you know, you find again and again, you almost see a defense. How could they be so stupid? And yet, they are. So, Eric how can they be so stupid? Companies that commit huge fraud? How did it happen that somebody put it in that 50 dollar part and everything went dark? 

Eric Havian [00:14:27] Well, you know, if your kindly Mr. Jones and your company is three people and you deliver milk on the weekends, you know if your people are cheating you or the customers. It's really easy. As our economy has become more complex, as companies have become ever larger, as the structures of those companies have become more complicated and there's less control at the top so that even if you are a CEO who wants to do the right thing, you don't remotely control that organization. And what you do, though, as a CEO really matters. Because if you create unreasonable pressures for profitability, those pressures will filter down. And the trouble is you don't know how they're going to filter. And oftentimes, if you're in a large organization, someplace in the organization there's some manager who's got some bill that's due that they can't cover or that they foresee in six months or a year and they're going to say, "Look, I got to make these numbers. I've got to make this happen. I don't care how you do it." And maybe they're not the ones who actually commit the fraud, it may be someone even below them who feels that pressure, but that sort of corporate pressure with the need to report the earnings as of tomorrow every single day. Those kinds of pressures I think are what are just increasing in our economy and that's what creates the fraud. 

Harry Litman [00:15:38] Legally speaking, how high does that have to go up in order for the company to have liability for the fraud? Is that a hard question? 

Rob Vogel [00:15:46] Nancy that's a very easy question. It doesn't have to go high at all. If somebody is acting within the scope of their employment and they are committing fraud, then the company is going to be liable. There has been a split in the law over whether it has to be benefiting the company or benefiting the person. Can the company be excused if it was just to benefit the person individually? And even there, the law tends to say that the company is liable. 

Harry Litman [00:16:10] What accounts for the sort of social ambivalence that I think we really do have toward whistleblowers. Whistleblowers report experiences when they come to the lawyers of being really ostracized, having hellish couple of years and yet they're extolled. You know, just yesterday Senator Grassley gave that kind of paean to whistleblowers that you hear in the public sphere. But but people, in fact , feel ambivalent about them. Do you think a) That's correct? And b) what accounts for it?

Tom Mueller [00:16:43] Well I think, you know, all of us to a certain extent, being human beings, are schizophrenic, in the sense that we value and we claim to value truth and justice and genuinely feel that's important but in our day to day lives in our workplaces loyalty and obedience quite often trump, no pun intended, truth and justice. And, in this particular case, you know where your bread is buttered is where your allegiance is lie. You know, and even when we recognize that that a whistleblower has performed an amazing service, saved billions of dollars in fraud or saved thousands of lives, there's still that little voice in us, that little voice that says, "Yeah but they turned on their team. They weren't a team player." 

Harry Litman [00:17:27] Nobody likes a tattle tale. 

Eric Havian [00:17:27] I mean, and you're seeing it now in real time. I mean, you know, these Republicans who are trying to defend the indefensible, they see the president going out and saying this is treasonous, that perhaps we should be executing this person and all of them know that's wrong. I mean, every single one. I question whether the president does, but there's no question that the Republicans in Congress all know that that is a really bad and wrong thing to say and yet, you know, it's like the old expression, "Where you stand depends on where you sit." And that's the problem. 

Harry Litman [00:17:58] When we think of whistleblowers in kind of common culture, I think they bring to mind a spectrum of different people. I would put up you know Daniel Ellsberg as one. Katherine Gunn whom there's a new movie about starring Keira Knightley. But who did a report in sort of real time in the Iraq war. But there's also maybe Edward Snowden, Julian Assange. Do you yourselves have sort of views about -- do you think the different positions they are in represent sort of morally important distinctions? Are are all whistleblowers born or made equal? What about this, you know, the spectrum I've laid out. Do they all count as whistleblowers? And what makes for a more or less righteous whistleblower, as you see it. 

Tom Mueller [00:18:47] Well I think in the current environment where corruption, institutional corruption is extremely widespread, the breadth of whistleblowing the definition of whistleblowing tends to expand to anyone with a conscience who's willing to act on it. Now obviously there are laws that specifically determine who are official whistleblowers according to law. But I think all the people you mentioned had good facts and brought forward, in good faith, those facts under the definite impression that they represented a serious misconduct. And those facts have stood the test of time. If Edward Snowden revelations had caused the death of one person, you would've seen that person's body on the front page of every newspaper all or maybe--. 

Harry Litman [00:19:28] Everybody? You guys agree with that. 

Rob Vogel [00:19:30] I don't agree with Assange. I don't think Assange fits into the category the others. He seems to be broadcasting things wherever he can get them to hurt whoever his agenda wants him to hurt. 

Eric Havian [00:19:40] Yeah, well I know -- when I think of Assange--. 

Tom Mueller [00:19:40] The question is, "Is there an agenda? Or just no editing?" 

Rob Vogel [00:19:45] I suspect that there is an agenda, but that's my own. I don't know much about--. 

Harry Litman [00:19:49] Of course, whistleblowers can have agendas. . 

Eric Havian [00:19:50] Well they almost always have some agenda but sometimes it's a very narrow agenda, to simply get the facts out. But I think Assange is a harder case. I wouldn't dismiss him entirely. I mean, the thing that's troubling to me about the Assange case and I've written about this, is that they're using the Espionage Act to go after him and the actual espionage piece of it that fits within the statute. It's a hair's breadth of evidence really. It's minuscule evidence and yet they're using that because they want to say, "No we're not going after him as a journalist. We're going after him as essentially kind of a spy." And I just think that that's dangerous because there really isn't a lot of to distinguish Assange from other people who are the "good journalists" and who are objectively reporting in terms of being prosecuted for espionage. 

Harry Litman [00:20:39] Well that doesn't make that a special case and I'll state my probably contrary view in this group that Snowden seems different to me because this sort of heroic tale that he presents of having outed the abuses domestically were -- first of all he didn't come forward first. I don't know if that's essential for a whistleblower but so much of what he revealed was a) dangerous to people in the field and b) not what he is lionized for having revealed. Let me ask about one other case before we move on to the whistleblower because I think some listeners are pretty interested in it Reality Winner? Any thoughts about her? 

Eric Havian [00:21:16] Well she, I mean, my feeling about her is that it was really the sentence that seemed unfair. 

Harry Litman [00:21:22] Right. 

Eric Havian [00:21:22] I mean, it's one thing to have said, "OK. She shouldn't have done what she did." But but she clearly didn't have nefarious motive. She didn't turn it over to a foreign government. She turned over national security information to the press. To The Intercept. And typically, at least before the last five to seven, eight years, that was viewed as very very different and not deserving of long prison terms. But she got five years and that's a long time. 

Harry Litman [00:21:46] And also arguably, indistinguishable, from what like high officials do in Washington every day--. 

Tom Mueller [00:21:52] Right, if you look at David Petraeus and how he was treated and the conduct that he engaged in, the double standard hits you in the face. 

Harry Litman [00:22:00] Yeah, the big shots definitely you know drop the dime on the journalist. All right. So let's move to the whistleblower complaint that has, in fact, brought the Age Of the Whistleblower crashing down on us. So the whistleblower that launched the Ukraine inquiry, first of all notice there were 12 people on the phone, one of whom we've just learned, is the secretary of State Pompeo. And yet, only the whistleblower came forward. So is that consistent with your experience, this sort of thing Rob you were talking about with your client? All these other people knew something was amiss. We have only this one mystery man or woman who actually blew the whistle and he or she was not even among the 12. 

Rob Vogel [00:22:47] That's completely consistent with my experience for two reasons. One, is that this person is blowing the whistle on people who have power over his career and paycheck and that's enormous of course. Which one of us would counsel somebody to do something that's gonna put their family in jeopardy because they have no income. And perhaps no health insurance et cetera. And the second thing is, as we talked about earlier, it goes against the fact that he's not going to be viewed as a team player. So he's wondering, all these other folks, these other 10,12 people who heard the call and the many people talking about it, they're not going forward. Why shouldn't I just take the route that they take and be part of the team? 

Harry Litman [00:23:33] And keep my head down. 

Eric Havian [00:23:34] And you know the other thing the reason in this instance is the so-called "protection" , it's known as "The Intelligence Community Whistleblower Protection Act, really provides no protection at all. Not only is there no reward, but it does say you can't retaliate against the person but it provides no route for that person to go to court to get damages as they could under the other whistleblower statutes that apply to corporate whistleblowers. So you know, why should somebody take the chance without even a real protection from disclosure of their identity and retaliation beyond the goodwill of some people who work under a president who clearly has a different agend? 

Harry Litman [00:24:14] Well, why indeed? Tom, what's your  -- from being really familiar with different whistleblower motivation -- how do you you know fill in the colors on what we just know as a sort of outline. 

