← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Concrete Plans to Restore Law, after Trump
01:03:35
Veteran federal prosecutor Andrew Weissmann on Todd Blanche’s impending uphill battle, plus his proposal for a concrete legal antidote to all the lying in American politics.
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- [00:02]
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- [01:39]
Dalia Lithwick
This is Amicus Slate's podcast about the courts, the law, and the Supreme Court. I'm Dalia Lithwick. Of all the challenges of modern legal journalism, surely the biggest lies in the temptation to cover cases, law, doctrine, and reversals as the entirety of the work product without tying all that to the lived realities of those who find their communities and their lives reordered around those changes. When the voices you hear most are those of the nine justices of the Supreme Court, it's easy to take their assorted claims and assertions about how the court is oracular and nonpartisan and astonishingly and consistently above the fray as somehow persuasive or even relevant. On Tuesday night, the Supreme Court's far right wing vastly expanded its holding in Louisiana v. Calais to make it harder, if not outright impossible, to challenge racist voting maps put into play with the purpose of suppressing black votes. It did this in a few mumbledygook lines on the Shadowdeck docket in Allen v. Milligan, a case it had already decided by both misrepresenting its own holding in Calais and also the findings of the lower court panel that it chose to disregard. The six justices who failed to sign the unsigned opinion. We have no idea of which of them even joined. It will now continue to speak from their platforms in the form of book tours and circuit conferences and televised speeches and remarks at European vacation spots. While black voters across the country will see their voting maps carved up and their political representation diminished, the news cycle will move on and you will likely not hear much more about it because there is not very much that is cliquey about partisan gerrymandering. There are so many voices you won't hear from after this week's decision out of Alabama. You may not hear from the panel of judges of the three judge district court that included two Donald Trump appointees who painstakingly found that the Alabama Legislature had violated the Voting Rights act by diluting black representation back in 2022 and who continue continued to reaffirm that decision until last month. You may not hear from the voting rights groups that organized and litigated these cases over years and years, or from the witnesses and the plaintiffs. You may not hear from the people whose votes and districts and regions will be sliced and diced on the basis of race. After the court blessed that practice this past week, back in the fall of 2022, we spoke to Evan Milligan, the name plaintiff in this litigation. We spoke to him the week the case was first argued at the US Supreme Court. He would go on to win that case the following June. For me, his words have come to stand in as an epitaph for what happens when you think about the American experience as a sum of maps and power and cynical gerrymandering and horse race elections and Supreme Court tests. He explained how and why Alabama's so called Black Belt came to be a place where, in the face of maps, in power, in elections and gerrymandering, a community, an economy and a culture found a political voice after decades of being carved out of American life. This week, when the Supreme Court chose to silence that voice again with a breezy shadow docket order, we wanted to open the show with Evan Milligan, who fought to protect an opportunity district in Alabama, which has one of the largest black populations of any state. We thought our listeners should have the opportunity to hear again what he was fighting for. We often start this conversation by just saying gerrymanders are bad and racial gerrymanders are really bad. But can you just from your words on the politics side of this, just explain to listeners what this does to politics, what a gerrymander of this sort does in terms of its impact on electoral politics in the state?
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Lowe's Advertiser
Sure. So there's three things that we could think about in terms of racial gerrymandering. One is its impact on just representation of one of the materially poorest, well, culturally rich and materially poor areas of the state. And really the western world, which is the Black Belt. We could talk about the way that these racially gerrymandered districts impact the culture and the sort of tenor of governance and politics and political speech. And then also just talk about traditions of leadership development. So starting with representation. If the Black Belt as a region from the Mississippi border to the Georgia border is a collection of over 20 counties, these are descendants of people brought there to build a plantation economy that ultimately goes on to fuel the growth of the US Financial sector and et cetera, et cetera. So there's certainly a rich history of contribution to the state's economy and to the national economy. And then we could talk about cultural contributions. You know, blues, gospel, any style of just Americana music that was created here. There's a connection not only to the Black Belt of Alabama, but just the region of the Black Belt in this country. And to the extent that people like rock and roll and think that's an art worth celebrating, then there's certainly a region that you would think we would want to protect and know more about. And you know, in this region, it's often dealt with in the opposite way. It's still the case that the commodities industry rules the state of Alabama. It's the strongest special interest. Chickens, cotton, timber farmers, corporate farmers. And they have a very strong presence in the Black Belt. But you also have some of the highest rates of inequality and maternal mortality, infectious disease, even hookworm, and these sorts of diseases that we don't often see in the United States. And so there's an imbalance in terms of the beauty and the grace of the people and then also the material conditions that they're living in. And because the state of Alabama is, the sociology that sort of populates our state representatives is not one that lends towards a great deal of commitment to this region. The municipal governments in the area are dealing with things that small towns and rural towns around the country have been dealing with for the last 30 years in terms of population drainage. So those towns don't have the tax base to independently fund the sort of multi sector development that would really be needed to make a real dent in the Black Belt. You know, well, who's left? Philanthropy. Philanthropy is only going to do so much. So that's where the feds will come in. And if you don't have those advocates, like, right now we have one of our seven congressional districts that really has an electoral base that lives in the Black Belt. The rest of the Black Belt is divided among these other districts. So having a second opportunity district that includes substantial communities in the Black Belt would increase the amount of federal
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Decagon AI Advertiser
role
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Lowe's Advertiser
players that are sensitive to this region. Assuming that is drawn in a way that gives those communities an opportunity to elect a candidate of their choice, which is what our suit is all about. And then just to go through those last two points really quickly, the obvious impact on the polarizing nature of political speech. If we draw racially gerrymandered districts, particularly in a place where you have an elite, a small elite group that has cultivated a sociology of racial polarization to benefit themselves economically, then you create districts where you basically have white candidates who have to compete for the largest number of white voters. They know that if you're in that district, non white voters don't give you a competitive advantage just because of how the district is drawn. So where are white voters in Alabama consuming information? What's driving their thoughts at this particular moment? The answer that the candidates seem to be coming up with is that they have to really compete with talking points that are often more extreme. And so if they have to do that to get to the primary in the district is drawn in a way where whoever wins a certain primary is going to win the general. And now we have ideas and representatives coming into mainstream political bodies with a certain speech and a certain tone that is not really conducive towards building multicultural democracy. And then the last part is just in terms of leadership development, if we think about the movie Selma or anything that you've read and thought about in terms of the Voting Rights act, you have these decades of folks that are at that point, they were four generations, maybe three generations removed from enslavement. And you have folks doing really sacrificial organizing and putting themselves and their families in harm's way. That culminates with Bloody Sunday. They don't go across the bridge, then come back in the Selma to Montgomery marsh and shortly thereafter, the signage of the Voting Rights Act. But that narrative, it's not just about that one moment. There's a continuous thread of that type of leadership development that happens in our communities. And by stunting the ability of black voters to choose a candidate of their choice, not only does it disincentivize some of the brightest and most selfless leaders to stay and to build families in their home communities, but it also robs the voters of a chance to develop the political discernment needed to really go from, okay, here's how I calculate my loyalties for city council or local school board. But here's how I need to scale up if I'm thinking about how to influence the outcome of a congressional election and without being placed in that type of situation, to make, you know, informed decisions about representatives and just really have a broader scale of the map. So all of those things play out when we're talking about racial gerrymandering.
