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- [00:00]
Tara Settmeier
Join Vanguard for a moment of meditation. Take a deep breath.
- [00:05]
Mimi Roka
Picture yourself reaching your financial goals.
- [00:08]
Tara Settmeier
Feel that freedom. Visit vanguard.com investinginyou to learn more.
- [00:13]
Mimi Roka
All investing is subject to risk.
- [00:16]
Tara Settmeier
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- [00:50]
Harry Littman
Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Littman. In a striking rebuff of Trump's campaign of vengeance prosecutions, a Norfolk grand jury rejected a new indictment of New York Attorney General Letitia James. It's another embarrassment for the Department of Justice, coming just days after a judge dismissed the original charge against James. But all signs suggested that the Department of Justice, always focused first and foremost on doing Trump's bidding, would keep trying for another indictment. Back in Washington, Congress rushed to investigate an incident in which US Forces attacked an alleged drug boat in the Caribbean, then struck again to kill two survivors who were reportedly clinging to fragments of the boat. Controversy is raging over whether the attack was legitimate and warranted or starkly criminal. The episode put a harsh spotlight on Defense Secretary Pete Hegseth, who came in for even more scrutiny when an inspector general report found that his use of the messaging app's signal had put American troops at risk. And Trump descended even further into full throated xenophobia. And in his response to the recent shooting of two National Guard members at a Cabinet meeting, he delivered a stunning racist diatribe against Somalis, calling them garbage and saying he doesn't want them in the United States to discuss a week replete with scandals, rants and humiliations that might have ended political careers and produced serious legal repercussions in any other era. I'm pleased to welcome three of the country's most prominent commentators, good friends of the podcast all, and they are Mimi Roka. Mimi is a former federal prosecutor for the Southern District of New York, where she worked for over 16 years. From 2021 until this past year, she served as the elected district attorney of Westchester County. She's now an adjunct professor at Fordham University's law school and a top legal commentator. Mimi, thanks for joining.
- [03:17]
Mimi Roka
Thanks for having me.
- [03:19]
Harry Littman
Tara Settmeier, the co founder and CEO of the Seneca Project. Formerly she was a Republican communications director on Capitol Hill. She is a resident scholar at the UVA center for Politics. And she has a must follow substack uncompromised with Tara Settmeier. Tara, always a pleasure to have you back on talking Feds.
- [03:43]
Tara Settmeier
Oh well, always a pleasure, Harry, thank you.
- [03:45]
Harry Littman
And Jacob Weisberg, the executive chair and co founder of Pushkin Industries. He was previously CEO of the Slate Group, co founder of Panoply and editor in chief of Slate magazine. He's also the author of several books and is finishing up another. And he serves as chair of the Committee to Protect Journalists. Thanks so much for being with us, especially in the throes of finishing up books, which I should also mention Mimi is writing one as well.
- [04:16]
Jacob Weisberg
Nice to be back, Harry. Thank you.
- [04:18]
Harry Littman
Okay, let's start with Letitia James. The department, after getting the adverse decision about Lindsey Halligan's qualifications, tries and fails to secure a new indictment against New York Attorney General Letitia Jaynes from a new Virginia grand jury sitting in a new city, Norfolk. Mimi, let me start with you. Especially because of your New York background, were you surprised the grand jury declined to indict?
- [04:48]
Mimi Roka
So in many ways, Harry, no, I was not surprised because frankly, I was more surprised, as I know many people, including you were, the first time around when the grand jury returned indictments. And we've already had a window, at least with the Comey indictment, a little bit into why that might have been some of the shenanigans, if you will, that went on inside the grand jury. So given here that the background to all of this, as we'll just remind everyone, is that the career prosecutors in EDVA wanted absolutely nothing to do with the Comey indictments or the Tish James indictments. There was reporting and a judge in the Comey case found in court essentially that there were memos written by career prosecutors saying there wasn't enough to go forward on these indictments. So there were red alerts everywhere on the Tish James and the Comey case that in ordinary times, which we are so far from now as sure we'll talk more about, would have caused a U.S. attorney's office to say we're not going forward the first time around. And so this time around, you know, the fact that the grand jury did not return an indictment is, in a sense, not surprising. I'll just say one more thing, which Is it is also surprising, though, that they didn't return an indictment? Because that almost never happens.
- [06:14]
Harry Littman
Right?
- [06:14]
Mimi Roka
But the reason it almost never happens. And if I can just tell a really quick story, when I was da, I used to go and address the grand jury every month and thank them for their service. And I would always say to them, you know, I know there's a saying out there that you can indict a ham sandwich and you guys may feel like you wasted your time, but I want to explain to you that you didn't. Because the reason that indictments are generally easy to get are because we come in here knowing that we have to present to people like you and we don't bring you every single case we could. We bring the cases that should be brought to you. And it's longer than that. But that's the essence of it. That is the process that didn't happen here with Tish, James and Comey either time. And that is why something so unusual as the grand jury not returning an indictment happened, even though I can think of like one time in my 17 years as a federal prosecutor or a very small handful that that happened.
- [07:17]
Harry Littman
Let me just put a little affirmation on that. From my experience and, but I've, and I've sort of asked around. It's never happened to me. But once in an office I was in, it just doesn't happen. And moreover, when it does, of course it's a crisis and a rebuke. And even if you believe it's a righteous case, do you go back or do you take your medicine? You know, U.S. attorneys, federal prosecutors take a fraction of the cases that they could. And so this again, word, normal times would be mind boggling. Of course it's not normal times, that's for sure. What about beyond that sort of legal improbability? Tara, I see you have some thoughts just about what went down or didn't go down.
