← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Mapping the Mueller Investigation
01:06:38
Mimi Rocah draws a legal map of the Special Counsel’s investigation, dotted with “buckets of criminality”, plus inside the arguments about whether half of Oklahoma is an Indian Reservation.
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- [00:11]
A
It's easy when we're getting the play by play, day by day, to look at each individual thing in isolation. And one of the basic rules of putting together a case, a prosecution, is to look at everything together and how they intertwine. Every piece of paper, record book, dollar bill, or coin or property, their buildings, their furniture, their desks. Everything was taken away from the tribes.
- [00:48]
B
Hi, and welcome back to Amicus, Slate's podcast about the Supreme Court and the courts and the law and the rule of law. I'm Dahlia Lithwick. I cover the many of those things for Slate. And this week's show is actually going to take us back into the courtroom at 1 1st Street. And I wanted to do that because this is an intriguing and important case that didn't get enough airtime. It's a complicated and historic and fascinating case about Native American tribal sovereignty. And it was argued last week at the court. And that will be coming up later in the show. But we thought we'd start this show with the swirling legal story of the endlessly complicated Robert Mueller probe. It now seems to be accelerating. It's heating up in what I think we could probably just call the Special Council December Advent calendar, where every single day we get some new revelation. The force of these revelations can be sometimes lost to us because there's just so very much to keep track of. So many players, so many. So many actions, so many pleadings. We don't even know what is good or bad or important anymore. And today we thought we'd try to do a meta read of all that, of what's happened, what's to come, what matters and what doesn't. And there is nobody better to help us with that than Mimi Rocca. She is Pace Law School's Distinguished Fellow in Criminal Justice. Prior to that, she was an Assistant U.S. attorney in the Southern District of New York from 2001 to 2017. As an AUSA, Mimi successfully prosecuted and tried a whole bunch of cases, including some high profile organized crime cases. And so she hopefully, hopefully can see the twists and the turns that we're all missing and help us do a little sorting of forest from trees. So, Mimi, I'm sorry, that was a huge, huge load to pile on your shoulders, but welcome to the podcast.
- [02:41]
A
Thank you. No pressure, no pressure.
- [02:43]
B
Forest, trees, forest, trees. So I think what I want you to do, if you don't mind, is help us with this one mystery question, which is collusion. Because you know the President, he likes to tweet, no collusion, no collusion. But as you know better than anybody, there's not really a thing that is collusion. Can you help us understand what comes into the bucket of. To the extent that the President is accused of colluding or people in his campaigns are accused of colluding, what are the conspiracies that we're talking about?
- [03:16]
A
First of all, I think that you said it correctly. It's not collusion. It's really conspiracy. If we're talking about looking at it from the legal framework, because there is no charge of collusion, but there's certainly charges of conspiracy. And conspiracies can take many different forms. So just to get in the weeds for a second, There's a statute, 18 USC 371, and it has two different kinds of conspiracy. One is an agreement, a criminal agreement to commit a crime, meaning, like violate another statute. So, for example, if we agree to rob a bank and we take steps to further that, we're committing a crime under that statute. One prong of that statute, and there's, I mean, I'm not listing all of the elements here, but you get the idea. Then there's a separate one which is conspiracy to defraud the United States. And that basically says that you commit a crime against the United States when you interfere with a proper functioning of the laws of the United States. So it's similar, but a little bit different. It's much less frequently used. I don't think I had ever charged anything under that prong, but it's a perfectly legitimate statute that's there. And in fact, I think a judge recently upheld it in the Concorde management, the case against some of the Russians that Mueller has already charged upheld it as a valid theory. And that's the sort of theory that Mueller's been proceeding under. And it makes a lot of sense, right, because you look at sort of individual things that acts, conduct that people did who are involved in this whole saga. And when you look at them individually, well, is it a violation of this foreign registration act? Is it a violation of the hacking laws? What are these specific little crimes? But when you kind of put it all together, you look at the purpose of those acts, those individual acts was as charged with the Russians, for example, to interfere in the election and make the election go a certain way. And so I think by charging it under that conspiracy prong, Mueller really captures the purpose of the acts and the individual crimes that people are committing. And so now what we're starting to get inch closer toward and understand a little bit more is were there Americans, citizens, people Here who were involved in those kinds of crimes in different ways, small or large.
- [05:51]
B
So I'm going to ask you something totally unfair, which is, can you, when Donald Trump tweets, they tell me there's no collusion. I know there's no collusion. My lawyers say no collusion. What does he mean, do you think? What does that mean to him?
- [06:05]
A
Well, yeah, I mean, I've been saying this actually for, since he first started tweeting. I think first of all, Trump has no idea what the conspiracy law means and how it works. So when he says, he literally has said sometimes now he's gotten into the broader gist, it's a witch hunt, no collusion. But for a while he was actually saying, I had no phone calls, I had no meetings do this. And I think that he may actually believe that, you know, as long as he didn't do that. And this is common, I mean, we should, we should point out this is common amongst criminals. I can't tell you how many people, cooperators I met with who thought they hadn't done anything wrong because they hadn't actually had face to face or phone to phone conversations or email contact with the other person who they were charged in a conspiracy with. And it took a while, it would take a while in those proffer sessions to explain to people you don't have to. That's not how conspiracy law works. This is a widely used law that is very broad and you can actually join a conspiracy with someone you actually have never even met. That's not sort of the point of the law. Right. It's to capture whether you're working towards a common scheme. So I think Trump doesn't understand that even if he didn't know, let's assume for a moment every part of sort of what was going on here, how they were gonna throw the election or when exactly that was going to happen. As long as he had some idea of the understanding of the broad purpose of what they were doing and he did something, anything material to sort of facilitate that in some way that could put him in that conspiracy. So, you know, again, we don't know all of the facts, but I think he has a fundamental misunderstanding of the law. And so when he says no collusion, he's actually talking about very specific conduct that, you know, may be true, that may be actually right, that he didn't have phone calls with Russians about hacking the election, the emails and throwing the election. But that's not what's required under the law.