Tom Mueller [00:24:26] Well there are bystanders and upstanders. And for whatever reason, this person, perhaps gathering a consensus from other people as well, from these twelve people, perhaps becoming a clearinghouse but apparently realized, "Hey and no one else is gonna stand up and say something. I've got to do this." And I'm sure, in their job description, reporting waste fraud abuse and misconduct is in there. So in a sense it's a professional requirement, a dangerous one. But you know, I think that this person just said, "Okay no one else is gonna do it I better do it.". 

Harry Litman [00:24:56] By the way, it's especially true of the intelligence community. I mean, in a sense, the intelligence community are a bunch of whistleblowers. Talk about playing by the rules. You know, trying to do what's right. And yet he or she stood alone. But there is an interesting aspect of the complaint. It's not simply the original July 25th call to Zelinsky. The complaint really does lay out a wealth of what you could call water cooler communication where you know this, in its face really alarming conduct by the present United States. Obviously, everyone's talking about it but nobody you know goes forward and actually does the complaint. 

Rob Vogel [00:25:41] And yet, the nature of this complaint is that he's either explicitly or implicitly leading the investigators if there will be investigators to witnesses. So it makes me think that he understands that there are people out there who will tell the truth when asked. 

Harry Litman [00:26:01] Yeah, what do you make of that? First of all, the complaint itself is really well crafted. You wouldn't normally --it almost feels like there was a lawyer-- 

Eric Havian [00:26:09] I wish our clients all came to us with complaints like that. 

Harry Litman [00:26:11] Do you think that -- he has a very fine whistleblower lawyer now -- do you think he probably or she went to the lawyer first?

Eric Havian [00:26:21] Well, you know, that's an interesting question. It's hard really to know. But certainly his complaint is laid out the way a lawyer would lay out a complaint. 

Harry Litman [00:26:29] Right. 

Eric Havian [00:26:29] And so you know, we understand these analysts are extremely sophisticated and it's been suggested that he is an analyst. So perhaps that accounts for it. But you know the other thing I want to mention here is we've been saying there's only one whistleblower. Most whistleblowers require gestation periods of months if not years before they can just bring themselves to come forward. And so I don't think it was beyond the pale that if this person hadn't come forward that someone else would not have come forward in the coming weeks or months or you know maybe when the administration had gone -- which of course would be a little late but still. 

Harry Litman [00:27:05] No, it's an excellent point because there's actually motivations under the other statutes to come forward first. But her, presumably, you know whenever you know about the misconduct it's right to come forward. What do you think? Well Tom you want to-- 

Tom Mueller [00:27:19] I just want to ask, I mean is it not reasonable to assume that in the vetting process that the IG gave this complaint, he would have questioned some of these witnesses. Kick the tires, right? Find out what this person knows. 

Harry Litman [00:27:32] I think we know that happened. That that was part of the determination. 

Eric Havian [00:27:35] I mean, one of the things that's going to be fascinating is whether the administration will seek to throw a cloak of privilege over the IG's interviews with these key witnesses. It will be fascinating to know what they say. 

Harry Litman [00:27:47] But what a dramatic moment that's going to be when the whistleblower, you know, I think by now the whistleblower knows that he or she is at a point of no return. Can be granted protection against criminal prosecution, as you say, you know, a totally nasty vindictive administration could still make, essentially, you know, make his or her professional life hell or or go away. 

Eric Havian [00:28:12] I hope he hasn't had a slip up in his handling of classified information. At any point in his career-

Harry Litman [00:28:17] I mean, right. Isn't that isn't that the number one strategy you find for your clients they have good information but the number one instinct of the defenders once once the battle is joined is to try to ravage the whistleblower for and it could have nothing to do with the complaint or your employment, right? Just send a private investigator out there is there. Is there any drinking any any misconduct? 

Eric Havian [00:28:42] Forget the investigator. No one has yet threatened to execute one of my clients. (LAUGHTER) 

Harry Litman [00:28:47] What about -- do you think by the way that constituted reprisal under the statute? 

Eric Havian [00:28:51] Absolutely. 

Harry Litman [00:28:52] No doubt about it. So Trump has already violated the statute. Well you're not a lawyer Tom, but does that seem right to you. I mean-- 

Tom Mueller [00:28:59] I mean yeah. I mean, you know, I had a slightly different question. I mean, in this particular case is it not conceivable that given that Trump has as aggressively alienated the intelligence community, since his arrival and that given that this person is basically stating the case of the Intelligence Committee that the President of thee United States is a huge liability and a dangerous person perhaps treasonous, is it not the case that this person could actually have a soft landing given that his whole team is actually agreeing with what this person says? 

Harry Litman [00:29:32] My best guess is he -- first of all, you raise two points. One, is we see this person as you know a total Boy Scout and hero. It does seem to me you can see a motivation. Trump remember, you know, his first day in office went after firing Comey, you know, incredibly crassly going to the was at the CIA and the in front of the wall of heroes and, you know, talking about himself this is a guy who must be loathed by many members of the Intelligence Community and you could sort of see that you know that that motivation there, that he's sort of in some ways it's the community as a whole. 

Eric Havian [00:30:08] Well you know, support for him probably breaks down to about 55 percent in favor and 42 percent opposed. I mean this is the country we live in. So I think he may have something of a soft landing but, uh, I wouldn't think-- 

Harry Litman [00:30:19] My best guess -- what do you think?  Let's go around on that. Will he actually be, you know, hurt professionally? My best guess would be no, that they wouldn't get away with it. 

Rob Vogel [00:30:29] I think in the long run he will have some brightness they look forward to. But in the short run it's going to be very difficult. Because in the context of being a government employee, you know, they all answer to the top and we know what that entails. And yet you know will, in the future, will be he be treated as folk hero with all the things that go with that?

Harry Litman [00:30:51] Maybe he's next detailed to the Ukraine or Kazakhstan. 

Eric Havian [00:30:54] I'd say there's a 70 percent chance that he leaves the agency before the end of Trump's term. 

Harry Litman [00:31:00] Yeah I can see that right. His life has now been changed irrevocably. What do you guys think about the New York Times decision to go as far as they could to out him or her?. 

Rob Vogel [00:31:14] I think that was an awful decision. And you know it's obviously the instinct of journalists to publish when they get information but there they were misconstruing the role of a whistleblower and they were buying into the defense strategy which is that it's all about the whistleblower. And if the whistleblower has second hand information, then that's not as good as as someone who was an eyewitness. And if the whistleblower has a bias that's not as good. So we need to know about the whistleblower in order to attack the whistleblower. In fact, the whistleblower provides a roadmap. And as soon as that roadmap arrives, the first job of the investigator -- and we all used to be on the Justice Department's side, so we used to run these investigations --  is to try to corroborate the whistleblowers allegations through other sources, documents and other witnesses. And it's not until you have actually corroborated these central elements that you can relax and say, now we've got a case because it's assumed that the whistleblower has some baggage. 

Harry Litman [00:32:18] Right. Everyone agree? 

Tom Mueller [00:32:19] Yeah, in this particular case Rob has exactly right. Need to know is that a critical factor here. If it were some abstruse fact about a nuclear power plant, if it were some abstruse question of national security that needed an explanation and needed a CV behind it to make us trust it, that's one thing. This complaint reads -- it's absolutely bullet proof. Absolutely clear. You know where these bodies are buried. You know the questions that you need to ask. 

Eric Havian [00:32:47] Well you know the irony here is that the fact that the president's defenders keep emphasizing that the whistleblower has very little firsthand information is precisely the reason that his personal motivation is so beside the point. It's not relevant. He is going to identify the people who have the firsthand information. He has already said in his complaint that there are many people who he spoke with who had firsthand information. So his credibility is not what's on the line. He is not going to be the one that testifies if there is a Senate trial of impeachment. It's going to be the people who have the firsthand knowledge whose credibility will be at issue and the president and his defenders are free to attack their credibility if there's a basis to do so. But to attack this witness's credibility, when as Rob says he's just providing a roadmap is nonsensical. But it is the playbook. I mean, the president has stolen corporate fraud America's playbook on how you deal with whistleblowers and discredit them. 

Rob Vogel [00:33:40] Right. But what is really behind the corporate playbook on trying to take on whistleblowers is deterrence of future whistleblowers much more than anything else. It never works in terms of defeating the investigation that is started as a direct result of the whistleblowing. What it is doing -- that said it can deter other witnesses from coming forward by showing them, "Look what happens to you if you did do what this whistleblower just did."

Harry Litman [00:34:09] And by the way, we've talked about, you've talked about motivations of the honest whistleblowers et cetera. We all know stories, I expect you do as well, of people who in fact were kind of ruined unfairly for having blown the whistle. Yes? Especially if they didn't have sort of the benefit of good legal advice, kind of you know, going in? 