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Dalia Lithwick
That was Evan Milligan talking to me in October 2022 about the nature of the black belt and what racial gerrymanders are designed to erase.
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Andrew Weissmann
We're not moving forward with the fund.
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Dalia Lithwick
I'd have to ask the lawyers. I don't know.
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Andrew Weissmann
Why do I need to put something in writing if I'm telling you what we're doing?
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Dalia Lithwick
The weaponization fund, as far as I'm
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Andrew Weissmann
concerned, was a beautiful thing. I'm not committing to putting anything in writing. We're supposed to believe that this is still a legitimate settlement between two adverse parties. I have to tell you, I think the judge on this case is going to have a field day.
- [12:28]
Dalia Lithwick
Myopia is a very understandable condition of this present moment. The urge to narrow one's focus to the thing right in front of us and to ignore all else totally makes sense. Sometimes it's actually necessary in order to keep going. However, we are always trying to avoid blinkering ourselves on this show. And so while it is high season for Supreme Court news, we will of course continue to bring you the news from 1 First street on Opinionpalooza with updates and analysis. The Democratic dismantling under Color of Law continues unabated over at Main justice and on Capitol Hill. And man has there been dismantling and dissembling this past week. So we're not going to ignore that simply because it's a busy month at scotus. Here to guide us through a week of lies, more lies, and Todd Blanche testimony is Andrew Weissman, who works tirelessly to explain the justice system and the law. Andrew is an MSNow legal analyst and veteran federal prosecutor, having served as a lead prosecutor in the Robert Mueller Special Counsel's Office and as chief of the fraud section in the Department of Justice. He's a professor of practice at NYU Law School, where he teaches courses in criminal law, criminal procedure, and national security law. And his brand new book, liars how to Stop Trump's Deceit and Save America, came out two weeks ago and was an instant New York Times bestseller Andrew, welcome back to Amicus.
- [13:59]
Andrew Weissmann
It is great to be here, really, truly.
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Dalia Lithwick
And congrats.
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Andrew Weissmann
Thank you. We'll talk about that. I think it's gonna be interesting to have a conversation about what nerve it's tapped into. I think that's gonna be sort of an interesting conversation when we get to it, because, as you said, it in its first week, became the New York Times number one nonfiction book. It hit a lot of number one lists. It was like the Publisher Weekly number one book. And so I think it's gonna be interesting to talk about why that is. And by the way, it's not. The answer is not, oh, it's me. I mean, in other words, what it is about the message that might be resonating and what we can take from
- [14:41]
Dalia Lithwick
that, we keep being told, like, nobody wants books about the law. Nobody wants books about current events. Nobody wants to hear about Trump. Like, you know, it's tapped out. And so the fact that we are clearly not tapped out suggests that there is a path through that people are, in fact, parched, something. And I think it's a really important conversation to have right now. I do want to talk a little bit about truth and its various manifestations in the pursuit of justice before we talk about the book. And I think one thing maybe I wanted to start with is that President Donald Trump announced at a private dinner on Wednesday night that Todd Blanche will be the next Attorney General. No more acting AG Tomorrow, I'm instructing Dan and everybody else that's involved in that very complicated process, which is going
- [15:31]
Andrew Weissmann
to go, I think, very quickly that we are going to make him permanent Attorney General.
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Dalia Lithwick
This is a position Blanche has been serving in for two months since Pam Bondi left the building. What, if anything, does it change? Now we've got two months of data, you know, Bondi for Blanch, but also what does it change in terms of we're now going to be looking at an uphill confirmation fight for Blanche himself.
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Andrew Weissmann
So I've been thinking about what that confirmation battle is going to look like, because we have not just the two months of data where, you know, it's just Blanche who's been in control of the Department of Justice. But obviously, he has been the right hand to Pam Bondi, and according to her, was also sort of the principal person dealing with the Epstein files. And there's sort of two stories. There's a story about corruption, what he is willing to do, the complicity that he is willing to engage in for the President, in my opinion. And the other is a competence Question. Because it's remarkable to me that here's somebody who has made a series of serious missteps, the slush fund just being the latest. I mean, let's just not forget they announce they're doing this $2 billion, quote unquote, fictitious settlement, and then they're like, after they get pushed back and the judge says, I want to hear from you, which by the way, is still pending, about why this is not fraud on the court. It's like, oh, never mind. It's the Emily Lutella, I'm dating myself. View of the Attorney General of the United States. Whatever you could say about Bill Barr and what he was willing to do, he was extraordinarily smart and he played chess, not checkers. And you really have. I think with Todd Blanche, there's such an array of things to ask him about. The only question is whether people will be effective in asking those questions. But if they get their act together, this could be a way to highlight how much the rule of law has been undermined in the Trump administration.
