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- [00:00]
Narrator
Mike and Alyssa are always trying to outdo each other. When Alyssa got a small water bottle, Mike showed up with a 4 liter jug. When Mike started gardening, Alyssa started beekeeping.
- [00:11]
Harry Littman
Oh come on.
- [00:12]
Narrator
They called a truce for their holiday and used Expedia Trip Planner to collaborate on all the details of their trip. Once there, Mike still did more laps around the pool.
- [00:22]
Jonathan Alter
Whatever.
- [00:23]
Narrator
You were made to outdo your holidays. We were made to help organize the competition. Expedia Made to Travel this episode is brought to you by Lifelock. It's Cybersecurity Awareness Month and Lifelock has tips to protect your identity. Use strong passwords, set up Multi Factor Authentication, report phishing and update the software on your devices. And for comprehensive identity protection, let Lifelock alert you to suspicious uses of your personal information. Lifelock also fixes identity theft, guaranteed or your money back. Stay smart, safe and protected with a 30 day free trial at lifelock.com podcasts terms apply.
- [01:07]
Harry Littman
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. President Donald Trump crossed the line this week, the one that divides questionable, even lawless conduct from raw autocracy. He fired his own hand, picked U.S. attorney because the attorney wouldn't prosecute cases against Trump enemies without evidence. He then installed a lackey with no experience and against all advice from her office, she indicted former FBI head Jack Jim Comey. The indictment was the most crass, unjust and deplorable action this Department of Justice has taken and it confirms that the rule of law is dead in the federal government and that Trump killed it. The rule of law took almost as severe hit when we learned that tough talking immigration czar Tom Homan apparently accepted $50,000 in a bag in an FBI sting, but that the investigation was then closed by Emil Beauvais and other lawless Trump henchmen. One significant and heartening development leavened the grim news of the week. Disney, which had genuflected to Trump by yanking Jimmy Kimmel off the air, relented and reinstalled him after a matter of days. The ultimate cause of the reinstatement seems to have been popular will and protest the the very sort of force that may well be the prime tool in the multi year fight against Trump's tyranny. To unpack a week when Trump's raw partisan approach to criminal justice, law and facts be damned, was on full display, I'm very happy to welcome three of the most knowledgeable commentators in the country. They've all got extensive experience in the ways of DOJ and federal criminal justice. And they also are all talk feds, stalwarts. And they are Jonathan Alter, an award winning author, filmmaker, columnist and MSNBC political analyst, are talking feds. Fact checkers have confirmed each of those professions. And if that's not enough, he's written books about fdr, Obama, Jimmy Carter, and most recently the felony trial of Donald Trump which we attended together. Ellen, he's got a really great substack called Old Goats. Jonathan, so happy to see you here. Thanks for joining.
- [03:47]
Paul Fishman
Good to be here, Harry.
- [03:49]
Harry Littman
Paul Fishman, he had a decades long career in the Department of Justice where he served in capacities ranging from line Prosecutor to U.S. attorney for the District of New Jersey and to I want to add here, because it's in some ways the most powerful or important role in the department, the one that Emile Beauvais recently had, principal associate deputy attorney general, the Pawdag. We may talk about that more. He now heads Arnold Porter's crisis management and strategic response team in addition to his other top roles at the firm and is quite involved in a lot of important litigation growing out of Trump's various overreaches. Paul, thanks so much for joining.
- [04:36]
Jonathan Alter
Harry, it's always great to be on your show.
- [04:38]
Harry Littman
And Mimi Rocco, another killer line prosecutor, but supervisor who's going to be able to speak to what some of what's happened this week. She was a federal prosecutor for the vaunted Southern District of New York for over 16 years and then from 2021 until this past year, she was the elected district attorney of Westchester County. She's now an adjunct professor at Fordham University's law school and and a top legal commentator. Mimi Rocha, thanks so much for joining.
- [05:10]
Mimi Rocco
Great to be back with you, Harry.
- [05:12]
Harry Littman
What a week. Let's start with the Comey indictment. My feeling is that a lot of people are seeing it as just one affront among many, where at least I as a former prosecutor and maybe others here are seeing it as like a third rail break, glass, alarm moment. What's your view about just how serious, grave, important a moment is?
- [05:39]
Jonathan Alter
Well, look, in one sense, this is totally foreseeable, right? Donald Trump has been telegraphing since he started, at least since he started running for the second term, that this is what he intended to do, that he felt aggrieved by the fact that he was investigated and impeached and investigated and indicted and indicted and all of that makes the way he thinks, makes him feel like he's Entitled for retribution. He calls it justice, but he's entitled to retribution, and he's looking for anybody he can to go after. And Jim Comey is just the first guy, in my view. I represent Congresswoman LaMonica McIver. I think she was before him. But Comey's different because he came into office saying he wanted Comey to go down, and he has done everything he can now to make that happen. So.
- [06:27]
Harry Littman
And he sees Comey as one of his antagonists. So it really is reprisal in a way. MacGyver isn't.
- [06:33]
Jonathan Alter
Well, it's also, you know, he's. You know, I may be overanalyzing this, but I am married to a psychoanalyst. He had Comey as his director of the FBI. So for the way Donald Trump thinks, if thinking is the right word, it is extraordinary betrayal for him by somebody who he thought would actually have his back, and, of course, didn't, because that's not Jim Comey's job. It's not the way he sees the world. It's not the kind of lawyer he is.
