Anna Bauer (3:56)

Anna Bauer, thanks so much for having me.

Harry Littman (3:59)

Paul Fishman, who led a decades long career in the Department of Justice essentially running the place.

Paul Fishman (4:06)

Hardly right, but okay, keep going behind.

Harry Littman (4:10)

The scenes in capacities ranging from line Prosecutor to U.S. attorney for the District of New Jersey to Padag principal ADAG in the Department of Justice. He now heads Arnold and Porter's crisis management and strategic response team in addition to his other top roles at the firm. Paul Fishman, great to see you as always.

Paul Fishman (4:32)

Harry, thank you for having me as always.

Harry Littman (4:35)

And Amy Jeffress, a former longtime federal prosecutor, also former National Security section chief in the District of Columbia office and and former counselor to the Attorney General and former DOJ attache to the US Embassy in London. She is now a partner at Hecker Fink. Amy, great to see you as always.

Amy Jeffress (4:57)

Great to see you too. Thanks for having me.

Harry Littman (4:59)

All right. So quite a time to be having our periodic review of the doj. The latest dramatic chapter in Lindsay Halligan's cases against James Comey and Letitia James. Judge Cameron Curry tossed out the indictments on the basis that Halligan's appointment was illegal. What did you make of the decision and more importantly, what situation does it now present for the department and its marquee but clearly corrupt reprisal prosecutions of Comey and James?

Amy Jeffress (5:34)

The ruling is very interesting and I think slightly different with respect to James Comey and Letitia James. And the opinions were very similar, but the circumstances presented by the indictment of Comey is different because it was so close to the statute of limitations. And there's a footnote in the opinion that actually one of my colleagues had to point out to me. Footnote 21 Footnote 21 exactly right. That you know, there is a statute that would allow under normal circumstances that would allow the Department of Justice to re bring an indictment that had been dismissed for which the statute of limitations would have expired in this case, however, because the judge ruled that the indictment was never valid, there essentially was no indictment within the period of the valid statute of limitations for Comey's case. And so I don't think that they can re bring that case under this decision. Whether they appeal this decision and get it reversed by either the 4th Circuit or ultimately the Supreme Court is a different question. But I don't think they can re bring that indictment until they have a ruling that allows it. So with respect to Letitia James, that's different because the statute had not yet run. And I think they can re bring that one. And it'll be very interesting to see if they're able to because of course, by now there's been so much publicity about these cases that a grand jury is going to be on alert, perhaps like the grand juries have been in the District of Columbia, as it's been reported that the District of Columbia grand juries are not routinely granting indictments the way that they normally would given the, you know, credibility issues the department is facing.

Harry Littman (7:04)

That's a really good point. And let me just add I agree with you, Amy. I think we're sort of in the minority. But footnote 21 certainly caught my eye. And calling it a legal nullity there, I went around the courts of appeals. It's in my substack from Tuesday. And I think that is the better view. And that's sort of looming. Whatever happens, I think it's a pretty strong insurance policy for Comey and he can, as he declared, sort of pronounce himself unafraid. And you've really, you focus very meticulously on the statements from the department and the parties. What was your take on the reaction from DOJ and how strong a setback this was?

Anna Bauer (7:51)

Yeah. So look, DOJ has already said that they do plan to appeal. You know, I think on the one hand it seems like this is something they would not want it to remains standing as good law because there's already been a number of different judges who have made a very similar type of ruling in other districts. They've already indicated, you know, that they disagree with the reasoning there. So it seemed pretty predictable on the one hand that DOJ would appeal this. On the other hand, you know, it leaves a lot of questions up in the air about how this case moves forward on some of the other areas that remain unresolved. Remember, this ruling was by Judge Curry, who is an out of district judge. She's not the presiding judge over the whole case. The reason that this specific issue went to her, there's kind of this principle that you don't want it to look like there's an appearance of impropriety. If the judge who is deciding this question of the unlawful appointment is also a judge who, if it so happens that the appointment is unlawful, it would go to the district court judges in that district to decide who the next U.S. attorney is. And so for that reason, it goes to this judge in a different district. Meanwhile, Judge Nakmanoff has all these other issues before him with selective or vindictive prosecution, you know, motion to dismiss based on literal truth, all these other issues that he's likely not going to be able to now get to because this ruling dismissing the case seems to divest him of jurisdiction to decide those matters. So it could be a scenario in which this goes up on appeal, perhaps it's upheld, perhaps it's not. But then eventually it goes back down. If it is reversed, it goes back down to Judge Nakmanoff, who could dismiss the case on different grounds. So I think we have a long road ahead of us in terms of seeing what happens next. But in terms of a kind of like 10,000 foot view of what this decision means, one thing that it stands out to me, you know, James Comey, in his response to this ruling, in his statement said something to the effect of this was a case marked by malevolence and incompetence. I think that this episode with the appointment kind of shows how incompetence can temper the malevolence of these politicized prosecutions. Because there is a way that Lindsey Halligan could have been lawfully appointed. You know, one way they could have done it is do like they have with Ed Martin, where he's appointed as a special attorney for mortgage fraud. That's not unheard of. Where they're under certain statutory provisions, you kind of appoint a prosecutor who has a jurisdiction focusing on very specific types of cases. Right.