- [07:58]
Tara Settmeier
Well, I think that it's not a shock to any of us who are on the political opposite of MAGA and Donald Trump that they would go so far as to charge her in the first place, which we all know was an asinine indictment in the first place and a political prosecution at the purest definition of it, which was also going to be both her and Comey's defenses at one point. Right. They said that it was going to be because the merits of what they actually did are so legally thin that they were going to go after the it's a politically charged prosecution as another defense. If this ever moved forward. So the fact that they jumped through the hoops that they did to put in Lindsey Halligan illegally to do this, because no other prosecutor in their right mind, to Mimi's point, would ever bring a case like this. The fact that they tried again now in a different venue down in Norfolk where the. The second home was actually purchased, and. And then that grand jury turned around and said, no, it was the right decision. The fact that DOJ is actually considering bringing this again, this is what some reports are. Are saying out there, and that there's no limit. Correct me if I'm wrong, there's no limit in how many times they can attempt to do this. It's not like a double jeopardy situation where you're. Where you're convicted of something in New.
- [09:10]
Harry Littman
York, it might be. There's some hoops to drop, but not the federal system. You can do it again and again and again.
- [09:16]
Tara Settmeier
Right. And so the fact that they would even do this just proves even more that this is not about actually prosecuting a righteous case. It's just about going after a political enemy. It's literally the definition of weaponizing the Justice Department. And what Tish James is being accused of is so absurd that I think that often gets left out of this. And the other thing that gets left out is the fact that Bill Pulte, the guy who's the head of the mortgage agency that pulled her information, has done this for multiple political opponents of.
- [09:53]
Harry Littman
Donald Trump, and only for them. Right?
- [09:55]
Tara Settmeier
Correct. And he's now currently under investigation by the Government Accountability Office, the gao, because it's been. God bless some whistleblowers inside that agency who I'm sure came forward and said, this is not proper what he's doing. He's abusing his power, pulling these records. He did it to Adam Schiff, Eric Swalwell, the Fed member, Lisa Cook, and Tish James that this is not proper. And he was a major donor to Donald Trump. He bought his way into Donald Trump's orbit by buying a membership to Mar A Lago. He's part of the Big Py Construction family. So he has an in as far as a Donald Trump in the real estate market. He befriended Don Jr. Basically bought his way into this position to do exactly what he's doing, which is be a henchman for Donald Trump. So I feel that Tish James is in a very strong position to fight this. I don't think she's ever gonna see jail, but it costs her money and time. And at least she has Abby Lowell, who's one of the best there is out there on her defense team that if this ever God forbid, Moots passed an indictment situation and went to trial, I think she'd be all right.
- [10:59]
Harry Littman
And let me just put a little bit of exclamation point on that. Lowell, who is. He's really the top flight criminal defense guy, one of them in D.C. and he has actually moved over into a practice that's largely a kind of loyal opposition. You know, seeing the exigency of the days we saw this selective prosecution motion be argued in front of, I was actually there, not Judge Nachmanoff for Comey, and it seemed to be going very much in Comey's favor. And then it was preempted by the decision by another judge that she was unlawfully appointed. But the more they do this, the stronger seems the link between Trump's initial marching orders and what becomes increasingly extraordinary continuing to go after her are they have an infinite appetite for whatever the consequences are here, and will they just go and go and go and away. It imposes a real cost even. Even if they never convict her just for, as Tara says, the expense and the anxiety and the like.
- [12:11]
Jacob Weisberg
Harry, I sometimes find it useful to imagine that we're living in some sort of sane political world, as opposed to the one we're living in. You think what would happen in a sane political world if a president did this and you didn't have a Congress that had hung up a gun fishing sign and, you know, was unwilling to hold them accountable? It would be, I believe, an impeachable offense. To use the Justice Department to prosecute political enemies is a kind of. It's one of the definitions of the abuse of political power. And the logical next steps would be to have hearings to prove that link between the presidential order and the prosecution. And if you did that, I think you would have a very, very strong article of impeachment. But we can't debate that because Republican Congress has zero interest in holding Trump accountable for anything. So instead of having that appropriate, correct debate about what the consequences for the president trying to do this should be, we're having a debate about, like, are they going to do it again? How crazy are they? Is it hurting them to try to, you know, go a third time to a grand jury? And it's absolutely insane. They are committing, I believe, this strong evidence, impeachable offenses. And I think, you know, someday there has to be accountability for it. I don't know when that happens, how that happens, but it's preposterous. We know the comey case, this case, firing Comey's daughter because of her last name. I mean, you know, we're living in a world which is some. Some extent. I think we've all normalized, at least in the sense that we're expecting these kinds of abuses of authority, and we just have to remind ourselves how intolerable they are.
- [14:01]
Tara Settmeier
Do you remember the U.S. attorney scandal under George W. Bush?
- [14:04]
Mary Carr
That's right.
- [14:05]
Tara Settmeier
And how quaint that seems compared to this. I mean, that was a huge scandal. A lot of people were sounding the alarm about abuse of power.
- [14:16]
Mimi Roka
The.
- [14:16]
Tara Settmeier
Back then, when George W. Bush decided to fire a bunch of U.S. attorneys.
- [14:20]
Harry Littman
The attorney general, I think, lost his job because of it. You could say it's fair.
- [14:24]
Tara Settmeier
Yes, yes.
- [14:24]
Mimi Roka
He resigned.