- [06:58]
Mimi Rocco
But, Paul, you said Trump said this is what he was going to do, that it's not a surprise. And that's correct. Although the one tweak I would make to that statement is he said it's what he wanted to be done. He said that since day one. He actually, back in 2016, in a less direct way, said it about Hillary. Lock her up. Right. I mean, he's been calling for the investigation, prosecution, jailing of his perceived political enemies, or just enemies or people who have betrayed him or whatever, forever. One of the reasons this is so such a Rubicon cross, the reddest line, et cetera, et cetera, is because he was able to accomplish that for the first time. Right. I think there are many different layers to why that is, but we should have been shocked. And many of us were, right. Like many of us have been screaming since 2015, 2016. You can't have the president saying, prosecute this person. Prosecute that person. It's dangerous for the president to interfere in this case. That case. This case. Why? Well, the why is here now, because now he has actually achieved the criminal indictment of someone who should not have been indicted. And how do we know that? Because under legitimate analysis and reasons by real prosecutors, career prosecutors, who were looking at it through the lens that all of us were taught to look at it through, not political, but based on the evidence and the law and discretion, they said no.
- [08:31]
Jonathan Alter
Right?
- [08:31]
Mimi Rocco
That's the one. Like sort of big difference here.
- [08:35]
Jonathan Alter
Mimi, I don't disagree with anything you said, and I didn't mean to suggest that this is an extraordinary watershed moment in American history. And instead of making America great again, he's making it another country entirely. Right. That's, that's a thing. But I do think one thing we may need to keep in mind a little bit is that in the first administration, Don McGahn, who was then White House counsel, wrote him a memo saying, you can't do this shit. Right? McGahn's gone. There's nobody there who's going to stop him now. And the Republican Party, nobody in the Republican Party, nobody in the Senate, nobody in the House, at least in the last 24 hours, has raised his or her hand and say, this is too far even for us. And so all of those restraints on his impulses are gone. He could, he would have done this, I think, in the first term if he could have figured out how to do it. He's now figured out how to do it.
- [09:19]
Mimi Rocco
Right. There's no lawyer guardrails anymore telling him you can't. Well, correct. Although there's none in his inner circle, because there are. I mean, the U.S. attorney from Virginia, Eastern District, Virginia did say so. And he is a Trump. He's not some deep state, you know, U.S. attorney. He was the person Trump had picked and was going to be on his way to being the permanent U.S. attorney or, you know, for the next four years. But for this whole incident. But yes, there's no one in his inner circle. And if there is, because there are hints that Todd Blanche, Pam Bondi said maybe, no, Trump doesn't listen to them anymore. Why? Because there doesn't seem to be any consequences when he doesn't.
- [09:57]
Paul Fishman
Right. I agree that it's a break the glass moment, but the glass might be.
- [10:02]
Jonathan Alter
All over the floor.
- [10:03]
Paul Fishman
There's nobody to pick it up until Trump leaves office. But I don't think it's a crossing the Rubicon moment because that suggests that the die is cast forever. And I thinking about this a lot because I'm writing a political biography of Julius Caesar right now.
- [10:22]
Harry Littman
Don't mess with on Rubicon with him.
- [10:25]
Jonathan Alter
John, you and I are old enough to have gone to high school with Julius Caesar.
- [10:28]
Paul Fishman
Yeah, Right. Right. Yeah. I don't. Fortunately, I don't have to interview anybody for the book. So even Caesar could have reversed course and not started the civil war in ancient Rome. And this also is not irreversible for all of the things that we have been hearing. And the reason I Say that is because I'm old enough to have experienced the Nixon administration. Nixon was facing impeachment and had to resign from office for doing almost precisely what Trump just did. Let's not make any mistake of this. What Trump did was criminal. What Comey did was not criminal. And on the latter point, I would refer people to Andrew McCarthy. The very conservative pro Trump legal analyst on Fox has had the integrity to say, jim Comey was not lying to ted Cruz on September 30, 2020, when he said that he did not authorize a leak. What actually happened, and the Republicans investigating this have confirmed this, is that when Andrew McCabe told Comey that he had leaked, Comey said, okay, but that's not authorizing the leak. That's not originating the leak. And so McCarthy points out that, you know, this just means there's. There's simply no weigh on the evidence to convict. And the length of the indictment is only, you know, a page and a half long. It's being brought by a person who has literally zero experience as a prosecutor. She's an insurance lawyer. My point is that this is reversible in the same way that Richard Nixon's corruption of the Justice Department, when he was ordering up all sorts of things and confessing to it on the White House tapes. Nowadays, Trump just posted on Truth Social, when Gerald Ford and Jimmy Carter came in, they reestablished the independence of the deeply corrupted Department of Justice that they inherited. So I just say this because if we can just get through the midterms and give the House of Representatives the power to subpoena all of these jokers on Capitol Hill, grill them, and then impeach Trump again. Yes, this must happen. I know people go, oh, he's already been impeached twice. What's the point? Let's, you know, he's. No, this must happen in 2027. And then we'll have a trial in the Senate, which Trump will survive, but all of the evidence of the crime that Donald Trump just committed will be laid out for public inspection. And so that's the solace that I get from this, that starting in 2027, we're going to have some accountability for this criminal action on the part of the president. And then in 2029, when, with any luck and the grace of God, we have a Democratic president, we'll be able to do what Gerald Ford and Jimmy Carter did and re establish the integrity of the Department of Justice.
- [13:58]
Mimi Rocco
I don't want to get too far afield from talking about the indictment, but what is the crime that you think Trump has. I mean, I obviously am completely and unabashedly critical of everything he has done with respect to DOJ and this in particular. But what is the crime that you see here?