- [08:14]
B
And I just wonder because as you're talking, I'm thinking. But this is what makes it so easy to say witch hunt. Witch hunt, Right. This is what the, the breadth that you're describing. You could just be having a, you know, little conversation with Roger Stone. You don't know he's talking to Corsi. You don't know that Assange is involved and isn't. That's the breadth of it. The very thing that allows Trump and his defenders to say, oh, my God, Mueller has a license to tag anyone who ever talked to anyone about anything. And that's the problem with these really broad conspiracy laws.
- [08:48]
A
Well, look, I mean, without getting into sort of a, you know, a constitutional analysis of the conspiracy, I mean, first of all, I think it's fair to say people are charged and convicted under this law every single day all across the country. So Trump isn't being sort of put under a microscope, that every other American citizen isn't who, you know, gets investigated for a crime. He happens to have a really good prosecutor holding that microscope, Robert Mueller. But, you know, it's a very widely used law. Second of all, there are, I mean, you know, I don't want to make this into a law review article, but there are knowledge requirements. So, you know, it's not. You don't have to have direct contact and phone calls and things like he seems to be thinking, but you do have to have knowledge of, you know, what is going on, so to speak, and what the scheme is and the goals of it and further it in some way. You can't just be a passive. You wouldn't be charged if you were just a passive participant or were being duped in some way. And third, and I know we'll get into this a little bit more, but I think the facts as they're starting to play out here really show us that Trump and people around him were much more invested in this than, you know, he's certainly letting on. And even that some of us, you know, who have been following this previously understood. So for him to say, you know, it's a witch hunt because I didn't know what was going on, I think is really not going to be borne out by the facts here.
- [10:17]
B
Can we talk about obstruction for one little second? Because that's the other charge, right, that Mueller is supposed to be looking at obstruction. And from where I'm sitting, Mimi, you fired Chim Comey. Boom, right? It's over. And then, oops, you say that session isn't loyal, so you fire him. It feels like, I guess I want you to just Explain to the extent that the only thing anyone is focused on is this Russia collusion, you know, election stealing claim. Tell me how important, relative to that is the obstruction stuff that we just don't hear about.
- [10:55]
A
I think with the obstruction, a couple of things are going on. One is with any other defendant, target person who had done those kinds of acts, I think a, you know, ambitious prosecutor could charge an obstruction case based on the acts that we know of just in the public record. But I think it's super complicated here in ways that it's not with other people. One, because he is the president and he at least has this argument that a lot of the acts that he did because of his executive power, they can't be challenged. I don't think that's right. A lot of legal scholars have written and talked about this and why that's not right. But it's certainly a complicating factor and it changes the analysis. Right. It's different than just looking at someone who tries to silence a drug dealer who could cooperate against him, for example, or fire someone who works for him because he's afraid that person is going to rat him out for committing fraud within a private company. So there's just different considerations. The other thing is that while obstruction crimes are in and of themselves very significant crimes, and they, again, are charged frequently by prosecutors, prosecutors and FBI agents place great value on them because the whole system depends on witnesses being truthful and not interfering with investigations in ways that are not part of a legitimate defense and doing it in corrupt ways. That said, it's much easier and better to charge those kind of crimes when you also can prove or charge the underlying crime that people are trying to obstruct. And I think here, if Mueller only ends up coming out with facts about obstruction with respect to Trump, I think that's going to fall with a thud here because of who Trump is and because of the whole history here. Not to say he shouldn't do that. And if that's all he has, that's all he has in terms of facts to come out. But I think that part of why this is taking so long, notwithstanding the really obvious facts that you pointed out about obstruction, is he's still working on the underlying case that is, I think, central to explaining the obstruction story as well.
- [13:19]
B
Is it correct to say the more Mueller seems to be turning up the temperature on the collusion piece, the more Trump seems to be obstructing? I mean, it just feels as though there's more and more kind of going on behind the scenes that we're just barely catching that is trying to shut this down.
- [13:37]
A
Absolutely. I mean, I think the more the heat gets turned up, the more desperate Trump seems to feel and the more bold he gets. Now, I agree with you that firing Comey was pretty. A pretty bold first move. It obviously would set all of this off, but I would say tweeting and giving statements to potential cooperating witnesses, that they should basically stay strong is really, really over the line. I mean, in my mob cases, if I had a recording of a mob boss telling one of his underlings, stay strong, I would charge obstruction, witness tampering, 100%. Now, there may be arguments. Trump tries to sort of put these in the context of, well, I feel sorry for him and he's being treated unfairly because he worked for me. He can lay that groundwork for that defense. But I think it seems pretty obvious to anyone who's looking at this with an objective lens, not trying to make excuses for Trump, that that is. That is criminal behavior. And, you know, with. With other evidence, obviously, and surrounding circumstances. And just because Trump does it publicly doesn't make it any less so, I don't think.
- [14:51]
B
So. This brings us to what I think is the nut that is just very hard for folks to process, which is that there is just this inchoate blob you've talked about some of it. You know, we've already charged Russians. There's a troll farm, you know, hacking. We know that there is one bucket of this, which is interference in the election, and that sweeps in Jerome Corsi, it sweeps in Roger Stone, it sweeps in Don Jr. In that Trump Tower meeting. And then there are other buckets that I think are only starting to be revealed now. So, for instance, in the Flynn revelations, just this week, we're hearing about these mysterious other investigations, and then a lot of redacted stuff. So in addition to the conspiracy you sort of laid initially, which is this agreement to do something around the election, there are other buckets of things, including now, I think, something to do with Trump finances and corruption. Can you try at least to help map for us what the other things are that Mueller. We're only getting hints I recognize, but that Mueller is looking at.