Eric Havian [00:34:29] That's a common outcome --. 

Harry Litman [00:34:31] Stresses, divorce-- 

Eric Havian [00:34:33] Absolutely. And that's why you need a financial reward. I mean, there should be a financial reward for national security whistleblowers. Not because we want to pay for the information but because these people's lives will never be the same. 

Tom Mueller [00:34:43] It's a net present value lump sum payment for a lost career. 

Eric Havian [00:34:47] Exactly. 

Rob Vogel [00:34:47] That's exactly right. And when prospective clients come to me and I'm sure it's the same with with you Eric and Harry that they come in and they present the scope of the fraud and you do a top of the head damages analysis. What is the likely return here? And you ask the client what are they earning right now. What is their age? I mean, these are the questions we ask, so you can give them an idea of the likelihood of success in the case times the possible homerun value times the possible, you know, regular base hit value and then the likelihood of any success at all etc. and the taxes and the fees that go into it and you say to them, "Look, you know, even though this case you know we've had executives come to us that are earning a million dollars a year. And even if the case is worth to the government 50 million dollars it may not be worth it to you. 

Harry Litman [00:35:45] Yeah. So this is a, you know, a great point. And many of them come in having read about the home run stories and I think they eventually come to completely value this sort of more sober look of their attorney. But Eric, do you want to sort of amplify what Rob just said? What's your first meeting or second meeting with a whistleblower like? What are you trying to accomplish and, you know, how are you trying to, sort of, you know give your best advice to someone who hasn't decided whether to file yet? 

Eric Havian [00:36:19] Well Rob describes stage two for us. Stage one is always: Listen. Really really listen. You know that often--. 

Harry Litman [00:36:28] You mean you're doing the listening? 

Eric Havian [00:36:29]  I'm doing the listening. And I'll have questions sometimes but sometimes you don't even have to ask the questions or sometimes you don't even get to ask questions because you've got somebody who's been dammed up for a long period of time. They will roll their story out to you. Now sometimes, you know, I'm a lawyer. I think like a lawyer. I have to reorganize the story so I can understand it. But but those first meetings are usually devoted to that so that you can do the analysis that Rob just described. So you can say to him, "OK I now hear what you're saying. This this is good or this is not good. Or you know home run or a base hit or whatever. And this is what it would be worth to you. You need to make a decision. Is this really worth it? Because I can tell you now, here's what's going to likely happen to you in terms of your career. Things we can't predict or what's going to happen to you in terms of your family and well the stresses that will be put on your family." 

Harry Litman [00:37:20] Although, by the way, the lawyer client relationship here, maybe you would compare it to Family Law. It really isn't like a normal business client. You will wind up with with, you know, quite a lot of handholding, especially once you've committed then to sort of be in the boat together. 

Eric Havian [00:37:36] One of my former partners had a client living in her home for a while because she just felt like it was the right thing to do. 

Tom Mueller [00:37:43] Is it a concern as practitioners to have these wonderful on paper these wonderful guarantees and the noble whistleblower and so on on the books on the law books. But in practice in society we acknowledge accept acquiesce in the personal and professional destruction of whistleblowers as well. 

Rob Vogel [00:38:01] Well let me put it this way. It is a lot easier for us to decide to take cases when somebody is coming into our office and the die has already been cast. They have already been fired for what they did. They've already suffered the retaliation. And so now they have much less to lose or someone who comes in who's at retirement age. You know, these are great prospective clients because you don't have the same cost benefit analysis you have to go through. 

Eric Havian [00:38:28] Your question though is really a good one, Tom. Because as a society we're getting better. I guess that's what I would say. I mean you wouldn't before seen whistleblowers as remotely characterized as heroes and now at least there's some segment of society that appears to recognize that. It's still not as good as it should be and it's still not enough to keep those people from being viewed by a large segment of society as rats as tattle tales as whatever expression you want. But we're moving in the right direction. And this national security whistleblower, who clearly, his motivations as far as we can tell so far are all the right ones I think helps the image of people who are whistleblowers. 

Harry Litman [00:39:06] Tom, you couldn't have gamed it precisely to know that your book would come out, you know, the week of the this whistleblower but obviously your, well you've made clear in your book, that you think the whistle blower phenomenon is is growing and is going to continue to be really important across broader sectors of U.S. society, European society, and the like. Why do you think that? What's your sense of, you know, whistleblowing over the next 10, 20 years. 

Tom Mueller [00:39:40] I think whistleblowing is on the rise because institutional corruption is on the rise. And I think that, ideally, we wouldn't need whistleblowers. So many whistleblowers have told me, "Look I was just doing my job. Why do we need a special word for this? But until we can get institutional corruption under control, whistleblowers are really the only source of information particularly in a highly secret environment. They're really the only source of information for public harm, both financial harm and danger to the public's health. 

Eric Havian [00:40:11] You know, there is actually some analytical support for what you just said, Tom. Because there are studies have been done internationally of countries and they asked questions about how often do you see wrongdoing that you're told to ignore? And then, how how much whistleblowing do those countries have? And they find a pretty close correlation. The more people are forced to look the other way when they see wrongdoing, the more likely they are to blow the whistle. 

Harry Litman [00:40:37] Forced you mean just by kind of social pressures forced. 

Eric Havian [00:40:39] Exactly social pressures. I mean, these are countries that don't have ample reward system for whistleblowers like we do in the United States or corporate whistleblowers. But nonetheless, the psychological pressures -- many people just can't internalize and live with comfortably the idea of being told to ignore serious wrongdoing. And I really believe that even though we don't have a high percentage of people whistleblowing of the total population of people who know of wrongdoing, still I do think it's even for the people who don't blow the whistle, they go through a lot of turmoil when they're told to look the other way at corporate wrongdoing or the National Security wrongdoing especially obviously the stakes are higher. 

Rob Vogel [00:41:18] But one of the fundamental underpinnings of a successful whistleblower law or regime is that you can depend on the rule of law and that's what makes our current time so perilous because we have seen the erosion of these standards of law in the Justice Department itself at the highest levels and in various other agencies. And, you know, when when you think about blowing the whistle you have to be dependent on some institution to take your allegations seriously and take it forward and take action, not just to protect you but to take some action. And here what you had was this whistleblower's complaint was effectively quashed in the first month by the Department of Justice apparently or the White House. And only through the perseverance apparently of the Inspector General of the Intelligence Community did this come to light. 

Harry Litman [00:42:11] I think we could go for hours more. It really is a phenomenon. we're in the whistleblower age and it's not going away. It's time though for our final segment Five Words or Fewer where we take a question from a listener and each of the Feds has to answer in five words or fewer. Our question today comes from a listener on Twitter and it is, "Will there be more Trump administration whistleblowers?" Tom, five words or fewer: 

Tom Mueller [00:42:40] Yes. Corruption causes whistleblower cascades. 

Eric Havian [00:42:45] Yes, but not till the end of the administration. 

Harry Litman [00:42:49] Judges? 

Eric Havian [00:42:49] You don't count those articles. Those articles don't count. 

Rob Vogel [00:42:53] Yes. Dissenters realize the stakes. 

Harry Litman [00:42:57] Yes. 

Harry Litman [00:43:02] Thank you very much to Eric, Rob, and Tom and thank you very much listeners for tuning in to Talking Feds. If you'd like what you've heard, please tell a friend to subscribe to us on Apple podcast or wherever they get their podcasts and please take a moment to rate and review this podcast. 

Harry Litman [00:43:21] You can follow us on Twitter at Talking Feds pod to find out about future episodes and other Feds related content. And you can also check us out on the Web at Talking Feds dot com where we have full episode transcripts. 

Harry Litman [00:43:36] Submit your questions to questions at Talking Feds dot com. 

Harry Litman [00:43:40] Whether it's for or Five Words or Fewer or general questions about the inner workings of the legal system for our Sidebar segments. 

Harry Litman [00:43:50] Thanks for tuning in. And don't worry, as long as you need answers the Feds will keep talking. Talking Feds is produced by Jennie Josephson, Dave Moldovan, Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer. Production assistance by Sarah Philipoom. This episode was recorded by Courtney Columbus. Transcripts by Matthew Flanagan. Thanks as always to the incredible 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. 

La Cosa SDNY: An Insider’s Guide to the Most Renowned United States Attorney’s Office

TF 30: La Cosa SDNY: An Insider's Guide to the Most Renowned U.S. Attorney's Office

Harry Litman [00:00:07] Welcome back to Talking Feds, a prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. Today I'm in New York City with three colleagues and former officials. And you can cut the mystique with a knife. 