- [14:18]
Harry Littman
You mean impeachable offense more than crime, right?
- [14:20]
Mimi Rocco
Oh, okay.
- [14:21]
Paul Fishman
Well, abuse of power. But I mean, you guys are the lawyers, like, so if you fire a U.S. attorney, you in some ways could be obstructing justice. Right. If you're doing that for crass political reasons, you're obstructing the advancement of justice here. As the judge will soon rule, the Trump people are going to say, well, it's a Biden appointed judge, but this thing's going to get thrown out. Every lawyer in the United States knows that it's, it's not a case. They have no evidence and no case. So once a judge throws that out. This is my question for you as the lawyers and says that, that bringing this case was a horrible abuse of justice. Does that abuse of justice in, in the bringing of this case and this indictment, does that also? Can that be interpreted? And is there any precedent for that being obstructing justice?
- [15:22]
Mimi Rocco
I don't think so, to be honest.
- [15:24]
Harry Littman
I have a way that I want to move to that. And let me just first, you know, put my view on the record as a prosecutor, and I'm of the break glass 5 alarm 5 a fucking prosecution ordered by the president against a political enemy in the absence of proof, other than, you know, kidnapping someone in the middle of the night and taking them to Gitmo or whatever, it gets no worse than that for me. And I feel responsibility almost as a prosecutor to try to explain why it is so grave, so fundamental, so against everything we were learned. But that's just to throw my vote in and say this is even more serious.
- [16:07]
Paul Fishman
So the question of whether Trump's conduct is criminal is strangely irrelevant right now because the Supreme Court has ruled that he can't be prosecuted for anything he does as president. And, you know, they actually said in their opinion in the horrible immunity case where immunity bred impunity, that the only remedy was impeachment. Right. And for impeachment, the high crimes and misdemeanors and abuse of power that have often been part of counts of impeachment, this fits into that very, very easily. There's no question that what he did is a high crime and misdemeanor by the standards of the Congress.
- [16:54]
Harry Littman
Yeah, I concur. And we've learned over the last several years how loosey goosey the whole idea of it is. But again, it's just so rank and corrupt, it doesn't matter whether it fits the federal code. I want to go back to the point you made, Mimi. We have a memo from the career professionals the day before saying you don't have a case here. Which to me really goes to what's so raw and rank about this? My question to you is this. Does that factor the memo and her staff saying you don't have a case here? Will it impact the case as it develops, or is it just now that the grand jury has acted a kind of, you know, buried fact?
- [17:38]
Mimi Rocco
Oh, I absolutely think it does. Right. And it's a hard point to deal with, but a really important one, this idea that, well, the grand jury indicted him. So, I mean, you're going to, I'm sure, have already heard that from, from many Trump supporters who will argue this is okay no matter what. And they'll say Trump didn't indict him, the grand jury did. But here's first of all, why it remains very relevant. As you know, there's going to be motion practice. And so before we even get to like, is there a valid claim here? I don't think so, but let's not even get to the merits of it. And you know what, what's a judge going to do with the merits of the indictment? What's a jury going to do, et cetera? I think there's at least a good chance, whereas I wouldn't say this in almost any other circumstance, of a meritorious both vindictive prosecution claim and, or an outrageous government conduct claim. And those are both really, really hard motions for defense attorneys to prevail on. But we've also never had, as we've all been discussing, like whether it's across the Rubicon or not, we can all agree that we have never, ever seen this set of facts before. We have never seen the head of the government, the president of the United States, calling for the prosecution and saying, basically, I don't care what he's guilty of, he's guilty of something. He's guilty of being my enemy. And then the career prosecutor saying, no, there isn't an actual meritorious case here to charge. We don't think we should, and then that being overruled by the political loyalist installed by the president. So I'm not going to say he's going to win. But I mean, if you're his lawyer, which he has a great lawyer, as we all know now, Pat Fitzgerald, you're going to make those arguments and this all becomes Very relevant. And Maybe Siebert, the U.S. attorney, maybe he even gets called to testify to in front of the judge, maybe, maybe in camera, maybe, you know, it may be not public.
- [19:49]
Harry Littman
Paul, I know you're about to talk. I just want to add to your load because you've represented a lot of high profile defendants. Comey and his statements seem to say, let's go, let's have a trial, let's do quick. They won't be ready. Obviously, as Mimi says, there's a real possibility for some very powerful motions practice here. What's the best way for Pat Fitzgerald to handle it?
- [20:11]
Jonathan Alter
Well, look, it's tricky for a lot of reasons. First of all, they're in the Eastern District of Virginia. Rocket, known as the Rocket Docket cases get tried faster there, sooner there after indictment than anywhere else in the country, pretty much. And so if Jim Comey wants a trial quickly. And yesterday on his video posting, he said basically, bring it on.
- [20:32]
Paul Fishman
We will not live on our knees. And you shouldn't either. My heart is broken for the Department of Justice, but I have great confidence in the federal judicial system and I'm innocent. So let's have a trial.
- [20:46]
Jonathan Alter
If he wants to go to trial in maybe not in October, but in November, he's going to get that is my guess. That's first. The interesting thing though is that he does, I think Mimi's. Exactly. He has a really good vindictive prosecution motion. Right. And I mean, selective, I think is trickier because you have to have people, you got to compare them to. But for vindictive prosecutor, we have both motions in the MacIver case. Prosecution motion. The first problem is is there actual vindictiveness, like the evidence of that is off the charts. Right. The President is clearly doing that. And I mean, along the way, he's turned the Eastern District of Virginia, U.S. attorney's office. It's like an episode of the Apprentice. I don't like you. You're fired. I'll put somebody else in. It's completely insane and way beyond anything we've ever seen. And then he has to show that basically he's. They're coming after Comey for, you know, basically for. For his exercise of a statute to our constitutional right. He's being pursued because of his job as the head of the FBI. Right. And so all of that makes this, I think, a better motion than many. The problem is that as a defense lawyer, you're thinking, I got to make the motions because I have to do everything I can to make the odds high that my client doesn't get convicted.