- [14:25]
Tara Settmeier
That was. Was it Gonzalez or Ashcroft? It was Gonzalez, Yeah.
- [14:29]
Jacob Weisberg
One of those people we thought were very extreme at the time.
- [14:32]
Tara Settmeier
Well, not for me. I was on the other side, but, yeah, right. I mean, I was. I was a Republican back then, so not necessarily me, but I, you know, I've said that. Well, you know, this is a little bit. Little not good. It's a, you know, an overreach of presidential authority right now. Compare it actually. Was it compared to what we're seeing now. I mean, Donald Trump is literally circumventing the confirmation process by installing these people who are not only unqualified, but, like, grossly negligent and should probably have their law licenses pulled based on how they've behaved. You know, you get. You had the parking lot attorney in New Jersey and Alina Hobby, and then the insurance attorney, Lindsay Halligan in Virginia, being installed into. Really not saying all US Attorneys offices are important, but the Eastern District of Virginia is like the Southern District of New York when it comes to intelligence and national security cases and public corruption. Like, it's one of the busiest, most important prominent districts, and they have literally violated the law to put people in place who are just simply their lackeys. And it's such a disrespect and miscarriage of justice, particularly to the people who've spent their lives as career prosecutors serving our government. And to have this. Have these people put there, it's just outrageous. Like, the impeachable offenses happen virtually every day in this administration, which is kind of why we're somewhat desensitized to it. Jacob, to your point, and I've always warned about the normalization of everything that's going on is one of the biggest problems with the moment we're in now.
- [16:09]
Jacob Weisberg
You know, these Democrats, the military veterans, did the video Obviously, right. Reminding armed services members that they shouldn't obey illegal orders. And I almost wish Democrats on the Judiciary Committee or prominent former Democrats who've been in the justice system would do a video for kind of grand jurors. There's no way to do it. But to say, yes, there are circumstances in which you shouldn't return indictments. And look at what happened here. These grand jurors did the right thing is rare. But there are circumstances where if you're presented with an attempt to bring a political indictment, you should nullify. There's no way to do that. But I would like. I wish there were.
- [16:50]
Harry Littman
I just want to underscore Jacob's point because we're. We are in such an abnormal period, and it might seem like rhetorical and excessive. It's just down the middle there. It is an absolute violation of the take care clause to instead go after political enemies with the breathtaking power of federal law enforcement. But the first thing that would have happened were we back in the real world, not the bizarro world, is the Department of Justice would have said to the. Either the President or the Chief of staff who called up and said, indictish, James, go to hell. Are you kidding? Here's the memo. And if they insisted on it, I don't know. Mimi, do you agree? I think it would just have prompted an Attorney General resignation. You cannot do that. You, you force it on me, I'm out of here. You know, so inconceivable. Was it according to norms that have been eviscerated?
- [17:45]
Mimi Roka
Yes, I agree with that. And also the other thing I was going to say about how sort of non normal this is anymore. We don't even talk about the fact that there should have been and still should be a Department of justice internal investigation of what happened there. There never will be because it's the current leadership of the Department of Justice who 100% pushed this right on the career prosecutors or tried to. And you know, it's not that there's never been AGs who were close to the president. I mean, Obama and Holder and Kennedy, et cetera. But they would have at least opened investigations, either internal or criminal investigations, of like, you know, blowing up boats and claiming that they're justified by war, things like that. The fact that DOJ isn't even trying to do that part of its job, even lip service to it, is also crazy. And just one other point. I mean, the grand jury, I see your point, Jacob, about wanting them to sort of, quote, do the right thing. I think it's a lot to put on regular citizens in the sense they only know as much as what they're instructed by the lawyers who are in the room. And, you know, that's why when I think the grand jury always tried to explain that they are a check before we walk into the room. Right. Because we know that they rely on us and we want to have their respect, et cetera. But I do just want to give a shout out to the prosecutors, the line prosecutors who seem to be trying very hard, some of whom have lost their jobs. Eric siebert, who resigned U.S. attorney in Virginia. But even the career prosecutors, by refusing to work on these cases, they could have all been fired. They haven't been. I think probably only by dint of the fact that they would have to then staff an entire office. They did fire chiefs that were involved in it, even under the U.S. attorney. But the line prosecutors have found a pretty remarkable way to say we're not doing this, but also remain in place.
- [19:54]
Harry Littman
So much more to come on this because they could affirm the holding that Halligan was improperly appointed and they could try another indictment. As, you know, Tara was saying they can just do it again and again. But as soon as they get one, they come right out of the box and are looking at the, I think the brick wall of some despised emotions, including for Comey. I think the statute of limitations will have run. I just want to have one quick related point about what the hell is going on with Lindsey Halligan. So they got the ruling that said she's improperly appointed. And in other cases, her signature is like Mickey Mouse. It's just a nullity. But the report is they continue to put her name on indictments. That seems as brazenly defiant to sort of anything they've done. What's going to happen to all the cases out of the edva? And aren't they inviting disaster?
- [20:55]
Tara Settmeier
Isn't that what happened in New Jersey?
- [20:57]
Harry Littman
Well, no, in New Jersey, the district court judge said you can appeal it and in the meantime kind of thing. But now that it's been affirmed that's what will happen going forward. If they were so brazen as to continue to have Alina Haba sign indictments. But that's apparently what's going on in the Eastern District of Virginia. Even for this administration, it boggles the mind. Maybe that's all there is to say about it. Even for this administration, it boggles the mind.