Printable Version

Harry Litman [00:00:36] Here we have three hot shots from the Southern District of New York and we are going to be talking about the Southern District of New York. The vaunted office we've heard so much about over the last couple years, so you know many of them. But first Mimi Rocah returns to talking Feds. Mimi is Pace Law's Distinguished Fellow in Criminal Justice and a legal analyst for MSNBC and NBC News. She was for many years an AUSA and then a supervisor in many leadership positions in the office of the U.S. attorney for the Southern District. Mimi, welcome back. 

Mimi Rocah [00:01:17] Thanks Harry. Great to be here in person with you. 

Harry Litman [00:01:19] We are also joined again by Jennifer Rodgers, a lecturer at Columbia Law School and a longtime member of the SDNY. Who had more who logged more time between the two of you?

Jennifer Rodgers [00:01:32] Mimi logged more by about three years maybe two years. 

Mimi Rocah [00:01:35] But Jen was there [CROSSTALK]

Harry Litman [00:01:40] OK. And finally Elie Honig returns to Talking Feds. He's an analyst for CNN as well and a special counsel at a Lowenstein Sadler also for many years a supervisor in the SDNY specializing in organized crime prosecutions. 

Elie Honig [00:01:57] Thanks for having me. I'm definitely the junior member here. 

Harry Litman [00:01:58] Although am I right that some of you had the same actual supervisory positions as others, you inherited one from the other? 

Elie Honig [00:02:07] We kind of all there was. It was you guys rotated being out on maternity leave and I filled in for one and then the other. 

Jennifer Rodgers [00:02:14] Well Mimi was the Chief when I was the deputy chief and then you were the deputy chief while I was the chief and then we were co chiefs. 

Harry Litman [00:02:21] So anyway organized crime and it's all a blur and you're all good friends. All right. 

Harry Litman [00:02:26] Well look I was a justice for many years and hearing about SDNY, SDNY, the Sovereign District of New York as it's sometimes known and we've been hearing about it for two years both in its institutional role and also for the specific investigations that may remain even in the wake of the Mueller probe. So I'd like to talk about actually both in turn. I think there's a lot of things that people are curious about with such an institution as SDNY. So let me ask you guys and briefly if if one of you says the same thing as the other and you don't have to add fine but if you have something different to say. So just quickly what about getting the job, did it take a long time were you trying--was that the thing you really wanted? Did you pass up other things? Mimi, what was your introduction to the big the big leagues of SDNY? 

Mimi Rocah [00:03:25] Well I definitely wanted to be a federal prosecutor in New York and I applied to the southern and eastern districts which I think, you know, most people do. I had actually clerked in the Eastern District of New York. So I had to sort of it was hard for me to tell my judge in the eastern district that I was going to the Southern District of New York. 

Harry Litman [00:03:45] I don't understand why's that? 

Mimi Rocah [00:03:48] Because he had been a prosecutor in the Eastern District. I clerked for him in the Eastern District and you know there's a rivalry between the eastern districts in the Southern District of New York--. 

Harry Litman [00:03:56] That severe? So you had to steel yourself to let him know. Crips and Bloods?. 

Mimi Rocah [00:03:59] Yes. I mean,  my entire time in the southern district I'm not sure he ever quite foregoing the Southern.  But we're still very friendly, he married me in fact. So, you know, he presided over my wedding, so I guess he got over it. But like many people I mean I had, you know, who wanted to be federal prosecutors I just I'd heard about this, you know, mystical place the Southern District of New York. And so it was impossible to turn down an offer from the Southern District of New York. I felt very privileged to have gotten it. I was hired by Mary Jo White at the end of her tenure. You know, when you get that call from Mary Jo White you just say, 'yes" immediately. I think most people say "yes" no matter who they get the offer from. 

Harry Litman [00:04:42] Well what if you got the offer from EDNY first? You say "yes" immediately you hold out for the big-- 

Mimi Rocah [00:04:47] You know, I've heard people have that have that debate. I didn't have that problem. So I was able to withdraw my application from Eastern before, you know. I heard. It definitely is--I think most people, you know, I've heard maybe one story and it's pretty legendary about someone not accepting an offer on the spot from the Southern District of New York. 

Harry Litman [00:05:08] Speaking of getting off to a great start you guys, you know, dress up nice and pack your lunch and go for the first day. You've heard yourself about the culture, you know, as Mimi mentioned, but you don't know exactly what to expect. I assume you're a little bit intimidated but I want to hear a little bit about the first three, four months when you encounter it is your basic impression., "Whoa this is just like what they said. this is pretty intense. Or is it, like,  "What was the big deal? Why is everyone so you know intimidated by this? Just a kind of regular job." What was the the feeling? Jan you want to give a sort of-- 

Jennifer Rodgers [00:05:47] Yeah, I was super intimidated. I mean, I had worked at a firm that didn't do any criminal work, so I really had no idea what the difference between an arraignment and an indictment and a presentment. I knew nothing. And it's really overwhelming when you kind of feel like you're jumping into the deep end without knowing how to swim. And what's amazing about it is you feel so overwhelmed the first few weeks and then by a month in, six weeks in, eight weeks, you obviously still know far from everything but those little basics like at least you're getting your arms around it so that as the new people behind you start, all of a sudden you're the senior person accompanying them to court which is ridiculous. But that's how it works. But I found the learning curve incredibly steep. I was really intimidated by it all. And it was just, you know, walking down the office or next door to my slightly more senior colleagues for help on basically everything and then you return the favor as people come in behind you. But it is a scary time for sure. 

Harry Litman [00:06:44] Everyone agree ? Both a steep learning curve and an intimidating one?

Mimi Rocah [00:06:47] Yeah. But the great thing about it and I'm sure this is true at other offices too, you feel like you're not doing it alone. You have this great camaraderie with the other people who are going through at the same time. It's almost like, um,  slightly you know, we're in this battle together helping each other get through it. 

Harry Litman [00:07:06] And both in terms of that camaraderie, that feeling but also in terms of the intimidation, did you feel it was more keen for you as a woman? I know there were a lot of women there by then but did you know it was sort of tougher to be the new kid?

Jennifer Rodgers [00:07:21] I didn't think so. 

Mimi Rocah [00:07:22] So I guess this is good. Jen and I actually have a different view on something. I did in the sense that I thought, and I learned this early on, and later when I became a supervisor I told this to a lot of women, I thought men were--it came more easily to them to say, "You know, I can do this. I've got this. I know the answer." Whereas I was constantly questioning myself and I and I saw that in some other women not all so some of it is just personality. But what I later told women I supervised was nobody knows what they're doing in her beginning. It's just men are less self-conscious about it. So just act like you know what you're doing and you will eventually, but that's kind of what you need to do. So you know I don't think that's just a gender thing but I think over my life I've seen that it gets harder for women to sort of decide that, you know, I can do this even if I don't know what I'm doing. I'm ok doing it. 

Harry Litman [00:08:20] I mean I can tell you as a quick note of comparison with other offices. I was a newbie in two different offices and I had the same feeling you did but with even less support. It was like, "OK, here's a file go off to the judge and--" What? "Harry Litman for the United States and we're asking for...bail..I think."

Elie Honig [00:08:39] No,  the other one. 

Harry Litman [00:08:45] Exactly. All right. So you're there. It sounds like you're getting your sea legs after a few months, ecetera and now your you're one of the gang. So let's talk about the gang. First, you mention this competition with E.D. N.Y., which everybody knows, just to tell people, is the Eastern District of New York. So it's the neighboring office. How does that play out? Is it more them than anyone else? Would you also be competitive with the Northern District of Illinois? Another prestigious place. Or it's just because they're neighbors. And is it is it, like, a friendly competition or is a little bit... 

Elie Honig [00:09:27] Someone said earlier Bloods versus Crips. I wouldn't go--I think the better analogy is Yankees Mets. 

Harry Litman [00:09:31] OK. 

Elie Honig [00:09:32] Right? We're sort of playing the same game and we sort of--. 

Harry Litman [00:09:34] By the way, you guys are the Yankees--. 

Elie Honig [00:09:36]  Well it's also geographically correct. Yankees play in the Bronx which the Southern District, Mets play in Queens which is Eastern District right? And the Yankees have this illustrious history, World Championships--gosh, any Eastern District person is going to be--The Mets won once!  But you're in the same game and you're you're all trying to do the same thing and there's a certain amount of respect. But Southern District we think we're better, just when it comes down to it- 

Harry Litman [00:10:02] And why do you think by the way? You think you're better because you were better when you were hired.  So overall you were better? 

Elie Honig [00:10:06] No, no--

Harry Litman [00:10:11] Or you actually think you were formed in six months into the better prosecutorial machines. 

Elie Honig [00:10:17] Part of it I think is is neither of those, it's just by being in the southern district. You have certain cases and certain traditions--. 

Harry Litman [00:10:24] That make you better? 