Harry Littman (10:50)

And we'll see. Right. If they try to do a different approach now.

Anna Bauer (10:55)

So they could try to do a different approach. Point is just that, you know, basically they could have done it the right way. They did not. And as a result, that kind of incompetence has led to the dismissal of the case.

Harry Littman (11:07)

Well, really, I mean, Curry says there's only one right way at this point. And I don't see Halligan going that route to be U.S. attorney, which is nomination and confirmation. Paul, I wanted to serve. You've been in the middle of the doj. Not this doj, but enough to maybe sense their different considerations. So first, the thing to point out is, yeah, they've already decided to appeal. Typically that would be A long process going to the Solicitor General. But I think it's pretty clear that it was really the focus was on the Comey prosecution itself because they came out of the box, the press secretary at the White House saying, we are appealing immediately. What odds do you see that even as the appeal proceeds, if they're being earnest about it, that they also try to supersede, do you think, as Anna's saying, for practical purposes, everything is frozen until the 4th Circuit rules.

Paul Fishman (12:05)

I'm done reading this administration's tea leaves.

Harry Littman (12:08)

Right.

Paul Fishman (12:08)

Right. I don't know how they think, and I'm too wrong about sometimes what we predict, about what they might or might do. They did say they would appeal immediately. It's now 24 hours later. I don't believe they've done that yet. So I don't know what immediate means, but it's not that. It does seem to me that the easiest course for them would be to go back to the grand jury with a different prosecutor. They've now got these two guys from North Carolina, I think, who are AUSAs who are now either have either moved to EDVA or have just been, you know, lent their own detail of some kind. And, you know, at least in New Jersey, where I practice a lot and where I was the U.S. attorney, all the papers that Alina Haba's name is on don't all have Todd Blanche's name above hers in the signature block. So they could. I mean, Anna's right. I'm not sure they would do it the way that she was describing, but there are a lot of ways for them to do this where they get somebody to go back into the grand jury under the authority of the Attorney General and indict this case. And that would certainly be a faster way for them to tee up the issues. It may be they actually would like to tee up the issue of the lawful or unlawful appointments of U.S. attorneys, and this is the way to do that. So that's possible. But Anna's right, of course. The case on the docket now is dismissed. It's closed. And so in order for Judge Nachmanoff, if they don't appeal within, I think it's 30 days for the government. If they don't appeal within 30 days, then the case will be over. If they. They're gonna have to do something between now and then to get Judge Nachmanoff to deal with those other outstanding motions. And, you know, by all reports from the hearing that I read or heard about from people who were there that didn't go so well, for the United States Department of Justice in that courtroom. And, you know, it's hard to imagine a more clear cut argument for a prosecutorial vindictiveness motion than you've got in Jim Comey's case.

Harry Littman (13:58)

Hannah and I were both there, and I think she shares my view that the winds seem to be welling very strongly in that direction. So. That's right. If they push, they may, they clean up all the bungling and errors of law by Halligan, but they still run, you know, into the wall of the selective prosecution motions which Nachmanoff would then take up. Amy, what do you think? And I just raised the point, in addition, that how's a long appeal work? It keeps the sword of Damocles over Comey's head, technically, which Trump might like. But also, I wanted your view on this. A superseding indictment would kind of indicate, I think, a lack of confidence in the 4th Circuit appeal.