- [21:23]
Jacob Weisberg
Well, it doesn't seem like a confrontation. They win. Right. If you play that one out, you know, there's no, there's no scenario in which a court throws out the conviction or the case and they put the person in prison anyway. I mean, it's just sort of like, you don't want to pick stupid fights, even if they're unethical fights. That seems like a stupid fight to pick.
- [21:42]
Mimi Roka
And they're going to have challenges. Right? They're going to. I mean, if you're any.
- [21:46]
Harry Littman
Any indicted person. Right.
- [21:47]
Mimi Roka
Yeah. I mean, already. Right. They're going to, oh, my guy was indicted under, you know, Halligan. I'm going to go to the court and. Yeah, I mean, my understanding is, like, that first day when the ruling came down, there were two different emails to the whole office. That one saying the acting used his signature. No, use Halligan's. And they reversed themselves and said, use Halligan's, and they've stuck with that. I think there's a bit of chaos going on. Like the line prosecutors, again, they understand that, no, I can't just ignore what a court said. And so some of them are signing their own names, not signing her name. There's reports of a judge rejecting an indictment that had a Halligan signature on it and saying, you can't do this. So we spent so long, at the beginning of this term, all of us were asked by different interviewers, when's the constitutional crisis? When do they ignore court orders? When does that happen? And we kept saying different answers. But whatever the answer was, I mean, they're ignoring court orders if they're still having her signed. I mean, this is a valid district court ruling that she is an illegitimate U.S. attorney. And if they're telling people, they're not only ignoring it, they're trying to instruct subordinates to ignore it, which to me is the worst form of misconduct.
- [23:08]
Harry Littman
Yeah. One judge apparently just said, I'm not going to sign this. You know, I'm not going to approve this. Judge Curry said that Haligen is illegitimate. I just want to say this whole episode started. I mean, what would normally have happened back in. I like this. We should have a shorthand for, I don't know, maybe bizarro and normal. In a normal situation, when you had come to the point where they had come in New Jersey, the court would have made the appointment and nobody would have resisted. That happened to me before I became. That's just what happens. And so from the start, this has been a extremely recalcitrant mode by the administration, saying, we're not going to do what the law says. Even they were outraged, outraged that a court would make an appointment.
- [23:51]
Tara Settmeier
But what's the next step? I think people probably are wondering. Okay, yeah, they're. They're continuing to do this. They're ignoring the court order. There's a question about the legality of the indictments that have her name on it. So then what is the next step? Like in New Jersey, they had the panel, right. That was supposed to assign someone. So what happens now?
- [24:12]
Harry Littman
Well, no, it's federal law. I think there's no doubt. I don't know. Mimi, tell me if you disagree, that there's gonna be a motion filed by, you know, some probably serious criminal who has been indicted saying this was all illegitimate and a judge will agree. So I think it'll be served up pretty quickly. I think they'll lose pretty quickly.
- [24:33]
Tara Settmeier
Does it go to the Supreme Court, though?
- [24:35]
Harry Littman
Well, it's interesting, the overall issue. There's now three, four, five courts that are doing it. So you would think, and it's new. Other administrations haven't been so brazen. So you would think it would be the sort of thing the court would weigh in on. I can see them having a pass. You know, the court just today we tape on Friday decided to review the birthright citizenship case on the merits. Right. And that's a case that you might think that even this court thinks the administration position is crazy on. But that's part of what they do is sort of indulge the insistence by the executive about settling this or that issue.
- [25:12]
Tara Settmeier
I put nothing past this court there.
- [25:15]
Harry Littman
Is that in another episode?
- [25:17]
Tara Settmeier
Okay, yes.
- [25:18]
Harry Littman
The maybe other biggest news of the week from the Pentagon as there's a focus on did the US Military commit a war crime in killing the two survivors of a strike of an alleged drug boat back on September 2? It's the very first strikes that preceded even whatever the OLC memo that supposedly blessed the overall operation. I thought it was really noteworthy that Admiral Bradley, the operational guy, came in behind closed doors and not under oath, but said, I never got an order to kill them all. I just, you know, did it on my own. And by the way, I think it is legit. What do you think Bradley's discussion does to. Does it blunt the overall scandal? Because right away it seemed to be gearing up, you know, coming out of the gate for a pretty big, long standing, Capitol Hill style investigation. You know, is the air already leaking out of the tires or is this going to be a big deal for a while?
- [26:23]
Jacob Weisberg
Well, I don't know. As, you know, as war crimes go, this is sort of a hat on a hat, right? Because these strikes that, you know, have no legal justification to begin with, and at least in my opinion. So they're murdering people.
- [26:37]
On these boats without any compelling legal authority, just calling them terrorists. But you can call anybody a terrorist. They're not terrorists. They may be drug smugglers, but they're not, they're not terrorists. And then shooting the wounded. We haven't seen the video. We know exactly what it looks like. But again, let's step back a minute. The whole premise of these attacks seems to me illegal and unjustified. And we're now debating you were sort of accepting the premise of the attacks far enough to debate whether they have been executed in an unlawful way. I think there's gotta be a lot going on behind the scenes in the military we're not hearing about. Alvin Halsey, who was the admiral in charge of the Southern Command, resigned quietly. He didn't make any public statement, but he was one year into a three year appointment. It's very unusual for someone in the military to give up a job like that. And you have to read that as he thought the whole thing was in a legal order and didn't want to comply with it, but also didn't want to go to the mat in public. And you know, I'd like to think despite Bradley, there is objection inside the military to the idea that the President can just decide to kill people and resign.