- [16:04]
A
Sure. So I think you hit the nail on the head in the sense of sort of thinking of this like a map. Right. Because I used to tell assistance that I would supervise all the time. Don't lose the forest for the trees. And you know that it's easy when we're getting the play by play day. By day, to look at each individual thing in isolation. And one of the basic rules of putting together a case, a prosecution, is to look at everything together and how they intertwine. Now, we are at a severe disadvantage because we don't have nearly even a part of all of the evidence that Mueller has. And I do have to put in one word of caution, which is some of that evidence may be helpful to building a case against Trump and his people, and some of it may not. Some of it may go the other way. So I do want to try to stay as objective as possible here. You know, I'm going to accept Mueller's findings, whatever they are at the end of the day, whether they find crimes committed by people or don't, because I believe in the process that he's following, as long as he's allowed to do it unimpeded. So I think we have to keep that in mind. That, that said, there's a lot of things we already know that seem to point to sort of different, as you say, buckets of criminality and how they fit together, I think is starting to come into play. And I think that started to happen with the Cohen guilty plea last week. So I'm going to talk about that bucket for a second. Cohen pled guilty to lying about negotiations over a Trump Tower Moscow in the months leading up to the Republican primary. Up until I think the words and the information were as late as June 15, I think 2016, mid June 2016. And that date was in there for a reason. I mean, obviously prosecutors put in dates, but I think the phrasing of as late as June 2016 is important because that's also the month that the Trump Tower meeting happened between Manafort, Kushner, Don Jr. And the Russians who came to bring them dirt on Hillary Clinton. There was just a lot of activity. It's around the time that Trump made his call out to the Russians for the remaining emails in a public press conference. There was a lot of activity then, Cohen has said, and there's been reporting that the Trump Tower Moscow, the negotiation of that project was called off in June. And there's at least a theory that that was done because this started to get news reports around that time that the Russians had, in fact, hacked the election. So why is that important? Why are Cohen's lies about to Congress about the Trump Tower Moscow important? We know they're important because Mueller made him plead to it and he didn't need to do that. Right. There are other crimes Cohen has already pled to. He's facing more time on those other crimes in the Southern District. And we know because Mueller held onto those crimes, in other words, kept it within his purview, the special counsel's office. Those lies about the Trump Tower do relate in some way to the investigation of the Russian conspiracy or collusion. The question is, how do they relate? And I feel like what's starting to come in to view here now through that and through some things in the Flynn filings, and just when you, you know, as the reporters start to focus on this more, the idea that Trump was pursuing this Trump Tower, he wanted it so badly, right? He's wanted it for good, I think, years in Moscow. And what does Russia want? Russia wants relief from sanctions, and they've wanted that for years. So you see both parties here really have something to gain. And how do you make that happen? Well, you make that happen by Russia making sure that Trump becomes President Trump letting them know ahead of time, basically, I'm laying this out in simple terms. I'm not saying we yet have this evidence, but Trump letting them know that, in fact, yes, if I become president, I will relieve sanctions on Russia. I will do that. And in fact, he was asked that question, I forget the exact date, but by a supposed random reporter at a conference, what his position would be on sanctions. That random reporter was Maria Butina, who is now a charged Russian spy. We still don't know the exact connection there, but it seemed very rehearsed where she asked him about what his position on sanctions would be. And he said, essentially, you know, I don't think we would need those sanctions. We could have a good relationship with Russia. So you already have, even again, out there in the open, this sort of advanced promise about relieving sanctions. And we know through Cohen that at least up until a certain date, the Russian government, the Kremlin, was responding to Cohen about moving forward with these Trump Tower negotiations. So right there, both parties who want things from one another, we're exchanging ideas and just having discussions about moving those two things forward. Are those two things connected? Was it a quid pro quo? I give you a tower, you give me the presidency. Or you could say it either way around, we'll give you the presidency and you give us sanctions relief. That is really the question that I think Mueller is trying to answer and I think is starting for me anyway to come into view as a real possible theory that could be charged in many different ways, including as a bribery scheme. I think that's why the Cohen plea for me really focused, and it sure is starting to look like the business entanglements, the sort of dirty business, if you will, that we've all been talking about but didn't have a framework for. And the Russian interference and this idea that the Russians had something over Trump, that those two things are starting to look more and more like one thing and part of one scheme.
- [22:16]
B
Mimi, I'm so glad that you raised that last piece, because that's the thing. You know, I think Rachel Maddow did it on Friday night, and then Adam Schiff did it on the Sunday shows. But I think that one of the things that also gets a little lost here is this started as a counterintelligence probe. This started as questions about is there something compromising that Russia has over Trump that is affecting his conduct and his decisions? And I just want you to talk about that for a minute because I think that's another chunk of this that has fallen out, that one of the things you're saying right now, and I think that Representative Schiff was really saying, is it doesn't have to be a pee tape. It could be simply that they know that Michael Flynn, they know that Trump and Don Jr. Lied. Tell me in like I'm seven why that matters, right?
- [23:11]
A
So, absolutely, again, this is why the Cohen plea was so revealing. Because not only was Cohen lying to Congress about the fact that Trump was seeking from the Kremlin at the time he was trying to be president, a permission and advancement with the Trump Tower in Moscow, but Trump was lying about it. Right? I mean, he now says, I told everyone from the beginning, absolutely not. You could Google it and come up with 10 examples of Trump back then saying, I have no business entanglements with Russia, I have no business there. I don't care. I don't want anything from them. So he outright lied, if nothing else, to the American public about it. And every time he did one of those lies, every time he said that someone in Russia or many people in Russia knew he was lying and could exert leverage over him and could say, okay, we want X from you, and if you don't give us X, we're going to reveal the fact, we're going to put out those emails that frankly, I think Robert Mueller has now showing the Kremlin and Michael Cohen negotiating on your behalf about a Trump Tower. So, you know, I mean, you can think about it really simply. If I do something that's embarrassing and I don't want someone to know about it, everyone to know about it, but somebody knows about it that somebody who knows about it can Exert pressure over me and leverage and say, if you don't do what I want you to do, you know, I'm going to reveal this. And frankly, that happens in other kinds of crimes all the time.