Amy Jeffress (14:43)

I just wanted to add with respect to the appeal that I know from other cases that there still is a process which we are familiar with, having worked at the Department of Justice, where the Solicitor General's office is brought in to authorize an appeal of a district court order to the circuit. And so presumably they are now smarting from not following policy on some of these matters and realizing that the policies are there for a reason in order to make sure that the department functions well. These, you know, cases are evidence that when they violate the policies, it sometimes doesn't go well for them. And so presumably they may be deciding to follow this policy through the Solicitor General's office, where there are still some very smart people and some career attorneys who will weigh these things and perhaps give good advice and maybe they'll follow it and maybe they won't, or maybe the SG will authorize the appeal in this case. But I think they're going to be a little bit more careful about the decisions going forward, especially when they're realizing that they're going to set precedents that they'll have to live with. Amy?

Paul Fishman (15:42)

I think that's right, but I also think it points out another way in which this sort of under the surface way in which this department is different than it used to be. At least when I, you know, when I was in the Deputy Attorney General's office, when I was the United States attorney, you know, 15 years after that, if there was a hard question, if there were complicated procedural issues or difficult substantive questions involved in a matter that was being handled in the district court at the trial, for example, we're about to run into the statute of limitations in the Jim Comey case. Or we have U.S. attorneys across the country who have been declared to be illegal by district court judges sitting either by designation or in other ways around the Nevada, Louisiana, New Jersey. I would pick up the phone and call somebody I knew and knew well in the Solicitor General's office. Typically that person was Michael Dreeben, the Deputy Solicitor General who had oversight over all criminal appeals to the Supreme Court and pretty much everywhere else in the country. And he was the fellow you would ask informally for authors to say, listen, if we bring this to your office, you think it's likely to succeed. You have a different way we should be thinking about this issue. And in a situation like this, if they were doing it right, they would be on the phone with the Solicitor General's office all the time on these questions to make sure that they didn't make the mistakes that they're making so that they didn't have to get called out by district court judges. But it shows that the regular order of the way they do things, the shots are not being called by people in the department who really know what the practices were. Forget about what the rules are. Just the department functioned in a particular way because it was sound and it was smart and it worked. And if the President's press secretary is announcing an appeal and not the Department of Justice, that tells you something to.

Harry Littman (17:28)

Put a vivid coda on that. By the way, Anna and I were at the hearing and you had the normal situation in Big case is a really impressive cadre of lawyers on the prosecutor side and who knows, on the defense side. Here we had Lindsey Halligan and her two Carolinians pressed into service. And the other side, the aforementioned Michael Dreeben, but representing Comey along with the legendary Pat Fitzgerald and then Comey himself, a total sluggers row on the left.

Amy Jeffress (18:01)

And don't leave out Jessica Carmichael, who is an amazingly talented.

Harry Littman (18:04)

Well, there were nine of them all behind. But, but. And she's done great. But Dreeben had a role on Wednesday and on the other side, I don't think it was a major league team in the same way.

Anna Bauer (18:17)

Yeah, it seemed like it was like a. I mean, Harry, I don't know how you felt, but my view of it was it was like watching A J, the JV play, you know, the NBA all star team. And I don't mean that to be a slight against Tyler Lemons or Gabriel Diaz, who are the prosecutors they brought in. I just quite literally mean it in the sense that, like you, they, they do not have the experience that these other folks do or the job, really. Or that.

Amy Jeffress (18:44)

Yeah.

Anna Bauer (18:45)

And, and, but one, one other thing I wanted to add on this subject of the calculations that might go into whether DOJ is going to appeal or just go straight to seeking a new indictment is the fact that, keep in mind, in the Comey case, we know that the grand jury vote on this question of whether or not there was probable cause on the two counts for which he is indicted, which is, you know, lying to Congress and obstruction of justice. It was barely, barely, barely a true bill. It was 14 grand jurors. You have to have 12. So it's very, very much like they just scraped by getting an indictment on those two counts. One of the counts was no billed, meaning the grand jury didn't find probable cause. Now, we're in a situation where there's been an immense amount of reporting around the case and about all the weaknesses in the case. And so you've got to imagine that there might be concerns that if they were to go to a grand jury for a second time with the Comey case, especially that they might not get an indictment. It may very well be that that's also a consideration when they're thinking, all right, do we try to go to an appeal and keep this indictment that we already had, or do we, you know, really risk it and go try to get a new indictment?

