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- [00:07]
A
Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Littman. It's our periodic return to our roots, a special episode focused on the ugly, chaotic and Trump driven goings on at the Department of Justice. The department announced a mind bogglingly collusive settlement in Trump's case against the irs. The deal purports to create an immense slush fund for the president's friends, including January 6th offenders, and to shield Trump from future IRS audits. The deal seemed to shock many congressional Republicans who may finally take real action to try to restrain Trump and the department. And there was plenty of news of DOJ misconduct beyond the halls of main justice in Washington. In Wyoming and Chicago, judges threw out criminal cases after revelations that prosecutors committed elementary misconduct in the grand jury. And looming in the week ahead, the department will appear in court to pursue its own vendettas against not just former FBI Director James Comey, but his daughter Maureen as well, an exemplary prosecutor suing against her unjust firing last year. To take stock of the metastasizing scandal involving the settlement, the possibilities for reversing it in Congress or the courts and and the state of field offices around the country. We welcome three leading experts on the doj, and they are Ken Delaney. And Ken is the justice and intelligence correspondent for msnow. He's now been with Ms. Now and as it used to be called MSNBC, for over 10 years, delivering scoop after scoop, especially in recent months, about the inside workings of key government agencies, especially doj. Before that, he reported for my old paper, the LA Times. Ken, great to see you.
- [02:27]
B
Great to be here, Harry.
- [02:29]
A
Glenn Kirshner, it's also been a minute since he's been with us. He spent 30, count him, 30 years as a federal prosecutor, most of it in the U.S. attorney's office for the District of Columbia, where he rose to lead the homicide section before the Department. Glenn served six years in the army as a Judge Advocate General. He's now a prolific and essential legal commentator on both YouTube and Substack, where he puts out daily stories under his Justice Matters rubric. Glenn, good to see you.
- [03:04]
C
Also, great to be with you all.
- [03:07]
A
And Mimi Roka, a former federal prosecutor for the Southern District of New York, where she worked for over 16 years. From 2021 to 2025, she served as the elected District Attorney of Westchester County. She's now an adjunct professor at Fordham University's Law school. As well, as a top legal commentator and soon to be a published author. Mimi, thanks very much for joining us again at Talking feds.
- [03:36]
D
Always great to be with you, Harry.
- [03:38]
A
All right, so let's begin with the story of the hour and maybe the week and maybe the year, the settlement. And you can only hear me, Fed heads, but I've got air quotes with my hands in return for the $1.776 billion fund and the little sweetener of a pass on all IRS audits. It's a strange beast to say the least. Ken, could I start with you just to kind of set up and explain the basic terms of the whole arrangement?
- [04:09]
B
I will do that. But I will say, Harry, that I think the most interesting thing about this story now is the fact that Senate Republicans are choking. We can get to that later.
- [04:17]
A
Totally.
- [04:18]
B
We all were wondering when was the moment that Republicans would say enough? And it appears to be maybe we'll see this. But so this originates, obviously out of the fact that Donald Trump's tax returns were leaked by an IRS contractor named Charles Littlejohn, who is now serving five years in prison. And Donald Trump brought this lawsuit against the irs. And we now know from reporting that an army of IRS lawyers had written a memo about explaining all the reasons why this lawsuit had no chance and was legally defective. Not to suggest that Trump wasn't wrong. Obviously, his tax returns were illegally leaked, but he didn't have a cause of action, even if he wasn't the president, because people have tried this and failed in the past. It's really hard to sue the federal government. But the fact that he was president and the judge in the case was suggesting we don't even have a case here. This is not an adversarial situation. You're suing your own government. It was pretty clear it was going to be thrown out. And so before that could happen, the Justice Department announces this settlement. And how the heck can they come up with one point, nearly $1.8 billion that wasn't appropriated by Congress? Well, and you guys probably know better than me about this, but there's a thing called the judgment fund, which was created to allow the federal government to settle legitimate claims and such that they wouldn't have to go back to Congress every time they wanted to do that. There used to be $100,000 limit. They'd have to go back and get an appropriation every time they settled something for over 100,000. And then I think it was 1956 where they changed it. They opened it up. And scholars have been Saying for years that this is a loophole that could be misused. If somebody figured out, oh, I want to get around a congressional appropriation process, I will just have someone file a lawsuit and then I will settle it for whatever amount of money. And that's what they've done here. So they've created this anti weaponization fund which will be run by five commissioners to be appointed by Acting Attorney General Todd Blanch. And they are at will employees fireable at any time. So totally beholden to the Trump administration. And it's widely believed that this is a way that the Trump people can reward all the people that they claim were victims of so called weaponization, which is a lie, which never happened, going back to the Russia investigation, the Jack Smith investigation. And of course, the biggest concern is January 6th, we've got violent felons, people who assaulted police officers. And Todd Blanche, notably in congressional testimony, would not rule out the idea that people who assaulted police officers could apply for and get compensation under this fund. And so the people have called this the most corrupt act in presidential history. And a lot of people seem to agree with that.