- [22:02]
Paul Fishman
Right.
- [22:02]
Jonathan Alter
And so if I have a good pretrial motion, particularly one that might, as Mimi pointed out a few minutes ago, result in some interesting and complicated and helpful discovery because maybe the judge is going to take testimony about this, maybe there'll be some effort to peek behind the curtain and see documents that the U.S. attorney's office wouldn't otherwise be obliged to disclose. There are a lot of reasons to make that motion. On the other hand, I've had clients, other people have had clients who said basically, look, I want to go to trial, I want to go to trial quickly, I want to be vindicated. And if this case gets dismissed by a judge, I'm really not getting exonerated in the way I want to get exonerated. And honestly, I know known Jim Comey a long time. I've known Pat a long time. You know, they're both friends, but not incredibly close friends. So I don't pretend to know what they, how they will analyze this, but those are the things that they have to be thinking about. What we also will learn, by the way, which we don't yet know, is, is exactly which statements. We're all speculating about it. We can all guess.
- [23:00]
Harry Littman
Right, Great point. Which statements.
- [23:02]
Jonathan Alter
So the underlying facts here are really tricky.
- [23:04]
Harry Littman
When will we learn that, Paul?
- [23:06]
Jonathan Alter
We can learn it in one of two ways. We can learn it if the defense files a motion for what's called a bill of particulars, which is basically the indictment isn't specific enough in a perjury case or an obstruction of justice case where particular statements are alleged, they're entitled to know exactly what question was asked and what answer I gave that you think prosecutor underlies this offense. If you file what's called a motion for bill of particulars and the government basically has to amend the indictment effectively with another filing in federal court. Often happens is the defense writes a letter to the U.S. attorney's office. This is Dear U.S. attorney, I don't really get what's here. I don't want to have to make a motion for a bill of particulars. Please send it to me so I can defend myself. If it's the bill of particulars, we'll see it on the docket. If it's not, then we might not learn about it right away until they repeat it in their pre trial motions. But sooner or later we'll learn what the actual theory of obstruction and false statement is in those two counts.
- [24:05]
Harry Littman
Let's pause it. A lot of people think it's quite likely the case Unwinds, the US Loses, maybe even at the motion stage. Does Trump manage somehow to declare victory and go on to the next one? Or is it the sort of humiliation, as much as he's put his chips on this, that plays as a big loss and hurts him politically?
- [24:27]
Paul Fishman
This is such a fascinating question. So he cannot be humiliated. That just is not anything that will ever happen because he has no sense.
- [24:36]
Jonathan Alter
Of shame, not an emotion that he experiences, I think, John.
- [24:40]
Paul Fishman
So humiliation is impossible in his case, but he can be dissuaded by his transactional nature into backing off. And the idea that he never backs off is just wrong. I mean, I know from personal experience, in 1990, he threatened to sue me over something that I said about him in a documentary. And I took it to the Newsweek lawyer, and she just laughed and said, join the club. There's hundreds of people like you all over New York. And he threatens things. In this, Casey went further than threats. And then he often moves on to find another victim. But this is why. What happened in the Jimmy Kimmel case, what's happened with some law firms and possibly with Harvard University, which is pushback resistance, standing up to Trump, this works. Democrats have gotten so defeatist and fatalistic about Trump, and this is why this crossing the Rubicon thing sticks in my craw. He does back off when the political price is high enough. If this goes badly for him, and in the court of public opinion, people are responding badly to this. He's got enough other problems that, you know, he might decide, no, you know, going after Hillary Clinton or whoever he's thinking of next isn't really going to work out for me. And so I'll go off and worry about my tariffs. You know, a lot of it is just convincing him to go pick on somebody else. And the best way to do that is to resist. There are a lot of people, including some law firms and universities, who think that the best way to get them to go pick on somebody else is to duck and to give him what he wants. And that's exactly the wrong way to get him to move on and attack somebody else. The right way is push back resistance with everything that the forces for democracy have at their disposal.
- [27:03]
Jonathan Alter
John, I think that's a really. I think it's a really, really great point, but I. But I think it's worth also thinking about the fact that he didn't walk away from the law firm gambit until he lost three or four times.
- [27:16]
Paul Fishman
Right?
- [27:16]
Jonathan Alter
Right. He went off to Perkins Coie, got shot down immediately. Then he went after Covington and he started with Covington, Wilmer, and Jenner. And only after he was like, 0 for 3 in the courts did the process abate. You may be right that if he loses the Comey thing, then he backs away, but it may not be soon enough for Adam Schiff or Tish James or where Lisa Cook.
- [27:40]
Paul Fishman
I agree.
- [27:41]
Jonathan Alter
And that's the danger.
- [27:42]
Paul Fishman
And George Soros. George Soros.
- [27:45]
Jonathan Alter
He's going to. Yes.
- [27:46]
Paul Fishman
You know, I mean, the craziest thing is this guy who is the king of extortionists, running the biggest extortion racket in the history of the world, is going after George Soros on a RICO charge. And they're very likely going to indict, if not Soros, somebody from the Soros Foundation.
- [28:04]
Harry Littman
Or it might be civil.
