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- [00:00]
A
Hey, everyone. Harry here. Before we dive into today's episode, I've got some exciting news about an upcoming event in our Talking San Diego series. On Tuesday, April 22, probably tomorrow. As you're listening to it, we'll be welcoming the one and only Rick Wilson, co founder and leading voice of the Lincoln Project. A former Republican strategist, Rick was early to recognize the threat Donald Trump posed. And for the past nine years, he's worked indefatigably to expose those dangers to the American public, most memorably through a series of sharp, hilarious, and withering political ads that cut Trump down to size. No one breaks down Trump's appeal with more clarity or sophistication. And no one thinks more creatively about how to mount an effective political opposition. Expect a conversation filled with candor, insight, humor, and real hope that these dark days can and will pass if we play it smart. For tickets and more information on this and all Talking San Diego events, including our newly announced conversation with Senator Cory Booker next month, visit talkingsandiego.net welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Littman. Donald Trump's assault on important civil institutions, as well as on the Constitution's bedrock principle of separation of powers, approached a crescendo this week. The era of strategic evasion may be nearing its end, and we're about to see whether the administration will, in fact, obey the lawful orders of the judicial branch. The legal battles are playing out in cases brought under the Alien enemies Act, an 18th century relic the administration is now brandishing as its legal sword to whisk hundreds of alleged transnational drug operatives from US Soil into a notorious torture pit in El Salvador, at least two courts are now circling in. They're pressing the administration hard, demanding clarity on what's already been done and what it intends to do about the deportations. And in both courtrooms, the government is fast running out of rhetorical Runway. The lurking question in the background is whether the Supreme Court will have the judiciary's back. Its recent moves suggest that it will. And a late breaking opinion, Friday, actually Saturday morning after we taped, was the strongest indication yet that the court grasps the gravity of the moment and appears ready to defend the federal judiciary's essential authority. Meanwhile, the administration hit its first serious roadblock in its campaign to bring civil institutions to heel. And as the nation's oldest and richest university took a firm stand against Trump's demand to commandeer its core functions. And in a striking development again after we taped the administration, incredibly came out in the wake of Harvard's resistance to say, oops, we didn't mean to send that demand letter after all, to take stock of a government and a country on the precipice of with the administration waging furious battles for more power on multiple fronts, we're joined by three of the nation's most respected commentators, all trusted talking feds, stalwarts. And they are John Alter, an award winning author, filmmaker, columnist, MSNBC political analyst and contributor to the Contrarian. His substack is titled Old Goats Ruminating with Friends. His most recent book, I lost count of how many, but the most recent is American Reckoning, Inside Trump's Trial and my own. John, as always, welcome.
- [04:24]
B
Thanks, Harry.
- [04:25]
A
Susan Glasser, a staff writer at the New Yorker, where she writes the weekly column on life in Washington and is a host of the Political Scene podcast. She previously served as editor of several Washington based publications and and she's the author of several books, including the Divider with Peter Baker, which we covered in a talking books episode. Hi Susan, thanks for joining.
- [04:50]
C
Great to be with you.
- [04:51]
A
And Katie Feng, the host of the Katie Feng show, which airs Saturdays at 12pm Eastern on MSNBC. She's a founding contributor of the Contrarian, a legal contributor for NBC News, a legal correspondent, of course, for msnbc, and she previously worked for the State Attorney's office in Miami Dade county and the Broward County State Attorney's Office. Welcome back, Katie Fang.
- [05:19]
D
It's always good to be here. Thanks, Harry.
- [05:21]
A
Okay, so much on so many different levels. But let's start with the real tumult in the courts. You know, we've been throwing around the words constitutional crisis for a while, even dating back to Trump 1.0. But it really is starting to feel like the high noon showdown between the courts and the administration may be upon us with the Alien Enemies act cases. So let's start with the case of Kilmar Abrego Garcia, who, as everyone knows well except the administration, was mistakenly deported to El Salvador, notwithstanding an order from forbidding it. Just yesterday we tape On Friday, the Court of Appeals denied the administration's emergency motion to stop the trial court judge Paula Zinnis, from probing exactly what the administration has done, or more to the point, what it hasn't done. But the opinion was really notable. I thought. It's written by a stalwart conservative icon of the bench, J. Harvey Wilkinson, and it really made it clear this is not Just a workaday issue. What sort of impressions did Wilkinson's opinion leave you with anyone?
- [06:36]
B
I mean, I was just hugely impressed by it and by the integrity of it. So, you know, I'm old enough that I actually covered the Reagan administration. And I remember when he went on the bench, and he was the. The symbol of everything liberals despised. Utterly conservative. Another judge like that was Mike Ludig, who almost went on the Supreme Court. Harvey Wilkinson almost went on the Supreme Court. These were Antonin Scalia, Republican judges. And it's just a measure of the challenge to our constitutional order, which I in some ways prefer to constitutional crisis, because constitutional crisis suggest that this is a temporary condition. Most crises unfold in a relatively short period of time. This is gonna go on for another three years at least. So this is a challenge to the constitutional order of the most urgent and profound kind. And what's really encouraging is to see these pillars of conservatism rising to the challenge, defending our republic and making common cause with people who they agree with on no other issues to protect us, because they understand that if they don't, this way lies tyranny. That's what that opinion, that fine opinion, brilliantly argued, represents to me.
- [08:08]
A
And, by the way, must have been done extremely quickly. Right? It issues less than 24 hours after they filed their petition and before the plaintiffs even come in.