Elie Honig [00:10:26] Yeah. Tha no one--

Harry Litman [00:10:26] Just  walking in the door. Because because of these traditions you're-- 

Elie Honig [00:10:31] No, but it's the same thing as getting drafted by the Yankees versus getting drafted by my favorite team the Phillies. Like, there's more of a history and a tradition and an ethic there. 

Harry Litman [00:10:39] Yeah,  but that doesn't make the rookie better-- 

Elie Honig [00:10:43] But it's what we think. (LAUGHTER). 

Harry Litman [00:10:46] (LAUGHTER) OK. All right. Well we'll cut to the chase at the very end. But do you think this now that you're out? 

Elie Honig [00:10:53] Yes. Of course. I t was fully indoctrinated. 

Harry Litman [00:10:56] All rigt, so explain it then. There must be a reason that's--. 

Elie Honig [00:10:59] Wel,l we get the biggest and best cases. 

Harry Litman [00:11:01] Okay, that's a reason.  

Elie Honig [00:11:02] Yeah, we've made them over the course of our history. Part of that is an accident of geography. Right? We're a quarter mile away from Wall Street.  Many of the worst, of course 9/11, but many other horrible terrorist attacks have happened in Manhattan. We have Mafia in our district. I mean, it's sort of every kind of crime you can think of happens in Manhattan. Manhattan's the center of the world and we're in Manhattan. So there is an inherent built in advantage in terms of getting the highest impact cases. So I think that goes a long way and a lot of it's just an ethic and attitude and people talk about this Southern District swagger and, "You guys are like a mafia." To which I say "yes and yes" and we're kind of proud of it.  

Harry Litman [00:11:40] So you think you have a little bit more of a swagger than the Eastern District of New York.. 

Elie Honig [00:11:48] Or you can name Northern Distric of Illiinois or whatever. (CROSSTALK)

Harry Litman [00:11:54] I was in the Western District of Pennsylvania. I tangled with Mary Jo White once on a case and I somehow wrested about half of it from-- but it was pretty clear, you know, even though we're both U.S. attorneys, who was, sort of, the boss. Well anything to add to this? You guys are fill in the blank. "You're the best because..." Here, we'll make it a multiple choice:  Because the best cases and so that makes you the the best. The best people from the start and that that makes you the best. The best culture, so you're not the best until you're there for a while and then you're the best... 

Mimi Rocah [00:12:31]  I think it comes down to a little bit of all that. Certainly everything Elliei said. But from the first day you get to any U.S. attorney's office you're taught by the people who precede you. And the southern district has had some incredible prosecutors. I think the unit chiefs who you know for the most part are are people who you know have just incredible experience and it's set of principles about what it means to be a good prosecutor but also be an aggressive but fair prosecutor. 

Harry Litman [00:13:06] I want to say to gte back to that. 

Mimi Rocah [00:13:07] Right. I mean, I think the Southern District teaches you to take chances. It prides itself on doing that. So you charge cases that other districts would run away from maybe, you know, because you're no--you're taught to not be afraid to lose a trial. You know it's OK. And so you know you take a risk in charging a case if it's the right thing to do because we know this person is guilty of the crime. 

Elie Honig [00:13:33] There is an aggressiveness and this is what I was talking about with the ethic and I think if you ask federal agents in the tri state and beyond area, "Where would you most like your case to land?" They will tell you in candor Southern District. And I have examples of that. One of the best mafia cases I did under Jen and Mimi came to us because a New Jersey based FBI agent was dissatisfied with the way New Jersey handled and charged his case. And he cold called me and I went over and met with him one day and I called probably one of you two and said OK. This is a nine count racketeering case including a murder, we charge it. It became a huge case. We convicted a captain of murder and he kept bringing us cases afterwards because there is this aggressiveness and sort of fearlessness. We're not cowboys. We can talk about this later.  We don't overcharge we. We are very careful about what we do. But there's also this sense of if it's the right thing I'm going to do it even if it's a tough case. 

Harry Litman [00:14:25] Yeah. All right so, very briefly, we've got in the corner there a phantom figure who's the Eastern District of New York representative here just for the next forty five seconds and he says wha?t Does you say you're completely full of it. You're not better. Or does he say, "Yeah you're better and here's the reason."

Jennifer Rodgers [00:14:43] Well I don't know what he would say. I mean, I think he'd have to concede, as maybe I know since we both did hiring for a lot of years, that they--ypically when people go to Eastern it's because they didn't get in at Southern. 

Harry Litman [00:14:55] Except Ellie--. 

Elie Honig [00:14:55] Eastern said no to me. 

Jennifer Rodgers [00:14:59] Ellie's  the reverse. But usually that's true. And, in fact, to the point where I heard at one point that they were making on the spo offers. The US Attorney and Eastern was saying to people, "I'm giving you this offer and you have to tell me right now,"  because they didn't want them to say, "Oh let me go make a quick phone call and see where I am at Southern." But look, I mean they're an amazing office too. They have a lot of the same characteristics that we do and it's the only place in the country where there's one FBI office covering the territory that two U.S. attorney's office cover which means we're kind of no matter what you want to think about who's better and who's stealing whose prospects, we're fighting with them for the same cases at the same FBI office at the same agent. So that kind of creates a competition that you know would be there regardless of whether there was kind of any other sort of inherent competition there. 

Harry Litman [00:15:49] All right, so let's talk about this notion of aggressiveness and SDNY being like a little bit more,  even more than a little--although I heard you know emphasize both both Ellie and Jen emphasize prudent and don't overcharge etc., meaning you walk that perfect line in the SDNY. So it sounds like you think that's true. That's the reputation. What's the impact of that reputation. Do you find in the world when you go in front of judges, when you have defense attorneys.  Are people, you know, a little cowed by you? "It's a southern district coming." Or do they want to take you down especially? Do you come at them with a reputation for arrogance deserved or not. You know, what downside or what's the general consequence of wearing the big, you know, "FDNY We're Aggressive" t shirt emblazoned on your. --when you come into court. 

Elie Honig [00:16:54] It's interesting. I think if you asked defense lawyers, "Where do you want your client to be charged?" I think, you never want to be charged federally as opposed to state.  Because Federal penalties are generally higher than the state. But I also think defense lawyers that I dealt with understand that we can be reasonable that we don't take sort of angry vindictive measures that we don't pile on. We didn't do these 88 count indictments, right? We would try to get our indictment sort of as narrow and tight and well-formed as possible. And I think there's a good amount of reason. And I'm sure we all have stories like this but I have many stories where you had a narcotics defendant who we easily could have if we insisted on the mandatory minimums do 40 years or 20 years. But you look at all the circumstances and try to do the right thing. I mean I have very specific examples of that. I was mid-trial once on a case where the guys were gonna go down for 25 20 and 20 years. My chief at the time, now a judge, Ray Lohier, looked at the whole case and said, "Look you're going to win this trial I get it but the right thing to do here is to give him a little less time." And that's what we did. 

Harry Litman [00:17:56] Oh, you temporized your aggression in that one? 

Elie Honig [00:17:57] Yeah...what does temporized mean? (LAUGHTER) Moderated it? 

Harry Litman [00:17:59] They know that in the Eastern District of New York. 

Elie Honig [00:17:59] That's a confusing word for the jury, I'd lose 'em. 

Harry Litman [00:17:59] Right, you'd need it for the Court of Appeals then. You know, you weren't as aggressive as you could--you're boasting now or whatever that you guys are aggressive. That's part of your rep, etc. You've just given me example where you weren't. 

Elie Honig [00:18:21] Aggressive when appropriate.

Harry Litman [00:18:25] OK well we'll change the, you know, the T-shirt motto. But you're certainly considered aggressive you agree with that? 

Jennifer Rodgers [00:18:32] Yeah. 

Harry Litman [00:18:32] And so what are the consequence of that in front of-- are judges tougher on you? Do they give you--stay with baseball--you know, if you're throwing them all good you'll get a slightly bigger strike zone, the umpire I'll give it to you. Or it might be you know that you've got a bigger cross to bear being from the Southern District. What's it feel like?

Mimi Rocah [00:18:52] I think it's really important to emphasize that--I think all three of us have said this in different ways. From day one, it is ingrained in you to be aggressive meaning take chances on what you will charge take chances with arguments you'll make. If it's the right thing to do. Don't just be aggressive to be aggressive. That is actually I think completely counter to the culture there and--. 

Harry Litman [00:19:16] Give me the short definition of what it means to do the right thing? 

Mimi Rocah [00:19:21] It means to not be aggressive where there are there is good reason to not be. To back off a charge.To not send someone to jail for the absolute longest time that you possibly could or try to because you do not seek the highest sentence because there are mitigating factors that you see and you take into account. Sometimes that's up to the judge to make that decision. But we all know you know learn early on that in charging decisions and what sentence we seek we as the prosecutors and is this true of any prosecutor have this immense power and you have to use it responsibly--. 

