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A
It's okay not to be perfect with finances. Experian is your big financial friend and here to help. Did you know you can get matched with credit cards on the app? Some cards are labeled no Ding Decline, which means if you're not approved, they won't hurt your credit scores. Download the Experian app for free today. Applying for no Ding Decline cards won't hurt your credit scores. If you aren't initially approved. Initial approval will result in a hard inquiry which may impact your credit scores.
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B
Experian.
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C
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. Street showdowns with federal agents have intensified in Illinois, where where a judge took a top Border Patrol official to task for repeatedly violating her orders against excessive use of force, including on journalists and religious figures. Meanwhile, Trump continues to make noise about upping the ante by sending in military forces. But he's been saying that for months and he's clearly reticent to take that ugly step. And and yet the administration has taken any number of steps that potentially could lay the groundwork for interference with next year's midterm elections. Trump this term has swapped out a series of key personnel who resisted his coup efforts last time around, leaving him with a far stronger hand to foment chaos and potentially change election results. It's not too early to cast a level eye on democracy's ability to preserve itself, which would depend ultimately on the resistance of the people. But first come a handful of elections tomorrow that have important consequences in themselves and also may serve as bellwethers for the prospects of a definitive rejection of Trump's autocratic agenda in 2026. To dig into the increasingly out of control federal presence in Chicago and elsewhere, the upcoming elections, and the warning signs that Trump may try to interfere with the midterms. I'm very pleased to welcome David Graham. Dave is a staff writer at the Atlantic. He led the magazine celebrated reporting on Project 2025, which turned into his first book, the Project. Previously, he won the Toner Prize for Excellence in national political reporting for his coverage of the 2020 presidential election. It's his first time on Talking Feds. Welcome, David.
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D
Thank you.
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C
Katie Feng, a stalwart, not her first time. And we're so happy every time she shows up because she covers the waterfront and occasionally has an hour on Fridays. She's a trial attorney, of course, legal analyst, independent journalist, and she's a founding Contributor as am I to the contrarian. And previously worked as a prosecutor for the state attorney's offices in Miami Dade and and Broward counties in Florida. Katie, great to see you.
- [03:21]
E
Thrilled to be here, as always. Thanks for having me, Harry.
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C
Oh, and speaking of. Thrilled to see it's been a little bit. Maya Wiley, the President and CEO of the Leadership Conference on Civil and Human Rights. She previously served as an Assistant U.S. attorney in the Southern District of New York, as counsel to New York City Mayor Bill de Blasio, and as a candidate to succeed de Blasio in the 2021 election. Maya, thanks so much for joining us.
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B
So great to be back and especially with such an esteemed crew of people I admire.
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C
There you go.
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E
I just want to say New York could have had Maya. Any chance I get a chance to say it. That's what I say. They could have had Maya.
- [04:03]
C
And who did they get instead? Oh, never mind.
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B
All I'll say is I remain unindicted. That's what I was going to say. There you go.
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E
They got somebody who got indicted.
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C
We need T shirts for this, don't you think? Okay. More federal presence, especially in Chicago, where Trump and Kristi Noem are pushing a propaganda campaign, among other things, saying residents are screaming for us to come. And of course, a very aggressive law enforcement surge. We're seeing scenes of ICE agents chasing contractors through suburbs and Border Patrol tossing tear gas into crowds with apparent no provocation, remembering that their power when confronting citizens is supposed to be limited. And, you know, Maya and Katie, you know this professionally, to a brief stop to question. It just feels and looks like a constitution free war zone. Does the administration have any possible justification for the heavy handedness here?
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B
No. Oh, but you don't mean legal justification, though. I mean, it has. It has come up with justifications.
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E
It's tried to create it.
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B
Yeah, yeah.
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C
Does any of them cut any ice, so to speak, with you guys?
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B
Well, not with me. I mean, look, we know three things about this. One, the promise of mass deportations from this administration, and this was a campaign promise from the Trump administration, but also an administration that made clear it was going to be a by any means necessary administration. I mean, that is the way Donald Trump ran as a candidate, and it is the way he is now behaving in office. But I say that because it's what he said he was going to do. None of that had anything to do with facts on the ground, warrants in anyone's hands, or justification. Right. And certainly there are ways to deport people Lawfully, that is not the same thing as what we're seeing, which is straight up racial profiling. And that brings me back to the second point, which is Donald Trump has often, regularly, and always as a businessman as well as a candidate for office as well as an office holder, been consistent in stereotyping people of color and utilizing that to drive narratives around high crime without regard to facts. So that is clearly happening now because we know the facts are quite the contrary to what he is inserting. In fact, we have seen a rapid decline in many forms of violent crimes in all the cities that he is ratcheting up federal agents as well as military presence in. But the third is what we saw in Trump. One, which is he kept saying that he wanted to send in the military. He kept wanting and saying he wanted to assert more authority in cities, even in Trump won. And again, under different circumstances and context. And it was something he has constantly said he wanted to do. Remember during the Black Lives Matter protest in Washington, D.C. where he had his own head of Joint Chiefs of Staff in military regalia, using DC Guard to clear a peaceful protest that was happening so that he could have literally a propaganda event in front of a church.