- [24:44]
B
So this brings me to the sort of womp, womp part of this, which I guess you knew we were getting to, but that is. I'm sorry, Trump doesn't want to be caught out loud lying. Like, really, that's, you know, what Russia has on him that's compromising, is that he lies. That's crazy, right? Because he lies 8,000 times. So why. I guess it's part of, you know, you made the point that when he tweets, he's like, oh, I'm just kidding, or I'm just evincing sympathy for my former lawyer. But I think, you know, I think there's this way in which, because he does everything openly and flagrantly, the idea that, like, wait, he was lying and the Russians would use that to do what, you know, tell America that he lied. It all seems that there's something about how flagrantly all this misconduct happens. You know, he's like, dude, I'm a businessman. I had to keep my business running. And so there's. I feel almost as though the answer to every single thing that you are saying that is technically and systematically correct is, but so what? Because nobody cares that he lies, right?
- [25:45]
A
Well, I guess two answers to that. First one is just because this is the way the scheme is supposed to work. In other words, the Russians think they have something over him, doesn't mean it's successful, because they don't know who they're even. They may not know exactly who they're dealing with here in terms of someone who seems so shameless in his, you know, someone who just has no regard for the truth and doesn't. Doesn't care what people think about that. But I think that's less likely than the second answer, which is, it's not just, okay, you told a lie to the American public about doing business. I think there's more to it, and that's why I think. I think it's not. You know, what we know is what Cohen pled to him lying about. I think there's still more to the story there about these negotiations and how involved Trump might have been in them. And, look, Trump may not care. I mean, maybe it isn't as much of a national security risk to have someone have leverage over this president as other because of his personality, but I think there's probably more to the story there that, you know, that we don't know that. Look, there's one thing we know. Trump has never wanted to release his tax returns. So there's something in there that he cares about the public not seeing. And I've always wondered that same thing. Well, what could it be? I mean, he doesn't care what anybody thinks or if he lies. So what is it? And I am pretty sure that the answer to that question about the tax returns is going to be linked to the answer to the question of what the Russians have been holding over him, because he has, as you say, he's always acted like someone who Putin has leverage over. And now we know a little bit of that through Cohen. But I think there's probably more to the story, and it's not a pee tape.
- [27:37]
B
Mimi, do you have any. And this is now just spitballing notion of what the other, quote, unquote, other investigations that are referenced in the Flynn filings that came out this week there. There are at least two. We know Michael Flynn met 19 times with Mueller's team. That's a lot of times. What do you sense are, in addition to the investigations we've already discussed here, do you have any sense of what else Mueller's pulling the string on there?
- [28:07]
A
Well, I think what's starting to come out is that one of the investigations is unrelated to Russia and has more to do with business dealings with Turkey. And I think, you know, I mean, Flynn himself was sort of intertwined with Turkey and Erdogan, and there may be something having to do with that. Tim o' Brien had some good reporting on how that may sort of tie into Kushner. I think. I mean, it's speculative, but based on reporting that I've seen and sort of knowing what Flynn might know about, I think it might relate, you know, not to Russia, but to a whole separate area of business entanglements and corruption, which, with respect to Turkey and maybe Saudi Arabia as well. And then within the Special Counsel's office, you've got, obviously, the Russia piece, which I think is, again, bigger than just, okay, did someone help them hack the emails? It's everything we've been talking about here. And then also the obstruction piece.
- [29:11]
B
I think, before we entirely walk away from this map, you're drawing one of the most interesting things to me. And again, this is your job, so you're gonna explain it to me. But it seems like there are now two teams, Mimi. There's the sort of Manafort and Corsi team, which is the screw you, Bob Mueller team. And they're just, like we said, we were cooperating. We're not cooperating, we're leaking. You know, this is a witch hunt. We want pardons. And then there are, you know, last week we learned that Manafort's lawyers were cooperating with Trump's lawyers, and everybody went crazy. So there's some team that just believes that they're gonna hold out for pardons and fight this thing all the way down. And then there are clearly the Flynns and the Cohens who are like, yes, sir, what else can I do for you? And I, I guess I'm just curious if you have any unifying theory for how is it just crazy people on one team or are. Do they know Trump very well and they're certain of their pardons on Team Manafort? Corsi, do you have some way of helping understand why some folks cooperate and some folks are going to go down in flames?
