Loading summary
Transcript85 lines
- [00:07]
A
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. It's our periodic return to our roots, a special episode focused on the goings on the the ugly, chaotic and Trump driven goings on at the Department of Justice. More than a month has passed without apparent movement in the investigations of Renee Good and Alex Preddy's killings. A new lawsuit brought by Minnesota against DOJ reveals why. It turns out that the department not only has refused to lift a finger, it has erected blockades to keep the state from having access to critical evidence. Now Minnesota is making a rare and urgent challenge to get the evidence it needs to build the best case. Meanwhile, the department continues to avidly pursue Trump's signature campaign of reprisal prosecutions in rank disregard of the Constitution and the rule of law. Its corrupt efforts have nearly all ended in humiliation. But that hasn't deterred the department from from pressing ahead with cases that even in failure, still saddle Trump's enemies with stress, reputational harm and lawyers fees. And in a strange twist to the Jack Smith saga, Pam Bondi sent Congress documents from the Mar? A Lago prosecution that the special counsel brought against Trump in apparent violation of the order from Judge Eileen Cannon to keep the case under wraps. The obvious intent was to try to cast Smith and the case in a bad light. But in fact, the ploy backfired badly when one of the documents implicated Trump to trace the DOJ's ongoing downward spiral into an abyss of lawlessness and political subservience. We welcome three of the most knowledgeable observers of the department in the country and they are Paul Fishman. Paul had a decades long career in the department where he served basically in every capacity, including line Prosecutor to U.S. attorney for the District of New Jersey to the Paw Dag at Main Justice. He now heads Arnold and Porter's crisis management and strategic response team in addition to other top roles at the firm. Paul, always a pleasure to welcome you. Thanks for being here.
- [02:49]
B
It's always nice to be back. Harry.
- [02:51]
A
Evan Perez, a CNN Senior justice correspondent covering legal, crime and national security issues. Before joining cnn, he led Justice Department coverage at the Wall Street Journal. He has delivered countless scoops on all things doj. Thank you so much for being here for this special DOJ episode.
- [03:12]
C
Thanks for having me.
- [03:13]
A
And Stacy Young, an 18 year DOJ veteran. She worked in in the department's civil division and later the civil Rights division until she resigned shortly after Trump's second inauguration. She has since gone on to found the Justice Connection, an organization supporting current and former DOJ employees. Thanks so much for joining us. Stacey Young.
- [03:39]
D
It's great to be here.
- [03:41]
A
Let's begin with the disturbing news that the DOJ is trying to keep Minnesota prosecutors from from even gaining access to critical evidence to make cases against the killers of Renee Good and Alex Preddy. Stacy, let me start with you. Because you're a veteran of civil rights, can you talk a bit about how these cases generally have been worked in the past and what the relationship between the federal prosecutors and state prosecutors generally has looked like?
- [04:15]
D
So everything about DOJ's handling of the events in Minnesota has been a radical departure from how it's always worked. Before, DOJ had refused to open up civil rights investigations into both shootings for weeks. Finally, they agreed to investigate the Preddy shooting, but they assigned not a career attorney to the case, but a political appointee who has no experience in these types of criminal investigations. And disturbingly, the department has really boxed out state and local law enforcement from the beginning, really preventing law enforcement in the state on the ground from doing their own robust investigations into what happened. And this is not how DOJ normally goes about these kinds of events. They work in partnership with state and local law enforcement, both because it's important for the federal government and state and local law enforcement to investigate incidents like this. And it maintains the public trust in DOJ's work. And we're seeing that public trust erode. And it's unfortunate that Minnesota felt that it had to go as far as to sue the federal government to have access to the evidence that it needs to do its own investigation. So, again, this is not how DOJ has operated in the past. It's unprecedented and it's dangerous. And it really sends the message to Americans that law enforcement engaging in what seems like excessive force is not going to be handled properly by the Department of Justice.
- [05:52]
A
Paul, let me just bring this up to you for a second, because you really had the role kind of overseeing everything. These are prosecutions of federal officers. The typical scenario might be state officers, but the department has done, has it not, prosecutions against federal officers for unlawful force. And just more generally, to second Stacey's point, it's one thing to not get involved in a case. What really does seem to make an unprecedented, in my experience is literally imposing obstacles to access to the evidence.
- [06:30]
B
Yeah. So what I find in some ways what's the most disturbing about this episode is that the Justice Department has no Interest in figuring out whether a federal law enforcement officer who shot and killed somebody. Actually, there were two who shot and killed people. The Justice Board is not interested in figuring out whether that was okay or a crime. And it's their responsibility in the first. It's not the responsibility of the state of Minnesota to figure this out. Right, right. This begins at home, if you will, and from the beginning of this episode where the President of the United States and the Secretary of Homeland Security basically immediately decided and declared that both shootings were justified, vilifying the victims, which is, you know, sort of an authoritarian playbook thing to do. It's their fault, not our fault. And I mean, Stacey is exactly right. The only way you have credibility for federal law enforcement with the communities in which they are serving is if the public believes that when things go wrong, that they have the ability to second guess, to take a real look and to impose sanctions if sanctions are warranted. So what the state of Minnesota is doing here, and Stacey's right, they cooperate all the time when in cases in which a local or state official has done this. But typically it's not necessary for them to cooperate with the state in a shooting by a federal officer because they do it themselves. The Justice Department does it itself. And that's what's not happening here. And so what the state of Minnesota is doing here, what Keith Ellison is doing by suing for the underlying documents, is almost a cry, a sort of desperation cry that says, something went wrong here. Everybody knows something went wrong here. Please let us do something about this. You know, ultimately, of course, they could indict the agents who are responsible for those two murders of those two people. I mean, and that's really the departure. Now, if they do indict them, they'll get indicted in state court, the cases will get removed to federal court, and then the same Justice Department will have to either defend them itself or find outside counsel who are willing to do that. Of course, they'll find lawyers, and we'll do that. But then the interesting question will be, how do those cases actually proceed with the Justice Department having some role in the defense?