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Dalia Lithwick
It's interesting because when I think back to Bill Barr, I think of somebody who's willing to give Trump like 85, 90% of what he wanted. Pam Bondi was willing to give him 92% of what he wanted. That wasn't enough. Now we've got Todd Blanche, who appears to, I don't know if it's 98, 99 or 100, but we always think that that's cost. And it seems to me like the only question is, does there become a cost for Republican senators who, as you say, were squawking about the slush fund in ways that somewhat took me by surprise. So maybe there is some cost to being the guy who says yes to absolutely everything. I thought we could dig into the Blanche audition tape for a minute. As you said, the slush fund came out of the Justice Department. Todd Blanche was a staunch advocate, reportedly blindside fighting even the White House sycophants. And this week he just dropped it. Or did he? President Trump, when asked about the future of the fund, said, is the 1.8 billion dollar DOJ fund dead or is it on hold? It's. I'd have to ask the lawyers. I don't know.
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Andrew Weissmann
I know one thing. The weaponization. Are you talking about the weaponization fund?
- [19:13]
Lowe's Advertiser
Yeah.
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Andrew Weissmann
What's your decision? The weaponization fund, as far as as I'm concerned, was a beautiful thing.
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Dalia Lithwick
But also this week, Blanche was giving testimony to Congress saying the fund is off the table, but he's not Putting that in writing.
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Andrew Weissmann
I'm not committing to putting anything in writing. I'm gonna set it today over and over again. I mean, I don't know what the purpose of putting something in writing. I'm telling you what we're doing. Meaning, like, what's the. Why do I need to put something in writing if I'm telling you what we're doing? You started it, you established it in writing, so it just makes sense to rescind it in writing.
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Decagon AI Advertiser
I think a lot of Americans, both
- [19:50]
Andrew Weissmann
sides of the aisle, are concerned about it, and it would restore a lot of trust about this issue. Okay. I'm not committing to doing anything in writing.
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Decagon AI Advertiser
No.
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Dalia Lithwick
Okay. And Republican senators blocked efforts to legally ban the slush fund in Thursday's Votorama. So there is a sense, as with all things Trump, you know, maybe the Straits of Hormuz is the metaphor, but it's open, it's closed, it's open, it's closed, it's on, it's off. I don't know. Who knows? Is this thing over? Politico certainly suggested there are other ways to fund the fund.
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Andrew Weissmann
I mean, there are many, many ways to look at this. Let me just give this strict legal answer, and then maybe we can sort of pan out from there. This is the case where Donald Trump brought a civil case for $10 billion. And the alleged settlement of this case, which, by the way, that even Donald Trump had said when he brought it. I know this is a lot because I'm the plaintiff and the def. Clearly, I think Congress should pass a law that says, you know what? When you're President of the United States, you cannot bring a civil suit against an agency that you control. You know, if you have a civil claim, wait till after you're no longer president. That seems like an obvious easy fix. And Congress has that power. This is, as my people would say, Olivei. Like, I should live so long that they do that. But that's what Congress should be doing. They shouldn't be thinking about small ball. Sort of like, oh, are we going to pass a law that the slush fund can't exist? It's like, no, let's deal with presidency. The power of the presidency here. This is not rocket science. I mean, this is like you have a president who himself is saying, it's odd for him to be able to do this. Yeah, that is. And no president has ever done it, because no president should do it. Well, if he's gonna do it, there's an easy way to fix it. But the federal judge Reopened the case and said, I want to Hear by the 12th why this is not a fraud on the court. The idea being that this isn't really a real lawsuit that the IRS has defended. These cases that have been the same kind of claims have been made. They assert all sorts of defenses, but they didn't do it here. And the most obvious defense to the case was that it was brought too late, meaning that it was supposed to be brought within two years. It wasn't brought within two years. And thus, you know how much money Donald Trump would be owed if this was a true lawsuit? It would be zero. And as I have joked, I do not do math in public. But. But even I will tell you that 0 is less than 1.776 billion. Even the amount 1776 billion tells you that this is not a legitimate settlement. Because a settlement is supposed to be a figure that relates, is tethered to the damage, the harm to the person. You're telling me that a leak of Donald Trump's tax return information cost him $1.776 billion and it just happens to be that number. I mean, it's preposterous. Then you have the fact that the other thing that Donald Trump got was this broad civil release and that is staying intact. So when you think about Donald Trump's gotten this pushback and he has two things that he got out of this purported settlement. The 1.776 billion which he is going to use to create the alleged anti weaponization fund. And he gets this broad civil release for himself, his family, his companies. So now that he has to give up something, which one does he give up? He's like, you know what, the money for other people, even though it's 1.776 billion. Yeah, that can go the part for me. That stays. We're supposed to believe that this is still a legitimate settlement between two adverse parties. I have to tell you, I think the judge on this case is going to have a field day in finding that this is something that was collusive, that there was no real bargaining between the Department of Justice and the IRS and Donald Trump. That was, to use a word that Donald Trump should be familiar with, collusive. The plaintiff is the defendant and the defendant is the plaintiff. So I think that this story is not over legally in terms of what the judge is going to do and also what additional findings could be made about what happened here and the sort of factual record, because I think this is so akin to the administration just stealing money from the taxpayers and then saying that's sort of step one is stealing the money. Step two is we're going to use it for criminals and we're going to relabel them victims. That's like the second part. That's the part that Congress is saying that shouldn't happen. That's the part that Todd Blanche says we're not going to do that in this sort of fund setting. But they can still dribble this out one off in the way they did with Michael Flynn and Carter Page. So there is a way to do this. And my analogy is it's a little bit like ice. Ice is still doing the exact same stuff that caused this uproar in Minnesota, but they're doing it in a quieter way so they don't get bad press. And here if you dribble out this money individually to people making claims like they did with Michael Flynn and Carter Page, and now they could do it with all sorts of January 6th people, they can sort of still get the money to these people with the same some really deleterious effect, but without creating this uproar in the public and on the Hill.