- [06:54]
C
Harry.
- [06:55]
A
Thank you for that, Ken. And I just want to drop a quick asterisk. Mimi, you said the same thing in your great article in the Contrarian. People just are kind of numbed into possibly believing that there is weaponization in the Biden Justice Department for which this may be condign treatment. There isn't. There wasn't. Each of those cases were totally righteous under the principles of federal prosecution. But I digress, Mimi, on the point about the pushback based on recipients being a lot of January 6th offenders, Todd Blanche, who seems to be the guy who has to defend all of this, said, oh no, it's fine because anybody can apply. And by the way, I don't know. I don't know who will apply. I'm not a commissioner. Do you think that is an effective response to those concerns?
- [07:45]
D
No, if you actually are looking at the facts. I mean, the problem is I think Todd Blanche has mastered the art of saying things whether they're completely accurate or not, and saying them very convincingly. And people pick up on it. And frankly, even the mainstream press in a lot of ways picks up on things that he says and doesn't question them. Like for example, I think not enough people are questioning the entire premise of this agreement being this quote, agreement air quotes again, being that there was this massive weaponization by the Biden Justice Department. Todd said that anyone can apply and doesn't have to be Republicans. And Et cetera, et cetera. But if you look, first of all at the language of the DOJ order establishing this so called fund, it belies that it shows how not true that statement is. Sure, anyone can apply. But are you going to get it? No, you're not going to get a fair shake. Because the whole thing, again, is, it is premised on this idea that there was this massive weaponization. There's thousands, I don't know, millions of Americans out there who were wrongly prosecuted across the country by the Biden doj. This is a myth. This is a myth. I mean, even if there are individual prosecutions that anyone could point to as being bad prosecutions, unjustified prosecutions, whatever, that is not what they're talking about. Like, you know, bad prosecutions happen all the time, frankly, in every Justice Department. I mean, no prosecution is perfect and there are mechanisms set up for that. This is solving a problem that does not exist. So, you know, he can say whatever he wants, I guess, but I don't think anyone should take that at face value. And again, even if this were some kind of fund set up to that was unbiased and was going to give everyone a fair shake, this fund does not need to exist. It is solving a problem that is not there.
- [10:01]
A
Glenn, you know, I'll stick with this for a moment. This all happened in your backyard at the time. It was the biggest investigation and whole kind of initiative of the doj. Over a thousand people, basically everyone here, either pleaded guilty or was convicted. And you go now to the tape from January 6th and up that guy with the horns, million bucks for him. Up that one with the flagpole. I just saw you shake your head and there is a. It's nauseating. Yeah. Whether there's a couple Democrats or not who can, who they'll give from the fund in order to make it seem nonpartisan. This is such a kick in the teeth to a real Department of Justice and the real rule of law.