- [08:18]
D
I appreciate Jonathan's take on this because he's right. This is an immediate kind of exigent situation. And yet I feel like all we've done is been living in a state of exigency for a long time now. And to Jonathan's point, it's going to continue. And then the kind of collateral damage that happens, somebody very adequately, and I think eloquently said, the blast radius for what's happening right now is getting bigger and bigger, and having to fix it, it's going to take a lot of time. But what I appreciated about this Fourth Circuit Court of Appeals opinion was we are so starved for integrity these days that we are so grateful, and yet we need to kind of check ourselves a little bit and remind ourselves that what we read through those, you know, seven to nine pages that we got from the Fourth Circuit. That's rule of law, folks, right? That is not something that should be an outlier, but it's become an outlier because we've been living again in the state of quote unquote. Quote unquote, constitutional crisis. And so that's why, when I see something that's not only well written, well thought out, and well, kind of laid out the one thing that I think that everybody really appreciated about it was not only was it the right thing to do, but it was written in a way that the average person could understand it. These are the gifts that are given, I think, by good, conscientious judges to understand that it's not just people that are lawyers or people that are high information readers. It's some average person who maybe isn't well versed in the law, who needs to understand why what is happening is so critically important right now. And so when you read something that is so just on point and really, I mean, I call it a bench slap. And I think, Harry, you'd probably agree it was a bench slap to the Trump administration, but it also shored up the support for Judge Zinnis, which I think is a sign that these judges that we construe or we look at sometimes as being, quote, unquote, super conservative judges, they're saying, hands off. They're saying, this is our lane, get out of our lane and let us do what we need to do. And that's so rare these days that I think that's why we were so enthralled. At least I was, by what I got to read.
- [10:20]
C
Yeah, I mean, I agree with all of the above. I also noticed and thought it was, you know, the shout out, explicitly not only endorsing the process that, you know, the judge has for determining what, if anything, the Justice Department is doing to bring home this man. And the answer, of course, is nothing. And so that's. That's the only other point I want to make. Not to throw a damper on it, because it was inspiring at a moment when people need it to hear a conservative judge lay out in such a crisp, I think, an incisive way. But I don't have the optimism, perhaps, that Katie does, that this is penetrating beyond the small circle of, you know, highly engaged news consumers and people following this. Unfortunately, I think that there's a reason that the administration, the ink wasn't dry on this before. They were not only flouting it, but, you know, look at what the official White House account is doing today. It is basically the ultimate Trump trolling, using the machinery of government and saying, essentially, we're never going to bring this man home ever, period, full stop. And you can have all the eloquent chances, judicial opinions in the world that you want. This man is never coming home. I mean, I think that one of the enduring visuals, in fact, from the first hundred days of the Trump administration will Very well be the image of him. Two different Oval Office meetings, one side by side with the thuggish young dictator of El Salvador, whom we are paying to house people who've been deported from this country in many cases, with no process at all and with no prospect of when they'll ever be released, since they're not subject to being serving sentences. They're just there, and we're paying them to be there. That image of Donald Trump next to the leader of El Salvador and contrasting that with him sitting next to the leader of Ukraine and rubbing his nose in the Russian invasion, even blaming him for his own country's plight. And so I feel like we need to contextualize all this. It's an assault that's ongoing on the rule of law that Trump believes he can win. I mean, that's the part I think. You know, I'm looking as much as anybody for signs of optimism. There have been a lot of good opinions by district judges, by appeals court judges. And, you know, I. In fact, I was actually looking earlier today, before this. I was hoping there was somewhere that's got all the best, you know, quotes from the first hundred days, you know, lined up from these judges. And just like with Harvard's statement, I know we'll talk about it later, people take hope from it. But I gotta say, as a matter of politics, Donald Trump is thrilled that we're talking about, you know, what he has branded unfairly as some, you know, evil gang member, instead of talking about the fact that he's tanking the world economy.
- [13:20]
B
So I agree with all that, and I agree that the average person's not gonna be reading any opinion. But I think if people who are standing in opposition to the Trump assault, which I think we need some new language to describe what's going on, and I see it as assault on our republic. So the people who, broadly speaking, are standing against it, even if they're too busy to pay attention to any of the kinds of things that we can talk about, they understand the principle that everybody deserves their day in court. No matter how heinous a criminal they might be, they deserve their day in court. And that, I think, more than due process or these other words that a lot of people don't really fully understand that I think is comprehensible politically. And I'm not sure Stephen Miller described it as a 9010 issue. I've seen some other polling that shows that, actually, this is penetrating, and people are getting that we shouldn't have anybody, even if they're a gang member, Spirited off in the middle of the night, put on a plane and sent to a gulag, a dungeon in some other country. And that for this guy who people are just learning about from El Salvador, Bukele to describe himself as the coolest dictator in the world. There's no such thing as a cool dictator. And I don't think there are very many Americans who think there is such a thing. So a lot of people, including a lot of smart people, think that this outrageous Supreme Court decision of last year on immunity applies to the entire executive branch. It does not. It applies only to the president, which means that Stephen Miller is in danger of going to jail for contempt of court. And if you don't know that, if you don't understand that, then you've never seen a judge threaten a defendant with going to jail for contempt. Last year in the Stormy Daniels trial, I saw Judge Mershon say, Mr. Trump, I've now cited you on 10 counts of contempt of court, and I'm done fining you. If you don't follow the court order, I will jail you. I don't want to jail you because it's an imposition on court personnel. I don't want to do it, but I will do it. And you know what happened? Donald Trump cleaned up his act. He stopped violating the gag order. He stopped attacking the jury, even stopped attacking Michael Cohen. Trump will just pardon. You know, that's all true, but that's like eight very damaging steps down the road for this administration. And just because Trump will pardon Miller and he'll never actually serve jail time for contempt doesn't mean that that contempt citation won't be a serious brush back to this White House.