- [25:28]
Dalia Lithwick
More in a moment with Andrew Weissman. And if you want to listen to Amicus ad free, become a Slate plus member@slate.com amicusplus this episode is sponsored by BetterHelp. For some people, summer is their most favorite season. For other people, juggling summer can be really tough and can lead to overwhelm and counting down the seconds until your kids are back in school and you spend the whole time worrying about wasting these days of sunshine. There is for me, inevitably, one day in the middle of the summer when I look out at the lake and I listen to the frogs and I remind myself that life is short and that beauty is all around and that I should probably throw up my phone for a couple days or at the very least, take better care of myself. Therapy can help people better understand their needs, feel more confident setting boundaries, and create a version of summer that actually feels really good. BetterHelp therapists work according to a strict code of conduct and are fully licensed in the United States. And with over 30,000 therapists, BetterHelp is the world's largest online therapy platform. You don't have to say anything. Yes to everything. This summer, find support and therapy, Sign up and get 10% off@betterhelp.com Amicus that's better. H E L P.com Amicus Are you numb to it yet? This wild ride of life that we are living AI is coming for our jobs. Geopolitical changes are killing historical alliances. The market is bouncing around like a yo yo, and it's no wonder so many of us are hunkering down, saving and looking for ways to protect our our futures. Now, one way you may have forgotten about is through life insurance. You've heard of life insurance, but did you know it's cheaper than you think? The younger you are, the cheaper it is. Like double the price if you wait to buy a decade from now. And that's why it's worth Looking for a life insurance policy today with Selectquote if you're new to life insurance, you're not alone. Thankfully, selectquote for over 40 years has helped more than 2 million Americans understand their options and get the coverage they need. Over $700 billion in coverage and counting. As a broker, their mission is simple to find you the right insurance policy at the best price. Selectquote takes the guesswork out of finding the right life insurance policy. You don't have to sort through dozens of confusing options on your own. Instead, one of their licensed agents will find the right policy at the right price for you. Comparing plans from trusted top rated insurance companies to find a policy that fits your health, your lifestyle, your budget, and they work for you for free. Life insurance is never cheaper than it is today. Get the right life insurance for you for less and save more than 50%@SelectQuote.com Amicus save more than 50% on term life insurance@SelectQuote.com Amicus today to get started. That's SelectQuote.com Amicus.
- [28:29]
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- [29:03]
Dalia Lithwick
Let's return now to my conversation with Andrew Weissman. You've said the judge has promised to scrutinize this. I'm curious, what recourse does she have? I mean, can she really hold them to account in some way? And I guess the same question, different verse. But this question of the blanket immunity from scrutiny for the Trump family and their taxes, is there a path to challenging that in a court and winning? Or is this all just thank goodness it's over and we move on. And as you say, then it's just a big game of whack a mole where they do the same thing somewhere else.
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Andrew Weissmann
So let me take the easy one first. That tells you a lot about me, and I'll do the harder one. So the easy one is the legitimacy of the piece of paper that Todd Blanche signed. And he is the only one who signed it, which is this broad civil release. I think that that is not worth the paper it's printed on. What you could have, if you have a legitimate administration in office, whether Republican, Democrat, independent, just anybody who cares about the rule of law in the next executive branch, they can open a tax investigation into all of the things that Donald Trump reports to say was released. So if they think Donald Trump still owes money or his companies or his family, and then Donald Trump would have to say, no, no, no. I have this piece of paper, look at this piece of paper that my attorney general, AKA the person formerly known as my defense lawyer, signed Todd Blanche. And there would be a hearing where the judge would decide whether that was the product of fraud. Essentially the same kind of thing that we're talking about that the federal judge now is looking into. And there just the record of that is going to be beyond hideous. I mean, you know, a lot of times when I think about cases, I think, which side would I rather be on? Because, you know, life's full of uncertainty, but you think, which case would I rather have? Would I rather have defense of the piece of paper or would I rather have challenge to the piece of paper? And this is when the people who are going to be saying this piece of paper is not where the paper is printed on are going to have a field day. Could you imagine the kind of depositions and the defense of trying to say there was real negotiation? I mean, come on, you don't even have to be a lawyer to think of all of the arguments you would make. So I actually think this piece of paper, while obviously Donald Trump will try to use it, I don't think it will stand up in court and it certainly buys him peace now. But on the other hand, he controls the entire executive branch. So he doesn't really need it right now. He really needs it for the future. Because while he's president, he can sort of say, no one's going to look at me or my family or my company's period, the end. He doesn't even need it on a piece of paper. It's really about what happens when he's no longer president with respect to what the judge could do. Now, I think that is a really interesting question because it goes to one of the things that Todd Blanche really screwed up on here, which is they brought this case in court. Donald Trump brought this $10 billion case in court. And the argument for why this was collusive is, well, the reason you did that and didn't just sort of engage in a private settlement where, like, Donald Trump submits a letter that says, I have this claim, and then DOJ says, we're going to resolve it. But you never really go to court. And that can happen in civil litigation. Sometimes you have a private agreement, both sides sort of agree, we want to get rid of the case before we make a federal case out of it. And if they'd done that, no court would have been involved. But why did they not do that? They didn't do that because they wanted to have the trappings and the veneer of making it look like, oh, this is a real federal case. I have this. And you heard the president talk about, oh, I've got this, I was really hurt, et cetera. And then you have Todd Blanche talking about, this is a settlement, and it's traditional, and we do this all the time in settlements. And so they wanted to be able to cloak this in the air of legitimacy when it has nothing to do with what a real case would look like. But because they did that, it gave the judge a hook to say, we're not going to be a party to it. But the question really is, what's the judge supposed to do about that? Because the judge could say, the court's not going to be a party to it and it's dismissed as a case. But that doesn't stop DOJ from later saying, we're going to have a private settlement or doing this in this sort of whack a molecule, what the judge does get to do. And this is where what this is. Yet another thing that Todd Blanche can be questioned about at his confirmation hearing is the judge could say, I think what the lawyers did here is improper, and I am referring it to the bar association. And this is where something that's gotten very little attention. But Mary McCordon and I on our our podcast Main justice of trying to shine a light on this. A few weeks ago, Todd Blanche, on behalf of the Department of Justice, filed a brief in D.C. saying that bar associations should have no jurisdiction over attorneys at the Department of Justice, so that the remedy that the court could impose that we're talking about is one that Tyler Blanche is saying shouldn't Exist and that, that Thalia, as somebody who was in the Department of justice for 21 years, is so anathema to how I thought about public service where, like, I don't mean to sound like a goody two shoes, but if you don't want public scrutiny and you don't want to be held to a high ethical standard, don't take the job. The people who should be held to the highest standard are in like, I mean, it's so ass backwards. That's. By the way, that's like a second year legal term.