- [27:52]
Harry Littman
By the way, is in air quotes. There's a lot of reporting that Hegseth really forced him out, you know, as not being a team player.
- [27:59]
Tara Settmeier
That's. That's exactly what I was gonna say, that the. I'm glad that the Admiral Halsey piece of this is beginning to percolate a bit more because when he did step aside back in October, it was a bit of a blip. But people inside the military and who know him and who know, to Jacob's point, how unusual it is for someone at his rank to step away from a three year assignment like this. I mean, first of all, it's incredibly difficult to rise to that level in the Navy, especially for a black admiral. Very rare, there aren't that many. And so for him to step aside once these strikes started and give up a 37 year career and abruptly retire. There were anonymous reports back then in October that it's because he had issues with the orders for these strikes and that Hegseth was pressuring him, you either go along with it or retire. So the fact that Pete Hegseth, who let's remember, is a National Guardsman, a major in The National Guard is out here lecturing generals and admirals who have, you know, have careers longer than Pete Hegseth has been alive and risen to ranks that he'll he only wished of and couldn't achieve. That they're being lectured by this guy. It's just so off putting and infuriating. I'm a civilian, okay? I can't even imagine the conversations that are going on in officers clubs around the military right now. And this happened within, I don't know, a week or two after that absurd quatico display where he lectured everyone. And Trump came in there and they made these terrible comments about women in the military and the standards and, and the warrior ethos and all this nonsense. It was like something out of a video game. But the Admiral Holsey piece of this, I'll be very curious if he's asked to brief Congress or someone talks to him. I mean, I don't think he's under obligation now that he's retired, he's out of the military. But if they subpoena him, they should and find out what he has to say because clearly it was enough for him to walk away from his entire almost four decade career in the Navy.
- [30:11]
Harry Littman
Now it's time for our sidebar feature, which presents brief accounts of important concepts in the current legal landscape as read by a prominent person from another field. Today's sidebar has been literally years in the making. From the first days of doing sidebars, I hoped to have author Mary Carr be a guest. And I have been relentless in not giving up on the chase, which she, I'm happy to say, has taken with good humor. Among her other achievements in poetry and letters, Carr is the author of a trilogy of memoirs, the Liars Club Cherry, and Lit, that I think are incandescent achievements in the genre. Each book, moreover, follows a distinct chapter of Carr's evolution, tracing her journey from a hardscrabble East Texas childhood to a turbulent adolescence to hard won sobriety, literary success, and ultimately an embrace of faith. Her topic is public forum doctrine, the body of First Amendment law that determines where and how the government must permit speech on public property. To explain public forum doctrine, I'm pleased to welcome Mary Carr.
- [31:33]
Mary Carr
The freedom of speech is one of the most important civil liberties afforded by the American Constitution. We all expect to be able to express our ideas freely without threat of government retaliation. One of the fundamental problems of constitutional law, therefore, is to define the scope of the federal government's ability to restrict speech. One tool used to define where and when the government can limit speech is known as the public forum doctrine. This doctrine finds that spaces traditionally understood as areas designed and dedicated to express expressive activities are public forums. Thus, they are generally places where diverse ideas, speech and expressive actions such as protest plays or musical performance should be expected and protected. These include public parks, public streets, spaces adjacent to libraries and government buildings. In American law, the ideas derived from Haig Breck versus Committee for Industrial Organization 1939 and is descended from the intent of the Roman Forum, an ancient space for public display and discussion at the heart of the Roman Empire's capital city. Public forum doctrine was developed in the 1970s and 1980s. The term itself was formalized in Southeastern Promotions Limited versus Comrade, 1975. Soon the courts recognized a need for limitations on how and when citizens can engage in speech in different kinds of public forums. In Peri Education association vs Perry Local Educators Association, 1983, the Supreme Court differentiated between traditional public forums, limited public forums, and non public forums. As the name suggests, the limited and non public forums are subject to higher regulations than traditional public forums, which can still be regulated according to reasonable time and place standards. The designations of forums are, however ambiguous. The doctrine is not set in stone and has to adapt to changing circumstances and expectations. Recently the Supreme Court found that government social media pages must also be considered public forums. Therefore, the government cannot restrict engagement and viewpoint discrimination on comments or posts on said pages. Defining the lines, however, between a traditional forum like a public park and a limited forum such such as a school board meeting can be tricky even for those versed in the law. For talking feds, I'm Mary Carr.
- [34:30]
Harry Littman
Thank you very much Mary Carr. Carr continues to teach, to write poetry and nonfiction and to speak about literature and faith. Now back to the roundtable.
- [34:48]
Now the whole thing has sort of the smell to me of the torture memos after 911 and we're talking now. I want to get back to the killing of the two survivors. But as you say, Jacob, the plan itself depends on some kind of finding that we are in a non international armed conflict with what, you know, drug peddlers on little boats down there. But it is the equivalent of being at war and we've had some of those in the past. But based on congressional votes of authority, the authorization to use military force in the wake of 911 had real legs. Here there is nothing. And as you say, what's the difference between blowing these guys away and taking out anyone that we think has committed crimes against the US so I think remember after 911 there was quite a lot of scrambling and Taking of COVID when the legal justification was unveiled and was not too persuasive to a lot of people. And I wonder if we'll have that kind of aftermath here when we finally see the OLC memo.
- [35:58]
Mimi Roka
And by the way, Harry, I did get a chance to hear John Yoo on cnn.
- [36:03]
Tara Settmeier
I was just going to say the author of that memoir, if the facts.