- [16:17]
A
I agree. We're talking about power and we're talking about brushback. I want to just for a second about the Wilkinson point that people think, oh, no one, you know, it's just a legal opinion. I think within the culture that the Supreme Court is a big part of J. Harvey Wilkinson. Saying it as he said it, I think is. Is significant. It sort of freezes out or makes it harder for Gorsuch Alito, and harder. But, you know, Wilkinson, as John said, is an icon there. I do think, you know, maybe no one will read it, but to my mind, we don't know yet if it's kind of an epitaph or it really will be a note of triumph. I think he meant it, and I think it was sonorous enough that it might be read. Look, this is not something you write in an opinion that judges are going to Review the Trump administration should be shocking, not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear. He was really staking a claim that this is more than conservative. It's even more than anything about foreign policy. Everyone out there, yes, you Supreme Court, but really everyone, to the extent he can do anything. And he is not a grandstander, Wilkinson. In fact, even among conservatives, he's more deferential to the government than others. So it certainly meant to play that kind of card. I just wanted to get quickly, Katie or Susan, if you have views about John's point that, you know, so much of this is washed over people, you know, next to the price of eggs or whatever. But there's something that feels almost like in your bones, paradigmatic about this kind of nightmare. Does it feel to you that Abrego Garcia is somehow hitting home in the public imagination in a way that law firms, Harvard, Doge, etc. Have not?
- [18:14]
D
I mean, I just want to say, Susan, politically, I think is right. There was a CNBC heart poll that came out with Trump's approval rating. And what was outrageous was he's net positive on border and deportations and net negative on other issues, which maybe invites a conversation, maybe not today, but for a later date about, like, Gavin Newsom and what he's saying, that this is a distraction from, you know, critical issues like the economy, etc. It's interesting because when we were going into November, and I'd be curious to know what the three of you guys think, when we were going to November of 2024, consistently when you asked people what was an important issue, the economy was one, immigration was one, but democracy was consistently in the top three. Democracy is such an elusive concept to people. I don't really think people really know what it really means if you had to define it something outside of a textbook definition. But I feel like something that's happening to somebody like Kilmar Abrego Garcia is making people stop and think about their definition of democracy. My only concern is because there's this effective digging in by the GOP by couching it in the, quote, Ms. 13 gang kind of construct, that it kind of gives a permission structure for Republicans, MAGA or otherwise to say, who the hell wants a gang member in the United States? Why are you dying on this hill? How is this your Alamo Democrats, et cetera. But then I also think that it galvanizes people to say, I'm not living in a dictatorship. This is exactly what we knew was going to happen in a second term with Trump. So we need to do something about it. So I think the protests we're seeing, the rallies we're seeing, they're finally happening. A lot of people were saying, like, why are they not happening yet? And yet. I feel like now you have people that are feeling it more. But I think just polls are. I'm not a huge fan of polls at all. But when you do look at these things, of course he's net negative on economy, tariffs, et cetera. But being net positive on deportation and border is wild to me, considering everything.
- [20:22]
C
But it's not. I guess that's what I'm trying to say. Like, you know, let's be real, okay? Donald Trump was reelected despite every, like, the most negatives in the history of the world. And there are two issues that he demagogued very effectively. You could say there are some others he, I would argue he used as well. But I think we can all agree that immigration is the original issue that powered Donald Trump to the presidency not once, but twice. So does he want to talk about that? Yes, he wants to talk about that. Okay, let's be real about that. But basically, I agree I don't have that much use for polling information on this because I think it's still embedded in this fallacy that we have, as Jonathan is pointing out correctly, not just a constitutional crisis, but a revision of the constitutional order that is occurring. It is occurring, it strikes me now, and in the period well before which there will be any other intervening election. So therefore, to talk about it purely in the construct of what's going to happen in the next midterm election is to miss the point. We are obliged to dissent. We are obliged to react. We are obliged to mobilize whatever powers exist in our society to stand against it, regardless of how the damn Democrats who lost the election fare. And I think part of the crisis, frankly, among those who oppose Donald Trump is that there is a class of professional Democratic Capital D strategists who have conflated and succeeded in the minds of many Trump critics and conflating the interests of the Democratic Party with the interests of us as civil society and as a country. And if I am criticizing something that is happening, that Trump is doing that seems to me to be illegal or unconstitutional or whatever, it's not because of which party's going to win a seat in the midterm elections, you know. And so I find it very scary, in fact, because I think that Trump and his people would love for us to just have A conversation about this tweet, as if it's. Or that tweet, as if it's going to have some impact on, you know, a dozen swing districts next year. I don't think it's about that. So I think that's one thing. And then just the other point I wanted to make, because it feels relevant to this question, which is, I listened to you guys. I'm an outsider to the legal world. I'm not a lawyer. And I feel the pain here of. You're like, but this is a really big deal. You know, Judge Wilkerson, he's such a conservative. And, you know, my God, this guy is like Scalia and he's attacking Trump. And in the broader discourse, they're like, what are you talking about? And I feel this is important. This happens in, like, the foreign policy world too, right? We're like, oh, my God, this is unbelievable. The President of the United States can't criticize NATO or what is he talking about? We're not going to spend 5% of our GDP on defense. And so you have these stakeholder conversations, yet the problem is that the country has lost the plot of its own democracy somehow. Too many people are not stakeholders in this anymore. And you compound that, frankly, with the observable and observed reaction of many of the powerful forces inside the legal world today. And it's hard, unfortunately. You know, for me, I have to say, I look at what's happened to so many of America's democratic capital D leaning law firms and how they have caved in. And so to Jonathan's point, yes, sure, judges have power in our society. So do people who earn $7 million a year who go on television and say that they're big liberals and that we should all resist, you know, join the resistance to Donald Trump, but, oh, not me personally. And I think that is relevant to trying to understand, does an individual case like this breakthrough or not? Is it just something that we'll talk about for a few days and then accept, like, the next outrage?