Harry Littman (20:05)

Yeah, no, it sure should. But who's going to tell that to the decision maker here being the President of the United States who has no really sophisticated knowledge of the law at all? But I absolutely agree with that. And Amy's pointed it out as well, the 14. And, you know, 12 is 12 typically. But there seemed to be an indication that Nakmanoff anyway could think about that narrow margin in doing a harmless error analysis on the misconduct by the statement she said in the grand jury. Now, that probably gets wiped clean with a new indictment.

Amy Jeffress (20:44)

Harry, just one more point on that is that that's not a small thing because Pam Bondi in the declaration she filed actually said, I've reviewed this record and ratified it. And so she would also presumably be on the hook to answer for, you.

Harry Littman (20:56)

Know, these 100% and still might be on for ethics and stuff. Right? Yeah, remarkable.

Anna Bauer (21:02)

And there's even a chance that if you go back to the grand jury, it kind of compounds some of these ethical issues where, like, for example, by law, you don't have to present exculpatory information to a grand jury. So, so that's not, you know, Necessarily a legal issue, but it certainly is an ethical issue. And if you're seeking an indictment that you know not to be supported by probable cause, there's already been allegations against Lindsey Halligan that she did that in violation of her ethical obligations as an attorney. So, you know, to go and do it again, you would think that might compound some of those allegations.

Harry Littman (21:39)

Hey, that's an interesting quote. Let's do a quick detour on this. The charge is she just misstated the law, which is a legal obligation. But I wonder, Amy and Paul, what's your. What has been your practice there? It's not required in the federal system to present exculpatory evidence when you've been in a grand jury. And there's significant stuff on the other side. Have you made a point of telling the grand jury or not? Just curious.

Paul Fishman (22:04)

So let me just say this the last time, I haven't been in a grand jury in a really long time. Right, right. So it's generally not the way people think. If the exculpatory evidence is sufficiently strong to undermine the likelihood of a grand.

Harry Littman (22:19)

Jury vote, you don't go there in the first place.

Paul Fishman (22:22)

Maybe in a place where it's not the right thing to do to bring the case to begin with. Right. That's really the issue. And so what, what I think is the hallmark of this administration, I mean, that's. Look, that mistake of not doing whatever they should have put in front of the grand jury, it wasn't so much the sculpture evidence, it was actually this. If, you know, Magistrate Judge Fitzpatrick's ruling was accurate. And he was my first assistant when I was the United States attorney, and he was the acting U.S. attorney in New Jersey after I was asked for my resignation by President Trump in March of 2017. And he served for 10 months before he went back to EDVA, where he had started his career. The things that she said to the grand jury were so far beyond worse than the failure to present exculpatory evidence. I mean, we're focusing on the wrong thing. She said, basically, he's going to testify at trial, so it'll all be fine there. No, he's not. Maybe he will. It's Jim Comey. He probably would want to, but that's not really the point. He doesn't have to. You can't comment on that. And the other thing that she said was that was. I'd never heard. There's a lot of other stuff that we're not showing you today, like, where does that come from? And so both of those are Such basic, basic, basic, basic. Long before you get to the nuances of what's exculpatory, how do you present to the grand jury? When do you do that? Is it a rule or an ethical obligation before you get to all that you have those other utter basic failures? And then leaving aside the Fourth Amendment issues on this, on the search warrants and so.

Harry Littman (23:53)

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Harry Littman (25:25)

Thanks to our friends at Total Wine and more for today's a spirited debate. All right, so much more to come here. And you know, I think there's a scenario where it kind of gets in the mothballs. As a normal appeal, they may ask for expedited consideration. Fourth Circuit may say, you know, we want to get this right, but there's also a scenario where it stays completely overheated and they push pedal to the metal by superseding and the like. So, man, oh man, we just got to move on because so much is happening. I really want to focus generally on the. What feels like a post apocalyptic landscape there. But we got to talk a little bit about the Epstein files, the potential role of Pam Bondi. After the Attorney General in the United States says there's nothing more there, the President orders an investigation of such prominent Democrats as Bill Clinton, George Soros, etcetera, And they suddenly determine, oh, there's something new, and we are looking into it. Is it all a setup, do you think? Are you anticipating, even after the near unanimous demand to release the files, that Bondi is ready to somehow try to stonewall? Do they still have more tricks up their sleeves, do you think?