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C
Crossing that ground with the upside down Bible.
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B
The upside down Bible. And his own military commander very upset that he got used in that way because he understood that that was crossing a line. None of this is new for Donald Trump. It's the permission he is being given by a party that is refusing to say, you are not abiding by the boundaries of that protects all of us.
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E
I mean, Harry, every time it's being challenged in court, especially factually when the evidence is being presented, the Trump administration is losing. And look, even we now have an unusual move to have a en banc reconsideration of a pause that was lifted by a trial court judge concerning Portland. Right. And so I'm not a conspiracy theorist, although I feel like this stupid Trump regime is making me one. But I'll put this out here because y' all seem like nice enough people and won't be too judgy.
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C
Just because you're a parent, it doesn't mean they're not really out to get you. Right?
- [08:30]
E
My tinfoil hat is off. So here's the thing.
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C
Yeah.
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E
It's all inextricably intertwined. Right. So putting aside the fact that the guardrails and the adults are no longer there, that we had in relative kind of small MARGINS In Trump 1.0, there's a reason why the military has now parked itself off the coast of Venezuela. And why we're going to go to war, because we need to have a war. Because we need to have enemy combatants, because we need to justify killing people in extrajudicial bombings of vessels. But, but we also need to understand that, oh shit, we have the Alien Enemies act from months ago. We got to bootstrap that so that we can do our illegal and unconstitutional due process, no due process, deportations, kidnappings off the streets of the United States. And hey, that commander, that guy who Maya just, you know, wisely reminded us was upset we don't have that. We got Gregory Bovina who's doing Third Reich Nazi esque propaganda videos that that official government social media accounts are posting wearing the dark trench coat and the very kind of Nazi SS looking kind of uniforms, right to court, no less. And putting aside whether or not he's getting chastised and dressed down in court, we need this chaos if you are Trump. Because now we need National Guard and all of these major cities because to David's exceptional peace in the Atlantic. I know we're going to talk about, we need to have, quote, election chaos. We need to have a justification for the invocation of the Insurrection act so we can move the American military in to be in and amongst our communities so that they become numb to the presence. So that when they're swarming election places in our election dates, it's okay. I mean, it's just all connected, all of it. The government shutdown, the economic, you know, uncertainty. Chaos is king when it comes to a Trump regime.
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C
It's so true. Let me borrow that aluminum foil for a moment. I just want to follow up and combine your point with Maya's second point. And it's the thing I've always worried about and we will talk about it more. David just had a Tour de Forest cover article in the Atlantic that's all about it. But the lies about what's on the ground, the false representations and in Illinois, you know, marauders and pet eaters and all the like is what I think could provide the bridge to a general sort of power that even could get its tentacles into the election. And that's what I'm kind of holding my breath about in most, well, all these cases. As far as I know, the local authorities do not want the feds there. They think they can handle the sporadic problems just fine. What do you think about the pushback among the local political leaders? Pritzker and I think, I think, you know, Newsom comes in here as well in California. Are they doing all they can? Are they being effective? You know, what's, what's your thinking?
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D
So I'd say two things. One is it's amazing how fast we've moved from the original justification for supposedly why we had to do this. There was so much crime in Washington, D.C. there was so much crime in Chicago, blah, blah, blah. We're not talking about crime anymore at all. It's very clear that this is all just a cover for immigration operations, which is why Gregory Bevino has become the face of all of these things. You don't even hear the sort of claims about crime anymore from the administration. So I think that shift is telling. I also think it's remarkable how you see where leaders like Pritzker, like Newsom, as in Oregon, are pushing back. They're having a lot of success. They're having success in the courts, but they're also having success in cowing Trump. And I think it's, you know, it's a taco thing, and it's a. He's managed to do so many things these last nine months without anybody in Congress standing up to him, and suddenly he's seeing resistance and he's folding pretty quickly in the face of that. He might still say, what do you.
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C
Have in mind in particular?
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D
I mean, I think the fact that we don't see troops in Chicago, I think the fact that troops have been pulled massing outside Portland but not going in, I mean, these are cases where Trump seems to not have the appetite for a real fight. It's why he's sending troops to Memphis, where the governor is willing to host them, instead of to blue states, which is clearly where he really wants to be, to intimidate blue voters.
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B
There is a worry we should have. And I think, David, your point is very well taken. And it's certainly what we all know here in New York City and in Brooklyn in particular, which is how to handle a bully. I had children in public school, and I told them when they had permission to protect themselves and how they could do it, they just couldn't throw the first punch. But this is. He is a bully. And what you're describing is effective ways of dealing with a bully. But we also have New York City, and it was just last week that we saw a military tank roll down a major thoroughfare in what is a major tourist destination, a major commercial corridor. It is also Chinatown. It is a place that has a lot of African immigrants. It is a place where we saw ICE act very aggressively and disturbingly. And in my opinion, from some of the videos I saw violate people's rights. Right. With excessive force. I say that because I do believe that we should understand that Trump continues to want to incite violence, and he's not going to stop looking for places to do it. And that's always going to be in places where people know how to protect themselves. I say that because we know he wants, I think, very much to invoke the Insurrection act, and he's looking for and trying to find the opportunities. So I do think we have to pay a lot of attention to where and how this rose out elsewhere. And we have to insist that electeds in local areas, mayors, governors, attorneys general, have been very, very strong as well in many of these places continue to do what we've seen be effective elsewhere.