- [24:15]
B
So I'm, I'm scared like everybody. I don't want to be Pollyannish in any way.
- [24:19]
A
Like Republicans say, like Murkowski, everyone's scared. Right, Right.
- [24:23]
B
And I think the Republican hangs in the balance, but I think there's some data points that are encouraging that we shouldn't forget about and we should take some hope from. Not optimism, but hope. And people fail to distinguish sometimes between the two.
- [24:41]
C
Thank you for that.
- [24:42]
B
So the nine to nothing decision, which, in that horrid Oval Office scene where Trump didn't even know really about the decision. And Miller tells him it was totally on our side. It's completely false. That was 100% gaslighting. Do people really think that, you know, Sonia Sotomayor, you know, was on Trump's side on this issue? This was a nine to nothing unanimous decision against the Trump administration. Then you have a judge who they greatly respect on the Supreme Court, the conservatives greatly respect, who has issued this opinion. You have another judge, Judge Boasberg, who roomed with Brett Kavanaugh at Yale Law School, whom they also greatly respect. Okay. These two judges are standing up and I think that is a strong indication that the Supreme Court will continue to stand up. Not on everything. There are going to be some terrible decisions, like I think in the. I think they're going to reverse the important 1930s case and the Humphreys case. By the way, I'm not a lawyer either, but I've been and I try not to play one on tv, but I'm.
- [25:55]
A
Both of you could still pass the bar at this point, though.
- [25:57]
D
Everybody's gone to law school, trust me.
- [25:59]
B
Right, right. I wrote a book about Roosevelt. And they're about to, you know, reverse this important precedent and basically give the President total control over what had been independent regulatory agencies, the, the nlrb, the FTC and so forth. That's going to be a terrible decision that is very likely coming down the road because there's a majority on this court for the so called unitary executive theory when it relates to that. However, I think there's also emerging a quite strong majority and on the court, maybe even nine to nothing for due process. Why be a judge if there's no such thing as due process? They could go make more money doing something else. If people are gonna defy court orders without being held in contempt, why be a judge? And by the way, this idea that contempt of court is so rare, I mean, it happens every day in this country and I think people, they go, oh, well, look how hard it was, how long it took to get Peter Navarro jailed for contempt. That was contempt of Congress. That was not contempt of court. These judges are not messing around when they issue contempt citations. They're not accustomed to having people not comply with their request as they have right now for them to provide evidence. Stephen Miller's not going to say the same thing in court that he said in the Oval Office because he won't get away with it. Right. So I'm not grasping for straws here for good news, but I think we're beginning to see a very powerful institution pushing back the judiciary, pushing back on us becoming a police state. And I think since we are in the process of becoming one and we're in the presence of an authentic American fascist, I think it has to be considered, you know, encouraging news that the judiciary looks like it's going to stand up on some of these important cases.
- [28:09]
A
It's now time to take a moment for our sidebar feature, which explains some of the issues and topics that are prominent in the news. Today's feature is about the Post conviction process, the process that allows someone who's convicted after at trial to challenge their conviction or sentence after the initial trial and appeals have been exhausted. And to explain this topic, we welcome Sandra Bernhard. Sandra Bernhard's an actress, singer and author known most recently for her role in season two of Severance, a Talking Feds favorite, as well as for her appearances in RuPaul's Drag Race race, Survival of the Thickest, Percy Jackson and the Olympians, American Horror Story Pose and the Netflix documentary A Comedy Revolution. And I just want to add personally that I've had the occasion to stumble across some famous acquaintances who have done sidebars on the show. But Sandra Bernhardt I consider a true and actual pal. Because when I was a young punk working, working on King of Comedy, where she had her breakthrough role as Masha, Sandy was generous hearted enough about hanging out with the kids, spending time with us, letting us see her stand up. So I can say sincerely that besides being funny as hell, she has a heart of gold. And with that, I give you Sandra Bernhard on the Post conviction process.
- [29:41]
E
On May 30, 2024, Donald Trump became the first former president to be convicted of criminal charges, 34 felony counts of falsifying business records to influence the outcome of the 2016 presidential election. Essentially, the jury concluded that Trump cheated to win the presidency by scheming to illegally conceal information about his affair with Stormy Daniels. Trump's team has said the trial was unfair and has started his appeals process. But when will that appeal happen? And what comes between conviction and servicing a sentence? Usually, a defendant who's on bail will move after conviction to remain at large while appeals proceed. Judges don't have to grant motions for bail pending appeal. In cases involving severe crimes and where the convict no longer a defendant has no strong claim claims on the appeal, the judge can order the defendant into custody immediately after the conviction. A defendant's first shot at overturning a conviction comes with a motion to set aside the verdict. That is a motion directed to the judge who oversaw the trial. Such motions rarely succeed and are only granted if the defendant identifies newly discovered evidence that essentially proves his innocence or identifies serious misconduct by the judge or jury. The next major event for the defendant is the sentencing hearing. Before the sentencing hearing, the probation department of the court interviews the defendant and prepares a recommended sentence, taking into account the specifics of the individual and the crimes. Meanwhile, attorneys from the prosecutor's office and defense prepare their own memos advocating for a pro preferred sentence. At the sentencing hearing, the judge considers the facts and the party's arguments and imposes a sentence. On January 10, 2025, Judge Mershan sentenced Trump to an unconditional discharge, meaning that while his felony conviction will stand, he will receive no sentence of prison, fines or probation. Once the court hands down a sentence it tried triggers the defendant's right to appeal. On January 29, Trump filed a notice with the Appellate Division that he formally wishes to appeal. Once the notice of appeal is filed, the defendant has between three and six months to file their opening appellate brief. Depending on whether he was sentenced to jail, the full briefing schedule can take another three to six months. The appellate judges themselves take several more months to review the briefs and reach and draft an opinion. That opinion would likely come in 2025 or 2026. The Appellate Division's decision could itself be appealed to the New York Court of Appeals, the highest court in New York. The last stop after the New York Court of Appeals would be a motion for review by the United States Supreme Court. Whether to accept the case would be up to the court court, and they would do so only to address an important issue of federal law. Federal and New York law also permits what are called collateral attacks on the conviction, sometimes called habeas corpus. Rather than a direct review of the conviction, a collateral attack permits a defendant to claim that his conviction was illegal for other reasons, not necessarily in the record. This can include include things like newly discovered evidence, prosecutorial misconduct, or ineffective assistance of counsel. These collateral attacks include motions under New York CPI 440 and state and federal habeas corpus petitions. In recent years, the Supreme Court has narrowed the availability of collateral attacks on convictions, but they remain an important part of post conviction's process, particularly in death penalty cases. For talking Feds, I'm Sandra Bernhard.