- [10:49]
C
Yeah, yeah. I mean, I think it's pretty clear that Donald Trump doesn't back the blue. Donald Trump backs those who beat the blue. You know how many thousands, hundreds of thousands of man and woman hours went into prosecuting the January 6th rioters, the insurrectionists, my former office, the D.C. u.S. Attorney's office, lots of my former colleagues, people that I tried cases with, were heading up like the oath keepers teams and the proud boys teams. And the fact that Donald Trump, you know, with the sign of a, I guess a Sharpie, wiped it all away with pardons and now he purports to pay these people. Now, if his commission, and I'll go with the same air quotes that Harry used previously, his commission will be actually giving money to the January 6th attackers, the boots of the insurrection, or if Trump will ultimately just take it for himself and his friends and his family members that, you know, is yet to be seen. But, you know, what I see them trying to do, Harry, is kind of use the judicial system to launder Donald Trump's ill gotten gains. They're trying to do it by setting up this insane process by which Donald Trump sues himself. Because remember, Article 2 gives him the authority to do anything he wants with any agency and wrongfully terminate all employees at his pleasure. Right. He controls it all, including the IRS and the Department of Justice and every other agency. So he sues himself. The judge sees right through it and is about to say, yeah, you got a little problem. No case or controversy, no adversarial positions here. So it looks like she's clearly going to dismiss this bogus suit. He says, whoa, whoa, whoa, I'm now negotiating with myself. And then he settles with himself and, you know, directs that this $1.7 billion slush fund be created. And he's trying to sort of use the judiciary to give it this gloss of, you know, legitimacy. Well, look, I, I filed the suit and, and, and I'm settling the suit. You know, I see parallels here with what DOJ is presently doing with the Oath Keeper case. Cases, plural, the Proud Boys case and the Steve Bannon case. What are they doing? You know, the Department of Justice won convictions hands down in both Oath Keepers trials, the Proud Boys trials, the Bannon trials. Now, what they're trying to do is go into court. And Jeanine Pirro, currently U.S. attorney for District of Columbia, I just choke a little bit when I say that my old office. And she filed motions to dismiss, saying it's in the interests of justice to get rid of these convictions. You know what, Harry? If the three judges who are presiding over those cases now because the cases were returned to the trial court, judges Carl Nichols for Bannon, Mayta for the Oath Keepers, and Kelly for the Proud Boys. Do you know, if they, if they approve those motions to dismiss, that will be viewed as the judiciary vouching for Jeanine Pirro, saying it's in the interests of justice that these convictions that are final now should be dismissed. And you know what the Oath Keepers, the Proud Boys and Steve Bannon will do? They'll hold up that judicial granting of the motion to dismiss as why they now need taxpayer money to be paid to make them whole. Because this is the court vouching for, for the fact that this whole thing was illegitimate. It was a, you know, it was a nefarious prosecution in the first instance. They're laundering this stuff, they're trying to launder it through the courts, through the federal judiciary, and I hope to hell the judges do not grant any of those three motions to dismiss. If I were the judges, I would say denied, denied, denied. You want to appeal my denial of a conviction that has long since over, go ahead and appeal me.
- [14:57]
A
That actually has been a preface to a lot of this that people forget. You've had the entire district court that spent years and going back and forth with doj, how many people you're going to bring us, how do we handle it? And it was the biggest operation at the time. And now, among other consequences of the pardon, all that work has just been wiped out and even denigrated. I want to go to the other part we haven't even mentioned. You know, I learned in first year law school that once an agreement is settled, you can't just, like, give them more. But we had a whole nother add on point that, hey, no audits for anything we know or could have known. And, you know, remember Trump's taxes when we found he paid basically zero, was because of a very dubious loss claim from way back. He is now totally off the hook. So it seems to me when Bland says he's not getting a dime, that is at best very dubious. Anyway, Mimi, you've written about this, and Ken, you've covered it. What's your thoughts about the separate outrage of the audit release and what kind of concrete value it might be providing for Trump?