- [30:18]
A
I do, actually. And, you know, again, I've worked organized crime cases as well as other types of cases, and I think that the act of becoming a cooperator you could do. And probably someone has a whole psychological analysis of the people who do cooperate, the people who successfully cooperate, the people who try and cooperate and burn out, and the people who will never, ever cooperate. And Cohen, from the moment he was in the FBI's crosshairs, I, frankly, people were saying, oh, he says he'll take a bullet for the President. And what I said at the time was, yeah, he'll say that until he doesn't. Because he, to me, seemed like the quintessential person who would become a good cooperator. And I think that is playing out. And the reason for that can also be a little bit, bit explained about Flynn. And it's this. Cohen was very. Is. Was very much a sort of mobster wannabe type person. And Trump was his boss and his organized crime family, if you will. And he is the kind of person, it seems to me, who wants to belong to something and be part of that crowd, whatever the crowd is that he's trying to be with. And it used to be Trump and the Trump Organization, and he felt, you know, special and empowered by that. And then it wasn't anymore. And he had a choice to make, whether he was going to stick with that family, La Familia, or whether he was going to come over on Team usa. And those kinds of people tend to then migrate to, you know, the FBI, and they real. That sort of becomes their new family. And I don't mean that in any bad way. It's literally just people who want to belong and want to feel like they're important and being useful. And now he has an opportunity to do that with the FBI, with the prosecutors. And I think that is something that I saw over and over in the cooperators who were successful both in sticking to the plan, not getting tripped up on their lies, but saw that, okay, I am now part of this team, and I understand that being part of this team means being truthful and telling them everything I know and not holding back and trusting them that if I do that, it'll work out okay for me. And I think Flynn, Flynn is a military guy, right? I mean, that's his background. And remember, Mueller actually mentioned that in the 5K letter, in the sentencing memorandum that they wrote that he's the only person so far to be charged who has this military background. And that's important to Mueller. But I think it's also important to understanding Flynn. I mean, he obviously did some really bad things that are contrary to that culture, but he's still a person who came from an institutional background, again belonging to a group where he derived his importance. And now that group and that person that he gets that from is not the military. It's not Trump, it's the FBI. It's Mueller, who he probably has some respect for, I have to believe, since he's a veteran, distinguished veteran himself. So I think Cohen and Flynn have that in common, if that makes sense.
- [33:43]
B
That's unbelievably insightful. What's coming next if we need to look for not, not necessarily cable TV aha moments, but Mimi aha moments, what are we looking for? That is going to be a big, big pivot that's going to matter.
- [34:01]
A
Well, I do think the Cohen thing, as I explained, was big, but I think that, you know, I do. Look, I do think people are going to get charged criminally. I don't know exactly who that is, though I would put my bets on, you know, Trump Jr. Possibly Kushner, Stone and Corsi had put a lot more money on. And I think in those charges, when and if they happen, we could learn even more about this, the role, if there is one of Trump in any of these schemes, even if he is not himself charged. I think we could learn more about the interactions between people here in the United States and Russia, even if it isn't directly about, you know, per se, the election interference, as we've discussed, because I think any kind of interactions could lead back to that. And so I think that's the sort of the theme that we're going to start seeing more and more of as Mueller gives us more information, which he does in every filing he makes. He even the one that's 90% blacked out, we still learn more information.
- [35:17]
B
Time for one last question.
- [35:18]
A
Sure.
- [35:20]
B
Okay. This is the existential question that we, after we have the discussion you and I just had, we always end up kind of stutter, stepping into the Will it matter? Let's say Bob Mueller produces a glorious Dickensian indictment or report, and everybody reads it, and we all can agree that all of the hideous things you've just intimated might happen have happened. Are people going to care?
- [35:53]
A
That's my greatest fear. I literally think about that a lot.
- [35:58]
B
No, that's the wrong answer.
- [35:59]
A
I know I'm going to get to a. But my fear is that, you know, as so much, I mean, John Gotti was the Teflon don of the Mafia world. In some ways, Trump has been the Teflon don of the political world. So my fear is that, yes, these things come out and people shrug. But first of all, there's a reason, as you said, that Trump is acting even more and more desperate. I think he feels more afraid. And so it still makes me think that what is going to end up coming out could be concrete enough, damaging enough, even people who. There will be people who will never change their view of him, for sure, but that the people who we need to change their view will, namely Congress. And they're going to be swayed not only by their constituencies, and there will be people in their constituencies who will look at this and say, this is just, this is dangerous and this is wrong. And if they are shown evidence that the president and or people around him were directly working against American interests and selling the office of the presidency essentially for their own business interests, that even they've been able to turn a blind eye so far. They won't. So that's my hope, and I think that's part of why Mueller is doing this so carefully. Again, he could come out and say, other than what we sort of know, there's no real criminal liability. But I think the reason this is taking so long is he knows that the proof has got to be of whatever he comes out with at the end needs to be solid. So that that's what I'm hopeful will, you know, most of all just bring the truth out. And it does seem like that truth is going to implicate Trump in some ways.
- [37:48]
B
Mimi Rocca is Pace Law School's distinguished Fellow in Criminal Justice. Before that, she was an Assistant U.S. attorney in the Southern District of New York from 2001 till 2017. She's also a contributor to MSNBC and she's also if you are building your own set of Bob Mueller conspiracy related flashcards at home, she is the person to follow. So, Mimi, thank you so very much for, I think, making this crystal clear.
- [38:17]
A
Thank you, Dalia. I really appreciate it. It was fun talking with you about it.
- [38:25]
B
We know you value the journalism that we do here at Slate Slate. And now more than ever, our work needs your support. And the very best way to support our work is via our membership program, Slate Plus. And with a Slate plus membership, you can enjoy this and all of Slate podcasts ad free. Plus you'll have access to exclusive bonus content from some of your very favorite Slate shows. There's a free trial to be found@slateplus.com amicus and now back to the show. Now we're going to turn to a case that the Supreme Court actually heard last week, a truly fascinating case that maybe didn't get enough media attention. The issue in Carpenter vs. Murphy is, in effect whether there is some possibility that a huge swath of eastern Oklahoma is in fact an Indian reservation for jurisdictional purposes. It's a case about history and practicality and the stakes are really high. And also in court, the drama was, was, hi, there was some serious rock em sock em happening. Have just a listen to Justice Elena Kagan and advocate Lisa Blatt locking horns at oral argument last week.
- [39:33]
C
You know, whatever Congress thought it might.
- [39:36]
B
Want to do, it decided it didn't.
- [39:38]
C
Want to do it in the end.
- [39:39]
A
No, that's fundamentally wrong in several respects. First of all, the 1901 act called for fundamentally wrong. It's fundamentally wrong because the, well, well, it's, it's factually wrong. The tribe, the Allotment act calls factually and fundamental.