- [28:05]
Jonathan Alter
Or the foundation itself.
- [28:07]
Paul Fishman
Yeah, the foundation itself.
- [28:08]
Harry Littman
I'll weigh in here also and just say part of the reason I'm so emphatic on my break glass moment is I do think there's a feeling that, you know, that this is a kind of issue that is of burning interest to lawyers or others. And I think there is a strong possibility the whole thing unwinds in completely humiliating fashion, but it's, you know, forgotten within a week or two that it's more the. The lawyers who are all over this.
- [28:38]
Paul Fishman
Yeah. I mean, Epstein is the only thing that sticks, Harry.
- [28:41]
Harry Littman
Yeah.
- [28:41]
Paul Fishman
Nothing else sticks. Epstein is the whole. Politically is. Is the whole ball game in terms of really tarring Trump. And this is. This is for lawyers, but it's really important. Did you see what Alan Greenspan and these other.
- [28:55]
Harry Littman
Oh, my God.
- [28:56]
Paul Fishman
People who been on the Fed on the Lisa Cook case? Right. It's really important for elites to weigh in on this. So my question is, where is the American Bar Association? Where is the legal establishment mobilizing? Not just having some liberals on MSNBC complaining about it.
- [29:14]
Mimi Rocco
Well, the American Bar association has. I mean, they're clunky at it, but they've gone farther in this Trump administration than they ever gone before. They've been more proactive, putting out more statements, trying all sorts of reaffirm your oath to lawyers, reminding lawyers about their oath, things like that. So I just want to give some credit to the aba. I mean, it's not perfect, and they always, definitely could have done more. But I think actually, and this gets to the like, does this stay alive? Like, part of why the whole Jimmy Kimmel thing had a turnaround was because it wasn't just liberals on msnbc, it was Ted Cruz. It was some conservative voices saying, okay, this is a bridge too far. And that is the app. We have not seen that nearly at all, but certainly not enough in this Trump administration on anything. And the two places that we get little hints of it, one was with the Adams prosecution when they did that, you did see criticism again from the Andrew McCarthy's and Alan Dershowitz, who I am not no fan of and have no respect for, but like, you know, he did come out and say this was. He didn't say this was wrong. He said what Danielle Sassoon did in resigning was right. And there was a lot of praise from all around, you know, from the Wall Street Journal opinion pages, National Review, et cetera, of how the prosecutors reacted. And I think you're starting to see that a little bit here. We need more of it. But I do, I seems to me, and maybe it does come down to politically, then it is an issue. But if Trump reacts to anything, or at least the people around him get more persuasive, is when they can see that it isn't just the radical left, crazy liberal Democrat party criticizing, but some other people. And so we need those former Republican. I mean those are the people U.S. attorneys, AGs, presidents. No one can look at this who has a rational brain and knows anything about democracy and justice and think this is okay. They need to say it out loud. And so who can mobilize them? That's my question and I think they will.
- [31:33]
Harry Littman
Let me just say briefly, John, the legal profession will be there. It's been less than 24 hours. There's all kinds of amicus briefs being ginned up. Plus, as Mimi says, think as revelations come out, you're gonna see a very robust law profession response.
- [31:50]
Jonathan Alter
To meld Mimi's point and John's point together, it has to be people who abandon ship, who he actually gives a shit about, right? So for example, on the Jimmy Kimmel thing, it was Ted Cruz and Joe Rogan, right, Who said this will not stand on the Epstein stuff. It's people in the House, at least a handful of Republican Congress, members of the House who are outraged by the Epstein thing, Right? It's not the mainstream former US Attorneys or former judges who were Trump would call them the Rhino U.S. attorneys or the Bush folks. It's gotta be people who actually either he listens to or who get under his skin. And the question is, in this situation with Jim Comey, who are those people?
- [32:41]
Harry Littman
By the way, one of them is Jim Comey. He handles them beautifully, don't you find? He's really nuanced and Elegant.
- [32:48]
Paul Fishman
What do you think about mass resignations? Because I was struck. Not only was this indictment just pathetic, even a layman could tell that it was pathetic. But in another filing, Lindsay, what's her face, she's trying to say that she's standing on principle and our principles, and she spells it P R I N C I P A L S. Yeah, right.
- [33:14]
Jonathan Alter
Well, maybe she was referring to the president as her principal, John. Maybe that's what she meant.
- [33:18]
Paul Fishman
That thought occurred to me. But another thought that occurred to me is that, you know, a cacocracy is not just government of the corrupt. It's government of the corrupt and the stupid. Right? So if you have mass resignations from the Public Integrity units of US Attorneys all over the country, they're going to have insurance lawyers, Alina Haba type lawyers, you know, who don't know their ass from a hole in the ground, and they're going to have a lot harder time bringing these cases against Adam Schiff and the rest of them if they have nobody with any experience working at doj. So my question for you is, can you encourage these mass resignations without, say, hurting the counterterrorism functions of DOJ and the other things where we really do need the career people? Would a mass resignation from public Integrity units help?
- [34:20]
Mimi Rocco
The problem is they've already decimated the Public Integrity Units, so there's no one left to resign.
- [34:25]
Harry Littman
And the EDVA itself, who the hell is going to try this case?