Anna Bauer (26:45)

Oh, man. Well, look, the whole thing is just, I mean, the, the whole saga with the Epstein files is a total mess. And Harry, as you alluded to, you know, earlier in the summer, there was this announcement from DOJ that they were closing the investigation. They, you know, weren't going to, going to release anything, and that there was no reason to think that any additional third parties, that there was reason to keep investigating. So case closed, right? Well, apparently not. And after these most recent email disclosures came out that were provided by the Epstein estate to Congress, that then provoked this announcement in a very similar kind of order of operations that happened with the Comey case actually, where, you know, Trump says on social media like, I want this investigation of X, Y and Z person. They all happen to be people who are Democrats or affiliated with the Democratic Party who had been mentioned in these Epstein emails. And then Pam Bondi suddenly announces that they're going to do an investigation of these people and their alleged ties to Epstein. So that initiates this apparent new criminal investigation that is going on in sdny. Whether that investigation is, is real or a ghost investigation, I don't know yet. But that's all seems pretty relevant to what's happening now with the bill that passed because there is an exemption in the bill for withholding files that might be related to an active investigation. Of course it says that, that, you know, withholding has to be narrowly tailored, but it's the Attorney General's decision to make and we now have an active investigation. So I would expect that it could be the case that we see some withholding of materials on that basis. Meanwhile, there's this other kind of thing that's going on with DOJ seeking the release of grand jury materials related to the Epstein case. They already tried that before and of course it was denied, as was predictable. It seemed like that was more of a kind of PR move rather than a real effort to seek their release. But they're trying it again in light of this new law. I think, again, it seems like it is unlikely to succeed. But I'd be interested to hear what others think on that.

Harry Littman (29:21)

Well, I'll respond first to that and I think Amy has some thoughts. It's a different grand jury, but it's the one from Florida way back when. And it's again, it's a total bogus diversionary move. There's nothing in those files that have anything to do with the mother load that everyone is looking at. And as you say, Anna, there's the proffered reason, intense public interest. If that were a good reason to violate Rule 6, then there'd be no such thing as a high profile case. So I think that's just to make it seem like they're pro transparency. But I want to frame the Bondi question for Amy and Paul because investigations of George Soros and Bill Clinton provide zero reason not to disclose emails involving Trump. But as always, all roads lead back to the attorney General, including any efforts to hold anybody in contempt. So if they just say, oop, investigation going on, you know, she can try to hold the line, but I think she'll get a lot of pressure from people in Congress on both sides of the aisle. Now, how do you think it plays?

Amy Jeffress (30:29)

Well, I agree that the grand jury material is going to remain under, you know, grand jury material protection. So I think that's somewhat of a dead end and they're aware of that. There is an interesting angle to the SDNY investigation, which is that, as I understand it, some of the new information came from Epstein's estate and was sent to Congress in response to subpoenas. So there may be some new information there for SDNY to investigate. But, you know, when did Epstein die? This is now well outside any statute of limitations. So whatever they're going to investigate happened long ago. I don't think that they're going to actually be able to charge anyone unless, as you point out, that during the course of the investigation, there are offenses like false statements or obstruction. And that, to me is so outside the scope of what the Department of Justice should be doing. Right. I mean, this administration, which has complained about the Department of Justice in an unending way, is really quite hypocritical to say, well, now we're going to, you know, launch these investigations of things that happened, you know, five, 10 years ago and then hope that somebody trips up so that they can bring charges. Like, that's just not the way. It's not a fair, you know, way to approach an investigation. So I don't think the SDNY will necessarily do that, But I do think that they will fulfill the mission that they're ordered to do and investigate whether it leads anywhere or not. And my guess is that it most likely, almost definitely won't.

Harry Littman (31:49)

Although, very quick point, a couple of the crimes involved here have no statutes of limitations. This is Congress's approach to anything involving sexual abuse.

Paul Fishman (31:59)

Well, that. That's sort of true, but not entirely true. Right. So in 2006, Congress did eliminate the statute of limitations for this kind of crime.

Amy Jeffress (32:08)

Right.