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D
I want to recognize some of the, you know, ordinary citizens who are doing that, too. You see these videos of, of just regular people in Chicago giving an earful to ICE agents. I think one reason the frog costume became such a meme was that if you're warning that there are, you know, antifa members in black with automatic rifles and instead there's somebody in a frog suit peacefully protesting, it just totally deflates, no pun intended, you know, the attempt to start something and to incite New.
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C
York as well, on Canal Street, a major thoroughfare. But as you say, Maya, they just banged heads and pulled folks away. Let me go back to Illinois for a second. And an important blow for the in favor of the rule of law. Judge Sarah Ellis. Yeah, Having Gregory Bovino kind of strut in. You compared him to Nazi. I was thinking Jack Nicholson and A Few Good Men, but he was definitely dripping contempt. You were all over this, Katie. You were, you covered the hearing can, you know, give us the, the flavor of it. What were your thoughts about the hearing?
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E
It was an incredibly elegant moment. And you have to appreciate this, especially as a woman. Right. Because, you know, women unfortunately get tagged with unflattering descriptions if they're angry or if they're trying to be emphatic about something. Judge Ellis was so elegant in the way that she said to Bovino, you must not really understand my order. So let's go through it. After the recitation of his oath, right to the Constitution and, and to abide by the laws, she walked through this order like you would with your 5 year old, but she did it in a way that was clearly humiliating for him, but without any pomp and circumstance. And the message was clearly delivered. And the fact that he has to report every day to her at the close of Business to tell her all of the incidents was that one aspect.
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C
The 7th Circuit set aside. I know, but still, he's in the hot seat for sure. Yeah.
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E
But I do think, Harry, that's a measure of creativity, though, that we should be embracing and celebrating. Because, you know, for people like me, I have gotten to the point where I would have preferred for him to go into the clink for a few hours, frankly, to like, cool your heels a little bit. Gregory Bovino. But listen, it was effective. But I think David and Maya note the power of the people. There are videos that were being used as exhibits in support of the motions for contempt, in support for these emergency hearings that are happening. They're coming from just regular people on the street who are fed up. I interviewed Robert Held, a Chicago lawyer. He was on my YouTube channel and he's the guy who did a mini moon, dropped his trial just a tiny bit for Bovino after using serious expletives, and then he took off. And he's also, though, a lawyer who does trust in estates, Harry. And he goes with a bullhorn and he's reminding the agents, the cops and everyone else, look, we are here peacefully. We are exercising our First Amendment protective free speech rights to assemble and to speak.
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B
Speak.
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E
And it's amazing how effective just a voice can be. But the collective power that we're seeing is something that I think would beat anybody any day in court. But I do think it's important that we give equal time to the fights we're having in the court of law and the fights we're having in the court of public opinion. We do see some, I think, some capitulation on the part of some Republicans right now. They understand that their self preservation instincts have kicked in. They may not be able to keep their places of power and position if they piss off their constituents too much.
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C
There's an important legal point I just want to add here because you see these tapes, they include some pretty raucous stuff from the folk in Illinois, near a lot of profanity and screaming. That's what cops encounter every day. That encompasses solid, uncontroversial First Amendment activity. They have to have thick skins. They do have thick skin. So, you know, people could see it and understand ice feeling angry. And you've had some real, like, dyspeptic action from them. But that is solidly in the First Amendment category. There's so much to talk about. But. But picking up on Maya's point, Trump over in Asia says he wants to use more than the National Guard. Read. He's getting ready to deploy the Insurrection Act. And you know, if the Supreme Court brushes him back on 10 USC 12406 maybe that happens. But it's pretty clear right, there is some heartburn about it in the White House. What do you see is holding them back from deploying it? Cuz he talks about it every week.
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B
Well look, he's even got Joe Rogan worrying about his abusing power. You have people with powerful platforms who are with him on the policy of immigration, who are with him and think, yes, deport more people and yet have very real concerns about how people are being treated, about how it's being done. This is something we're seeing increasing in the polls. And by the way, it is not a good look for any administration anywhere of any party to have military tanks rolling down people's streets. That is not an image that you can easily argue away and it is not an image that has a political party. And that's one of the reasons I thought it was so shocking when we saw it in New York City, right, that it was such a signal. I felt like it was a trial balloon. And I think he has been throwing it out there like a trial balloon. But he's waiting. This is my point about what they're trying to incite. I mean their aggressive and violent behavior is going to at some point have someone trying to defend themselves in like kind. And when that happens, I think what he will do instead of doing what legitimate law enforcement would do, which is treat it as an act they could take legal action against. Right, that's what a police officer would do. But in this instance he is looking for what he will be able to use as propaganda to claim that he is not abusing power. So that's why I think it is so incumbent upon us to spend a lot of time doing as Katie said and as David said, I mean using all these tools in the toolbox from what's happening in courts to what citizens are doing on the streets to protect each other members of society, saying we have ground rules and we can be a guardrail even if the federal government won't be. And that is about making sure it is clear everything that, that Katie and David and you, Harry, have already said, there's nothing justified in any of this. In fact, it's the opposite of public safety. We at the Leadership Conference on Civil and Human Rights are now making this point and going aggressively on masking and refusing to identify yourself as a federal law enforcement officer. That actually is making people less safe. So too is being the insiders of danger and violence against ordinary folks. So doing that, connecting that, as Katie said, it's all connected is a critical way. We continue to pop his trial balloons and make sure that the American public understands it really doesn't matter who you voted for. This is not going to go well for you if it happens.