- [34:29]
Jonathan Alter
Well, so let me. So first of all, I don't know the actual numbers, but I heard, I heard a statistic that there were like 90 vacancies in the U.S. attorney's office in D.C. there are probably 30, 25 or 30 lawyers down in the U.S. attorney'S office in New Jersey. So what does that mean? So, first of all, I don't think the Trump world gives a rat's ass if people resign en masse. They just don't care. I think the way to take them to task here is it's one thing and it's terrible. I'm not, I don't mean to undermine the horribleness of this, that, that Lindsey Halligan is in charge of the prosecution of Jim Comey. I mean, that's sort of crazy, but Lindsey Halligan is also now supervising all of the terrorism investigations in the Eastern District of Virginia. That's a frightening thought. Right? She's supervising all of the organized crime and violent crime cases in the Eastern District of Virginia, and she knows nothing about how to do that in D.C. i understand they've arrested so many people with this sweep of low level crime that the folks in the U.S. attorney's office don't have the bandwidth to do the bigger violent crime cases that are what federal prosecutors should be focused on. Right. And so the irony, John, is in some sense what you're suggesting is that the administration is actually not serious about cracking down on crime because they fired a ton of people who actually know how to do that. They may be able to hire good people who think that they still want to be an Assistant U.S. attorney, as Harry and Mimi and I did back when we were, when we were kids and you were a cub reporter. Right. But lots of people are not applying for those jobs anymore. And they're going to end up hiring people to do those jobs who may be less qualified. And they're certainly not going to have super supervisors around like Danielle Sassoon or like Siebert to train those people how to do the job. Right. And I think over the next, you know, next two or three years, you're going to see a raft of cases in federal court in which the judges are going to go, are you kidding me? This case doesn't work this way. This is not how the system is supposed to work.
- [36:36]
Harry Littman
You're the Department of Justice. Yeah. And they're already doing it. I just say as to Halligan, it's not as if. It's not. It's. People are familiar with having a figurehead in the office who doesn't really know she's different because she's come in as the enemy, as the embodiment of going this direction that's completely opposed to where the career professionals are. Okay. I am employing moderators prerogative because we, I just got. We got to get to Homan. We learned this week that there's some pretty good indication that he, he took $50,000 in cash in a kava bag in an FBI undercover investigation. Although the White House spokesperson said, nah, I never did it, didn't do anything wrong. Here's my main question, because I wrote about it this week. Do you see any way in the world in which the claim that I think they're going towards, which is we closed it down because we thought the Supreme Court would make trouble on the bribery thing because he hadn't yet been selected. I just put it right out there. My claim was no friggin way that something like that would have taken months and months. Involve olc, by the way, with this big kind of fish, you would. There's many other crimes to think about. Much more Investigations to do. The prospect that they actually shut it down in a regular meritorious way, how do you evaluate that? Is that clearly a lie? Was the shutting down just plainly political or is it more nuanced than that?
- [38:12]
Mimi Rocco
Well, I mean, a couple of things. First of all, they said that it was for political reasons. They said this was a politically motivated prosecution. And again, like we need to use their words when they are frankly not smart enough to. I mean, they did the same thing in Adams when they said, this isn't about the merits, this is about, you know, immigration and blah, blah. So they said that out loud. And that is a political reason, like if you're shutting it down because. So it's not based on the merits as to that argument, it wouldn't be wrong that bribery prosecutions are incredibly challenging now. But it's not like nobody's ever been prosecuted for bribery. And in fact, I mean, usually people say, well, you know, bribery, it's not, you know, it's not like you're ever going to have people like taking a bag of cash. Right. And so usually the part about what is the elected official getting is not so obvious here. It's so obvious. I mean, literally did the thing that we all joke about that you never have. He took the bag of cash.
- [39:15]
Harry Littman
Yeah. And by the way, Mimi, have you ever heard of a sting where they let him walk out with the cash? Now, as far as I can tell, he kept the fucking cash.
- [39:24]
Mimi Rocco
Where's the cash? I want the cash.
- [39:25]
Harry Littman
Can you imagine?
- [39:26]
Mimi Rocco
Well, so they must have thought it was going to continue. Right, Right. But also, and you know, the reporting at least is that this, he wasn't targeted. They came about him because some other subject or witness kept mentioning him, which is how investigations naturally go. I think the legal issue here would have been, was he yet a public official? Does he qualify under that? Because it was, I think, announced. I mean, that's very fact specific. But there's no way. You just throw up your hands and say, this is too hard. You investigate, you research the law and.
- [40:04]
Harry Littman
Money laundering, tax claims.
- [40:06]
Mimi Rocco
That's what I was going to say. And by the way, there's plenty of other crimes like tax in particular. See how he. Is he going to list that 50,000? That's probably part of why they let him walk away with it. Like, is he going to put that on his tax returns? And those are, you know, bread and butter kind of crimes.
- [40:22]
Jonathan Alter
The fact that they let him walk away with the cash suggests a, what Mimi just said, which is maybe that investigation was continuing. B, Maybe there was other stuff going on, too, with the same informant. And if they had, like, arrested him with the money, they didn't have enough yet to do it. And they might have blown whatever other investigation, the person, the undercover FBI agent or whoever, whether it's an informant. Right. They may have been a plot to. With other folks. So we don't really know the answer to that question. And Mimi's right. You know, there are problems with cases in which the person who takes the bribe is not yet a public official, but state law bribery doesn't require that. Commercial bribery. I can't remember where the, the. Which, which cav. Yeah, well, there's no chance that a state prosecutor in Texas is going to go after Homan. Right. That's a big probably. Right. But here's how far we've just the shark, right? Take us back 10 years ago, take us back five years ago. Somebody's going to be in Joe Biden's administration. Somebody's even going to be in, maybe even in Donald Trump's first administration. And the administration learns that sometime in the fall before the election, the person they want to make the borders are, or the Secretary of the treasury or something else was in the parking lot of Acava or some other, I don't have to be a combination of your restaurant and in the parking lot takes a bag of $50,000 in cash. That would have been a disqualifier for most people, for most jobs in most circumstances in the public or private sector, like until like last week. Right. So we are, we have gone so far down the road that, that the administration can actually say we don't give a shit why he took the money. Oh, and by the way, their new thing, like, as of three days ago, is he didn't take the money.