- [08:55]
C
Look, I think just to jump in here real quick, I think one of the biggest problems here is that the architecture of the way these things work, there's a reason for it, as Stacy pointed out, which is to reassure the public that everything is being done appropriately. Keep in mind, at the beginning of this, DHS said that they were going to investigate themselves, which is, you know, getting the FBI involved is actually an improvement because nobody had Any trust that that was going to be done appropriately. So at least now you have the FBI doing it. And, you know, talking to people at the department and the FBI, you know, they're like, look, I mean, the FBI does this all the time. Why doesn't anybody just trust what they're gonna do? And the problem with this is that, you know, the state also has jurisdiction, Right? The state also has its own statutes that it has a responsibility to enforce. And so that's one of the reasons why when you do these things, you usually have a cooperative agreement with the Bureau of Criminal Apprehension, which is the state body that would do this in Minnesota. And they have a history of working together. There is no reason why they should be cut out. There is absolutely no reason. The reason why we've been told it happened this way is that they don't trust the local public officials who criticized the shootings from the other side. Right? Some of them jumped the gun and declared that there was murder. And again, everybody should. Should just hold back until the facts are known. That goes without saying. But in this case, again, the state has its own jurisdiction and has a right to be at the table. And so it's going to be an interesting lawsuit. The odds are against the state, but I think it's at least a good fight for us to learn more about what went into the decision making at the Department of Justice and the FBI to block all of this from happening.
- [10:43]
A
Why are the odds against the state, do you think? And again, the lawsuit we're talking about here is the state finally bringing a claim, interestingly, in D.C. saying, We want this evidence. We've gone through the steps that you prescribed. You haven't given it to us, really. You haven't even responded. Now we want it. That seems like a uphill battle to you, Evan. And why is that?
- [11:04]
C
It does seem to me because, again, you know, from the federal supremacy standpoint, you know, the feds get to control some of this. You know, it's their employees, first of all. Almost certainly, you know, the odds are against finding that the officers committed wrongdoing because of the very, very steep hill that you have to climb to prove they broke the law. There is so much that is up against them in this. But again, just from the federal supremacy angle, I think that's one of the challenges here. Again, this is just from my observation. I'm not saying that it's. It's a done deal, but at a minimum, what this lawsuit does is it presents the opportunity for us to learn more about the decision making behind the scenes, because so far we don't know a lot more other than the tweets and so on from the federal officials.
- [11:51]
A
And two very quick points. First of all, Paul made the point that if these cases are brought, they would be removed. And then the department could really make the Supremacy clause immunity arguments and have that sort of proffered. And then second, I just want to. To echo Stacey's point, Bill Yeoman's longtime veteran made the same way. If indeed at the end of the day, prosecutions aren't brought, it's one thing if the public knows that they were conscientiously worked through, that makes all the difference sort of on the ground.
- [12:24]
D
There's fairly recent precedent in Minneapolis for how this should work, and that was after the George Floyd murder. The officers involved were prosecuted at the state level and convicted. And they were able to be prosecuted because the Department of Justice did not box them out, did not prevent them from having access to the relevant evidence. And after that prosecution, the Department of Justice prosecuted the officers on civil rights grounds. This is how it's supposed to work. There is a role for the state and there's a role for the federal government for DOJ and. And the kind of tension we're seeing in Minneapolis in this case, really, as far as I'm aware, as far as what civil rights prosecutors and AUSAs have told me is unprecedented, there's no reason to have conflicts here. There's no reason for the state and the federal government to not be working together to make sure that justice is accomplished.
- [13:24]
A
And it is a bad public look. Hey, I have a question now for you, Paul. I was Paul Fishman swearing and as U.S. attorney, and there were all manner of encomia about his killer chops. As a prosecutor, line prosecutor, I heard a lot of stories we won't repeat.
- [13:42]
B
Let's not use the word killer in that context.
- [13:44]
A
No, let's not use the word killer about his prolific chops. Here's the question. 2026. We have all kinds of videotape. Let's assume that Evan's right and Minnesota doesn't get the evidence without the evidence. And we're talking about the car, right. And the casings and some of the statements. Is it still a winnable case for them?
- [14:08]
B
That's right. Without having seen the video and without
- [14:12]
A
having seen 50 videos all put together, we have.
- [14:15]
B
Yeah, well, to be fair, I haven't. You may have watched them all. You have excellent research assistants. I'm sure I have excellent assistants, associates. I also, I know that for sure. But, you know, look, you were a trial lawyer, Harry. For a brief period of time, Stacey's been a trial lawyer. Evan's. Evan's just like a trial lawyer because he's doing live standup on television. But the truth is, without witnesses, without live witnesses, without participants, cases are harder. They just are. It's the reason why in drug wiretap cases, in organized crime wiretap cases, prosecutors always wanna have a witness on the inside. Somebody who was there, somebody who participated. And videotapes are much more helpful than they used to be. They're everywhere, right? I mean, when you and I were starting as assistant United States attorneys In like the 1920s, there was no video, Right. Somebody robbed a bank.
- [15:12]
A
Calvin Coolidge era.
- [15:14]
B
Yeah, somebody robbed a bank. There was a teller, There were two witnesses on the street, maybe a customer. That was the whole case. Now you get a bank robbery case, There are like 50 videos that you have to then download. I mean, that's helpful because now there's a lot of stuff makes those cases much more complicated. But witnesses. The truth is, even though witness testimony, by lots of research standards, is not often as valuable and as accurate as recorded things on video, the truth is juries are trained by dint of growing up around and hearing people tell them stories and watching trials on TV to see witnesses. And so, again, I haven't seen the video. It's just a harder case. And the thing what I keep in mind here is that this Justice Department, this administration, will throw sand in the gears of that prosecution at every opportunity because they just can't admit that somebody on their watch did something that horrible.