Jennifer Rodgers [00:20:00] And that's by the way I think,  I think you wantt to get into this later. That's where we most often butted heads with main Justice and DOJ. Because there's guidance coming out of DOJ as we all know about how you have to charge things and there was a memo that came out. I can't remember which DAG it was under. You know what I'm talkking about? 

Mimi Rocah [00:20:17] The Ashcroft Memo? 

Jennifer Rodgers [00:20:18] The memo that said you basically, you have to charge the highest -. 

Mimi Rocah [00:20:22] The Ashcroft Memo. 

Jennifer Rodgers [00:20:23] --the highest possible charge you you can. Yeah. And so that's an instance where we in the office might say we don't think we should have to do that and there's a reason for that. And so you know you start fighting with justice and that's why Justice looks at us and says like, "Come on, people. Get in line you know what's wrong with you that you're trying to use your prosecutorial discretion in charging?" Which of course you should be able to. But Main Justice is main justice after all. But that's I think one of the tension points that we always had with Washington that you know would sometimes cause them to look at us. with-- 

Harry Litman [00:20:54] Well while you say "main Justice's main justice after all" but really a big part of your reputation. The origin of the so-called Sovereign District of New York is that you know another attitude toward what you said Jen "main justice is main justice." That means you salute and have to do what they say.  And how would . you ever think about violating any-- it's a real thought that like you know an edict from main justice will be a "recommendation" to the Southern District. They maybe will, maybe won't. There's gonna be a real tussle on your hands. Is that a fair reputation and how is it justified within the office that you're you know actually not following sometimes or going your own way on DOJ policy? 

Elie Honig [00:21:45] It is it is a fair I think overall characterization and again some of it's just cultural. I was sort of taught from very early on they are not our bosses. In fact, the only the only time Preet Bharara--. 

Harry Litman [00:21:55] --and they are yet--. 

Elie Honig [00:21:56] Well they are, technically, but we don't recognize it. I mean, the only time Preet Bharara got actually angry at me was, we had a visit from Lanny Breuer who was I think Chief of the Criminal Division at main justice in D.C. at the time and I said something like referring to Lanny as "our boss". I think I said, "Well our boss is coming up." Preet just said, "Lanny Breuer is not your boss. Lanny Breuer is not my boss." So that's just a sense of sort of the culture. But there are specific examples I think Jen gave the best one. This memo comes down right from DOJ saying thou shalt charge everything to the max. And I don't remember ever giving that any more than just passing notice and nor did any of my chiefs at the time. I think I was in narcotics at the time say "OK we're all doing this."I mean it would lead to absurd results. 

Harry Litman [00:22:38] I can tell you, bud, we had those absurd results when I was--. 

Elie Honig [00:22:41] I mean, I don't think I ever charged everyone to the maximum of everything. That would be insane. 

Mimi Rocah [00:22:48] You know, at the end of the day though, you're still a government attorney you're still a government employee you do have to follow, for example the DOJ rule that a president would, you know, should not be charged. 

Harry Litman [00:22:58] There's mavericks and then there's, like-- 

Mimi Rocah [00:23:00]  No one in the Southern District is going to go around that. Under any U.S. Attorney I think that's my personal belief. 

Harry Litman [00:23:06] And that's because, unlike other edicts, it's a...super serious one? 

Mimi Rocah [00:23:11] Well I think it's hard. I mean like I said it's not that you just ignore the other rules or the other guidance or the other policies is that there are there is so much discretion that comes in the job that I think you can find ways to justify your way around them. This kind of a rule about indicting a sitting president how can you find your way around? I mean, there just isn't really--

Harry Litman [00:23:36] Yeah, I can report by the way having been at Main Justice as well as as a U.S. Attorney's office there's a concomitant kind of...fear of you--You know if sometimes the Deputy Attorney General whoever it may be is going to have to you know really get an argument going and go call Mary Jo White. And with anyone else it's a straightforward thing. But like Mary Jo might really you know give it to him with two barrels. Okay,  so you know you've now been out for a few years, you've given the whole sense of the culture there. I want to know if it feels about the same. In retrospect do you think the SDNY you know called it true and right? Do you see as you sit here and you don't have to document exactly. Did you ever make because you were the SDNY either out of confidence or this aggressiveness. You know, a real mistake that you now regret? 

Mimi Rocah [00:24:32] Of course. I mean I don't think anyone from the Southern District of New York would say that even given all these things that we're saying that we were perfect. This is about what you strive for. You know I think I as a prosecutor, I as a supervisor made probably wrong judgments. I mean it's all about judgment. I saw other people make wrong judgments. People are human you know. So it's not about being perfect. We're talking about what we were taught to aim for and try for and strive for and what I think the office as a whole at least under the U.S. Attorneys I served under did strive for. 

Harry Litman [00:25:12] Well and others, you know you don't have to tell us what they are but feel like, "I kind of wish on that one I kind of wish I'd been more by the book. E.D.N.Y., instead my SDNY handbook made me really go too far not far enough etc.? I think like MimI said we've all made mistakes and things we wish we would have done differently. But I don't think that's ever because we were Southern District to the contrary. I think sometimes being Southern District saved me from making a mistake. I remember very early on I had I just tried my first case and early on there's this sort of anxiety about am I getting enough trials right?

Harry Litman [00:25:50] Well no right. That's a big thing. That's right. You can go a few years and not get a trial because they're so big. 

Elie Honig [00:25:56] Yeah.  But even early on: "The people up and down the hall from me have three and four trials but I only have one." And you want it, right? Everyone knows their stats. So I just finished my first one and I was getting ready to try what I thought was going to be my second one and I can say that the person who supervised my first was Rich Sullivan who's now a judge on the southern district and he was great supervisor and I was getting ready to try my second one and I just stopped by his office and said, "Hey I'm getting ready to do my second case." And he said "Tell me about it." And I'll just, long story short it was a very shaky case that probably there was a much lesser disposition that was the right thing. And I told him that I said: "But I really want to kind of get my second trial running." And he said: Whoa. We don't do things that you run up your stats and your record." And it was the right thing to give this guy a much much lower. I think it was a non-custodial plea a probationary play. It was in retrospect now that I'm a little older and a lot older and a little wiser. It was absolutely the right thing to do. So I think  having that Southern District influence prevented me from making a mistake. 

Harry Litman [00:26:55] Okay, and you know right now as you sit here the converse kind of example doesn't come to you. 

Elie Honig [00:27:00] I can't think of a time when we ever when I was ever involved in anything where we overextended because we had to be the big tough Southern District and got burned. 

Harry Litman [00:27:07] Yeah that's exactly what I'm talking about. 

Jennifer Rodgers [00:27:09] Yeah I agree. I mean yes some regrets. I'm sure plenty of mistakes. But you know never felt like I did anything unethical. Never you know aired on the side of against a defendant's rights you know nothing like that. So I can sleep well for that stuff. 

Harry Litman [00:27:25] By the way so quick side point I want to go back. You just mentioned Ellie, everyone's aware of his or her stat.

Harry Litman [00:27:31] So in the same way, now you're in there you're in this vaunted institution. Some people some vaunted institutions. Everyone's you know happy they're in it together. Some there's a real strong competition that remains. What what was what did the attitude tend to be toward your colleague? You know about who's getting ahead of whom or what. Once you were in the you know paradise was it all kind of fine? 

Jennifer Rodgers [00:27:58] That's a good question and it's so funny because you know you would think it would be very competitive. And I really found that it was not. And part of that is because except for very very early on where sometimes I'll try a case by yourself you're always on a team. Investigations, trials when you're in a senior unit you're always on a team and it's not like you're with the same person. So you're kind of you know you and your colleagues in your unit are switching around working together on different cases all the time. So there's just this collegiality that I think extends far beyond any competition that there would be. And you know no one's on partner track. No one's making partner here. Yes there are supervisors who are made--

Harry Litman [00:28:38] Made? Like a Made Guy? (LAUGHTER)

Jennifer Rodgers [00:28:38] That's right. With a very comprehensive ritual (LAUGHTER) 

Jennifer Rodgers [00:28:43] But you know. So yes there is some sort of elevation that happens to people if they stick around long enough. Which many people don't. But it's not like you're at a law firm. I mean Mimi and I were at the same law firm before the office and you know if you sent around an office wide request for like a sample or something people would ridicule you. It's like: Why are you sending around a request for this kind of motion? Are you lazy? Aren't you going to do all the hours yourself to come up with this? Whereas at the U.S. Attorney's office constantly every day is like does anyone have a you know motion to dismiss response on this particular issue because we're all sharing and helping each other. No one has the time to reinvent the wheel and so that's just kind of how it was. 