- [39:53]
B
And joining us to discuss the case is Riaz Khanji. He's a founding member of Kanji and Katzen and a leading trial and appellate litigator on behalf of Indian nations and tribes across the country. He actually represented the Creek Nation as an amicus at oral argument last week. So welcome to the show. Riaz Khanji.
- [40:11]
C
Thank you.
- [40:12]
B
And, and this is at least nominally a case about a murder. And every article about it says it's about a murder, but it's kind of about a murder that's committed by Patrick Murphy, who's a Creek Indian in east Central Oklahoma. But this is not a death penalty case. So can you fill in all the blanks and tell us why a case about a murder in Oklahoma turns into a huge tribal sovereignty in the US Supreme Court.
- [40:38]
C
Yes. Mr. Murphy's legal attempt to undo his state conviction and death penalty ultimately rests on the status of the reservation. For this reason, everyone agrees that Mr. Murphy is a Creek Nation citizen and that he murdered another Creek Nation citizen. Under federal law, if that murder took place within the boundaries of an Indian reservation, then the state of Oklahoma did not have jurisdiction to prosecute Mr. Murphy. Instead, the federal government and the Creek Nation had that authority. So after he was convicted and sentenced to death in the state court system, Mr. Murphy filed these post conviction pleadings first in state court and then in federal court, federal habeas petitions. He made a number of claims, but the ultimate one was that the Creek Nation reservation is still very much in existence. Hence his state court conviction was invalid and he should be re prosecuted, retried by the federal government.
- [41:46]
B
And can I just ask, it's a little bit confusing if you are watching oral argument, because we've got four different advocates are arguing. So we've got the state of Oklahoma is saying no jurisdiction for the tribe. Then we have the Trump administration also saying no jurisdiction. Then we've got Murphy's lawyer arguing and then you are representing the Creek Nation. And I guess my question is why are you arguing in the case? What are the interests of the Creek Nation that are separate from Murphy's?
- [42:19]
C
When we saw this case coming up in the 10th Circuit, we realized that the continued existence of the Creek Creek Reservation was going to be squarely in play. And so at that point the Nation appeared as an amicus. And given the significance of the case to the nation, the 10th Circuit essentially treated us as a party. It allowed us full briefing and allowed us to argue in the, in the circuit. When the, when the circuit upheld the existence of the reservation, the case went to the court. We filed another amicus brief and asked the court for argument time. And I think the court, in recognition of the central significance of the case to the Creek Nation, allowed us the 10 minutes of argument time.
- [43:09]
B
And before we talk about the merits, I have one last purely nomenclature question. And that is one of the things that's really striking in the briefings in the case and the arguments is the use of the word Indian over and over again and the use of the word Indian Territory. And that's both kind of jarring. It feels like it's from another century. But I think it actually bespeaks ways in which so much of what Underpins this case really is from another century. Right. I mean, this is the language in the treaties and the statutes and all the relevant doctrine. Right.
- [43:42]
C
Especially in a case like this where what we are talking about really is the history of the Indian Territory. And you know, that's what it was called. And so. So that's the reference we've had to make. I'll tell you that one change we have made in the nomenclature that we've been pretty adamant about, and I think that everybody agrees, is that the Creek Nation was one of five tribes that was marched west on the Trail of Tears in the Andrew Jackson era. At the time, those tribes were referred to as the Five Civilized Tribes in reference to the fact that they really had very sophisticated legal systems, constitutions were, in the eyes of the non Indian settlers, were very advanced in their ways. Over time, the adjective civilized has dropped out of the discourse because it clearly carries with it some negative implications, including about other tribes. So now we refer to the Creek and the others as the five tribes.
- [44:47]
B
So that leads us perfectly into. I think in order to understand this litigation, we really do need the history that starts where you started at the Trail of Tears. Can you just walk us through how we got to where we are in Oklahoma today and all the other states, by the way, where this is relevant?
- [45:06]
C
Sure. Essentially, in 1830, Congress passed the Indian Removal act, which authorized President Jackson to move tribes west. There was a tremendous amount of settlement pressure on tribes, especially in the Southeast, and a tremendous amount of hostility. So the Creeks, the Cherokee and the other five tribes were forced west at gunpoint, marched to the Indian Territory, which is, as you say now, the eastern half of Oklahoma. One of the most moving pieces of the history for the Creek Nation is that it had an old town, a central town in Alabama that was called Tulsa. When the soldiers came to round up the Creeks, the settlers burned the town to the ground as the Creeks were being forced out. And Creek Nation members gathered up some of the embers from what had been a historic centuries old town for them. And they carried those embers west. At each campfire each night, they would put the embers into the fire to keep them alive, keep them with them. When they finally reached the boundaries of what had been denominated the Creek Nation domain, they found a spot on the banks of the Arkansas River. They buried the embers beneath a great oak tree there. That tree still stands in the city of Tulsa, you know, which has become central to this litigation. Tulsa, Oklahoma was founded as a Creek town in memory of the old town Back in. Back in Alabama. So the Creeks come into this new territory. They have a reservation that's been promised to them by these treaties in 1832 and 1840. That is communal land that they hold as a tribe, as a nation. They are forced, over time has happened with so many tribes in different parts of the country to cede portions of their reservation, with the biggest session coming in 1866, where the entire western half of the year of the reservation is ceded to the United States. The original domain was 6 million acres, so half of it ceded in 1866 to the U.S. they retain 3 million acres, which are the, you know, the current reservation boundaries that are being fought over. During this period of time, there starts to be a tremendous amount of settlement pressure on reservations around the country. And the government in the 1880s and 1890s adopts this policy of wanting to allot individual parcels to Indian families. The government no longer wanted these big communal bases. They wanted to civilize the Indians, turn them into western farmers. So you give everybody a plot of land for them to farm. And somewhat conveniently, usually when these allotments took place, there was land left over for non Indian settlers. So in the 1890s, Congress seeks an allotment of the Crew Creek Reservation and of the other five tribes reservations. What it initially sought was a session. Congress established in 1893 the Dawes Commission to negotiate for such a session. In 1894, the Dawes Commission came back to Congress and said, the Creeks are absolutely opposed to cession. They will not cede any more of their land. We are unable to obtain such a cession. We recommend instead that the land be allotted to Creek citizens and Creek citizens almost entirely. And an allotment act was negotiated, signed in 1901, which allotted out the domain almost entirely to Creek citizens, allowed for non Indians to settle, but only within the bounds of these town sites, which were a very small portion of the overall reservation and preservation. Creek authority over the entire domain. In two cases in the following five years, one from the Supreme Court and one from the 8th Circuit Court of Appeals, the courts upheld the continuing governmental authority of the five tribes over their domains in the wake of allotment, recognized that the reservations continue to exist. And then comes 1906, when Congress passed the Five Tribes Act. On the eve of Oklahoma statehood. Congress preserved the five tribes governments, preserved the governmental authority and did so immediately before then passing the Enabling act, which allowed Oklahoma to become a state. Right around this same time, oil has been discovered on the Creek territory. And all of a sudden this land becomes extremely valuable. And you have what the historians have described as an orgy of plunder and exploitation, fraud, swindling, outright murder. And within a period of a decade or two, most of the land titled to the land within the Creek reservation has passed to non Indians. But at the same time, you know, the Creeks endure. The Creek Nation government endures. In 1936, Congress passes a statute which confirms the continuing existence of the Creek Nation.