- [35:04]
Dalia Lithwick
I was going to say term of art.
- [35:06]
Andrew Weissmann
Yeah. It's harder and harder for me not to just start emoting.
- [35:10]
Dalia Lithwick
No, you have come to the right place. We are emotions held together by tears and sweat on this show. I want to do one more beat. Todd Blanche, only because there's one more wrinkle this week where his predecessor, Pam Bondi, seems to have thrown him under the bus a little bit this week.
- [35:31]
Andrew Weissmann
Backed up, down. I mean, it was amazing, right?
- [35:37]
Dalia Lithwick
It wasn't even just she threw him under like a steamroller and then backed it up. But, you know, this is, you suggested this in the top. This is around the Epstein files release. We got transcripts this week from an interview she gave last week before the House Oversight and Government Reform Committee where she said Blanche, quote, was in charge of the process and the entire release of the Epstein files, end quote. And she also said that she knew nothing about Ghislaine Maxwell's contract controversial prison transfer until she actually read about it in news reports. So that was also Blanche's work. Bondi later tried to walk some of that back in a tweet, but it seems as though she has really contributed to. If Republicans want to find reasons to make him unconfirmable, she has certainly given them a shovel with which to dig his grave. Right?
- [36:38]
Andrew Weissmann
Yeah. And this is one where I, I don't think we should let them do the sort of, you know, Alphonse Gaston of it was him. It was her. I mean, it was both of them. First of all, she doesn't get to say as the boss, like, I didn't know and it was him. I mean, she's his boss. So, like, I mean, the idea that she wasn't kept up to speed, I find just fanciful. Or that she wouldn't know that Ghislaine Maxwell had been transferred after this softball interview to a camp. But Todd Blanche also is involved. So, I mean, all of those things are ones where it is helpful that she has said he was intimately Involved. But this idea that somehow it's one or the other, it seems to me it's both. But since he is the one who will be up for confirmation, there's a ton of questions about how he behaved with Ghislaine Maxwell, why he thinks it's appropriate that she is in a camp as a reward, why she was given only softballs and not asked, like, a myriad of questions that you would ask anyone. I mean, he was a prosecutor in the Southern District of New York. He knows exactly how to ask questions, and he didn't. And this is one where anybody like an Adam Schiff who has been a prosecutor is going to have a field day with that. Including. One of the things that Todd has said is, well, we didn't have a number of the documents that were particularly damaging at the time of that interview. Well, then why didn't you go back and ask her about it when you did get them? And why do you think she was lying? And if she was lying, why did you put her in a camp? Let alone even if she was telling you the truth, why are you putting in her camp? I mean, she was sentenced to a huge amount of time, an appropriate amount of time that a judge found with people in those sentences don't get put in camps. And then there's just the fact that he has not released the Epstein files. And his story is insane. Dalia. His story about why he is not doing it is. He says, well, well, you know, Dalia, the remaining 3 million are duplicative. Wait, that's a reason not to turn them over? I'm sorry. If they're duplicative, then why are you creating an issue? Just turn them over. And I would really like to have him answer the following question. In the 3 million documents, is Donald Trump's name in any of those documents? Have you turned over every single document that has Donald Trump's name in it? Period? The end. That is the question that needs to be answered. And that, I think is one that I hope that the Senate is very good at being like a dog with a bone on that. And if he ducks it with one person in hopes he can run out the clock for that particular senator, that the next senator takes it up and says, you didn't answer the question, and sort of keeps hammering him on that, because that's a traditional strategy that people have when they testify. And by the way, that's true of Democrats and Republicans. And it's incumbent on our representatives to be better at getting answers.
- [39:41]
Dalia Lithwick
I have one other story from this week. That I want to touch on before we move on to big picture questions, and that is U.S. attorney Andrew Boutros in Chicago continues to draw scrutiny this week. Senators from Illinois, Dick Durbin and Tammy Duckworth are calling for his resignation. We've actually been talking about him on the last couple of shows with respect to the flagrant mishandling of the Broadview Six prosecutions. Again now with respect to the Release of a 5 page special report explaining how all the things that led to him getting hauled before the judge in the Broadview Six case and all those charges being dropped were actually somehow. Okay, I don't know even where to start asking. You talked about things that are simply not normal at doj. This strikes me as like the most not normal thing I've seen in an abnormal justice Department. What, what are your thoughts?
- [40:38]
Andrew Weissmann
I have a sort of in the weeds comment on this, which I will explain. But first, I'll give like the big picture. This is the case where the federal judge looked at the grand jury minutes and was flabbergasted because the prosecutors were speaking to the grand jurors off the record about the substance of the case. Neither is not in the grand jury and not on the record. That is absolutely forbidden for Bowden. Any first year person knows this. And here, by the way, the attorney who apparently did this was a career person. And it tells you to me sort of like, what are the pressures on these people? Like, what led a career person who had to know better to do that? Second, the and this may be the most egregious in my book is that when the grand jurors disagreed with the prosecutor, they were kicked off the grand jury. So imagine you're supposed to get just a bare majority of grand jurors to pass an indictment, and they only have to find it by probable cause, which, you know, it's a very low standard. Think of it as like 20%. But you have a grand juror saying, you know, Dalia, I have a problem with this. Oh, you do? Well, then you're excused. Why even have a grand jury if that's the case? You just go through grand jurors until you find a majority that will vote. I mean, that's just unbelievable. Third, when the judge said, I want to see the transcript, they give her the transcript, but they redact all of this out. And the judge sees that and goes, wait a second, I asked for everything. And there was a discussion about, oh, it's just it issues. There was like there was some suggestion this was just a nebulous that Wasn't nefarious. And so the prosecutors are sitting there during that discussion going, yeah, they know what's been redacted, but they're just like, oh, it. Yeah, it's. It. Well, no, it turns out the things that we just talked about were redacted out. So, like, the judge has this excoriating part of the transcript which says, I teach my children when you make a mistake to own it, you don't lie about it. I mean, it was just incredible. So that leads to the whole case just being thrown out. First the felonies were thrown out, then the misdemeanors were thrown out. There was a whole question about what the U.S. attorney knew. He tried to defend his folks and say that it isn't as bad as everyone thinks. And then, as you said, he then comes up with this ruse to release the grand jury transcripts just to defend himself, which, by the way, is also. Is not what's supposed to happen. Um, I mean. But can I just say one of the things, and this is the in the weeds part. As a friend of mine say, it's like going straight for the capillaries. It is not the worst of the things. But so here's the U.S. attorney. He releases this transcript supposedly, because it's going to help him to say, oh, I didn't do anything bad, and I didn't speak to the grand jurors myself. But he did speak to the grand jurors himself. And what he said is, in my book, completely inappropriate. He meets with them and says, you know, can you be fair? You know, if you have trouble with, like, immigration policy, like, let me know because we can take you off and, you know, blah. I'm sorry, that's the judge's job when he says that to them. He's the prosecutor in the case. The instructions to the grand jurors about what they obligations are. All those instructions are given by the judge, not by the advocate. And so I was like, I'm sorry, why are you saying any of that? The responsible thing for the U.S. attorney, if they thought that was an appropriate thing that needed to be said, was to tell the judge, this is what I think, they need to be instructed and let the judge do it or get the judge's blessing to have you do it. But I was just struck by the fact that I was like, you should not have been saying that at all, because who on God's green earth do you think you are?