Paul Fishman (32:09)

Particularly for child kidnapping and victimizing an underage sex trafficking. But because of the ex post facto clause of the Constitution, they couldn't revive the statute of limitations going back to, like, 1990. They could only go back to the five years before the statute was passed, when the statute was still alive. So that's the reason that Epstein was charged with crimes from 2002 to 2005. Amy's point is, of course, right. That this stuff is really old, but you'd have to have. You'd have to have crimes that were committed after 2002, I think. But we shouldn't lose sight of the following thing, though. Everybody jokes about the Southern District of New York being the sovereign district of New York and having, you know. And whatever. And whatever, you know, arrogance and swagger that comes with having come from that office. But the truth is they are very aggressive. And aggressive, you know, almost all the time, in a good way, looking for every crime that they can possibly prosecute in a file like that. The Hampstein case was brought in 2019, when Donald Trump was the President of the United States. So if there were prominent and. And, But. And the, and the investigate. One of the prosecutors on that case was Maureen Comey.

Harry Littman (33:25)

Right.

Paul Fishman (33:26)

Jim Comey's daughter, who was recently fired by Pam Bondi. And does anybody really think that if there were Prosecutable cases from 2002 to 2005 against the names we've heard, Prince Andrew, Bill Clinton, whoever else they were, that those people in that office would have shied away from trying to bring those cases? I think not. And so is there really something there? And I also. The records that they got from the estate. Look, I wasn't in the Southern District. I don't know what they subpoenaed or didn't subpoena. It's hard for me to believe that the stuff that the Epstein estate produced to the United States Congress hadn't already been subpoenaed by the United States Department of Justice. It's not like they didn't know that the estate, which owned the island where everything happened, was owned by the estate, and they could have produced it. And Anna's looking like she knows the answer to that question, and maybe she does. And so I'll yield the floor in a second, but I would Be stunned to find out that there's a lot more evidence that was not already reviewed by very talented prosecutors and FBI agents and lawyers from the human Trafficking section of the Department of Justice 6, 7, 8, nine years ago to figure out what Jeffrey Epstein did.

Harry Littman (34:42)

Yeah.

Anna Bauer (34:43)

To that end, I just want to say this was one of the more baffling elements of this whole saga is that when these emails that came from Epstein's estate were released, Todd Blanche went on Twitter and said that the Epstein estate had hid them from the Justice Department, which is a massive allegation to make because accusing the estate of hiding them from the Justice Department seems like you're accusing them maybe of obstruction of justice. So begs the question, you know, why wasn't that investigated? But putting that aside, it. It's kind of like, like, what is the source of that accusation? What's he talking about there? There's not really been any more information on that point. But I agree with you, Paul. It would seem really kind of unbelievable to think that DOJ did not at some point have access to these emails. Of course, you know, it may very well be that Blanche wasn't aware of that. I don't know.

Amy Jeffress (35:52)

But it.

Anna Bauer (35:53)

I agree with you, Paul, that there's something weird about the whole kind of question surrounding whether or not the Justice Department had access to them.

Harry Littman (36:02)

And this is all in the context, by the way, of the ridiculous powder puff interview that Blanche did of Ghislaine Maxwell. There is a weird way in which all these things kind of align together, and not just as a matter of conspiracy theory, but because, you know, it's all of a piece with a political agenda. I especially want to hear from you guys about the new embarrassment looming for the department, which is Judge Jed Boasberg is reviving the contempt proceedings seven months out after the case has been returned to him. Remember, this is from Abrego Garcia back many months ago in the spring. But there's a new witness now, Erez Reuveni, who was fired for the offense of telling the truth to the court. Was Abrego Garcia deported, contrary to orders, told the truth and was fired and has now become an official whistleblower. I just wonder how you think that plays out. What happens with the central figure of Emil Beauvais, who, according to Rouveni, may have lied at his confirmation hearings, and yet now is a life tenured member of the Third Circuit Courts of Appeals. Any ideas about that whole, you know, bundle of nerves?