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C
I'll just add on this point of a bad look, regardless of party. It's like Tiananmen Square, right? Nobody wants to see that image. And seriously, that that's where it happens. Boots on the ground, marching through American cities. A lot of people, I think, get off the train at that point.
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D
I still remain surprised he hasn't done it. I mean, you know, Tiananmen, he. He's, you know, praised the crackdown in Tiananmen. He wanted to use it, use the Instruction act in the summer of 2020 and was talked out of it. He basically invited Secretary Hegseth and Secretary Noem to tell him to do it at the beginning of the administration, and they didn't do it. He's been threatening to use it these last few weeks. It's clearly he's very eager to do it. And I'm not sure who or what is restraining him so far because it doesn't seem like, you know, sort of propriety or even political considerations are restraining him the way they did in his first term.
- [22:56]
E
Hey, Harry, I just wanted to tee up on something David just said. Maybe he's waiting to see what SCOTUS does. Right. Because the first kind of deployment of a test of this trial balloon was the aea, the invocation of the Alien Enemies act. And he was squarely rejected, not so much on the interpretation of the aea, but as we know, the unanimous SCOTUS said you got to give notice and opportunity to be heard. There is something called due process, even in the context of our Kilmar, Abrego, Garcias and other. Right. So he got spurned by scotus. And then remember this term coming up. We've got the tariff stuff coming up. We have some other cases, I think that birthright citizenship, like we have certain cases, I think that are teeing up. And again, not the substantive issue of the invalidity of, you know, the birthright citizenship amendment.
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F
Right.
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E
It's more how much of the Imperial presidency will this SCOTUS stomach. And I feel like maybe he's waiting to see how much leeway they are giving his executive overreach because the invocation, putting aside whether on its face it doesn't meet the statutory requirements as required to fit under the law for purposes of the invocation of the Insurrection Act. I feel like he's strategically savvy enough. And I will say it's not for a failure of imagination on our part. But, but there have been some really crazy ass test balloons that have gone up legally I think so far that I maybe, you know, smarter people anticipated, like maybe Maya and David certainly. I don't know. Right. I mean, I felt like it was going to be, you know, insanity in Trump 2.0. It's, it's actually on steroids. And so I don't know, maybe he's waiting to see how SCOTUS deals with him. Maybe Harry, Maya and David. Maybe that's the reason why we haven't seen him go full throated, you know, dictator autocrat yet. He's just trying to see if SCOTUS is going to open the door and roll out the red carpet for it. I don't know. I'm just spitballing with y' all about that.
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C
Now it's time for our sidebar feature, which presents brief accounts of important concepts in the current legal landscape as read by a prominent person from another field. Today's sidebar topic is Federal court jurisdiction, the system for which federal courts can hear which kinds of cases to explain some of its intricacies. I'm pleased to welcome Amy Barradale. Amy is an acclaimed writer known for her dark humor, psychological insight and fearlessness. A former fiction editor, advice and staff writer at the Onion, and she won the Paris Review's prestigious Plimpton Prize for her 2012 story William Way. I'm a big fan of her satirical send up of the Supreme Court's justices, published this spring in the Paris Review entitled Crystal Palace. You can find a link to it in the show Notes.
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F
Court's jurisdiction is essentially its authority to hear and decide. Federal courts are courts of limited jurisdiction. In other words, they can only hear cases authorized by the United States Constitution or by federal statutes. What does that mean in practice? There are several ways in which a civil or criminal case can fall within the jurisdiction of the federal courts, both at the trial level and on appeal. In the broadest category, the federal district courts have jurisdiction over any case that arises on under federal law, the Constitution, or treaties. This type of authority to hear a case is called original jurisdiction. Another common basis for federal court authority to decide a civil case is diversity jurisdiction. The details are codified in Title 28 of the United States Code. Whereas Congress granted the federal courts authority to hear cases in which a plaintiff of one state sued a defendant located in a different state so long as the amount in controversy exceeds $75,000. Although this sounds simple, the basic rules get complicated when applied to particular facts. State and federal courts can have overlapping jurisdiction. A plaintiff is usually permitted within legal bounds to choose where to bring his case. But in some circumstances, a defendant sued in a state trial court can remove the case against him to federal district district court. Diversity jurisdiction can be a valid basis for removal. Various other statutes provide a basis for removal jurisdiction in particular circumstances. For example, federal officers and employees sued for acts taken under color of office and within the scope of their employment are entitled to have cases against them heard in federal court. Foreign nations sued in state courts and their agencies and instrumentalities may likewise remove cases of against them. So too can members of the armed forces. Each of these sources of removal jurisdiction is codified in Title 28. As for appeals, the US Court of Appeal have appellate jurisdiction over final district court decisions. Most court of appeals jurisdiction is geographic, encompassing appeals from the federal district courts located within states. In particular Federal Circuit, for example, the First Circuit covers Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island. A few federal appeals courts are set up as subject matter experts hearing only certain types of cases. For example, the U.S. court of Appeals for the Federal Circuit has jurisdiction to decide appeals involving patents. Finally, the United States Supreme Court has jurisdiction to decide appeals in all federal court cases, as well as in state court cases that involve questions of federal law. The Supreme Court's jurisdiction is discretionary. Appealing parties must petition to have their cases heard, and in all but 1% of cases, the Supreme Court declines to grant the petition, leaving the lower court decision as final. For talking Feds, Amy Barradale thank you.