- [16:14]
A
Let me offer a couple quick counterpoints, having tried a few cases myself. First of all, the profusion of video is really valuable here. It's greater than the sum of its parts.
- [16:25]
C
You're talking about the renewed Goode case, right?
- [16:27]
A
Because that's true. But. And this is the witnesses point. There are a lot of people who were there, and those will be witnesses. A dynamic that'll be missing. I worked on the Rodney King case with the one grainy video back in the Calvin Coolidge era. But with all the videos together, you can really build a case. And the last point I'll make, I think that when the defendants stand up and say, whoa, where's the car? And where's this? I think judges will and should give instructions. That's not on the state, guys. That's on the federal government. So my sense is that it's still a prosecutable case. But to just second what everyone's saying why it's come to this is really what the outrage and scandal is. So I'd like to move on now to the sort of continuing reign of terror of these prosecutions against Trump's political adversaries, because the department's been totally taking it on the chin, but they just keep going back and going back. So most recently, Bill Pulte, the same guy who has been going after Letitia James already in the three attempts that didn't come to fruition in the Eastern District of Virginia, he sent out criminal referrals to two other U.S. attorney's offices, but just kind of crossed out mortgage fraud and put in insurance fraud. I wonder what your thoughts are about the sort of game plan here and, and whether this is just a referral. So far from Pulte, does doj, which has been humiliated, I think in the James cases, still have a stomach to go after her.
- [18:15]
C
Well, one of the funniest things about the Bill Pulte referral is that it seems largely based on tweets from Mike Davis, who is a Republican activist who is very active on Twitter, who's actually very influential. And as well, because he's got the ear of people in the White House and has a big following. He's often on Bannon's show, Steve Bannon's podcast and so on. He's very influential and he is pulling the strings on a lot of things. I mean, he calls himself a fixer for a reason. And so what it tells us is this. You know, obviously they're. They are aware of the pressure. They are aware of the batting average, which is woeful, right? It is. You know, not to insult the Pittsburgh Pirates, but, like, at that level, you take that back.
- [19:04]
A
I know. I wish it was a rough opening day yesterday, I grant you.
- [19:09]
C
I don't know, but I was trying to pick which team that was not going to insult someone on this group, and I knew I was going to screw it up.
- [19:15]
A
Paul Skeen's worst start of his career. Storied career. Sorry, go ahead.
- [19:19]
B
I'm sorry, who won that game?
- [19:21]
A
The Mets?
- [19:22]
B
Yeah, the Mets won that game. That's who won that game with a
- [19:25]
A
five run first inning. Maybe we're testing the stamina of our viewers, though. Sorry, go ahead.
- [19:32]
C
Not to detour, but yeah. So the batting average has been woeful, not only on the comey prosecutions, but also, if you take a closer look, they couldn't even get an indictment against the guy who threw a sandwich, who's on video throwing a sandwich against a Federal officer on YouTube couldn't get a conviction. So, like, for the Justice Department, sort of the presumption of regularity, the presumption that what they're doing is operating on good faith has been lost in a lot of jurisdictions around the country. And so what they're doing is they're choosing to send this to other places. For instance, obviously having lost in the Eastern District of Virginia, which by the way, is not historically known as some kind of left wing liberal.
- [20:14]
A
No, no, no.
- [20:15]
C
That is a district that has been very, very high batting average for the U.S. government. Right. Because in Pentagon, because of the jury pool, these are all government workers. A lot of them are, are in national security. So the fact that they've had trouble there with the Comey cases, with the Letitia James cases, what it meant is now they've decided to try to try different jurisdictions. And it's a strategy. The Deputy Attorney General appeared at CPAC and really did say that one of the things they're doing is to try to send things to red districts where they think they can get better juries. And so there's a strategy here that is at play that they're very. Being very open about. Normally, judge shopping happens. It always happens. It's been a history of it. What we don't usually have is senior public officials, including the Deputy Attorney General, Todd Blanche, essentially acknowledging what they're doing and what that does really to the trust and the belief that the Justice Department is operating in good faith. That's the big challenge here. It really does undercut the reputation of the department long term. For how long this lasts, I don't know. But it is possible that we are doing some real long lasting damage to the department because of what is happening.
- [21:37]
A
And it's more than judge shopping.
- [21:39]
C
Right?
- [21:39]
A
It's U.S. attorney shopping. Northern District of Illinois is a blue district. And Miami may. Well, you know, what do we know about Quinone, say in Miami or the others? Right. They're looking for the subset of real true believer. Tell me what to do, how high to jump, and I'll do it, right?
- [21:59]
C
Well, yeah, I mean, to follow up on that is like, you know, so Mike Davis, the same activist, has been behind this theory that they could use a grand jury down in Fort Pierce, which happens to be the judge, the courthouse of Judge Eileen Cannon, who of course ruled in favor of the President in the documents case. And one of the things that has happened is that district is where the U.S. attorney Quinones, who has become quite a big proponent of MAGA politics, and has essentially been. He's up here in Washington all the time. The attorney general says they talk all the time, almost every day or every week. And one of the things that he's doing is pushing this idea that there's some grand conspiracy against Donald Trump that stretches from 2016 to 2024. And so they're trying to figure out how to prosecute. They're also, this is the district where they're also investigating John Brennan. The problem is they cannot bring a case against John Brennan in that district. So they're going to have to bring it up here in Washington. And so that's going to be the big rub for them in the coming weeks and months is whether they can do that and whether a jury here, a grand jury here in Washington will actually take that case.
- [23:18]
B
So, a couple quick comments, Harry. One is, I mean, Evans writes strictly about how venue works for criminal cases. If John Brennan is alleged to have lied in his testimony before Congress, which effectively is what this, the John Brennan piece is about, he did it in Washington, D.C. unless he was testifying remotely by zoom from his house in Virginia,
- [23:40]
C
he was doing it in person here.