- [16:09]
D
Joyce Vance, I think, called it a pardon on steroids, which I'm going to, I'm going to use that line for now because I think it sums it up the best, because it gives him protection, him and his family and his businesses. And by the way, I believe Trump's businesses can file claims under the fund, even though he personally can't. I believe his entities can. I mean, again, let's even assume for a minute that this was some legitimate settlement agreement between DOJ and Trump withdrawing his lawsuit, which is hard to. That's a big, big if. But even if it were, what is this, this little side hustle agreement have to do with that? You know, even if you had a lawsuit that you settled, you then get complete protection for every possible civil and criminal claim that could be brought, not only against you, but against your family and your businesses. The point here, and Glenn alluded to this, we're all alluding to it, is Trump is paying his allies, paying off the people who committed crimes for him. He's protecting them. He's looking for ways to protect himself. But none of this would be possible, doable, even thinkable, without doj. And frankly, with the current and past leadership of doj, Donald Trump is not thinking of this stuff himself, no way. And it's probably part of why Todd Blanch can say was some credibility when asked by Congress, did you discuss this with the President? No, I didn't. Maybe you didn't because you didn't need to. Because Donald Trump doesn't know that judges will dismiss claims and that they're probably bound by the law about this. He doesn't know that the Department of Justice has this fund of money that it can use to a certain extent, without appropriations from Congress, Todd, Blanche, and probably Stephen Miller and others. But Todd, Blanche is key to all of this. And we've said it before. I'll say it again. He is far more dangerous than Bondi, who was really dangerous because she was a complete sycophant who tried so hard to do whatever Trump wanted. But Blanche is smarter, and he knows the federal system much better. And they are manipulating it to death. They are manipulating the rules and laws and systems and to give this cloak of legitimacy to all of this corruption. And Todd is doing that in spades.
- [18:41]
A
Let me just follow up with that for one second. So, I mean, it's remarkable. Trump first comment was, I don't really know much about it. Blanche is the guy who's gonna have to defend this. He had a meeting with senators that did not go well. Let me ask you, Ken, you know, is this now sort of the Epstein files writ large for doj? So from here for the months leading up to the midterms, is this going to be front and center on Blanche's agenda at every turn, and he'll dig himself deeper trying to defend it?
- [19:17]
B
It is hard to know, Harry, because you just don't know where the limits of these Republicans are. We're seeing, I would say we're seeing early signs that they are choking on this, in part because we're, you know, we're in a situation where prices are going up, Americans are struggling, and they hear about this $1.8 billion fund to reward Donald Trump's friends. Only the base cares about this whole weaponization idea, by the way, which, as we, you know, I gotta go back to Mimi's point, it's a lie. And it is frustrating when Todd Blanche goes on mainstream networks and says this and isn't immediately stopped and saying, wait a second, what is your evidence of this? And by the way, they're not just talking about the Biden Justice Department. The theory of this case is that there was weaponization in the first Trump Justice Department. Right. With the Russia investigation and all that. And Mike Flynn's already gotten compensation in the settlement. He was prosecuted by the Trump Justice Department. So it's just absurd. And that is very frustrating. But back to the Republicans. The other IT problem he's got, of course, is he just endorsed against a very popular senator from Texas, John Cornyn, and he knocked another senator from Louisiana out in a primary. And they're still there for a few more months. And so he's got a real governing problem in the Senate. And it'll be interesting to see whether this fund, you know, you had John Thune immediately when he was asked about it, Senate majority leader said, I'm not a big fan of this. I think it just depends on how public opinion turns on this and what Fox News is saying. I haven't paid a lot of attention, frankly, to what Fox News has been saying about this. That's the problem, is we're not in a legitimate information environment. Right. A big chunk of Americans are not going to get the straight story about something like this. And so you wonder how it'll play. But it does seem to be there are early indications that this could be a big problem for these guys.