- [50:56]
B
I'm so grateful for the history because I think what you just laid out is this recurring pattern of, you know, Trail of Tears. We don't want you here. Go over there. But we promise you infinite, infinite authority when you get there. Oh, wait, not infinite authority. Let's constrain you onto reservations. Oh, wait. But we're not actually keeping our promises about the allotments. We're not, right? So at every turn, there are no good choices for the Creek Nation. At every turn, it's like you can make the choice that takes everything away, or you can make the choice that takes everything away later. But that's the pattern, right? And one of the things that's so interesting to me about this case, Riaz, is that that's kind of stipulated on both sides. Everybody agrees that the Indian tribes are treated shockingly badly. And really, the only question is whether, as you were. You were saying, the federal government followed its own protocols to disestablish the reservation altogether. The only question is, did the shocking treatment rise to the level or sink to the level of completely disestablishing tribal authority there? That's the question.
- [52:09]
C
That's correct. And the historical pattern that you described very accurately is a pattern that played out, you know, across the country, across the west, with respect to tribes. But what the court has been very clear about is to say you cannot extrapolate from the fact that the government took away certain tribal powers. The notion, the conclusion that it took away all tribal powers. What we require, because only Congress has the ability to disestablish a reservation, we require some express evidence of congressional intent that it meant to take that final step. That's a point that Justice Kag Reagan made very strongly. An argument that you can't infer from the reduction of powers, the elimination of powers. Otherwise there wouldn't be a tribe in this country left with any powers because this was such a constant pattern of whacking away at tribal authority.
- [53:12]
B
So let's listen now to. First, let's listen to. This is Lisa Blatt. She represents the state of Oklahoma, and she's making this point that you just made like, let's go ahead and infer that the tribe was disestablished, in effect simply by just taking everything away. So here's Lisa Blatt.
- [53:32]
A
Every piece of paper, record book, dollar bill or coin or property, their buildings, their furniture, their desk, everything was taken away from the tribes. So I don't know how they could be doing anything. Their taxes were abolished. Their tribal law was rendered unenforceable. Every single federal court, tribal chief, tribal lawyer, members of Congress, Oklahoma historians and the popular press recognized that the only authority they had was to equalize allotments with the money and sign deeds.
- [54:01]
B
So I just want to ask you as a personal question. You're sitting there, you are, you know, an amicus, you're arguing this case and you're hearing this recitation of like, no, it's really, really dead. We killed it. How does that just viscerally feel?
- [54:19]
C
It's difficult to hear and it's difficult to. When you are the legal representative for the Creek Nation and you know, you have Creek Nation leaders in the courtroom and you know that they understand their history better than anyone. And it's. As a lawyer, you understand why the state is advancing this narrative, but you also understand that it is not an accurate depiction of Creek history. And, and so at a certain level you feel very strongly that you absolutely do not want the case to be decided based on that set of flawed premises.
- [55:04]
B
Can you help me understand, and our listeners understand why the notion that basically it can't be a reservation because nothing is being done by tribal authority, why that's flawed?
- [55:19]
C
While we do not dispute that the Creek government powers were strictly limited for this period of two or three decades, and it only was two or three decades before Congress restored full powers of self government to the Creeks in 1936. But while the powers were limited in that prior era, they were not abolished. The Creek Nation still retained a government that was doing a lot of things. And I'll give you some examples. So the Creeks in this period after 1906, the Creek national legislature continued to exist and to meet Congress passed statutes that were expressly predicated on approval by the Creek legislature. So Congress recognized that the Creek legislature continued to exist. Another example would be the continued running of the Creek Nation schools. You didn't have tribal schools where reservations no longer existed. That was sort of a big indicia of reservation existence. There was an Indian police force that the Creek. That the Creek were full participants in. The truth is that tribes around the country during this period of time were having their powers Severely circumscribed. This was nothing that wasn't happening elsewhere. So tribes, for example, were powerless to stop the government from saying, you will allow mining on your lands if you don't want it. You will allow easements through your lands for roads, pipelines, utilities, even if you don't desperately don't want them. You view them as an infringement on your sacred property. Your children will be taken away to boarding schools and stripped of their culture and their heritage. You won't see them for years. And you can't stop us from doing that. You can't extrapolate from the reduction of governmental power, the idea that all governmental power and all tribal authority over its land was taken away, because then really you would have very few reservations left in the United States.