- [23:41]
B
Yeah, but if one of the reasons for them to make this an alleged grand conspiracy is because if they indict John Brennan for being part of a conspiracy in which one overt act took place in the Southern District of Florida, there's venue maybe for the conspiracy charge in the Southern District of Florida now, he might be able to. I think it's a crazy theory because they'd have to show with whom he was conspiring in Florida and that they were part of the same conspiracy. And the motion practice in that case would be complicated and interesting and endless. But if you have Eileen Cannon as your judge, maybe that's not a terrible thing for you if you're the United States Attorney's office in that district for that particular matter. So that's one thing. I mean, I agree with Evan's legal take, but that's not how this administration brings and starts investigations and brings cases. That's first. Second, I'm not quite sure what to make of the Pulte referral of Tish James on insurance fraud to two other U.S. attorney's office. I mean, I do know what to make of it. It's beyond the pale. But that's not really my point. It's hard to know. First of all, if you assume that the leadership of the Department of Justice knows about the president's interest in having Tish James prosecuted and they share that view as we know from all the pressure they put on the U.S. attorney's office in the Eastern District of Virginia to do it, if they thought that there was a viable prospect of bringing a criminal case against her in a different district on a slightly different theory for her violation of a different statute, they don't need Pulte to give them that idea. They can do that on their own. They could have hung up the phone with the folks in Virginia and they could have picked up the phone in some other district where they have a U.S. attorney who they think would play ball with them on this and just ask that person to investigate that case. We know they would do that. They've already done stuff like that. So the question for me is, is this Pulte just exercising some degree of his own frustration that people are not listening to him? Is he trying to do it so he could put some pressure, external pressure on the Attorney General and the deputy Attorney General to do something that they're not. That they're not inclined to do? Right. Cause he could have just called up Pam Bondi or Todd Blanche on the phone.
- [25:56]
C
Right.
- [25:56]
B
And said, hey, listen, this is ridiculous. We gotta bring this case somewhere else. And if they thought they could get away with that, they would do it. So I'm really not sure what to make of it. I think it may be the latter.
- [26:06]
C
I think you're not.
- [26:07]
B
I'm not Judge. I'm not District shopping by the Attorney General.
- [26:10]
C
No, no, no. I totally agree. But what I'm getting at is more that he is part of the reason why he's sending it down there is because they think that in Miami in particular, I'm not sure Chicago is going to be better for them, but certainly Miami, he thinks, and some administration people think is a better place for them. I think you're absolutely right. That the reason why Pulte went public with this or is, you know, did this get out to the press? Is because I'm sure they have tried to surface this in other ways. And I will say that on both the Comey cases and the Tish James case, the deputy Attorney General and the Attorney General were dubious about it because they had their own people in EDVA in the District of Virginia who were telling them that the cases were weak. Right. That they were not very good.
- [26:56]
A
Right. No career person would even work on it. Right.
- [27:00]
C
They also knew that they were not very good cases. And so I think Pulte might be exercising exactly what you're getting at.
- [27:07]
D
But I will just add that in addition to what everybody was saying about prosecutors not going along with these orders to pursue vindictive prosecutions. We're also seeing in each of these cases, career prosecutors being fired or resigning because of what's happening. And that is a really important point to remember. We are seeing the depletion of institutional knowledge and expertise from U.S. attorneys offices across the country. And in many cases, it's a direct result of DOJ leadership insisting on career employees going along with these types of prosecutions. And. And this is going to have damaging effects to DOJ for many years to come. So there's a lot of different kinds of damage that's happening because of this retribution campaign, because of these vindictive and selective prosecutions. But again, a point that I think doesn't get enough attention is how it's eroding DOJ's career workforce.
- [28:15]
B
And it's two different problems, right? I mean, there are lots of different problems from that. Look, this started when the administration came out of the gate a year ago and started firing or moving to dark corners of the department, people with enormous talent and enormous experience. And the two people I keep singling out, aside from, are my friend Stacey, who's on this call, and the great expert are Bruce Swartz and George Toscas. Right. George Toscas, who basically supervised every espionage case for, like, the last 25 or 30 years, was moved to what they called, I think, the Sanctuary Cities Unit or something like that at the beginning
- [28:53]
D
of the administration, which was a rubber room.
- [28:55]
B
And Bruce Swartz, who had been basically on every international trip with every Attorney general since Janet Reno, I think, and knew what happened the last five meetings between the United States Attorney General and the Minister of Justice in Sierra Leone or France or Taiwan, and all of their institutional history, expertise, judgment about how things happen and what's going to happen next in those kinds of matters, gone in five minutes. That's a huge, hugely debilitating thing. And it happened in the State Department with all the career diplomats, same thing. Same. And that lack of appreciation of what people like that bring to the table, to the Situation Room, to the Attorney General's office, is a fundamental misunderstanding of how government actually works, when it works well, and an indifference to that, or even a distaste for it, which is stunning. And part of what Stacey is describing, career people leaving, is because that attitude, we don't care what you think, we don't care what you know, we don't care how we actually used to do this. We're gonna do it our way, whether it works or not, whether it means going to a grand jury in the District of Columbia and trying to indict Mark Kelly and Alyssa Slotkin and four members of the House for a videotape and getting no billed with no votes. They don't care that that's how it rolls out in the end. It's just doing the pieces that come up to that are what's important to them. And the result is that they can talk about how they're going after violent criminals all the time. There aren't enough prosecutors to do enough cases now of the type that they used to do before. They can't do the significant cases in drug units and gang units if they don't have people who will stay. And if you start giving everybody in the office habeas petitions and immigration cases that they have to defend and can't, then those people are not gonna stay either. Sarah Bloom, who was the first assistant in Rhode island, just left to go start an immigration defense law firm, pro bono law firm. That's what's happening. And because people see that there's actually more public service right now, not in the department, than there is in the department. And that is a stunning and heartbreaking event.