- [44:51]
Dalia Lithwick
I want to stick with the theme I asked you earlier on, which is, it's clear to me that the view right now of some of these prosecutors is, you know, line. What line? There's no line. We're skipping over the line. There are no consequences. And that very much feels like the vibe here. In fact, we're now hearing like, oh, he's going to talk to more grand jurors about stuff like this, and maybe when grand juries get it wrong, we'll do something else. So it seems to be an attempt to get people to normalize what he did in real time. And yet, hours after the report was published, the former defendants filed the first of what is expected to be multiple motions for sanctions against the feds, demanding that DOJ pay their attorneys fees, claiming wide ranging misconduct by the prosecutors in this case. And I know vindictive prosecution is hard to prove, Andrew, but boy, it feels like, again, we're in this funny game of chicken where because this never happens, it's hard to win when you say, but this is happening. But do you have some sense that these folks will be held to account?
- [46:02]
Andrew Weissmann
I have two thoughts on this. One, can people please remember what I said about Todd Blanche saying that bar associations shouldn't have any overs over attorneys? Because one of the obvious things that the judge can do here is refer the prosecutors who she thinks may have violated the law or the ethical norms to the bar association for consequences. And people should know, like Rudy Giuliani was disbarred, there are real consequences. And that is an important and one of the few guardrails we still have that works. The judge also can sanction them. She can impose attorneys fees, as you said, but there still are limited authorities. And I also think that judges just, I think by their training and their nature try to go sort of up to the line and saber rattle without actually pulling the trigger. And I understand the validity of that in certain situations, but if you keep on doing that, that the message is you're a paper tiger and you are becoming part of the permission structure. Now, with this judge in particular, I suspect she, it is so egregious here, I would be surprised if she doesn't take action. Obviously, I'm enough of a defense lawyer and prosecutor that I'd want to hear what the prosecutor was thinking. I look at others, we haven't heard, heard the complete other side, notably the main prosecutor who did this was not present in the courtroom when the main transcript that was revealed. She wasn't there, which I have a million questions about why not? The most junior prosecutor was there until the US Attorney shows up. So I'd Want to hear what the argument is. But I have to say, as somebody who's done grand jury work for 20 years, I mean, good luck, luck justifying. I mean, dismissing grand jurors who disagree with you and then not letting the judge know when they asked for the transcript, that's going to be a pretty hard one to come up with a explanation. And the problem is you can't come up with an explanation, which is, I didn't know better. I mean, even the junior person knows that you can't excuse people just because they disagree. And when the judge asks you for something, you don't pretend that you've given it when you haven't. I mean, that's something that maybe a first grader could have that argument, but not somebody who's a federal prosecutor.
- [48:36]
Dalia Lithwick
We're going to take a short break.
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- [49:46]
Dalia Lithwick
And we are back with Andrew Weissberg. Andrew, you actually wrote about what's happening with grand juries under this Justice Department and some fixes for that in the New York Times this week. Do you want to tell us a little bit about what your argument is and maybe more urgently what the fix could be?
- [50:06]
Andrew Weissmann
So as you can tell, I'm sort of very, very focused on like, fixes what can be done. And I think this is one that both sides, so to speak, should be in favor of. So, so here's what's going on. In order to get a felony indictment, a federal indictment on a felony, you have to get the grand jurors to agree. The grand jury standard for a felony is, as we mentioned, very Very low. So at time one, when you're going into the grand jury, the standard is just probable cause, like 20%, and it's only a majority at time two. At the criminal case. It is the highest standard that we have in the law. It is beyond a reasonable doubt, unanimously. So you have this huge gap between time one and time two. And DOJ has an internal rule, in other words, read norm, not enforceable, just an internal guidance that deals with this problem. And it says, don't bring an indictment at this low standard unless you have a really good faith belief, and you have reason to believe that you are going to be able to win at trial and on appeal. Appeal. And every administration I've ever operated in has always done that. Not only because it's the right thing to do, but why would you possibly bring a case if you don't think you can win it? I mean, obviously sometimes you'll be wrong and, you know, things happen, but that's a different question. But you aren't going to waste your time and resources and energy, and you're not going to subject somebody to an indictment. There's tons of crime out there. In other words, this is not one where we're trying to find potential crime. The problem, when you're a federal prosecutor, you have a plethora of things to look at so that so much of this is prosecutorial discretion in terms of figuring out who should be investigated. So you've got this time one, time two issue, but the internal rules say, don't bring it at time one unless you can win at time two. The problem is, it is so obvious that is not what's going on, that DOJ is not following that rule. I'm talking about you, Letitia James. The grand jury keeps saying, no, I'm talking about you. The six members of Congress who the grand jury said no. That obviously means that they didn't think, oh, they can win the case at trial when they can't even get the grand jurors to vote. My view of the Southern Poverty Law center case is the facts are blatantly contradictory to the theory of the case. And Todd Blanche had to admit that after he first said, there's, like, yet another thing for his confirmation hearing where he made a public statement that he had to retract, and then when retracting it, he gave a statement that that is directly contrary to the theory of the Southern Poverty Law center case. Talk about the James Comey Seychelles case. I mean, you could go on and on. So here's the fix. You have an internal norm. You have what good prosecutors are doing anyway. Just put it into law. Just get Congress to say that what you need at time one is that you need a higher standard, and that is what prosecutors are doing anyway. So. So the government can't say, oh, wait, you're completely changing what we're doing. No, we're putting into law what you say you are doing and should be doing. And the Democrats say that there's weaponization going on. Now Trump and Todd Blanche say there was weaponization going on in the Biden administration. Let's say, for purposes of argument, that's true. I completely disagree, but let's say that's true. Both sides should agree that we do not want weaponization and that we do not want to see indictments unless you meet this higher standard. And so my proposal is one that Congress could pass any day of the week, which is to have a higher standard for when you can get a felony indictment.