- [33:49]
A
Thank you, Sandra Bernhard. Sandy is set to star alongside Timothee Chalamet this December in the A24 feature film, Marty Supreme. All right, it is now time for a spirited debate brought to you by our sponsor Total Wine and more. Each episode you'll be hearing an expert talk about the pros and cons of a particular issue in the world of wine, spirit and beverages.
- [34:24]
F
Thank you, Harry. In today's spirited debate, the question bubbles up around the difference between Champagne and sparkling wine, and we're more than happy to explain. First things first. Champagne is a type of sparkling wine, but not all sparkling wine is champagne. We could leave it at that, but that's not our style. So here we go. A sparkling wine can only be called Champagne if it comes from the region of Champagne in France. Any other bubbly produced outside of Champagne is called sparkling wine. In this exclusive region of northern France, three types of grapes, Chardonnay, Pinot Noir, and Pinot Meunier, come together to produce what will become the Champagne you know and love. Champagne production is controlled by strict laws, so all of those grapes we just mentioned must be hand picked. It's a labor of love, right? The other difference comes from the fermentation process. Specifically the second fermentation process that produces Champagne's signature bubbles. This time consuming fermentation takes place in the bottle and is known as the traditional method. Whereas some sparkling wines are fermented in a tank. Now take a wine like Cava, which is made in the Champagne method, but because it's produced outside the region of Champagne, it's classified as, yup, you guessed it, sparkling wine. So if it's sparkling wine, you want, Total Wine and more has a huge selection, including Prosecco, which comes from the Veneto region of Italy, Sec from Austria and Germany, and Cremont, which comes from France, just outside of the Champagne region. But all these sparkling wines have something in common. They're amazing bottles that are available at Total Wine and More for you to take home, pop open, and compare not only to each other, but to Champagne as well. Happy shopping and happy popping. Cheers.
- [36:10]
A
Thanks to our friends at Total Wine and more for today's a spirited debate. So a couple of things. First, in the real nightmare scenario is they issue the contempt and they turn to the marsh and the marshal gets the call from the executive branch and, you know, then. Then we're really up the creek. One thing that I think people are sensitive to and Trump is hugely sensitive to is, does he win or does he lose? And they've redoubled and redoubled and re redoubled. And if the Supreme Court upholds a contempt and it sticks, contrary to the nightmare scenario that I just laid out, that feels momentous to me, whether or not you're thinking mainly about the economy. In other words, someone has brought this Guy to heel a little bit like the Merchant trial. I was there with Jonathan the whole time, and just seeing him behave diminished him somewhat and somewhat pierced the notion that right now seems to be impenetrable, of he does whatever the heck he wants.
- [37:14]
C
I guess I would just. Just two quick points on that. And I appreciate the effort to have hope, if not vain hope.
- [37:23]
A
She thinks they're smoking hopium.
- [37:24]
C
Okay. No, no. But, you know, actually, the judges and the judicial system and independent legal system is the main thing that has differentiated the United States, certainly in Trump 1.0 and hopefully in Trump 2.0 as well. I mean, I've already written about the Putinization of the US Under Trump in this second term, and very much echoes of many of the things I saw in Moscow in the first few years of Putin coming to power in terms of the systematic attacks on independent institutions, the rollback of democracy. However, the biggest difference, the biggest single difference between our institutions and our history is the independence of our judiciary. And there was no such thing as an independent judiciary. And in either the Soviet Union or its successor state, Russia, you still had a situation where 99% of all trials ended the way the government wanted it to. And so that's the big thing that we had. I would just put that, and I do think that's cause for hope. I would put the asterisk there, that this is the same Supreme Court that did make that immunity decision, when many, many of the legal poobahs that we all talked with did not believe that was the kind of decision that was going to be coming out of that court. And in my view, that is fueling and giving momentum to Trump's assault on our constitutional order is that he feels that he's been given almost a coat of Superman armor by the same Supreme Court that we're now all investing our hopes in to constrain him in some way. And so I put that out there. But, yes, I do believe that what's saving us from Russia is the fact that we have an independent judiciary.
- [39:15]
B
Yes, immunity bred impunity.