- [31:11]
D
Yeah, everybody should donate to Sarah Bloom's new initiative after they donate to Justice Connection. But I will note that, you know, on that point of purging some of the department's top national security experts and criminal prosecutors, it's a really grotesque hypocrisy that there's a banner hanging on DOJ's building right now that says Making America safe Again. When this department purged some of the top national security experts, some of the top FBI counterterrorism experts, counterintelligence experts. It's preposterous for this administration to claim that it's making America safe again when it is gutting the Department of Justice of some of the people who best kept us safe.
- [31:58]
A
It's so true. And I just want to echo something that Paul said that I think gets lost in the different reports of how the Minnesota office is being hollowed out and Civil Rights Division. It really is the way government offices. But definitely the DOJ works, that there are certain people who've been there a while and they're the go to people. It's their voices at the end of the day that everybody learns from, and those people are disproportionately gone, and it so hollows things out. I want to follow with this point because I think it's so important. And Stacy and Evan, the people who are still around, do you have a sense of the kind of day to day experience of the folks who are, you know, hanging on for whatever reason and whether they are able to do the job they came to the apartment to do.
- [32:53]
C
I spent a lot of time there, you know. You know, you walk the halls and you run into people. Some people who I've known for years, a lot of them are hanging on. Some of them are waiting to get to the point where they've had enough years to be able to leave. Candidly, I think that that's a lot of them. But there are people who feel like they have a responsibility. They love their jobs and they feel like they need to do this job because they love what they do and they have a certain amount of respect for the institution. And so you do hear from those people a lot. I will say the other thing that has happened is, you know, this administration, I think one of the goals was to just bring in and flood the zone with people of their own. And there's not that many. They haven't been able to bring in as many people as they wanted. I think some of it is because the White House itself, there's like a loyalty test. And people who voted for Donald Trump, who are true conservatives, can't pass that loyalty test for whatever reason. So you have that, that phenomenon that is still at work. And so what happens is what I hear a lot is things take forever. Everything takes forever. Todd Blanche takes it on the chin a lot from a lot of the, from the White House and from the FBI and from other places, because his office is where things just go to sit. And that's because again, there's a lack of political appointees who can carry out the president's agenda, they're hurting themselves and in that way because not only have they what you guys have just been talking about, which has gotten rid of some of the expertise again, George Taskas, Bruce Schwartz, these are people who have served Republican and Democratic administration. You would never know what their politics are. As a reporter, you know, I'm not a, wasn't a big fan of Taskas and how enthusiastic he was about enforcing the laws on leaks and stuff like that. But, you know, he was one of the best in the business. And the idea that people have been purged, you know, parts of the National Security division, which used to be, we used to think were was above politics. Right? Everybody is in favor of national security. Nobody wants something to blow up in the country. It used to be above politics. That is no longer the case. And so that's one of the things that I think you're seeing happen is that things are so slow because they don't have enough people to carry out the president's own agenda.
- [35:17]
D
I mean, I'll just say that many thousands of DOJ employees have been purged under this administration, but most are still there. There are still over 100,000 employees at DOJ, and they are struggling every day to carry out their mission critical work and to uphold the rule of law. And they're doing so under very difficult circumstances. They're working under a leadership that demeans them, that calls them the deep state that has no qualms about giving them illegal or unconstitutional or unethical orders. And many are feeling the trauma that administration officials literally promise to put them through. They said that out loud during the transition, and they've carried it out at doj. But people are staying in the department because they want to continue doing the work, because they know that DOJ is a bulwark against a president's authoritarian instincts. They know that career employees are going to have to be there to push back on some of what this administration is trying to do. So contrary to the fact that a lot of people are focusing on those who are leaving, most people are staying and they're doing what they can to continue doing their work and, and maintaining order.
- [36:39]
A
Another Fishman question here for the reprisal prosecutions. Paul, you were recently on a panel at an ABA conference where a Trump loyalist justified some of the reprisal prosecutions on the ground. Well, the Biden administration had weaponized the DOJ with the Trump prosecutions. Setting aside the point that that's a non sequitur, this kind of what about ism claim that Biden DOJ was weaponized, that, it seems to me, is getting some purchase even not among MAGA folks. Let me start with you, because you fielded it, but what is there to be said in response to that kind of just really promiscuous claim out there?
- [37:23]
B
Well, look, I mean, you know, it's very hard to push back against claims of weaponization under certain circumstances because it means different things to different people. John Lauro, who represented President TRUMP on the January 6th investigation, as I understand it, was pretty vociferous on that panel. I thought a pretty measured way, actually, until the end when the moderator took it to the audience for questions and answers, and there were some, I would say more open hostilities. But I think his view is that the investigation of January, the president's role in January 6 was not okay. If you take a step back And I said to him at the panel, if you take a step back and you look at the enormous amount of violence that was mustered against federal law enforcement officers and the capital of the United States, the department was under an obligation, in my view, to figure out how that violence happened and who was responsible for it, much as you would if workers rioted on the docks of Port Newark. And you'd have to figure out, was that a spontaneous event or was it ginned up in some way? Were people paid to be there? That's what you would do as a prosecutor, would try to figure that out. And trying to figure out how high that responsibility went explains a lot of the investigative techniques and a lot of the investigative action that Jack Smith and his team took to try to get to the bottom of all that. He did not have an answer for that. And, you know, the administrator, the President's answer is, well, they weren't really the people who were there doing violence. They were not doing anything wrong, if that's your view. There's no convincing anybody. There's just not. And so I think if you start from that divergent point of view, that January 6th was a peaceful, loving event, as the President described it and what the rest of us saw on tv, which is people who were spectacularly out of control and intent on hurting people, people and wrecking a building and stopping a vote. You have different views about what the department's role is in various things. That's just the way it works. But I do find it ironic that I represented President Biden's younger brother Jim in all of the matters related to Hunter Biden and Uncle Jim, and Hunter had some financial transactions, and those investigations went on for a while. Those investigations were done under Democratic administration of the President's family. So it's a little hard, as opposed to now when, and ironically, let me just say ironically, the. The issue there was whether Hunter Biden or maybe the President's brother Jim, were somehow profiting off their relationship to the President of the United States in amounts that were, you know, in the high 6 or low, low 7 figures. Whereas in this administration, the President's family and the President himself are profiting at rates that are staggering by comparison. And yet there is no outcry by the same people on the Hill, such as Chairman Comer and Chairman Jordan, who were so intrigued by whether business deals were being done under President Biden's name by his family. It's just, you know, it's a. We're living in two entirely different universes
- [40:48]
C
in a lot of ways, I agree wholeheartedly. The idea that you wouldn't investigate what happened on January 6 and whether or not what the President did instigated it and the idea that you wouldn't even investigate that is kind of insane. But that is where we are now. Because certainly if you look at the 2024 immunity ruling, it seems to suggest that if the President says it's part of his official duties, that the FBI can't even investigate it. Right. So in some ways, the damage that was done is not just what happened on January 6, but also the Jack Smith prosecutions have really created some. What a lot of people would look at and say is bad law. Because I'm not sure that the country really wants there to be a presidency that is unencumbered at all just by saying that it's, you know, it's official duties. I mean, it's kind of stark to think of it that way, especially for a country that has, throughout the years, claimed that no one is above the law. Well, it turns out actually that's not true. Right. That's a credo that we've been claiming. That's a propaganda that we've been selling the world over the. Over the years. That is just completely false. Because actually that is not true. The President is above the law as long as he says it's official duties.