Elie Honig [00:29:22] And it's so true. There's such a team atmosphere there. I mean yes there's friendly rivalry and "Oh I've done double the trials of you." But it's I mean one of the traditions that Southern District is when somebody is giving an opening address to a jury closing address or getting a verdict an e-mail goes around and our offices steps away from the courthouse and people would file into that room. And I'll tell you like waiting for my friends juries to come back and especially people I supervised juries to come back. I was just as nervous as my own chair is like watching your kids play sports right. I mean you are pulling for each other and helping each other and when you're on trial there is this understanding that if you need anything anyone will help you out. You can call a unit. Well I'll give one story. So I was getting ready to try a five defendant human trafficking case and my my partner who I was getting ready to try this with his wife was pregnant with twins and us being guys we didn't really understand timelines we kind of roughed it out in our heads and we're like, "Well, maybe she'll give birth towards the end of the trial so we front loaded it for him and backloaded it for me. Well guess what his wife gave birth weight eight days before the trial on a Sunday and the trial started the following Monday. And so I sent around an office wide e-mail. 

Harry Litman [00:30:29] Was this their first child

Elie Honig [00:30:31]  Uh, no. They had one but this was the two girls. So I sent around an office wide e-email saying I'm really thrilled to announce so and so's had twin healthy baby girls beautiful everything's good. In a related note does anyone want to hop on a trial with me. I'm defending a trial that starts in eight days and Mimi was a chief at the time I was not. And she was like I'll do it. I mean I got 30, 40 responses from people at the highest levels the office to people who were brand new and in no position to do this saying if you're serious I'll do it. And the person who ended up doing it with me Lisa Zornberg became sort of my.--but she didn't know a thing about the case. And in eight days she was up. I mean, I opened--. 

Harry Litman [00:31:06] You gave the opening argument. 

Elie Honig [00:31:07]  But she was ready to go eight days later and that's sort of the ethic of the office. People were willing to drop everything they were doing and jump into this emergency situation. 

Harry Litman [00:31:20] So this is a little bit off topic and then I want to return to maybe you know current day but this is not SDNY specific but another retrospective question. Now you guys have been out for you know at least a couple of years. Anything about the whole system you know SDNY included but you know looking at DOJ the federal criminal justice system that at the time you didn't give any second thought to you thought was fine but you now think in fact if you were the god of the criminal justice system you would change and you see now in retrospect was a little unjust? Does anything like that occur to you? 

Elie Honig [00:32:02] I had a different experience thanI think almost everybody who leaves the Southern District that I went to work for a state prosecutor right. 

Harry Litman [00:32:09] Fom there? 

Elie Honig [00:32:09] Yeah, I left the Southern District in 2012 and I spent the next five and a half years running the criminal division of the New Jersey Attorney General. So I went from federal to state. And boy what a reality hit that was right? 

Harry Litman [00:32:24] Why? 

Elie Honig [00:32:24] So I'll tell you a couple reasons. We used to bellyache about our judges like anyone would.  I'm sure you did too Harry. But man, what I wouldn't give to have one of them back-- (LAUGHTER). 

Elie Honig [00:32:34] The federal rules, the rules of procedure, so much better. The cases move so much more quickly and orderly than in state courts. 

Elie Honig [00:32:42] But the one thing that really I think is my answer to your question is the sentences, right?  Boy oh boy, the sentences that you would routinely hand out in federal narcotics cases in particular are through the roof. And when you get into the state system and you see the sentences, some of them are still outrageously high but you realize like a case that would a routine case federally a routine drug case--eighty seven a hundred eight months. Right. Remember these are like guideline numbers. I mean that's an outrageously high sentence for state systems. And so I think I look back and I think boy some of these federal sentences and you don't realize it when you're in this--. 

Harry Litman [00:33:18] So you feel this now where you didn't at the time you just sort of went went through it. 

Elie Honig [00:33:22] I do. I think particularly in drug cases narcotics cases the federal sentences are outrageous and hard to justify. 

Harry Litman [00:33:30] Yeah. Others? 

Mimi Rocah [00:33:30] Yeah, I mean I think there's a lot of things that you know part of this is looking back but it's also partly I mean I think we as a society are changing our views on you know mandatory minimums particularly in drug cases. I think are too harsh. Interestingly the other place where there was very high mandatory minimums that I did more work on at the end of my time there is in like child exploitation crimes very high minimum minimums. And I can't--. 

Harry Litman [00:34:00] And  this is just Congress's judgment right? Congress just lays them on--. 

Mimi Rocah [00:34:05] Right and whereas for example gun crimes in general very low sentences right. So I mean a lot of this is politics and sort of you know people Congress wants to look tough on you know who doesn't want to look tough on child exploitation crimes? But whether that 15 year sentence is actually justified under the facts of each child. And I mean I cannot think of a more horrible crime in many ways than child sexual exploitation and I feel very strongly about those cases but I don't think 15 year mandatory minimum is justified in every one of the cases that meets the statute. 

Jennifer Rodgers [00:34:44]  Yeah I agree. I agree. Like Mimi, I supervised the General Crimes Unit where the child pornography cases come in and you know some of those cases they're horrible cases. But for someone who has just found something on his computer getting 17 is really harsh. 

Harry Litman [00:34:59] Again this is a little bit different and since you left but we now have I mean Mimi averted to it a pretty strong attorney general a different kind of U.S. Attorney in place in the Southern District. So if you have current thoughts knowing both about the sort of irresistible force of Main Justice and the immovable object or vice versa. You have this very strong Attorney General who's you know hard to say no to and you know maybe have a more onboard or less sort of independent--hat's the wrong way to put it--but more onboard U.S. Attorney. How do you see that playing out now? Obviously if Southern District wants to indict a president that's going to be in trouble but are there is the overall dynamic likely to be different? Or will maybe the you know from the supervisory level and the agents on down that people will find ways to do what the Southern District always has done and find creative solutions. Any any thoughts?

Jennifer Rodgers [00:36:09] Well I'm very worried about this actually. And I'm interested to hear what Mimi thinks having been there during sessions. But you know when Trump came in and started his almost immediate attacks on DOJ and on the FBI it was really troubling. And you know it's only gotten worse. And Sessions at least to his credit did seem to try to push back on those. And so I thought for you know most of the time of this administration until very recently that at least DOJ was trying to stay the course and it would be a relatively similar relationship between Southern District and DOJ as it had always been. Now with Bill Barr I'm not so sure because for the first time you know I'm looking at my old shop DOJ and I'm concerned that that it's not being led by someone who has the best interests of the agency at heart. 

Harry Litman [00:37:00] Your shop or the or the whole DOJ? 

Jennifer Rodgers [00:37:02] DOJ. I'm talking about DOJ. So you know I just worry that you know in the past maybe you have the U.S. Attorney arguing with Bill Barr about you know whatever it is kind of your typical stuff and we push back and they push on you. But now you know you have an attorney general who I think is not trying to keep DOJ where it should be is not trying to push back against the president's attacks on DOJ. Is willing to let the institution be attacked and have power taken away from it. And so that is really concerning. I mean I think it's kind of heartbreaking for those of us who spent so much time in the Department of Justice to see that happening at least for me. 

Harry Litman [00:37:39] I'm seeing nods to either side of me. 

Mimi Rocah [00:37:39] To me it's not about that Bill Barr is such a strong you know forceful hands on Attorney General. It's that he seems well more than seems I think has shown himself to be much more willing to carry out the political agenda of the president. Right And so before this wall that we that we all just took for granted frankly. 

Harry Litman [00:38:10] Wall between whom and whom? 

Mimi Rocah [00:38:10] Between politics and the attorney general. Right?  I mean there's so many examples in the past of public outrage where that wall seemed to be breached and I'm not saying it never ever was but Barr with his rhetoric with his seemingly opening investigations that Trump purely it seems because Trump wants them you know into the origins of the Mueller Russia investigation things like that that he seems so consistently not just willing to let the wall down but almost. 

Harry Litman [00:38:44] What wall? 

Mimi Rocah [00:38:44]  He totally obliterated it and it seems like DOJ has become more and more a tool of the political rather than separate from it and pursuing things because of you know where the case is taken. So that's the part about Bar that I-- 

Harry Litman [00:39:04] All right and maybe Ill frame this to Ellie for last words: last words:  Why don't we then have the you know Southern District of New York marinated in the strong culture pushing back all the more. You must be afraid that in fact in your old office there will be some kind of increased capitulation. Is that true?