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C
Very much, Amy Barradale. Amy has just published her first novel, Trip. It's a meditation on life, death, and the afterlife that the New Yorker called brilliantly strange, funny, and moving. 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 beverage bridges.
- [29:45]
G
Thank you, Harry. Today's spirited debate asks to decant or not to decant? That is the question, and the short answer is yes. But when should you decant? First off, what is it? Decanting is the process of slowly pouring liquid, in this case, wine, from one container to another without disturbing the sediment at the bottom. It is important to separate the wine from the sediment if there is a lot of it, because sediment can dampen the aromas and flavors in your glass. Decanting wine also helps the wine to aerate, which is the process of introducing oxygen to the liquid. No doubt you've heard or even said the phrase let the wine breathe. Well, that's what decanting does best, allowing those aromas to expand while making the wine more flavorful and balanced. And it's never a bad idea to decant a young, bold wine. In fact, at Total Wine and More, our guides recommend allowing an hour or two for the process to work best. This is not advisable for mature wines that just need to be separated from their sediment. Leaving a mature wine in a decanter for too long could cause flavors to become muted from too much aeration. Remember to taste your wine while decanting to be sure it is not left aerating for too long. And don't forget, the younger and more closed the flavors are when you open the wine, the more it will benefit from the decanting process. Even a few seconds of aeration or a quick swirl in your glass will do wonders to your favorite wine. From Total Wine and More. However, the best rule of thumb is whenever you can decant, taste and enjoy when it feels best to you, it's personal. Cheers.
- [31:23]
C
Thanks to our friends at Total Wine and More. For today's a spirited debate, let's move to a related topic. Sort of the thing that is in the background that many of us are so worried about. Will we in fact have free and fair midterms? We've all been focused on it. And you start with this total dystopian there that's kind of like the curdled version of what he tried to do after the 2020 election but was foiled. So let's just start here. How does the chessboard and this for you, David, if you could now differ from then in ways that could facilitate his plans this time around.
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D
I think there's a couple things that are big changes. One of them is Trump's kind of grasp on the federal government and on the executive branch in particular. But also this ties to the same things, Congress not really being willing to check him. So he has the ability to do things to use the Justice Department as a political cudgel in the way he could not in 2020 to use the FBI as a tool for potential interference. The way he's using the FCC to interfere with media companies sets the board before the election. Someone pointed out to me, you know, the FCC or the major networks have to decide what, not just what they're going to cover, but what ads they're going to accept. And if they have the FCC looking over their shoulder, they may be careful about what ads they want to accept. So there's all these spill on effects.
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C
In the person of Brendan Carr who is willing to say anything. Right?
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D
Exactly. That's one big thing. Another thing is the, you know, who is in office and who is in central roles at the local level. And so you have a lot of really good election officials, but you have state officials, you have sometimes county officials who are election deniers or who are more Trump friendly. They may not be willing to stand up to him in the way that some Republicans were in 2020. Those are two big ones. And I think the third thing is just they have learned a lot. They're a lot smarter. You know, in 2020 and in early 2021, we saw a really bumbling operation. You know, Rudy Giuliani was out saying wild things. Jenna Ellis, Sidney Powell. It was not, this was not the A team. And I think they've understood the mistakes they made and they've learned a lot more about how elections work and how election law works. And so they're gonna come with much sharper arguments and without the same kind of spaghetti approach if they're trying to interfere with another election.
- [33:48]
C
Maya, you pointed out in your MSNBC piece the federal government simply lacks the power to confiscate ballot boxes in state run elections, for example. But then, you know, you added the sobering fact that we've seen this administration repeatedly do things it doesn't have the power to do. And as a former candidate, I think you know all too well in elections, shit happens. Things happen on the ground that the courts can't or won't fix. So I'm just wondering in addition to your follow up with David, what you think the administration can kind of get away with even though it's against not just the letter of the law, but the spirit of the law, which is clearly elections are even federal are matter for states. I think we know from the plans might be grand. But you know, how afraid should we be?
- [34:42]
B
Well, one, and I think David makes this very clear in his excellent article and I agree we should be really outrageously worried and we also should be outraged. The reason is in addition to all the things that David is saying is I mean, they're weaponizing the Department of Justice against voters. I mean, let's just be very clear and before the Shelby opinion that rolled back a significant part of the Voting Rights act that ensured that we could prevent States or counties or local governments that from doing things that would prevent people to cast their lawful ballot right and discriminate against them. One of the elements of that was the Department of Justice, not just pre clearing those decisions so you couldn't violate people's voting rights and then have the election stand. Right. But one of the tools in the toolbox was monitoring and observing. That was significantly weakened because of what the Supreme Court did and the division.