- [42:05]
A
Heartbreaking. You can say that. Yeah. But I have a couple quick legal points here. The first is this notion of how, you know, were they not supposed to investigate the same. We don't have time to talk about this. But a really scandalous event this week was the collusive settlement of the claim by Michael Flynn. And the. It's part of this storyline that the investigation was not righteous. And. Give me an effing break. You receive reports, and you're the FBI, that someone who's not in government yet is freelancing with the Soviet ambassador. We only have one president at a time. For them not to investigate would have been terrible. I can.
- [42:48]
B
Let's go further. He pled guilty.
- [42:51]
A
Yeah, yeah, yeah. And you have to show that. That there wasn't probable cause. Well, actually, I opened this little box. Any anyone want to. Want to dump on Michael Flynn for a minute?
- [43:01]
C
Let me interject real quick. I covered this case so much, and I think one of the things that I think we look back and we look at the Mueller investigation, Robert Mueller's investigation, one of the mistakes that they made is that they did not include the allegations that he was essentially illegally lobbying for Turkey. And so that's what made it so much easier to dismiss it because it was a false statement case, which is really where this ended up being. And that's one of it's how the way how in retrospect, everything has been resold, repackaged, and everything looks like it was done falsely or in bad faith when it really wasn't.
- [43:39]
A
And they've changed sides. So it's now instead of an adversarial suit, it's just collusive. Come on, Mike, take a million or so.
- [43:46]
D
Yeah. I mean, Michael Flynn sued the government for $50 million under the same law, the FTCA that President Trump is pursuing in his, you know, claim for $230 million. So, you know, it could be that in a few weeks or a few months, we're dealing with the same situation on a much larger scale.
- [44:07]
A
Totally. And I just want to make one point about Paul and the panel. To me, there's a really easy answer to these claims of weaponization. It is the principles of federal prosecution. If, in fact, as is required, you can prove a crime happened and you believe it, then it's a dereliction not to bring it. And so it simply goes to the evidence. Was it the case with Trump? I think it's manifest, but that should be the question because so often it's just implicit. Well, you were going after the president. Ergo, it's weaponization. And that's just no justice without fear or favor says the exact opposite.
- [44:48]
D
It would be nice if those principles would be codified.
- [44:51]
A
Exactly. Does anyone care about those anymore? We just mentioned Jack Smith, and I want to talk about that for a few minutes. We've got new revelations. So you have the order in place saying, jack Smith, don't you dare disclose anything. Nevertheless, Pam Bondi sends some documents over to the House Judiciary Committee, and, oh, they seemed not to put Trump in such a good light. Evan, if I could start with you, did the prosecutor's memo, did it tell us anything that we didn't already know?
- [45:29]
C
You know, I will say we having spent a lot of time on this investigation, we knew that they looked at this issue. Right. And we know that over time, you know, Paul and Stacey can tell you, prosecutors, especially the timing of this memo, you know, you draw up a number of theories, and then some of them are borne out, some of them are not. And so they, of course, had to look at this. Right. The idea that the President, United States, one of the reasons why he was hoarding these documents, storing it in Mar a Lago bathrooms, was because there were some business Interests that he had in some of the places that were discussed in some of these documents. And so that was a theory. It doesn't appear that it was borne out. Again, we haven't seen volume two of this report because it's under seal by Judge Cannon. But it certainly, if you look at the indictment, it's nowhere there. Right. So it appears that they struck out in trying to pursue this. But it is interesting that this is now part of the things that the Congress has gotten because as you pointed out, you know, this is supposed to be on the lock and key. We're not supposed to, you know, Jack Smith has testified, other parts of his investigation have. Other members of his investigative team have testified. And because they can't talk about certain parts of this, they are actually like under threat of being held in contempt of Congress because they can't discuss certain aspects of volume two. And so the problem here is that like why, why are we doing this then? Right. If the department is able to share documents with the Congress selectively to allow them to make the political case that they're making, then why can't we have a fulsome look at everything?
- [47:06]
A
Paul, you were in the Olympian stratosphere of the department when I was a mere Mandarin, but I've never friggin heard of a document that only six people. This was one of the revelations in the letter. One of the docs he purloined specifically said only six people in the government can see that. Does that dovetail at all with your experience? And what kind of document would that be? It just sounds completely incendiary.