- [54:00]
Dalia Lithwick
So this is a great segue to your book because it's another place where I think you're trying to drill down on the problem. I feel like you and I started talking about this years ago, which is that we believe that we live in this immutable castle of law, but we live in a castle of soft, squishy. It's like a bouncy castle of soft norms. And, you know, frequently that which is being violated isn't illegal. And the thing you want to do is to torture. My metaphor. Put some steel girders in your bouncy castle. Forgive me. That was truly painful.
- [54:36]
Andrew Weissmann
Exactly. Exactly.
- [54:37]
Dalia Lithwick
Before we talk about going after liars in politics, I want to talk about why liars kingdom how to stop Trump's deceit and save America. You really went to the beating heart of what I think is the most destabilizing thing that Americans are feeling right now, which is truth is unknowable. Everybody lies all the time. If I can't believe anyone, I may as well believe what my tribe is telling me. Whatever my media bubble says is the truth. Whatever theirs says is a lie. In other words, you kind of chose to dive into this swamp of. And I think of it as the sort of Hannah Arendt swamp, Andrew, which is that once you can convince everybody that the truth isn't knowable, you're in big trouble, and you're right there.
- [55:28]
Andrew Weissmann
I start my book with that. I mean, Hannah Arendt has written about a lot of different things, but she also wrote about the role of truth in F, and she was very focused on the role of Truth in Fiction in Authoritarian Regimes and how it can be used. So it seemed like a very appropriate place to start. You know, one of the reasons I start my book with this very personal story where I'm having a conversation with my parents that. And particularly the conversation with my mom, who is 93, and the conversation was when she sees now she has severe dementia. At the time, she didn't. And she was a psychologist. And one of the reasons I told that story, and there were sort of many ways to read it, but I am not tackling what a psychiatrist or psychologist or a sociologist or a political scientist might tackle, which are big, important why questions. And I wanted to sort of acknowledge that up front. That one, I don't have particular. Particular expertise in it. And I do really try and stay in my lane, although in spite of urges and people urging me not to, because I really tried to figure out as an institutionalist and as a lawyer, what is something concrete that could happen that would help us get through the situation we're in. And to use a phrase from my former life when I was in the intelligence community, hardened the target. How do you harden the target of a democracy so that it is less susceptible to these attacks? And as you said, Dalia, Donald Trump has taught us that so much of what makes the Constitution work is norms built around the structure of the Constitution. And obviously there's some constitutional things that are also the problem, but that so many of the norms presuppose there's people acting in a certain way and that isn't working. So what do we need to change? And I wanted to get people thinking about big structural change in this 250th anniversary of our country.
- [57:48]
Dalia Lithwick
If you had told me that people would be famished for a book about how lying is bad, I might not have believed you because I think we're so inured to it, as you said, by design. And yet something seems to be resonating about the idea of a book about lying being bad. And I wonder if you have some sense of what it is that is chiming with a public that is maybe not quite as willing as you and I may have believed to just accept the lies as truth.
- [58:23]
Andrew Weissmann
About a year ago, I was giving a speech to a lovely crowd, and at the end of the day, it. There was a Q and A section, and one of the questions was just, well, you said you're going to be on the sabbatical and writing a book. What's your book about? And I gave just a few sentences on the theory and for those people who are either read Liars Kingdom or interested, it is about holding American politicians and candidates to account for lying, in other words. And when I say account, I mean holding them them to account criminally or disbarring them from being able to hold office. And I use examples from other countries and, you know, so called western countries in our model. So England, France particularly paid attention to Brazil. And so I gave this quick overview and I got a standing ovation. I have a big ego, but it's not so big. I don't get standing ovations and obviously weren't standing and evading me. There was a sense of these people who are politicians work for us and if they lie to us, there needs to be accountability. One of the things that I focus on in the book is if you lie to Congress, you can go to jail. Roger Stone was charged and convicted of that by a jury. But if Congress lies to us, nothing, zero. And so I sort of work through the First Amendment issues, the sort of the presses and minuses of it. And I don't think it's striking a chord because it's me or because, I mean, I had a wonderful editor. So I actually think it is beautifully presented. Everything about the readability of this is my editor. Whatever flaws are mine, but I don't think that they're relating to it because it's me, because my editor did a great job. I think it's that we know that Donald Trump has lied to us. We know that there is complicity. We know that Congress is not doing its job. Yes, it is great that you're giving us the ins and outs of what's going on and how to think about something or to understand what the Supreme Court is doing or what this district court judge is doing. But what are the answers? Like, what are some ideas as to what we can do to get out of this and not just be like, we need civics classes or just go vote, because that's not structural reform. It is helpful. And by the way, of course I think we should have civics classes, but I say this in my conclusion.
- [61:02]
Dalia Lithwick
And we should vote.