- [36:09]
Mimi Roka
Are as we understand them, which nothing about what the general talked about, changes, I don't think. Right. There was nothing that refuted the idea that these were survivors of the first attack who were then killed. And John Yoo's assessment of that was it would clearly be, I think he called it a war crime. I mean, again, whether there is a war or not, but, you know, illegal, unjustified, unwarranted.
- [36:34]
Harry Littman
Yeah.
- [36:35]
Mimi Roka
And that's remarkable because, yes, those of us who remember everything about the Georgia Room that, you know, that was considered quite extreme in and of itself. And he would still defend those today, I think, but he could not find a way to defend this.
- [36:51]
Tara Settmeier
Speaking of making a video, the Republicans who were part of that, who have come out, you know, you had Andrew McCarthy come out. He's another prominent, you know, conservative lawyer who writes for National Reviews on Fox News. He's come out and said, this is a problem.
- [37:05]
Mimi Roka
Judge Napolitano.
- [37:06]
Tara Settmeier
That's right. When I, the former FOX News guy, when you've lost him. My gosh. So there's. Imagine if there were enough Republicans that had the cojones to speak out about what's, what's lawful and what isn't. That would be extraordinary. Imagine that.
- [37:21]
Harry Littman
You know, Bradley is basically saying, judge me on this. Now, of course, there's the pardon power behind and the general protection in the protection racket that the administration is giving. And a very quick point, by the way, to Mimi's, if the whole thing is illegit, it's a murder, it's a fucking homicide. But if they were even right, then it would be an extrajudicial killing. I guarantee you whatever crazy, tenuous stuff is in that OLC memo about the general operation and we're at war with them, it does in no way bless the killing of the survivors of this ship. But you had. Let me just serve this up a little because, you know, you had Republicans coming out after seeing the video and saying, ah, seems fine to us. And Bradley's point is these people clinging to debris could have righted the ship, gotten in it and transported the drugs to the United States. And that made them legitimate targets. Right. It seems like lunacy.
- [38:25]
Jacob Weisberg
I Mean, shooting them out of the water just bypasses the whole normal process where you arrest them, convict them, send them to jail for life, and they send a letter to Donald Trump saying, your excellency, I deeply admire you, and they get pardoned.
- [38:38]
Harry Littman
Yeah, right, right.
- [38:39]
Jacob Weisberg
Like your excellency, that's how it's supposed to work.
- [38:41]
Harry Littman
That was a great document, by the way, by the former president of, you know, that, that unctuous four page deal.
- [38:47]
Tara Settmeier
Yeah, well, two quick points about that. First of all, CNN reported that an anonymous source, a high ranking official, said that Bradley's justification for that was effing insane. I believe is what they said, that there was somehow, that they somehow still posed a threat and that the, that the cocaine was somehow still salvageable. Effing insane, I believe was the quote, which it is. Give me a break. This is a guy. And, and it's a shame again, a guy who has had a career in the military, has risen to this rank, was well respected from what I understand, within the Navy SEAL community in all of this, that he would actually.
- [39:27]
Reduce himself to this, making these excuses. It was also reported on CNN that it took them 41 minutes to debate whether they should send the second strike, whether they should do this double tap. 41 minutes. So that tells me that it was not clear cut and people should be subpoenaed and whether it should be. If it's not behind closed doors and it should be in open hearings in Congress. What was that debate? I think we are entitled to knowing what that debate was for 41 minutes. And also it's 1300 miles from the United States. They really think, even if it was a drug boat, which we still don't know, that was just hit by military armament, that on fire, that whatever drugs were still there were salvageable enough to make it 1300 miles and then be sold into the United States like it is beyond the pale. It is so absurd. Maybe it was effing absurd, I don't know, but it was. There was an effing in there with what they said about how ridiculous this was. But it just strains cordulity to think that this would even be a possibility and come out of the mouth of someone as high ranking and as expected, experienced as Bradley, like, come on.
- [40:41]
Harry Littman
And they, they're now sort of stuck with it. And speaking of high ranking experience, let's just spend a minute or two on Hegseth. Is Hegseth out of the woods?
- [40:49]
Jacob Weisberg
I don't think so. I think he's a liability with the IG's report. On the signal chats saying that he put American personnel at risk, you know, he's a train wreck. I mean, you know, the Trump's cabinet sort of divides into the merely unqualified and incompetent on the one hand, and then, you know, the just like laughable and dangerous. And, you know, Hegseth, along with RFK and a couple of others, I think are in the latter category. And, you know, Trump will stick with these people until they become a liability, and then he will show absolutely no compunction about dumping them to protect himself. And, you know, if I had to predict, I would predict that Hegseth will be one of the first, if not the first cabinet member to go.
- [41:34]
Tara Settmeier
I don't know. I'm not so sure. Because while Hegseth is doing everything that Donald Trump would want him to do at this point, by going after the media, blaming them, I mean, we all know that he was grossly incompetent and unqualified for this position from day one. I mean, the guy is a credibly accused sexual assaulter. He's a serial philanderer. There was questions about whether he had a drinking problem, he financially mismanaged two veterans organizations, and yet he's taking on the Pentagon. Like, I mean, the whole thing was all about the fact that he looked good on TV and that he would kiss Trump's ass. So because he plucked him out of central casting, put him in this role, now he's cosplaying like a GI Joe child, you know, the Secretary of War. I am a secretary of War, and you're not going to question me. And Trump was kind of like, yeah, yeah, that's right. We like this guy. You know, he's so erratic in his decision making about who he keeps and who he doesn't and for what reason, that it's hard to say, because he, you know, he didn't like the fact that he fired so many people last time in this first term because it made him look like he wasn't picking the right folks and that it was a reflection on him, this time he picked a bunch of sycophants even more unqualified. And he kind of likes the loyalty, but where does he get become fed up with that? I'm not sure. I mean, he hasn't fired Cash Patel yet. You want to talk about headlines and, and being a problem and grossly incompetent, but this administration is the definition of castocracy, and we're living it every single day.