- [47:37]
B
Whatever clearances I had, Harry, if I had them, they were beyond six people, I can tell you that. You know, I mean maybe you have documents like that in the intelligence community that are exclusive, but by the time you get through the white, you know, you'd think would have to be the President, the Vice President, the White House Chief of Staff, the head of the CIA, the Director of National Intelligence. And you're already at five. Before anybody wrote the document. Before anybody who wrote the document. Right. So it seems weird, but my partner Deb Curtis was the former Deputy General Counsel. The CIA may have a good answer, I just don't.
- [48:08]
A
Evan's point is so strong Raskin makes the same one. Excuse me, you're trying to tell Jack Smith if he adverts in any way to this time, we're going to criminally prosecute you. Bondi just sends it over. Has she blown it? Is this a blunder? I guess. Is there now going to Be a drip, drip, drip. That's going to just end in real pressure to release the whole Volume two.
- [48:35]
D
Yeah. I mean, I think this is definitely going to lead to pressure to release everything. I think there's still momentum from the Epstein files. Everybody's kind of expecting now everything to be released about everything. I mean, it's certainly not surprising to learn that the Jack Smith team was looking into possible financial gain, because it was, I think, a mystery to most of us. Why would Trump have kept these classified documents and so many of them and in such a reckless way? So it's not a surprise to learn that this possibility was investigated and perhaps believed to be true. It wasn't part of the indictment. It's hard to draw conclusions when you just have selective pieces of information that aren't contextualized, thrown out into the public. So I don't know how much I'd really look into what's behind all of this, but I certainly expect many people to start demanding the release of everything.
- [49:44]
A
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.
- [50:02]
E
Thank you, Harry. In today's spirited debate, the question bubbles up around the difference between Champagne and sparkling wine, and we're more than happy to explain. First things first. Champagne is a type of sparkling wine, but not all sparkling wine is champagne. We could leave it at that, but that's not our style. So here we go. A sparkling wine can only be called Champagne if it comes from the region of Champagne in France. Any other bubbly produced outside of Champagne is called sparkling wine. In this exclusive region of northern France, three types of grapes, Chardonnay, Pinot Noir and Pinot Meunier, come together to produce what will become the Champagne you know and love. Champagne production is controlled by strict laws, so all of those grapes we just mentioned must be hand picked. It's a labor of love, Right? The other difference comes from the fermentation process. Specifically the second fermentation process that produces Champagne's signature bubbles. This time consuming fermentation takes place in the bottle and is known as the traditional method. Whereas some sparkling wines are fermented in a tank. Now, take a wine like Cava, which is made in the Champagne method, but because it's produced outside the region of Champagne, it's classified as, yup, you guessed it, sparkling wine. So if it's sparkling wine, you want total wine and more. Has a huge selection, including Prosecco, which comes from the Veneto region of Italy, sec from Austria and Germany, and Cremont, which comes from France, just outside of the Champagne region. But all these sparkling wines have something in common. There are amazing bottles that are available at Total Wine and more for you to take home, pop open, and compare not only to each other, but to Champagne as well. Happy shopping and happy popping. Cheers.
- [51:49]
A
Thanks to our friends at Total Wine and more for today's a spirited debate. You know, we're about out of time. We won't be doing a five words or fewer. I just thought maybe of, you know, and the top 10, if you had to do it, of Trump offenses, along with mocking a handicapped reporter and the like, would be his response to the death of Bob Mueller. I am glad he is dead. We're talking about a titanic figure in American history. And I just thought with everyone's close connection to the Department of Justice and the FBI, we could each take a few minutes to just give a kind of sense of what you think Bob Mueller's place is in history or if you had any personal involvement with him. I just wanted to go around the horn, if we could, and get your thoughts, valedictory thoughts, as it were, about Bob Mueller.
- [52:49]
D
I mean, I'll just say it's easy to take for granted the fact that we just haven't had a major terrorist attack since 9 11. But it should be remembered that one of the major reasons why that's probably true is because Robert Mueller, Director Mueller, restructured the FBI after 911 to make sure that our counterintelligence and counterterrorism efforts were really strengthened. The FBI doesn't look like what it did before 911 because it really focused on making sure that there wouldn't be another 9 11.
- [53:26]
A
And.
- [53:26]
D
And people who work in the intelligence community appreciate that. People who worked at the FBI appreciate that. And you've seen that over the last few days with just a massive outpouring of gratitude and remembrances and tributes to Robert Mueller from the people who really understand why his work, why his public service was so valuable to our country.