- [39:17]
D
But let's be clear here, too. Like, if. If we're going to speak very frankly, too, these opinions, as great as they are, to your point, Susan, and we law geek out on them, right, because we think about the import of what they are, even though they impact all Americans. And these opinions are grounded in self preservation, guys, right? These are judges that are saying, this is my job. This is what I do. So even if. Jonathan. I love that phrase, right. The immunity bred, the impunity Remember, they made these decisions in the vacuum of when he was not the President of the United States. Right. So, yes, again, do I think they may not have adequately anticipated what could happen? Maybe they even themselves thought there's no way in hell this man's going to get reelected? I don't know. But you're correct. The construct for all of what's happening right now is this idea that he has carte blanc to go and do what he wants to do. So it's interesting to see how much is the reeling back going to happen. But more importantly, it's the teeth. I always say it's the enforceability and the teeth on it. Right. What happens next? Does Judge Paula Zinnis then bring in the Pam Bondi, the Marco Rubio, the Stephen Millers, etc. When she can only do so much with the lawyers? You can sanction the lawyers, but you're certainly not going to be holding the lawyers in contempt of court. You could. It's really the clients that are held in contempt of court when it comes to the procedures here. So these judges are laying the groundworks and the framework for contempt proceedings. They've already significantly done so vis a vis Judge Boasberg. But that opens up a whole of the can of worms on whether or not you can have an independently appointed special prosecutor, whether the DOJ is going to do it, et cetera. But I think that we haven't actually had the true test yet because we actually haven't seen the enforcement of these things yet. For example, Judge Marian I was a huge fan. We all watched that trial. And yet at the end of the day, what did Trump get? So I think people are waiting to kind of see what the next step is. But again, I kind of have to go back to just echo what I said at the beginning of our time together, which is we're so desperate for a crumb of decency, which I think is a reflection of just the cesspool that we're swimming in right now, that when we find a lifesaver like we're getting in these decisions, instead of saying, well, this is what they should be, we're now appreciating them as being outliers, which is just a shame, truly a shame.
- [41:38]
B
See, I, I'm not worried at all about Newsom's concern about this being a distraction. Like, I think Newsom was right on some things is totally wrong on this point.
- [41:51]
D
I agree. I think that was a poor, poor take from him.
- [41:54]
B
As the effects of a bad economy sink in and by the Way Howard Lutnick said it was, quote, worth it to have a recession for them to get whatever they want. Long term, I don't know. Americans making T shirts. Again, I don't know what their long term economic goal is. It's incoherent and idiotic. Maybe well intentioned to restore some manufacturing, but everything about the way they're doing it is not going to get us there. But once he opened the door to say it was worth it to have a recession, I felt free to say, I think it's perfectly worth it to have a recession to save the republic. There's nothing about any of the conversation that we're having that will do anything to affect the poor economic conditions that might be coming. And that will sink in to devastating political effect if they take place. So the idea that it might be like a distraction this week, 18 months before the midterms, is just irrelevant. Distraction from what? Distraction from trying to save our republic. So the more this plays out and the more there are these questions, who will can hold who in contempt, who shows up in court, and the more we cover these permutations, the more people understand that this is not about whether Abrego Garcia is a good guy. I mean, there's a report that he beat his wife. You know, it's not about that. Right now at the water cooler, they could be saying he beat his wife, but that's like, by 1974, they weren't talking about the details of the Watergate break in anymore. Two years earlier, they were talking about whether there was an injury to the Constitution. Meaning the people were talking about this. Right. And this is what is sending Nixon's, you know, ratings through the floor. So the Supreme Court says that Trump is acting in an unconstitutional fashion by not giving everybody their day in court as our Constitution requires. And Trump is saying, no, I am operating in a constitutional fashion. I'm not sure Trump wins that argument. He might win an argument about Ms. 13. But when we get into this whole, these new stages of the way this plays out and you start, you know, people start understanding, even if they're not reading the opinions, that these are Republican justices, Republican judges who are saying, you can't, you can't act like a dictator, you can't violate the Constitution, then I think that it elevates the issue of democracy with independence. You're never going to do anything about the base. People should just forget about the base. They're the Fifth Avenue crowd. They'll be with them to the bitter end. And it frustrates me when people say, well, the Trump people are never going to change their mind, we're not talking about those people. They are irrelevant to this political conversation.
- [44:53]
A
Well, they're a fixed element, right? They're not a variable.
- [44:56]
B
We're talking about the other 15% who voted for Trump reluctantly. They're not in the cult. They were worried about the economy, and they are eminently persuadable.
- [45:06]
C
Just a very minor point, because I think this is so important. I actually agree with everything that Jonathan said. I just wanted to add, though, that for me, there's really a lot of resonance to keep thinking of a country where we have had people snatched off the streets before, hoods put over them, sent off with no due process, to be tortured in foreign countries that were paying to do the torturing. You know, this is the global war on terror, except that now we are the enemy and we're the enemy within. And it is my view that that is actually a kind of an umbrella explanation, explanation for a lot of what Trump is doing and that he himself said it before the election. There was an interview in October of 2024, didn't get much attention, but Trump said, well, you know, there's Russia, there's China, and then there's the enemy within. And of those, the enemy within is the biggest enemy. And that is the view, by the way, also of his defense secretary, Pete Hegseth, and of others in his administration. And if you look at the kind of actions that they're unleashing, they've moved very far beyond this being about just, you know, it's not about immigration policy here. These are about, like, defining enemies. That's the kind of treatment. So when you snatch the young woman from Tufts off the street and, you know, send her away for the crime of writing an op ed in the Tufts student newspaper, what does that have in common with a man who is incorrectly nabbed on the basis of evidence that they don't have and sent away to a foreign country with no due process. The case we're talking about right now, it doesn't matter, because these are enemies. And it's very similar to the language of the war on terror. It's just that the war on terror is. Is now not against shadowy Islamic militants who may or may not actually be members of Al Qaeda that we are deporting to Gitmo or to some third country that's willing to torture them on our behalf, but we're doing it to people who are inside of our country.