- [42:59]
Harry Littman
And, well, and the word. The ones who we knew at the time were the biggest controversies have proven to be, you know, exactly that.
- [43:07]
Tara Settmeier
Imagine that it is.
- [43:09]
Harry Littman
Yeah, well, imagine that. But it does seem to be that loyalty comes first, second and third. Because at this point, you got to think like he Hegseth has become a pretty big liability. But. So I would tend to agree with Jacob that he's kind of first to be on the chopping block. Except there's a way in which literally his whole stance, you know, that you mentioned, what could be worse for than a defense secretary putting American service members at risk in that investigation? Another bizarro versus real world point. He didn't cooperate with the inspector general of his own agency. It's completely unheard of. He was just. So he's become such an instant constitutional like contrarian. And that, that seems to, you know, please Trump's heart.
- [44:00]
Tara Settmeier
Look, the, the only way Pete Hegseth goes is if more Republicans come out and say he's got to go. That's the only way.
- [44:07]
Harry Littman
Well, that's the other point I wanted to make.
- [44:09]
Tara Settmeier
But.
- [44:09]
Harry Littman
And it does seem possible here, right. There are Republicans whose stomach is really turned by this.
- [44:15]
Tara Settmeier
Some, right. Some, but not enough so far. I mean, Roger Wicker, who is the senator, the, the chairman, I believe, of Armed Services in the Senate side, he hasn't weighed in yet. Maybe by the time this airs, he will have. But you have other senators running cover, like Senator Cotton and others who are saying that, oh, look justified to me when they know damn well it wasn't, but they're running cover. This is not the first, second, third, fourth, fifth time. This is what they do. These are the enablers who have gotten us into the situation. These are the same people that should have removed Donald Trump not once, but twice during the impeachments when they knew he was guilty. But they would rather run cover because.
- [44:50]
Harry Littman
They thought it was politically viable or necessary even. Yeah, look, you know these guys, this crowd best.
- [44:56]
Tara Settmeier
Yes.
- [44:56]
Harry Littman
And unfortunately, it does seem to me from the outside that this has a bigger than other scandals possibility of peeling some ours away.
- [45:05]
Tara Settmeier
Some, some, but we'll see if it's enough.
- [45:08]
Mimi Roka
But it's highlighting something that I've been looking at, which is one of the major differences between Trump 1 and Trump 2 is. Well, really two major differences. One, Congress just completely abdicating, as we've said, any responsibility and oversight and willingness to speak up and criticize him, except with Epstein, and then maybe this. And the second thing is the people he has surrounded himself with before, it was people who were conservative and that's fine. And sometimes it was people like Bill Barr who were willing to do an awful lot to protect him politically, like misrepresent the Bueller report. But at the end of the day, there was even a line for Bill Barr, right? Like saying that the 2020 election was fraudulent. And even during the term, there were a couple of instances, you know, Barr didn't fire Mueller. He, you know, Rosenstein ignored that, et cetera. But now you have people who really do seem like there's no line around him. There's no limit. They are the quintessential loyalists. Political loyalists is, I think, like the important term here. And that is the difference. They will do whatever he says to do or whatever, even if he doesn't say it, what they know he wants them to do. And this isn't such an original idea, but people like Ty Cobb and others who were part of Trump one have said, you know, it's loyalty, loyalty. Loyalty is 1, 2, and 3, and that's it. And so that's why Hegseth, I guess it depends who he could get to replace him. Can he find someone who's as loyal, who would do absolutely anything that Trump asks? Probably, but.
- [46:57]
Harry Littman
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.
- [47:16]
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- [48:42]
Harry Littman
Thanks to our friends at Total Wine and More. For today's a spirited debate. We should spend a few minutes on what I think in any normal world would have been a huge scandal that would, you know, last for months. And that is what has happened in Immigration where in the wake of the, the shooting of the two National Guard members, the administration has now paused, literally paused, the pending applications for green cards from 19 countries listed in a previous travel ban. Trump's ordered a enforcement surge in Minnesota and there's one already starting in New Orleans. And then, you know, this mind blowing rant that he among the 19 chose Somalia and Somali Americans in a cabinet meeting where he said to his assembled Cabinet, I don't want them in our country.
- [49:41]
Jacob Weisberg
I mean, you know, what do you say? I mean, it's just, you know, you have this grotesque expression of racism and demeaning people and, and behind it this idea of collective guilt, which is, you know, forgive me, a Nazi idea.
- [49:56]
Harry Littman
Yeah.
- [49:57]
Jacob Weisberg
You know, the idea that, that the member of an ethnic group who commits a crime is everyone in their group shares responsibility for it and who basically.
- [50:09]
Harry Littman
Looks like them in the world. Eighteen other nations. Right.