- [53:48]
B
First of all, just to what Stacey said, the FBI is now looking more and more like it looked pre 911 because many of those structures, approval requirements, intelligence assets, experienced counterterrorism investigators at the Bureau are gone. And so I do worry that we're more exposed by a lot than we were a year ago. And if you want to destroy the legacy of Bob Mueller, it's horrible and horrifying that the President would say he's glad he's dead, but if you want to destroy his legacy, wrecking the Bureau is sort of going after where Bob Mueller really lived. So that's one thing, but two things. One is, I remember when I was in the Deputy Attorney General's office and Eric holder was the U.S. attorney in D.C. and he told me and others, he recounted Bob Mueller's having called when Bob wasn't a partner at what was then Hale and Door, I think it was before the merger. And Bob called him and said, I want to come see you. And Eric said, sure, you're Bob Mueller. You used to be the head of the Criminal Division. And so he came over and basically, after they chit chatted for a while, Eric said, so, what do you want? And Bob said, I want to. You have a terrible homicide problem in D.C. i live here. There's a lot of violent crime, and I want to do something about it. And Eric said, well, like, what do you want to do? And Bob said, I want to prosecute homicide cases the way I started my career. And he must have been 45 years old by then, at least, right? 50 years old. And Eric said, I already have a head of Homicide. And Bob said something like, you're not hearing me. I don't wanna be the head of Homicide. I wanna prosecute homicide cases. I wanna make the streets of D.C. safer. Now, ultimately, of course, he did become the chief of Homicide. And then Janet Reno sent him to San Francisco to be the U.S. attorney. And we all know, whatever, all this stuff that happened after that. But that sense of, and I'm gonna use the words noblesse oblige a little bit with Bob because he was a patrician in a lot of ways. He was, you know, ramrod straight. He carried himself with a sense of dignity, not beyond, by the way, a great joke and making fun of people, which he was very good at doing. But that characteristic, I think, is an extraordinary thing. But the second is, when I was in the Deputy Attorney General's office, one of the things I was assigned to do by the attorney general and the deputy attorney general was to represent all of the Justice Department witnesses who were called to testify before the Whitewater Committee. And one of the issues was what had happened at the beginning of the Whitewater investigation which started in the U.S. attorney's office in Little Rock where, of course, the President Clinton was the governor and the first lady was not yet the first lady. She was the first lady of Arkansas, and she was a partner at the Rose Law Firm, which is One of the most significant and well connected firms in Arkansas. And so there was some question about whether the U.S. attorney's office could really do that investigation. And eventually the investigation got moved to the fraud section of the Criminal Division in Washington. And Bob Mueller was the head of the Criminal Division. And the question was, were they going to continue the investigation? Were they going to start serving subpoenas in like August or September of 1992? And Bob Mueller said, no. Bob Mueller said, we're not doing that because there's no way we can get far enough along in this investigation before the election to figure out whether a crime has been committed and whether any charges need to be brought. So we're gonna put pencils, you have to stop doing internal stuff. But we're not gonna do anything public facing because that could tip the election one way or the other. He was a Republican in a Republican Justice Department and said, basically, we're not doing this now. It's not fair. And that's who Bob Mueller was. And I'm gonna miss that in public life.
- [57:31]
C
You know, my time. Obviously I didn't work for him, but I worked at the Wall Street Journal when I started covering Justice Department. And Bob Mueller began his day reading the Wall Street Journal. And so what it meant was that whenever I wrote something and there were sentences somewhere in the 15 paragraph that he didn't think were right, I heard about it. He was quick with feedback. I wouldn't get from him personally, but I would get a call from someone in his office and so on, who would say, well, the director would just like you to know about this. And I think a lot of people who worked under Mueller, there was a lot of respect, but there was also a lot of fear. And as a young reporter, I was terrified. I was like, what the hell? What the hell did I just get into? But if you look at the way he carried himself, you know, one of the things that he prided himself in is obviously being no nonsense. What you saw is what you got. One of the things that I was always astonished at was watching him go to the Attorney General's Christmas party every year. And you could see him walk in from one end. You know, there's a long, wide hallway with four frescoes everywhere. And then you into the Attorney General's conference room. And it's usually thronged with people. Certainly me walking from one end sometimes can take over an hour because you meet people, you start talking, whatever. Bob would walk in on one end, walk through all of the throngs, say hi to senators, Say hi to judges, justices, whoever was there, find his way to get to the Attorney general, say his piece, and then find a way to get out of that. I've never seen anyone do it as quickly as Bob because he hated the whole thing. He didn't want to be fussed over. He didn't want small talk. He was all business. And I think that, frankly, is something that we miss right now, because we live in an era where you have video of the FBI director chugging beers from the U.S. hockey team's locker room in Milan. You know, so that's the era we're in now, the BRO FBI era. And that is just like the opposite of what Bob Mueller was, partly because he just didn't want to be part of the story. He wanted to do the job and sort of like fade into the background. I used to tell him this. I used to say, I've never seen anyone walk through this hallway with such, you know, with such speed and with such efficiency. And he goes, you gotta be at it as long as I have. And, you know, that's the kind of thing that I always keep in my memory of my interactions with the former FBI director. Certainly, I think there was none other like him. You know, if you think back of his service in the Marines, right, Purple Heart, again, a lot of people with his connections could have avoided and did avoid serving in the Marines, and he did not. He went. And so that's an example that I don't think a lot of people who are in the government right now would emulate right now. They should, but it's not. It's been lost.
- [60:44]
A
He was the living antithesis, I think, of everything that's bad in today's department. I'll be brief. Many of the things everyone has said are exactly what I feel. I just want to say I had the privilege of working some with him, including because it was U.S. attorney in my office, Office of San Francisco. I'd want to touch briefly on this final act that a lot of people will point to if they're trying to undermine him. And I just want to say, as special counsel, and he was just non pareil in terms of the person appointed. I think he got snookered or a little fooled by the political conduct that Bill Barr and others had in the department. And I also think his tremendous devotion to fairness is part of what happened there, because he was a guy who said, and he didn't have to, we're not going to be able to bring a case against Donald Trump. So I'm going to really stay my hand in what I'll have to say about it. The guy was virtue incarnate, dedication to public service incarnate, absolute fidelity to constitution and fairness incarnate. And I want to just say in The San Francisco U.S. attorney's office, a pretty liberal leaning bunch by the time he had been there for a little bit because as you said, Evan, he came in, people were scared of this. You know, he was also an imposing, gray haired, patrician presence by the time he had left and he was there to sort of patch up a troubled office. He was venerated by any prosecutor of any stripe because he's so much embodied the mission that they were there to do. He was a great, great man. Thank you so much Paul, Evan and Stacy. 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. Check us out on substack@harrylitman.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. Paid Substack subscribers can now get Talking Feds episodes completely ad free. You can also subscribe to us on YouTube where we are posting full episodes and my daily takes on top legal stories. 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. 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 Lou Cregan and Katie Upshaw, associate producer Becca Haveian, sound Engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hansum Hadrenathan and Emma Maynard and Hallie Necker are our contributing writers and production assistants by Akshaj Turbailu. Our music, as ever, is by the Amazing Philip Glass. Talking Feds is a production of Doledo llc. I'm Harry Littman. Talk to you later. Sa.