- [35:47]
C
That did it has basically been eviscerated.
- [35:50]
B
It's been eviscerated. And when civil rights groups like ours, like our coalition was during the Biden administration, we could still run to the Department of Justice and say, hey, you should deploy some people to investigate this right? During an election cycle. Now we have the opposite. We have the very opposite. Because what we have are, and David knows this well too, because this was baked into Project 2025. It was always the plan. This has always been the plan. They've been building this for a while, but it was very explicit about taking Civil Rights unit out of civil rights work and putting in the Criminal division of the Department of Justice, basically going after voters criminally. I mean, this is actually something we've seen in communities of color across this country and across our history, including in recent history. But to watch it be organized as a policy decision and as a way to organize the Department is a whole different level. But if you add to that that Cleta Mitchell has something completely propagandistically called the Election Integrity Network, that's just a propaganda title for a 50 state strategy to take all that we watch Trump trying to do in denying that he lost the 2020 election, learning from that and taking over election administration where they can, utilizing ways to get organized on the ground to suppress votes and Donald Trump's own federal behavior incentivizing states to do something if they choose. Voter purging. So he's saying we took data we should not have taken from public programs, not data collected to decide who could lawfully vote. Now they're insisting that states either share their data with the federal government, that is a way to try to identify and go after voters and claim they didn't lawfully vote. Some states will do it with them because they're totally willing to be on program and on plan for this, some will not. You can guess which states. But the other thing that they're doing is some states are now passing or trying to pass laws to in a sense put into effect what Donald Trump is trying to get done federally, which is simply make it so Hard for so many voters to vote. Literally millions of women who may have changed their names because they got married, people who changed addresses and moved, suddenly, not only getting purged, being told they don't have a legal right to vote, having to prove your citizenship, something that has never been necessary in this country because we had good systems for ensuring that only people who lawfully could vote, could vote. What this is going to do is create a system where we have states that are like the Confederacy, post slavery and states that are not. That is a reality that we're going to see and we can prevent. We got to keep fighting to prevent it. I'm not suggesting it creates an inevitability, but I think we forget that the power of the federal pulpit can advance states discriminating against voters by race, discriminating against women, disproportionately discriminating against young people, and making it very difficult for people to cast a ballot and to do it in a way that can help them guarantee a certain outcome. They can also agree that they will turn over their stuff to Donald Trump. You might see, remember we saw this in Georgia. Remember we had Fanny Willis actually investigating this, where if election administrators are embedded who are on board, they might actually hand them over. So there are lots of things to really worry about, about how this impacts what states and localities are facing or participating in, depending on which side of the fence they're on. Democracy or tyranny.
- [39:56]
E
You know, Harry, the thing about David's piece that I think that he's mentioned that we really need to be focusing on are the cast of characters. I think the institutions are prepared for the onslaught. But what we never really, I think, anticipated and what David's piece really astutely notes is the imprimatur of credibility and official action from people like Pamela Jones, I call her Pamela Jo David, Pam Bondi, Cash Patel and others. They're in official roles. And so shame on anybody who voted during that Senate confirmation process for election deniers.
- [40:34]
B
Right?
- [40:34]
E
Because that should have been a disqualifying moment right there. But we don't have. And say what you want to say. I'm not a fan, but we don't have a Bill Barr who said, ain't no election fraud happening here. We don't even have really a Brad Raffensperger per se.
- [40:49]
B
Right.
- [40:49]
E
Who made sure that all of that stuff was recorded. As David notes in his piece, none of that is recorded. You know, we had people like Jeffrey Clark in his underwear when that warrant was being executed. He was in an inferior role at the doj. But now we have election deniers that are in roles of official superior kind of power.
- [41:09]
C
By the way, including the just installed first ever officer for election integrity. Heather Hunt in the DOJ is an election denier.
- [41:17]
E
Can you a matt baggage election denial being one of the worst. But Heather, honey, right. I mean it's laughable that they are in these roles when they are clearly election deniers and they propagate election fraud claims. But I'm going to add a little wrinkle to all of this, which is the following. I'm putting the tinfoil hat back. I still believe that the Elon Musk Doge campaign was never about accessing David's personal bank account information or anything, was never to be a king maker. You have to have voter data. And I think the Elon Musk Doge bullshit was to access voter information because that I think is worth its weight in gold when it comes to controlling election outcomes. If you know, and this is, listen, this is stuff that Republicans and Democrats ascribe to, right? If you know the proclivities of a voter, what are you going to do? You're going to tailor your campaign, your pitch, your messaging to those voters, their proclivities. And I feel like there's so much there that was gleaned by Elon Musk when he kind of did that sweep of Americans information. I'm telling you, that's what I think is going to be the game changer for these upcoming elections.