- [47:19]
A
Now, look, that's the rubric that will Take us over the cliff if it happens. It's this notion of we're doing national security or foreign policy because we say so, and Supreme Court hands off. And I would have thought that more plausible than a couple weeks ago, you know, and we have the whole Boasberg case. In a way, this is of a piece with the really expansive assertion of power in all of civil society. You've brought up already the law firms. But it was a pretty big week on that respect, too. And there was some pushback that I want us to at least, you know, touch on and draw the parallels. And so Harvard University pushes back on these demands. And along the lines of what I was just saying this, find a little supposed legit grant of power and just expand it to the stars. So with Harvard to supposedly fight antisemitism, they've demanded to plagiarism reviews of every professor and curriculum control and hiring and looking at the books. So Harvard said no. And, you know, billions of dollars hang in the balance. It sort of felt like an offer they couldn't refuse. Columbia didn't refuse, but Harvard refused. How big is that? Both within the university community, but I'm saying, you know, more generally because that's. He's rolled institutions again and again in different areas. Is it like a pro, pretty big development that kind of starts him in his tracks, would you say?
- [48:52]
B
I think it's big. And I say that not just because I'm a Harvard graduate who's been very critical of Harvard in recent years, but I think it's a big deal because to me, it signals that American elites and that these very important institutions of higher education, as flawed as they are, are moving past the appeasement stage. Because appeasement didn't work. It didn't, didn't work any better than it worked for Neville Chamberlain at Munich. And I think everybody now understands, I think they understand it in the legal world as well, because Trump has now gone back and he said at these law firms that, you know, remember he was bragging they should, sir, whenever he.
- [49:32]
A
Says sir, he's telling them, well, there's never an end. Yeah, like Columbia, he always comes back.
- [49:36]
B
Sir, where do I sign? Sir, from the law firms. Right? So Paul Weiss, these other firms signed. They appeased him when they had done nothing wrong. The Columbia case is a little bit more confusing because they failed to implement the efforts to combat anti Semitism, the common sense efforts to address anti Semitism that a committee recommended. They failed to implement them. And that's what Trump demanded of them.
- [50:07]
A
No, he demanded Much more he want. And when he came back, he wants to put him in receivership, basically. Right.
- [50:13]
B
Later when he came back. But that's the point about appeasement is it always ends with accelerated demands, as Susan has covered these regimes. No. So I feel, again, I'm not being Pollyannish, but I do feel like we're coming to the end of the appeasement part of this process because people are finally waking up and recognizing it doesn't work. So you have a bunch of other colleges which have now just backed Harvard and said, we're holding firm. We're not going to give in to this guy, to this tyrant.
- [50:48]
D
I mean, I'm a Yale alum and Yale is supporting Harvard. So I'm happy to see that. My late father was a college professor for many decades. Education was paramount in my home in large part because I did grow up in a conservative Asian household. But paramount was your education.
- [51:05]
C
Right.
- [51:06]
D
And it's because my parents wanted to make sure that I positioned myself in a way that I'd be able to advance in this world. But they also wanted to make sure, ironically, that I did grow up to be able to go and be in the marketplace of ideas where I could go and I could be introduced to different ideas and different theories and different ideologies. And I am pleased to see. I think, Jonathan, you mentioned this a little while ago ago, that a place like Harvard that has the financial wherewithal to go to battle is going to battle. Because when we have seen larger groups, from companies to law firms to, you know, business people, etc, that do have the financial wherewithal to fight and they don't.
- [51:44]
B
Yeah.
- [51:44]
A
The richest have, have crumbled quickest in other settings. Right?
- [51:47]
F
Yeah.
- [51:48]
C
Right.
- [51:48]
D
It's kind of ironic. We look at these people, we're like, God, you could have fought it, but you didn't. Why? And so for the little people like me, you know, I see bigger people saying, not on my watch, this is not going to happen. You know, I'm going to be on the right side of history. I think it makes people feel like it's okay to stand up. Right. And so then when you have this place, which is again, a marketplace of ideas, it's an educational institution. I think when you look at autocrats and you look at dictators, they're going to take over your educational institutions, they're going to control your foreign estate, they're going to control propaganda, they're going to make sure that what gets disseminated is of a certain ilk. We're Seeing it happening, the whitewashing of things like the Naval US Naval Library, for example, things like that. Right. We're seeing that happen and it's not sitting well with a lot of us. And so when we see somebody like Harvard that can go to war, say, I am ready to, you know, put on my armor, as we've talked about, and I'm ready to go to battle and they're going to battle for us. And I think that that is an important message that's being sent. And so I am grateful that Harvard, Yale, Princeton and others are saying, we can't do this. We cannot destroy the fabric of an institution like an educational university or a college and say that it's okay to happen because the rebuild is never going to happen.