Anna Bauer (37:24)

So the latest in this actually came this morning in a filing. Judge Boasberg had directed the parties to kind of put forward their suggestions for how he should proceed with fact finding on these questions of like who is responsible for the likely contempt. And the plaintiffs this morning in the case, you know, filed their suggestions, as you mentioned, Harry, they, they say that Arez Ruvini would be one of the proposed witnesses. But in terms of identifying other people for potential witness testimony, they put Emil Bovey on there. He's now a third Circuit judge. I would be really shocked, if it comes to it, that there is not a just massive fight. And by fight, I mean litigation battle over trying to put a stop to Emil Bovey being compelled to testify as well as all these other people. So I think that this is going to be the type of thing going forward where maybe we do see a Rez Rouvini testimony. But in terms of these other folks who the plaintiffs might want to be compelled to testify, I think it's going to. The Department of Justice is going to put everything into it to try to see that they are not required to testify.

Harry Littman (38:48)

I agree. But I still think, you know, there's no way to find contempt without dealing with the central figure. Beauvais, it seems to me.

Anna Bauer (38:57)

Right. And then there's also a question of, like, what conclusions Judge Boasberg could draw from the fact that, you know, some central figures. And putting aside Bovey, I'm talking about people who are maybe still in the department who might be compelled to testify, you know, if they are unwilling to do so. What conclusions could Judge Boasberg draw from the unwillingness to testify and weighing that in terms of his factual findings? Those kinds of things will be interesting to watch. But I would love to hear what Paul and Amy think about all this.

Paul Fishman (39:31)

It's hard for me to speculate on the extent to which a federal judge might a uphold a subpoena to a sitting third Circuit Court judge. I think that seems unlikely.

Harry Littman (39:44)

I agree, and I'm not.

Paul Fishman (39:46)

I don't know Judge Boasberg enormously well, part of it. He's so tall that I actually can't see the top of his head. So, I mean, his hair doesn't matter. But the last time I saw him, he was wearing a fedora sporting a fedora in which he looked quite great and I would have looked not so great and to be fair, was outside in the winter last year. But in any event. But I certainly wouldn't be surprised if Judge Boasberg were to draw inferences against the United States in ongoing litigation because the Department of Justice failed to produce witnesses to contradict testimony from other people who were firsthand witnesses to conversations. And if Erez Rouvini is that guy, if he was there, if there were other people from the Public Integrity section who have talked publicly about the meetings they had with Emil Beauvais over the Adams case. And I think the judge could easily find that if he did this, and he could easily conclude that if that's the way the guy behaved on this case, I can draw an inference under, you know, Rule 404B or some other evidentiary basis to conclude that this is right. I can easily see that happening, but only after he makes a pretty bulletproof record about why that inference is justified, that they actually disobeyed an order that he gave.

Harry Littman (41:10)

All right, so. And I agree with that. And. But I just want to say I think Boasberg is very determined to deal with the contempt of. In and of itself, not simply to make inferences and the like. He's been given every chance, including, oh, just let it go, judge, by the United States, and he is dogged about it, I think, and he is really a just estimable judge with respect on all sides, but his role as the chief judge here of a court that really was put through the wringer by the administration overseeing all these cases that were wiped out in a swipe of a pen, I think he really wants to go to the finish line. Whatever he. Whatever evidence he has, including not calling Beauvais on the contempt itself. I just want to take the focus out. There's been some really excellent recent insider reporting on how the department's been totally transformed in just a matter of months. I expect everyone here has read the terrific book by Carol Linig and Aaron Davis, injustice. Seeing the piece by Emily Bazelon on some 60 interviews with, you know, with people who've been fired or left the department, and there's much more. I wonder what you've made of this reporting. What revelations are standing out? What's your sense of just what it's like inside 950 Pennsylvania Avenue?

Amy Jeffress (42:42)

Yeah, I can say both with respect to Main justice and then also my former U.S. attorney's office, that morale. I've never seen anything like this. And people are leaving. Even apart from the people who've been fired or demoted and pushed out from both buildings, people are now leaving just because they can't take it anymore, because the leadership has lost the trust of the community and lost the trust of those offices. And so there are some sections at doj, like Public Integrity, which are down to sort of two. Two people. And so that's just, you know, this tremendous loss. The National Security Division, which we really need for a lot of reasons, has been depleted. And, you know, not just in numbers, but in brains. Right? Like some of the longest serving, most experienced, most knowledgeable people are gone. And that takes a long time to rebuild. And right now they really don't have it. So I fear for the country things, you know, if there's a terrorist attack or some situation where we really need the bones of the National Security Division and the department to, you know, be able to handle the stress of an incident like that, I just don't see that we have the resources there.