- [50:11]
Jacob Weisberg
It's, you know, it's deeply immoral, it's unethical, it's illegal. I mean, it's just, it's a grotesque way to think the idea that, you know, an Afghan, I mean, think about what these Afghan translators and helpers and people who fought with us In a war, 200,000, you know, it's absolutely normal in, you know, happened in Vietnam. For that we have felt some sense of responsibility to these people who were going to be persecuted, maybe killed if they stayed in the country after we withdrew and lost the war and we took, we didn't take out enough of them probably, but we got a bunch of them out. And the idea that we not only have no responsibility to these people, but that they are now they've become part of our enemy as opposed to being here because they were in fact our.
- [50:59]
Harry Littman
Allies, more than allies. Right. They worked with the CIA there. We're talking about 200,000 people who back in Afghanistan would be in mortal peril that are now under, they never thought they would be, but are under some risk of just, oh, I know, you're in process, but. Sorry, you're going back. It would be stunning. It would really be blood on our hands. Right. How do you assimilate a president in a Cabinet meeting, you know, making a sort of racist rant. Let me put it a different way. What the hell? Nobody, no Republican, no Cabinet officer, no anybody, steps up after. And it's just this racist spewing that is kind of accepted as normal for the President of the United States. Leader of the free world.
- [51:51]
Yes.
- [51:51]
Tara Settmeier
We're talking about Donald Trump.
- [51:53]
Harry Littman
Yeah.
- [51:54]
Tara Settmeier
Who got reelected with the support of the Republican Party. That's why I left the Republican Party. The absolute craven cowardice of the. These people who know better, not saying anything, allowing this, and not only allowing it, but collaborating with him on it. It's gotten beyond enabling. It's collaboration at this point. These people have completely sold their souls. Shameless plug. I did a TEDx talk about this this year called Stand up or Stand By. Is moral courage, the revolution we need, because of what I've witnessed happen over the last decade, of people in particular in the Republican Party who could have put a stop to this a long time ago, choosing not to because they're cowards. And they have basically decided that a mentally unstable, racist, misogynist lunatic is okay with them as long as they have power, relevance, and money. They have sold this country's soul out for that. Watching that display, which is at this point, North Korean level absurdity, with these cabinet meetings, and then just letting him. When he wasn't snoozing, okay. When he wasn't nodding off in it, which was through a lot of it. Watching them just continue to kiss his ass, basically, which is all this is for. It's just. It's just because he needs the adulation. It's his fuel. Even he's getting bored with it, which is probably why he was, you know, falling asleep, because we've been here before. It's like, okay, all right, yes, I need this, but I'm. I'm bored with it. And then he goes on these crazy rants and they just sit there and they go, yes, Mr. President. Or the absurdity of saying thanks for you. We didn't have any hurricanes this year, Mr. President. I mean, it's crazy. And now the racism, it's par for the course. And what used to be beyond the pale has become par for the course under this administration with these people. And it's despicable. This is unconscionable. Levels of indecency. And they just, they don't care. We got A preview of it with the shithole countries in 2018. And now he put people in plate. Right. And people were appalled by that.
- [54:13]
Harry Littman
But. So Marco Rubio runs for president and they. Mr. Rubio, this is what happened. Why did you not speak up? You think his calculation is. Nah, nobody cares.
- [54:23]
Jacob Weisberg
Well, I just want to come back to the point Mimi made about the difference between the first term and the second term, because it's very real. In the first term, there was Charlottesville. And when Trump said there were good people on both sides, people on his cabinet did feel implicated by it. And not all of them, but several of them put distance between themselves and him. And some of them actually, people work for him, actually resigned and left. That's what's changed. Not that the, you know, internal resistance was enough in the first term, but it existed and it kind of gave you some hope for humanity this time. It is like Tara says, it's like, kiss my ass while I'm sleeping. I mean, it's just, you know, we're well into the Marx Brothers like version of the presidency and I don't know, what do you say? You know, hope there'll be some accountability for it when, you know, the world comes back to its senses. But it's. Until it does, you know, we can't count on it.
- [55:20]
Harry Littman
And there's an end. For now, anyway. Okay, thank you so much. We got only a minute left for our final five words or fewer feature, and it focuses on the aforementioned, briefly, anyway, Cash Patel, who reportedly ordered a SWAT team to drive his girlfriend's drunk friend home after a Nashville party. Patel denies it, but latest in a series of reports that he's using the bureau for personal whims. So what is the next thing we learn? That Patel is asking his personal renault of agents to do five words or.
- [56:00]
Tara Settmeier
Fewer, Please polish his kid size boots.
- [56:06]
Harry Littman
It's always terrible when Tara goes first for the rest of us.
- [56:10]
Jacob Weisberg
I was gonna say take down my dry cleaning.
- [56:15]
Mimi Roka
Get a tight fitting raid jacket.
- [56:18]
Mary Carr
Okay.
- [56:20]
Harry Littman
And I just have Carrie olives for his martinis.
- [56:28]
Thank you so much, Mimi, Tara and Jacob. And thank you very much, listeners for tuning in to Talking Fed. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. You can also subscribe to us on YouTube where we are posting full episodes and my daily takes on top legal stories. Check us out as well on substack@harrylittman.substack.com where I'll be posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law. And Talking Feds has joined forces with the contrarian. I'm a founding contributor to this bold new media venture committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come to know and trust just now linked up with an ambitious project designed for this pivotal moment in our nation's legal and political discourse. Find out more@contrarian.substack.com thanks for tuning in. And don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Luke Cregan and Katie Upshaw, associate producer Becca Haveian, sound Engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hamsa Mahadranathan, Emma Maynard and Hallie Necker are our contributing writers. Production assistants by Morgan Chisholm and Akshaysh Turbailu. 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.
- [58:46]
Sam.