- [53:09]
C
I think speaking as another Harvard alum on this very, I suppose, undiverse call, my phone was lighting up with all of my friends, text group people were just cheering. A moment of like, finally. And you have to say that Harvard and other elite academic institutions in this country, they have come under a lot of very justifiable, in my opinion, criticism in recent years, you know, across the political spectrum, by the way. And, you know, there was a sense that finally Harvard has, you know, gotten on the right side of a news cycle. People were cheering millions of dollars in fundraising flowing back into Harvard. That people have been withholding both, both liberal people, by the way. And then the right wingers, many of the tech bros who then went and supported Donald Trump are also, you know, Harvard alum. I feel like there is a sense that this is a fight that they walked into with their eyes wide open. So I think Jonathan's right. Like, in a way, this period of appeasement, I'm kind of glad that it didn't happen at the very front end of Trump because I don't know if they would have stood up in such a full throated, loud way. I think they have the buy in. I think they probably understand. I know there were emergency meetings of the corporation and the board of overseers as they made this decision. So it was not entered into lightly. I think that's important. Important because it's a real fight. People are thinking back to the history of another time when you had this kind of demagogic attack on academic institutions. That was McCarthyism. And actually Harvard was one of McCarthy's favorite targets. Harvard had a very mixed record. On the one hand, Harvard's president at the time, Nathan Pusey, was celebrated because McCarthy attacked him and because he refused to fire professors targeted by McCarthy at the same time, they accommodated an awful lot without the kind of due process that we would expect in terms of living in that era. It's not a textbook template for how to stand up to an assault like this on academic integrity. And of course, McCarthy wasn't the president of the United States. And the weapons being brought to bear on Harvard right now are breathtaking. And there's an expectation in Washington, as we're having this conversation on Friday, that next week we're bracing for a broader assault on other NGOs, nonprofit organizations. All of those places here, from think tanks like Brookings to other universities, are anticipating assaults on their tax exempt status. They are anticipating contracts being canceled, all the, all those things. This, to me is very reminiscent of what you might call the authoritarian template. You know, I remember foreign entities like the Carnegie Endowment being thrown out of Moscow because they were branded as foreign agents. I won't be surprised when that is one of the twists in all of this. People need to hold hands against a bully. And, you know, the question is, when they do that, you know, yes, they can succeed in driving him off the playground, but we've never had to do it against a president with this much power.
- [56:30]
A
Yeah. Chris Eisgruber, good article in the Atlantic. President Princeton says this is the worst since the Red Scare. I hear a general consensus that you think Harvard's stance kind of helps stiffen the spine in other areas.
- [56:43]
B
I think that in the same way the worm is turned in academia, I think it is beginning to turn among law firms and their spines are stiffening. And one of the reasons why, why I think people didn't anticipate. So like Brad Carpet, you know, the managing partner at Paul Weiss, he was worried that, you know, their practice would evaporate because the private equity clients would flee out of fear and then the whole firm would collapse. And there, there is a history of firms collapsing pretty quickly. So it wasn't like that was a completely crazy idea. But what he didn't anticipate would be that he's going to only get second rate or third rate associates at his law firm, both in the summer and hired his associates. And this is a law firm like several of the others, Scadden, Arp's and others that have bent the knee. They thought they could both bend the knee and still get the law review lawyers, and they can't. There are very few trumpy law review editors in this country. So the chances of getting the crumb of the crop, it's just not gonna happen for them. I mean, they'll get em again in a few years when all this has passed. But for right now, maybe, maybe I.
- [58:07]
A
Think people might remember.
- [58:08]
B
They might remember. They might remember. It might be a permanent injury to these craven law firms and it might be a permanent stain on their reputation. That could very well happen. But I think they didn't even anticipate that there would be this downside. But I've talked to some law professor friends of mine and their students are coming to them saying some of them have offers from these big firms and want to like, not go after they've already agreed break their contract. And the ones who are looking for where to go, there's no way they're going to those firms.
- [58:39]
A
Okay, so, I mean, look, a real possibility. There's nothing like seeing a bully punched in the nose. It's. It's possible or. But I do think it's really right of us thematically, but right of the country institutionally to be at. Just as Susan says, locking arms. Okay, we're out of time and there's so much more to talk about. We do just start talking. Five question left. I guess I better at this point cop to being a Harvard alum.
- [59:09]
D
Also, I'm outnumbered.
- [59:11]
A
Sorry, Katie, but the. Because the question is now we're going to tax status. Tell us all your foreign students, if Harvard continues to hang tough, what's the next demand from Donald Trump to Harvard University? Five words or fewer.
- [59:28]
C
Anyone give honorary degree to Don Jr.
- [59:34]
A
Oh, oh, to Don Jr. To Jr.
- [59:36]
C
Or to Don Jr. Don Jr. Donald Trump is already a graduate of the Ivy League. I mean, you know, his uncle was a professor at mit. Did you know that?
- [59:45]
A
Yeah. Very highly regarded.
- [59:46]
B
Okay, rename Memorial hall for me.
- [59:51]
C
That's good.
- [59:52]
A
Excellent.
- [59:53]
D
I got it. Endowed chair in fast food.
- [59:58]
A
And I'm going with change. Crimson to orange. Thank you so much to John, Susan and Katie. And thank you very much, listeners for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review this show. You can also subscribe to us on YouTube where we are posting full episodes, talking books and bonus video content. Check us out on Substack now. Ocking Fed Substack, where I am posting two or three bulletins a week, going live and sharing other exclusive content that breaks down the various threats to constitutional norms and the rule of law. You can follow us on Twitter akingfedspod. TalkingFeds remains a completely independent, independent production. So it's your support and nothing else that funds all of our franchises. We just couldn't do it without you. And as you may know, Talking Feds has now joined forces with the Contrarian. I'm a founding contributor to this new media venture, which is committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we are still the same scrappy independent podcast you've come to know and trust, but now linked up with an ambitious and vital project designed for this pivotal moment in our nation's legal and political discourses. Find out more at Contrarian Substack. Thanks for tuning in, and don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Kathryn Devine. Our associate producer is Becca Haveian, sound Engineering by Matt McCardell, Rosie Dawn Griffin, David Lieberman, Hamsa Mahadrenathan, Emma Maynard and Hallie Necker are our contributing writers and production assistance by Akshay Turbailu and Sebastian Navarro. Thanks very much to Sandra Bernhard for explaining the post conviction process. Our music, as ever, is by the amazing Philip Glass. Talking Feds is a production of Delito llc. I'm Harry Littman. Talk to you later.
- [62:37]
B
SA.