Paul Fishman (43:53)

I agree with all of that. You pointed it out, Harry, at the top of the podcast that I spent a lot of time in the Department of Justice. I spent. After I finished my clerkship, I spent 11 years as an Assistant U.S. attorney in the District of New Jersey. I was the criminal Chief when Justice Alito was the United States Attorney, whatever his views may now be on the court. When he was the United States Attorney, couldn't tell whether he was a Republican or Democrat. I was the first assistant to Mike Chertoff, who later went on to be a 3rd Circuit judge, the head of the criminal division of the Department, and the Secretary of Homeland Security, also a Republican, but very much now somebody who sees the real danger of this administration. And then I was for three years in the Justice Department, which is that I had the office next door to Amy for the first six or nine months of that tenure, which is how we met and became friends. And I worked with people like the late, great David Margolis, the conscience and eminence grise of the Department of Justice. I worked for Janet Reno, who called every ball and strike as if it were the last ball and strike she would ever call in her life. Then I was privileged to come back in 2009 as a United States Attorney and to go to the East Room of the White House. But our first U.S. attorney conference, all 90 some odd of us went to see President Obama just because we wanted to go see the White House. And he came out, came down the corridor and talked to us and he said, you're not my U.S. attorneys. I nominated you. You are the country's U.S. attorneys. You are the people's U.S. attorneys. And it's so different now, and some of it is just in the way the administration is conducting itself with how the department looks and feels. And there are lots of people who are smarter and more articulate commentators than I am. Who've been talking about this a long time. The thing that pains me and Amy talked about it a little is that people used to want those jobs. People would apply for those jobs. They would give up huge amounts of income. We were, Amy and I were two of them. Them who gave up huge potential income for the possibility of just doing the right thing in those jobs and working with people who would teach us how to do that. And lots of the people who became those people during the course of our careers, people like Bruce Swartz, people like George Toscus, people like David Margolis. David, of course, passed. But Bruce and George, in the national security and international relations space, knew everything that had happened at the Department of Justice for the last 35 or 40 years in the spaces in which they worked. Bruce Schwartz was probably on every international trip with every attorney general for 30 years. And so when Pam Mondi goes to meet with the Attorney General of Germany or Italy or Saudi Arabia, wherever she goes, there's no one on that trip who actually knows what happened at the last meeting. And those sorts of things are what are coming back to bite this administration. A not having the people who get what the mission has always been, but also people who don't really know how it's always worked and why it worked that way. It didn't just work that way because there were rules and norms and because it's the way they'd always done it. It worked that way because over decades and decades, people figured out how to do things fairly and correctly and honorably and constitutionally. And to see that ethic, that ethos disappearing from the department and not like slipping away, grain of sand by grain of sand, but as whole chunks of the cliff fall into the ocean is incredibly disturbing and as I said at the beginning, heartbreaking. And it will take much longer than the nine months, 11 months we've been around in this administration to get that back. And by the way, Amy's right, it's not just the morale. There are dozens of vacancies in the largest offices. And those people, they might hire people, and maybe those people will still be just as qualified as the people that were hired 10, 20 years ago. But who's going to train them, right? Who's going to teach them that you put the exculpatory evidence in the grand jury, that you don't comment on the defendant's Fifth Amendment right to silence, that you don't tell fact finders? Oh, there's plenty of other stuff out here that we're not going to tell you now, but other people will get to look at how do you teach that again and do it fast enough to make sure that everybody who comes within the sights of the Department of Justice gets their constitutional rights honored. It's going to be hard, if not impossible, for a long time.

Harry Littman (48:26)

And there you have it. Thank you so much Anna, Paul and Amy. 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 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 this pivotal moment in our nation's legal and political discourse. Find out more@the 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 producer Becca Haveian sound Engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hamsa Mahadrenathan, Emma Main and Hallie Necker are our contributing writers. Production assistants by Morgan Chisholm and Akshaysh Turballu. Our editorial interns are Bridget Ryan and Troy Neville. Our music, as ever, is by the Amazing Philip Glass. Talking Feds is a production of Delito llc. I'm Harry Littman. Talk to you later.

Amy Jeffress (50:41)

Sam.