- [61:03]
Andrew Weissmann
Yeah, of course, of course. All of those are prerequisites, but it's not enough. And my analogy on the civics classes, which was it's like, you know, the Titanic hits an iceberg and the captain says as his first reaction, we need to invest in better radar. That's true. Not the time and place for that conversation. And so that's sort of my answer to civics classes is we don't have another generation or two. And it's, that's actually also much more complicated. So I think that's my take is that there's, there's a thirst for ideas and for people who read my book and say, you know what, I don't know that this is the answer, fine, but the idea is what would you do? What's the answer here? What are the other things? That's why I'm glad you mentioned sort of the grand jury idea. That's sort of a smaller thing, but it's the idea as to how do we fix the problem of retaliatory indictments. And so, so there are just lots of things like that that we need to be thinking about. And if I had to say what Democrats or responsible Republicans or Independents should be thinking about is stop worrying about polling or just being like, I'm not Donald Trump and think about inventive ideas that I know this is only one data point, but it is quite a large data point in the sense that this book just suddenly skyrocketed and so there is an actual interest and people are reading it and are looking for some answer.
- [62:41]
Dalia Lithwick
So maybe play us out with like a steel girder in the bouncy castle of American jurisprudence and tell us what the actual fix for the costless lying, the thing you are proposing in the book, just so that folks have a thing that they can, you know, pick up and say, this is, as you say, either this is something I want, want Congress to fight for, or I have a better idea. Tell us about the Truth in Elections act that you're proposing.
- [63:08]
Andrew Weissmann
So I have sort of two types of proposals. One is just criminalizing intentional lies, just to be clear, intentional factual lies, not opinions. And it's gotta be something like there was material fraud in the 2020 election. To me, that's a classic example. The other is, is something that disqualifies you from holding office. By the way, New York State, if you are convicted of any felony, New York State under state law has a rule that you are automatically, automatically removed from office. And that is an elected office or non elected of any public office. If you are convicted of a felony, you're out. So let me just give you two examples from the real world world of what happens in England and Brazil. In England, if you are found after due process. So this is like, you know, you get to defend yourself, but if you are found to have intentionally lied about your political opponent in a campaign, you are disqualified from running. So the one example I give is somebody then won in that campaign and they were taken off the ballot and they could not hold office because they found they intentionally lied. And obviously there's a legal standard that has to be met. It has to be intentional. I mean, all of those things. It has to be factual. It can't just be opinion, it can't be, I think we should have more immigration laws, we should have less immigration laws or a debate about the woman's right to choose. All of that is opinion. Second, second, in Brazil, the former President Bolsonaro, who is remarkably similar to our president, down to how they treat women and the lawsuits against them for how they have treated women, Bolsonaro, before he was convicted of engaging in insurrection, sound familiar? It sounds familiar except for the part about convicted. Because in Brazil they actually went to conviction trial and they actually had a functioning judicial system that can hold someone to account, as does France, by the way. Other so called western countries have figured out how to have real trials, not shared trials of political leaders, which is a necessary component of having a healthy democracy. Ours is, in my view, not healthy because we don't have those trials. But for Manhattan and, and before he was criminally convicted, he was tried for making false statements about the election. And the false statements were that he won when he lost. And what had to be shown was not just that he was wrong, but that he knew he was wrong and intentionally lied about it. You know what? They found it. And under Brazilian law, he was precluded from running for office for a set term of years. A similar thing is going on in France where Marine Le Pen is currently barred for running for office because she engaged in fraud to the tune of, I think it's hundreds of thousands of euros she's appealing it, as is her right. And if she wins that, then the ban that has been imposed on her for five years, that she cannot run for office, that would go away. But right now she is precluded because of that offense. So there are models that I look at and that we can look at. And again, I don't say it's like apples and apples, like you can just grab it and bring it here. Germany is a good example where I think that their model is one that I don't think would fly here. But there are things to look at to say, you know what? Other countries have figured a way out of this.
- [67:01]
Dalia Lithwick
Andrew Weissman is an MSNow legal analyst, a veteran federal prosecutor, having served as the lead prosecutor in Robert Mueller's special counsel office. He is a professor of practice at NYU Law School and His brand new book, Liars Kingdom how to Trump's Deceit and Save America came out a couple of weeks ago. It was an instant New York Times bestseller. Run out and get it and get one for your friends. Andrew, as ever, thank you so so much both for your time and for the roadmap through this, which I think we sometimes forget to button down. There are steps to take. We appreciate you so much. Thank you, thank you. And that's all for this episode. Amicus Plus Members if you haven't yet listened to this week's extra episode following the Alabama redistricting decision, it is in your feed right before this one. Mark and I are on standby for the next big decisions that come down down. Next scheduled day for opinions is Thursday. In the meantime, if you are not an Amicus plus member, Opinion Palooza is a great time to join us for ad free listening, unlimited reading@slate.com our bonus episodes on Amicus and access to a special end of term members only Q and A. Visit slate.com amicusplus to join the joyful ranks of our plescatine. Thank you for supporting the work that we do. That's slate.comamicus plus. You can also subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Thank you so much for listening and thank you so much for your letters and your questions and your comments. We read them, we appreciate them. Keep them coming. We are always reachable by email@amicuslate.com you can find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube or rate us and review us on Apple Podcasts. Sara Burningham is Amicus Supervising Producer. Our producer is Sophie Summergrad. Extra Special thanks again this week goes to Senior Supervising Producer Joel Meyer. Hillary Fry is Slate's Editor in Chief, Susan Matthews is Executive editor, Mila Lobel is Executive Producer of Slate Podcasts and Ben Richmond is our Senior Director of Operations. We'll be back with another episode of Amicus next week. Hi, this is Brooke Devard from Naked Beauty. I am always looking for ways to elevate our daily rituals, and the Kohler Smart Toilet is proof that design changes every everything. It's this stunning sculptural piece that feels like quiet luxury for your bathroom. It totally transforms your daily ritual into something elevated with customizable cleansing and touch screen controls. It's functional art that makes your space feel cleaner and more intentional. A modern home deserves a modern toilet experience. The difference of Kohler Smart Toilets. Find more@kohler.com this is Kat and Nat from Catnat Unfiltered and this episode is sponsored by Michael's. Your destination for all things Birthday Parties. If you've ever planned a birthday celebration, you know it goes from cute idea to full on chaos real fast. The Party Shop at Michael's makes life easier with over 4, 500 party supplies in 60 plus themes like Bluey Rose, Rodeo, soccer, Rainbow and more starting at just 99 cents. You can shop same day delivery or order online for pickup in store and they even do free helium inflation on select balloon styles. Michael's Everything to celebrate anything, visit Michael's in store or shop online now.