- [42:36]
C
We've talked about different things and how they'll use them. One of the great things to me about David's article, it starts with a scenario where like after the election two counties are roiled and in play. And if you have this data here and that cooperative state official here and some argument in the third place, you're just able to cobble together some argument to create chaos or get some judge to green light and then remember Trump's great line, just do this in Georgia and let my Republican congressman take care of the rest. Okay. Last and maybe most important question. David, you write in the COVID piece the most important defense against losing our democracy is the same thing that makes it a democracy in the first place. The people, an engaged electorate, demanding clean elections and turning out in force. So how might that work exactly against the legal and political forces arrayed behind Trump? And Maya and Katie, do you share that relatively sanguine view about the ultimate bulwark of the people?
- [43:46]
D
I think it is really important that people simply be paying attention so much of Trump's attempt to steal the 2020 election depended on people being taken by surprise. And understandably, no one had ever seen anything like that. So I think people need to be ready for it this time around. I think they need to show up and vote early. It's a lot harder to, you know, lose a ballot. You have a ballot get caught up in postmark chaos. If it's cast at the last minute, people have to like vote and get out there. It's also, you know, an election that is won by a wide margin or a House that's won by a wide margin is really hard to steal. A close election is a lot easier to steal. And so, you know, just having people get involved I think makes a big difference. And you know, supporting elected officials, supporting their local election officials and showing faith with them and making sure they can't be interfered with, all of that stuff goes a long way. Election officials, you know, I love these people. I think they're, you know, by and large really serious public servants. And I think they need, you know, vocal support from, from the people they serve.
- [44:45]
E
I think the one thing that it kind of reminds me of that movie War Games, right, when the computer got smarter and smarter. And we kind of look at the Republicans thinking they've become more and more CYN minister because they've learned along the way. But the one thing to David's point that the Republicans never really factored in was how important the role of the people was going to be. Because you can't take away from the people their ability to think for themselves. And we've talked about self preservation in the politically motivated way. But there is a sense of self preservation that exists in good Democratic Americans lives right now. It runs the gamut from, you know, making sure that our fellow neighbors in our communities are not snatched off the streets. We've seen people to the tune of million show up on no Kings Day 2.0. We are seeing people that are stepping up now in the midst of day 31 of a government shutdown to care for their neighbors, their loved ones, people that they don't even know. That measure of courage is something that you can never ever hedge against. No matter how creative you are when it comes to evil, you can not fight that type of power. Which is why the fact that Maya's organization and David's writing and the work Harry, that you and I are doing to educate the public about all of the issues that I always say this knowledge is power. And we have one of the most knowledgeable electorates I think in our American history now, because, shit, they're paying attention. They're saying, we're not going to let this be stolen from us in any way. So we're paying attention. And I think that it is not a Pollyanna kind of view to have right now. I think it is a reality because we have been speaking on this panel and in this Talking Feds episode about how there are deterrents at play, and those are driven mainly by regular people, not those of us that have gone to law school, not those of us that are exceptional writers like Dave. We just care. And I just don't think that you can surmount that. I think that's one of those things that you could never prepare for, even if you thought you were the savviest Republican.
- [46:52]
B
This is a really hard question to answer for me because on one hand, I absolutely agree with Katie and all the points that she is pointing to about where and how we can and should take hope and see our power. And David's important point, here's the thing. I'm black. In America, we spent literally, literally 100 years to get the Voting Rights act of 1965 after the end of slavery. So even after fighting a civil war for the right to vote, we had to fight another hundred years in 60. We've seen it eviscerated when we're looking at the mass deportation. Something I will tell you I very much worry about is in communities of color, you can suppress the vote just by having those ICE agents out on the street around the polling sites, because even though people can lawfully vote, if they have a family member at home who is not a citizen, they will be afraid themselves to go to the polls.
- [48:01]
D
Well, and how many times have we seen American citizens arrested, detained sometimes for days on end, even though they're citizens and even though they can prove it Totally.
- [48:09]
B
And not to mention, who are the people who are going to get prosecuted for, quote, unquote, vote fraud? It's more likely to be the vulnerable communities that needed the protections of the Voting Rights act, needed the civil rights protections that this administration has so aggressively not only attacked, it's actually elevated and celebrated white supremacy. I'm just saying we have literally seen it whitewashing racism, whitewashing xenophobia, whitewashing all kinds of hate and calling it legitimate. The only reason I'm calling that out is because I absolutely believe in the power that we have as a people to author our future and to make sure democracy is still in the title of the book that said we cannot and should not Take for granted that right now it's going our way, because it's not. Because it is not going away. We are getting active is critically important. But when I say that, I mean the amount of power being brought to bear and resources Cleta Mitchell has, resources we don't see on the civil rights side of this ledger to make sure voters know how to vote, where to vote, have companions who will help protect their rights when they show up to vote. We're working on it, and communities are doing it. I don't mean it's not happening, but I'm saying to all of us, our job is to make sure that we understand who is most vulnerable and who will be targeted and how we can all show up for those communities and folks, because I'm going to tell you this, 55% of the black population lives in those states, states that are the former Confederacy and where all of the things we are seeing, we do not have all those levels of activity and protection and where it is significantly more dangerous as well. So how we spread this requires a real commitment to also being outside of our own communities and recognizing it is an explicit driving of permission to hate black people, to hate Latinos, to hate transgender people, to hate immigrants who are not white. Because I have not yet heard us talk about anyone who's Romanian. I have not yet seen images of Serbians or anyone else who's a white immigrant. And if we're not really paying attention to the fact that this erosion of civil rights, of racial justice, of transgender justice, is one that requires all of us, even if we don't fall into those categories and sending our resources and our support to places where we aren't, because they are not sufficiently resourced right now, and because they are the front lines.