- [57:40]
B
So let me ask you about. Because the other big theme on the part of the justices who were not real sympathetic to your argument was I guess what I can only kind of call the you snooze, you lose analysis. The idea that, well, you know, you should have been asserting this power earlier. So let's listen just for one second. Here's Justice Alito talking to Ian Gershon gorn, who represents Mr. Murphy. And that really is the fundamental piece of Marcus.
- [58:11]
C
But here you have the fundamental principle of law that derives from Sherlock Holmes, which is the dog that didn't bark. And how can it be that none of this was recognized by anybody or asserted by the Creek Nation, as far as I'm aware, for 100 years.
- [58:29]
B
I know he asked that of your co counsel in this case, but what is the answer? The answer I know you were starting to give it, which is if you take away our power and take away our power, then you can't then say why didn't you assert power? But is there some satisfying answer to the question that nothing happened here for so long, therefore you're not really entitled to squawk about?
- [58:58]
C
The ultimate answer is the dog did bark. The dog has continued to bark. So we reject the premise of the question, Justice Alito's question in this sense that while the Creek powers were heavily circumscribed in this period from 1906 to 1936, as I say, the nation did continue to exercise powers during that period. And then post1936, the nation has built its government back up into what really has to truly be one of the most robust Native American governments in the country, where it exercises power throughout its reservation boundaries. And I think one of the, you know, one of the clearest indicia of the dog barking is that when the nation redid its constitution, its foundational document in 1979, that constitution, like the nation's prior constitution, which dates back to the treaty period, defined the nation's political boundaries to be coextensive with the 1866 reservation boundaries. The 1866 treaty was. Was expressly referenced as supplying the full measure of the nation's political jurisdiction. Not only was the nation defining its own jurisdiction in those terms, but that constitution had to be approved by the federal government, by the Secretary of the Interior. The Secretary approved that constitution. As far as we know, there was no objection to that provision from the state. State or from any local unit of government.
- [60:45]
B
Okay, so I want to ask you this last question, because I think this really did authentically worry the justices, including folks who might really be sympathetic to the. The sort of justice concerns you're raising, and that are the just the practical problems. I think Brett Kavanaugh was. Was worried about this, too. But, you know, Lisa Blatt was saying 2,000 prisoners in state court who committed crimes on Indian territory self identify as Native Americans. All their cases are gonna have to be reopened and tried in federal court, including 155 murderers. The Trump administration was arguing this would implicate sales taxes and income taxes, that this is so fundamentally disruptive and, you know, so chaotic that what you and Mr. Murphy are seeking to do would just upend everything. What's your answer to that?
- [61:38]
C
Well, the Creek Nation is an extremely practical government. It's been a very successful government. And so if we had any thought that turmoil or havoc was really going to erupt in the wake of an affirmance, we would be very concerned about that. But I think that the truth is that there will not be chaos. There will not be turmoil. Tribes powers over non Indians within the reservation boundaries are very limited, and the state's authority over non Indians within the reservation boundaries on fee lands are correspondingly very robust. So you will not have a sea change in jurisdiction. You know, Justice Breyer, pondering whether somebody waking up in Tulsa the morning after an affirmance would experience a significant change in governance in their lives, the answer is, you know, absolutely not. On the criminal side, nobody cares more about public safety, criminal justice on the Creek reservation than the Creek government. And so going forward, first, we think that the United States does have the resources to exercise federal jurisdiction in lieu of state jurisdiction on the reservation, that federal government does so elsewhere throughout the country. But at the same time, if the federal government is reluctant to do so, or if the consensus of the three sovereigns, the state, the federal government and the Creek Nation, is that law and order would be best served with some measure of state criminal jurisdiction in the mix. The Creek Nation is very open to that possibility. The other concern expressed by the court was sort of the backward looking concern, what about criminals who might challenge their convictions on the grounds that they were prosecuted by the wrong sovereign there? We think that there are very strict limits under both federal and state law that would really impede the ability of criminal defendants to raise that kind of challenge. The 10th Circuit, the relevant court of appeals here, has already rejected several efforts by federal criminal defendants to use the Murphy decision to challenge their convictions.
- [64:10]
B
Two things I probably should have said up front and didn't, but let's say them now. Neil Gorsuch is recused from this case because he sat on the 10th Circuit. And the court surprised everyone this week by seeking some supplemental briefing in this case, which doesn't happen very often, more or less saying, could you do a little extra homework and answer a couple more questions? I'm not going to ask you specifically what that signals to you, but it does signal, I think, to those of us who are watching that the court is really trying to find some elegant way out of what is really an intractable problem here and that just saying this makes me nervous is not going to be good enough. Is that a fair assessment of how you read the supplemental briefing?
- [65:01]
C
Well, I want to be careful not to do any sort of public tea leaf reading about the court's order. I think what is clear, as you say, is that there are, you know, a few issues that the court wants further elucidation on. So, of course that's what we are, you know, all hard at work on now.
- [65:24]
B
Riaz Khanji is a founding member of Kanji and Katzen and leading trial and appellate litigator on behalf of Indian nations and tribes across the country. He represented the Creek Nation as Amicus at oral argument. Riaz, thank you very, very much for your time. I really appreciated learning the history and knowing the law. It doesn't happen nearly often enough. Thank you.
- [65:47]
C
Well, thank you and thank you very much for your interest in the case.
- [65:51]
B
And that is a wrap for this episode of Amicus. Thank you so much for listening. If you if you'd like to get in touch, our email is amicuslate.com and you can always find us@facebook.com amicuspodcast and we love your letters and your feedback. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcasts, and June Thomas is managing producer of Slate Podcasts. We wish you and your family happy holidays. We'll be back with another episode of Amicus in too short weeks.