Elie Honig [00:39:24] IYeah I think there's there's two pieces of this equation. One of them is DOJ and I agree with what Mimi said and Jen said I think Bill Barr is different in kind from his successors or predecessors as Attorney General. We served under AG's as varied as John Ashcroft Alberto Gonzalez Eric Holder Loretta Lynch and sure, does everyone love and I mean everyone in DOJ and in the public love all of the policy initiatives they were forwarding? No there's healthy normal disagreement. While the Republican administration wants to focus on this kind of crime Democratic administrations want to focus on this kind of crime. That's how it should be. That's that's normal. But to see Bill Barr using the rhetoric of spying and no collusion and that there's a red line that's been crossed and investigating the investigators, I think puts him in a completely different category. I also do not think it helps that really the top three people at Main Justice right now Barr, Angle, Berman, and Rosen  have combined tried a grand total of zero cases from a prosecutor's perspective. From a criminal perspective and so they lack that-- 

Harry Litman [00:40:32] It really does matter.   From many offices as you come you work your way up you have someone who knows what's going on in a trial. 

Elie Honig [00:40:39] 100 percent. And on the other side if you look at the Southern District all of the U.S. attorneys that I served under were again very different but giants I think and seen as giants or became giants from Mary Jo White to Jim Comey to Preet Bharara, Mike Garcia. People who are seen as very formidable and who had recently been in the office within the past certainly the past decade often the past five years and had made major sort of groundbreaking cases in their time there. Jeffrey Berman I don't know personally but he has not been a prosecutor for 25 years I think he was last there in the early 90s. He spent three years. 

Harry Litman [00:41:16] He's the current person. 

Elie Honig [00:41:17] Yes the current U.S. attorney so I think he's different again in kind from the past six or seven U.S. attorneys and also he has this sort of strange status where he was never nominated by the president. He was never Senate confirmed. I don't know whether he's good or bad. I don't really know much about him directly but he is in a different standing and status than his predecessors. 

Mimi Rocah [00:41:38] OK. So Harry one thing I think it's important for people to know is what the Southern District in Manhattan the Southern District office looks like, feels like, is like: it's a dump. There is just no nice way to put it. It is a very old building I think built in the 60s has some really unusually artwork in the lobby. It's this massive government looking I mean from the outside it looks like it could be a jail except as big windows I guess. It is filthy dirty. You can't drink the water at least while we were there. Maybe this is has changeed. You couldn't drink the water from the water fountains. They were all closed off because of the lead levels. There were bugs routinely kind of walking around your office. Bedbug infestations regularly. You know there's the maintenance staff does as good a job as it can. But there's like a year's worth of dust and dirt just sort of ingrained in the furniture. It's just a really miserable looking place except for the windows and the views and some of the offices. Air conditioners that are so loud you have to turn them off because you just you can't you can't hear the person on the phone that you're talking to. You can't think. And I say this because I actually think it's sort of part of  the culture there. It's almost a badge of honor. It's a point of pride. 

Harry Litman [00:43:06] SNNY Pride, like: Bedbugs Don't Deter Us. 

Mimi Rocah [00:43:11] You know what. I don't care what this place looks like. I don't care. I am thrilled to get up and go to this dump of an office every day notwithstanding what it looks like because that's how important the job feels. That's how good the work is and how great the people are. And so you just become numb and immune and blind to it and you think it's the greatest place you know no matter what. 

Elie Honig [00:43:37] It was always fun when you would have big firm lawyers who made many many multiples of our salary. Beautiful suits come into meet and you go into a proffer room with actual mismatching furniture. 

Mimi Rocah [00:43:47] No wiidnows. 

Harry Litman [00:43:47] You guys must be really good to have an office like this. 

Elie Honig [00:43:52] Right. One side of the office actually faces the MCC. The Metropolitan Correctional Center.  There are some offices where inmates can see in and if you had one of those offices you would know and you would sort of be a little bit wary of that fact. And there was one story speaking of the windows you guys may remember this but they decided that they were going to put in brand new windows and they were these super high tech windows that would--. 

Mimi Rocah [00:44:11] Bomb proof. After 9/11. 

Elie Honig [00:44:12] Right if there was an explosion they would blow up out so they didn't impale the people inside and they also kept heat and air conditioning in and so it was this huge disruption they would have to clear out our offices it was really disruptive. They finally put in it took months and months all the windows. Then someone realized they put them all in backwards (LAUGHTER). 

Mimi Rocah [00:44:29] That's the government for you. 

Elie Honig [00:44:29] And they had to redo it! For you. So for a couple months the explosions would have come in and they were doing a good job of keeping all the heat and air on the outside. 

Harry Litman [00:44:39] And this was because of 9/11 these special windows? ThisI forgot to ask you about was there anything special about 9/11?I  mean here's SDNY. The center of the universe and it really is. 

Mimi Rocah [00:44:53] I think Jen and I could talk about this part for a long time. 

Jennifer Rodgers [00:45:01] Yeah it was crazy I actually was in Greece on vacation so I was not there but the office is very close to Ground Zero and so everything else under 14th Street were closed for I think about a week and a half. And you know, so when it happened there were kind of these phone trees that started you know supervisors started calling people to say you know don't come in. Go home we'll get word to you about what's happening next. So people who were at Mimi and my level didn't do much other than report when we were told to report. People who were senior you know there's a whole command center set up to deal with those emergency subpoenas and other things that started happening right away as part of the investigation of what happened on 9/11. So the terrorism folks had a command center and you know they obviously had certain judges who they were in touch with when they needed things from judges and they were working around the clock. I heard even like Martha Stewart like came and brought a cake or something to them (LAUGHTER). In the days before Martha Stewart was actually one of our defendents (CROSSTALK). 

Jennifer Rodgers [00:46:05] But people kind of knew that this was happening and were very supportive of those senior folks in the office who were doing this literally around the clock command center kind of emergency work in connection with that investigation. 

Mimi Rocah [00:46:20] So I actually was there I was there on 9/11 and headed to the office. Came up the subway right after the second plane hit. And my instinct though was to still go towards the office. I did everyone who was there including my now husband who was a prosecutor there who were coming out of the office and we just were told to just go North ,go North. Just walk. And so the entire office you know hundreds of people were just walking North. I walked to a colleague's house with a bunch of other colleagues who lived above 14th Street and we we watched on TV as the towers fell. I then walked home to the Upper West Side where I lived at the time and and was trying to get a hold of FBI agents that I knew because we had heard that so many of them had gone down. You know we didn't know what had happened. There were these just frantic efforts and were people from the Southern District of New York. Mary Jo White was trying to find certain people who worked in the office who had gone down and they they were safe but there were some really tense moments. I actually did go back to the office before it was officially opened with about five other people. They wanted to have a skeleton crew of people in the office. It was-- 9/11 happened on a Tuesday I think I was back there by Thursday and we had to go below the barricades below 14th Street. We walked around--\. 

[00:47:48] As I recall New York at the time downtown was closed down. Couldn't go near the tunnel and--

Mimi Rocah [00:47:53] We had credentials and got in and we walked around the office with masks on because I mean it was still like there was--I mean it's smoky I mean you could smell the chemicals. It was probably looking back not the smartest thing to be in that air but you know nobody thought about that at the time. And I remember walking into the office and it was like seeing this moment that clearly was just frozen in time because it had happened in the morning where people were at their desks eating their breakfast drinking their coffee checking their emails and so everywhere you look there was this half eaten breakfast. And it had this just very surreal feel plus you looking through this like smokyness. And I'm not even sure what we were doing there. We were there to sort of help support the command center if it needed it although they didn't really need us. It was truly this eerie just--you know and for months after that my walk from the subway to the U.S. Attorney's office, I'm sure this is true for you too Jen because of where you live, you would pass, I mean you could look down Church Street and see the pile. You know that Ground Zero. I mean you could see just as you're walking from the subway every single day you could smell it. You could see it. So it was very much a part of the Southern District. You know like I said I started in February of 2001. This obviously happened in September. A lot of things changed logistically. We got new IDs because all of a sudden they realized,  "Wow. You know we need to-" There were barriers set up around the office but it really also just heightened this feeling of what we're doing here is so important because this is one of the offices that's going to work on these kinds of investigations. Not that there was anyone to prosecute out of 9/11 but we didn't know that at the time and we didn't know if there would be more. 

Jennifer Rodgers [00:49:50] Yeah and everyone wanted in on that. I mean I went up to organized crime and terrorism which was one unit at the time, I think in February of 01. And you know Mimi you came up there when it was your turn too. I mean so many people just wanted to help by being a part of prosecuting those kinds of cases after that. 

Harry Litman [00:50:08] Guys this has beena phenomenal discussion. I think I personally but everyone who is listening will know so much more about SDNY and how they play in historically and going forward. Thank you very much. 

Harry Litman [00:50:26] Thank you very much listeners for tuning in to Talking Feds. If you'd like what you've heard, please tell a friend to subscribe to us on Apple podcast or wherever they get their podcasts and please take a moment to rate and review this podcast. 

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Harry Litman [00:51:23] Talking Feds is produced by Jennie Josephson, Dave Moldovan, Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer, production assistance by Sara Philipoom and Matthew Flanagan. Thanks to The Radio Arts Studio on the Upper West Side in New York City. And thanks to the incredible 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.