- [51:04]
C
Really sobering and really trenching. I think we let that hang out there for now as a kind of temporary coda. I want to move just very quickly to a couple words about the election tomorrow. Maybe I can stay with you, Maya, because obviously the race that's attracted the most attention, New York assembly member Zoran Mandami looks pretty set to be the next mayor. You endorsed him back in June. What do you see in him as a leader? And what's changed in the city since 2021 that has people apparently more receptive and hungry for progressive ideas? Or is he just, you know, a one in a million charismatic politician who's arrived on the scene?
- [51:50]
B
Well, let me just say why I endorsed him and why I think so many New Yorkers turned out in droves and we saw voter turnout higher because people were excited, and not just because they were voting and they chose him, but because they were energized and more motivated to go to the polls in the primaries. And it was because I think they heard a person that I heard and that I met with and that I believe is both sincere, pragmatic and focused on what voters care most about, which is whether they're going to be able to take care of themselves and their families, and that they have a leader who's sincere about making sure that that happens. I say that because the way you hear the national dialogue about Zoran Mamdani, or the way you hear some of his opponents in the race talk about him, you wouldn't think of him as pragmatic, but everything he said and done in this campaign has been deeply pragmatic. It has been very grounded in what is both, I think, the motivating force for him to run, which matters why you're running matters, and whether people believe that's why you're running. He is running as a transformational candidate that's being pragmatic about people's ability to stay and live well in New York. Bring those things together, and I think you get a lot of votes. And that's what he's demonstrating. And that's, I think, what we're seeing in elections across the country. But this is the other thing I'll say about it. It's part of how Trump was able to win the presidency. He was speaking about costs. He energized voters who don't typically show up. And he did it as someone who was going to blow up government, because everybody, what everybody can agree to in this country, probably across most of the electorate, is government needs to be rethought. Now, there are those of us who want to rethink it in the context of a multiracial democracy, and there are those who are rethinking it outside of a multiracial constitutional democracy. He represents that person who I think makes people feel like, oh, this could be a place for all of us and we will rethink government, but it will be pragmatic and it will be about our lives. And I think that's why you've seen so much energy for him.
- [54:11]
C
One more race and maybe I can serve it up to you, David. Not in its particulars, but in Virginia, uh, you've got Abigail Spanberger, a moderate Democrat, three term congresswoman, running against a, a Trumpy. She's about 10 points up. What I think is noteworthy, and I wanted to ask you about is she seems to have made a decided strategic choice not to run against Trump, not to take on these outrages. I think that animate many of us in the elite commentariat, who or whoever the hell we are, and make it all about Virginia. Is that your sense as well? And what does it tell you, if so, about the current national landscape?
- [54:53]
D
I think that's true, and I think it's also something that's maybe specific to Virginia. She doesn't have to do that. You know, so much of the Democratic electorate in Virginia is in Northern Virginia. They are people who work for the government or involved in the government. They're maybe right now furloughed because the government is shut down. And so she doesn't have to talk about that as much. And I think she can still speak to the concerns that people have. I mean, in a way, it's a place even though she and Mamdani have major policy differences, Trump is the background for anything going on in politics, regardless of whether the candidates want that or not. But I think both of them have found ways to talk about the things that are not Trump and the things that voters want to hear. And that's a kind of agility that I think we haven't seen from all national Democrats recently in very different ways. I think they have cracked the code a little bit to that.
- [55:41]
C
Okay, sit tight. We'll see what happens tomorrow, including in New Jersey, where Mikey Sherrill is running and the general thoughts about what it portends for Trump in the midterms. Great conversation. Thank you so much for being here. We just have time for our final feature of five words or fewer where we take a question, we all have to answer it in five words or fewer. The question today we tape on Halloween is what is the White House handing out to trick or treaters this year? Five words or fewer. Anybody?
- [56:17]
E
What is the White House giving out for Halloween this year?
- [56:20]
B
You ask? Harry?
- [56:22]
E
Flaming bags of dog poop? For the record, five words. Hit it. Nailed it. And I even tailored the language for the larger, wider expansive, amazing audience of listeners and viewers for talking.
- [56:36]
C
Very kind of you. Sometimes I think we're PG13, but occasional R. So you've kept us safe.
- [56:43]
D
Asbestos laced East Wing rebel.
- [56:47]
C
Very good. All right.
- [56:50]
B
A piece of coal with Trump's face.
- [56:53]
C
On it because it's got to have Trump's face. I am going with emergency candy relief. No candy. Thank you so much, David, Katie and Maya. 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@harrylittman.substack.com 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 the 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 McGardo, Rosie Dawn Griffin, David Lieberman, Hamsa Mahadranathan, Emma Maynard and Hallie Necker are our contributing writers and production assistants by Akshay Turbalu and Sebastian Navarro. Thanks very much to Ami Barrowdale for explaining at least parts of the really complicated topic of federal court jurisdiction. 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.