- [42:04]
Paul Fishman
Can you believe.
- [42:05]
Jonathan Alter
It's going to be crazy because you know that videotape is going to leak.
- [42:09]
Harry Littman
Right.
- [42:09]
Jonathan Alter
If they, if it hasn't, already of skulking in the parking lot with the cash. But, but really the idea that we just don't even care about that anymore in the way people are assigned to federal functions to exercise their responsibilities in situations that require them to be upstanding public servants imbued with integrity.
- [42:28]
Harry Littman
I think we can assume the tape's going to come out, man, it's going to be lurid. I think we can also assume they won't prosecute him and Texas doesn't. If that's the state of play at the end of the day here, what's the impact? Does this stick to Trump Is it serious, or is it just one more $50,000 in a Cava bag between friends?
- [42:50]
Paul Fishman
You know, I'm from Chicago, right? Even in, at the worst of the corruption in Chicago, if it involved cash, there was a problem because people have not been using cash for anything except illegitimate purposes for a very long time. We're now going on 50 or 60 years where the word cash equals something very bad that just happened.
- [43:20]
Harry Littman
In any.
- [43:21]
Paul Fishman
Other situation locally, much less nationally. This person would have to resign. So it's a sign of, you know, how much we're in la la land here that this guy Homan still has his job. Now, will any of this rub off on Trump? Absolutely not. Nothing does, again, except Epstein and tariffs. And, you know, they're having premiums sharply raised on. On 22 million people and eliminating 4 or 5 million people from having health insurance altogether. I mean, these are the kinds of things that can hurt Trump. These, you know, scandals we've learned from long experience do not. Now, the videotape, however, since everything today is about video, if that comes out, that could create bipartisan pressure on Homan to resign. And I think at that point, they would sort of throw away these entrapment arguments that they're making and just make Homan a scapegoat for the criticism of ICE that is now developing all over the country and just say, all right, they had to suspend or fire an ICE agent who was caught on videotape shoving, in a really harsh way, a woman when they were making arrests. So I could see a situation where, you know, Homan's real problem is not that he took 50,000 in cash, but that he's making the Trump administration look bad on immigration. And so we'll turn him into a human sacrifice.
- [45:05]
Jonathan Alter
You can have all the Chicago pride you want, John. You now live in New Jersey in the same town where I did, and we had Bob Menendez with cash and gold bars in his closet. So let's, let's. So let's just. That ERA is not quite dead yet.
- [45:18]
Paul Fishman
And where is he now?
- [45:20]
Jonathan Alter
Yeah, exactly.
- [45:20]
Paul Fishman
He's in prison, of course.
- [45:22]
Harry Littman
So, Right. This is like a bet on the Bears Giants game.
- [45:26]
Mimi Rocco
I want to build on the point that you all are saying in this sense that the, the, like, how far we've come that nobody's even just talking. Forget criminal. Right. Like, this is just crazy bad conduct. And even the entrapment argument, like, okay, let's, for discussion purposes, say, you know, the FBI really tried to get them to take it. Would you guys take. Would. Would most Law abiding citizens out there take a bag of $50,000, you know, because somebody offers it to them and they think maybe, you know, it's just. It's not normal behavior. And the reason I think that's important, and I, you know, I. I don't know, maybe there's a Democrat out there doing that. This is not prosecutorial, so this is not exactly my lane. But, like, why don't they make a bigger deal out of the fact that you can be in full agreement that people who are here, not legally, who commit actual crimes, real crimes, should not be here anymore? Okay? Lots of people, I think, feel that way, but we all know that is not what they are doing. They are deporting law abiding citizens who happen to be here illegally in a very, very aggressive way. Not a one off, not just caught up in a sweep, but targeting them and ruining. And what Jonathan referred to, that was this horrible thing that we saw in a very violent way. And yet the person in charge of that, who's leading that charge is a guy who's greedy enough to take $50,000, get the outrage about who this person is and what a hypocrite he is that he engaged in this conduct. Whether it's a crime or not. This guy is profiting off deporting people no matter what they're doing. He's now richer than you in one. Or he made more money than you did in one day. Like, why aren't the Democrats banging that train? That seems like a worthy political talking point. That's real.
- [47:25]
Harry Littman
Yeah, I agree. And of course, the effort now is to try to get the tape. But if and when they do. 50,000 in a bag. 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.
- [48:00]
Total Wine and More Host
Thank you, Harry. In today's spirited debate, we dig up the dirt on the agave plant to find out the difference between tequila and mezcal. So first things first. Tequila is a type of mezcal, much like bourbon is a type of whiskey. In general, tequilas are mezcals, but not all mezcals are tequilas. Allow me to explain. Tequila can only come from the blue agave plant in specific regions of Mexico, like the region Jalisco, where the city of tequila is located. No coincidence there. Mezcal, however, can be made from many varieties of agave, specifically from the heart of the agave known as the pina. The distillery process for tequila in Mezcal is also different. Tequila is produced by steaming the blue agave and then distilling it in copper stills for a toasty, clean taste. On the other hand, mezcal, which appropriately means oven cooked agave, is cooked in earthen pits with wood and charcoal before being distilled in clay pots. No wonder mezcal, which is typically consumed straight, has more of a smoky, earthy taste. Of course, the best way to get to know the differences between tequila and Mezcal is to pick up a bottle of each from your Total Wine and more, and pour hundreds of years of right into your glass. Cheers.
- [49:18]
Harry Littman
Thanks to our friends at Total Wine and More for today's a spirited debate. Man, it's weeks like this and guests like you that make me want to go two hours. We can't. But I really want to at least touch on the Kimmel thing and just serve up to each of you for your view. Pretty big victory. I mean, it seemed like the popular resistance is what pushed it back as against Trump's wanting to pull him off. What? You know, just give me your bottom line. Quick take on the Kimmel return to the air.
- [49:54]
Paul Fishman
So I was actually really surprised that he figured out how to come back. And I, I think there's a lot we don't know. Like, Michael Eisner weighed in on this. He went public and he said that this was terrible. And Bob Iger is like one of Michael Eisner's protege, right? And so suddenly Bob Iger is, he's looking at huge reputational damage for himself. And then the other factor that I think people don't understand is they think that the affiliates are holding all the cards in their relationship with the network, that Sinclair and nexstar have all the cards, but they actually don't because they need, you know, they need Monday Night Football, they need other stuff from ABC if they're going to be profitable. And so when they do something as terrible as they did in this case, which is basically working hand in glove with the Trump administration to engage in what can only be called censorship, they, you know, I think they start to recognize that, okay, they're not going to carry Kimmel right now, but that they need to be a little bit careful about their relationship with ABC or they will suffer financially.
- [51:18]
Mimi Rocco
I would just echo the point, I think that we all kind of made earlier that this, to me as a person who is more of an observer when it comes to this is my area, either entertainment or Even First Amendment law. But is that there was enough of a outcry, not just from the usual voices, that it made a difference, the Joe Rogan, Ted Cruz and some corporate people.
- [51:47]
Jonathan Alter
I will say this to tie the two themes together. I think it was either Mimi or maybe Harry who said mob boss when describing the President of the United States. If you haven't seen the clip of the first show back that Kimball did on Tuesday night of Robert De Niro's impression of the chair of the FCC extorting Jimmy Kimmel on the air.
- [52:08]
Harry Littman
Look, it's just me, Jimmy, the chairman of the fcc, gently suggesting that you gently shut the up.
- [52:17]
Jonathan Alter
It's a pretty good watch.
- [52:19]
Harry Littman
It's so true. I mean, really, the administration is basically boring and kind of, you know, thick headed. And you get like Stewart and, and De Niro and all these guys, they are really killing them with comedy. Right.
- [52:33]
Jonathan Alter
As our friend Norm Eisen talks about all the time. There's a whole history and the opposition to tyranny and authoritarianism of comedy. Yeah. Being a spectacularly successful tool in undermining the regime in a lot of ways.
- [52:46]
Paul Fishman
Just to give you a sense of the stakes of this. So Putin in 2000 decided that he was going to take action against this group of comedians who had puppets. Their show is called Kolky. And you know, Boris Yeltsin, when he was in power, he didn't like the puppets. They portrayed him as a drunk. And he tried to, like, push them a little bit, use a little bit of influence to rein them in, but ultimately tolerated them. Maybe tolerated them because he was drunk, but he tolerated them. Putin took a different course. He pushed them off the air, he hurt the networks that carried them. And then eventually, you know, he took it from there to actually killing journalists and critics. But it's extremely important that the comedians not be silenced. And I think a really, really hopeful sign that they won't be. Trump is going to have to put up with them in one form, form or another until he leaves office.
- [53:48]
Harry Littman
I agree. I think back on the White House Correspondent's Dinner, and he was just helpless as Obama was killing him with comedy. Right. All right, we're about out of time. What a week. What a week. What a week. We have just a minute left for our final feature. You probably saw the romance statue. John has reminded us a few times this episode that the one thing that does seem to stick to Trump, Jeffrey Epstein. So we had this, you know, happy kind of, I don't know, Fred Astaire Ginger Rogers statue with Trump and Epstein deposited. Was it on the on the National Lawn, right?
- [54:31]
Jonathan Alter
I think it was on the Mall.
- [54:32]
Harry Littman
On the Mall. And the question is five words or fewer, where's that statue now?
- [54:38]
Paul Fishman
Smithsonian basement awaiting Democratic President Maxwell.
- [54:45]
Mimi Rocco
I would just say not in enough places. Oh, that's good.
- [54:51]
Jonathan Alter
Moving to Mar a Lago.
- [54:54]
Harry Littman
And I'm going with Bottom of the Potomac. Thank you so much John Paul and Mimi. 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 the show. You can also subscribe to us on YouTube, where we are posting full episodes and my daily takes on top legal stories. Check us out as well on Substack at harryleton, where I'll be posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law. And Talking Feds has joined forces with the contrarian I'm a founding contributor to this bold new media venture committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come to know and trust, just now linked up with an ambitious project designed for this pivotal moment in our nation's legal and political discourse. Find out more@contrarian.substack.com thanks for tuning in, and don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Luke Cregan and Katie Upshaw, associate Becca Haveian sound Engineering by Matt McGardell, Rosie Dawn Griffin, David Lieberman, Hamsa Mahadranathan, Emma Maynard, and Hallie Necker are our contributing writers and production assistance by Akshay Turbailu and Sebastian Navarro. Our music, as ever, is by the amazing Philip Glass. Talking Feds is a production of Deledo llc. I'm Harry Littman. Talk to you later.