- [20:59]
A
What Ken lays out is pretty much the spectrum. You've a lot of Republicans ducking for cover, which is essentially what Johnson did. But otherwise you have people, very big people like Thune saying, being more than tepid, which already is a stinging denunciation in Trump terms. And then you have some. Right. We've got. They're not the ones that Trump is counting on generally, but they are still in the Senate. McConnell and Collins and Tillis really trashing this, and members of the House saying we're going to, you know, find a way to undo it. It did seem to be the reason that both houses adjourned early and they were sort of tangled up in this issue. This is a big and hard question, I know, but I just want to get anyone's thoughts again. In my substack, I write that they think they've sort of stitched it up legally and it's just a political outrage. We've seen different efforts. One lawsuit, Jamie Raskin talking about legislation. What are your thoughts about whether there are legal mechanisms out there to fight back.
- [22:05]
C
I hope there are. The more I see of what Trump and Blanche and others in Trump's administration are doing, I think back to the RICO cases that I prosecuted, and it's like they're running the damn executive branch like it's a criminal enterprise. I mean, they don't care about the rule of law. They don't care about the Constitution. They don't care about abusing the power of the court and trying to use the court to kind of launder all this stuff through. And the good news is, you know, we're always looking for some points of light. I think the federal judiciary has held very strong trial court judges, courts of appeals. You know, we've got that little six justice majority problem up on the Supreme Court where they seem, right, they seem forever willing to expand presidential power beyond the express terms of the Constitution. But, you know, for the most part, the federal bench has been holding strong. I think it's the only fully legitimate branch of government at this point. It is trying to perform its sort of check and balance on the other branches of government. So it's hard for me to conceive of federal judges saying, yeah, this is all good, a bogus suit, and then, you know, you're settling with yourself and then you want to pay money to those who beat the police and to Donald Trump's friends and family. Oh, and by the way, you negotiated a little one page addendum, kind of a codicil to your original agreement going back to wills, estates and trusts. And think about it, when I read that one pager, and it's Donald Trump basically saying, listen, I really, really, really need to be protected against the tax crimes that I've committed. I can never be audited. Not me, not my family, not my businesses. Harry and Mimi, if somebody came to us in our capacity as, you know, DOJ types and said, listen, I'm really going to need to be protected against bank robbery. I really, really need, I would suspect, dude robbed the bank, right? I would probably try to use those as, you know, statements of a party opponent in some future trial. And then I think we're adding insult to injury to injustice where I don't think we've touched on the fact that Todd Blanch is also bribing senators by saying to the Republican senators, wait a minute, wait, didn't they subpoena your phone records? I think you're in for a payday. I mean, all of this is such insanity. And how can any of this be legally countenanced? By courts, even if you can't. I mean, the whole thing just feels like a big old RICO conspiracy to me at this point.
- [24:36]
D
I mean, I think the lawsuits that are happening now, there's, there might be real standing issues. So we'll see. I mean, I hope that's wrong and I hope they can proceed. And you know, you're also going to have a lot of people testing what Blanche promised. Right. I mean, Michael Cohen has said he's going to file for a claim he was prosecuted by Trump 1. And to your point, I mean, you said, Harry, earlier, they might give some token payments out to sort of the non maga people to make it look bipartisan. But I think it's going to be more than just a few applying. You could have the Epstein survivors all apply. I mean that would not be crazy, right? Under this theory, I mean they've been harmed by DOJ probably more concretely than anybody with, I mean they already were filing lawsuits, but before this even happened about the exposure of their identities. And the point, the sort of immunity, let's call it on steroids, the pardon on steroids for Trump. I don't think that's binding on future administrations. I mean, there are so many good arguments that it was self dealing, it's an invalid contract. And does the attorney general even have the authority to bind the IRS, who actually has its own statutory and enforcement functions. They're not an arm of the Department of Justice like many other.
- [26:02]
A
And they didn't sign, by the way, this little codicil.
- [26:05]
D
Yeah, yeah. And treasury. Right. We saw people resign, you know, which is a telltale sign in this administration when people, and this was a Trump appointed official. But still we've seen some of them even reach their limits. And that is always a red flag that there was opposition. And so what we know, right, because I think it was, I don't remember, Ken, if it was your report. I mean someone reported recently that there was like a 25 page memo to DOJ from Treasury saying don't settle this lawsuit, you should fight this. Basically, here are all the legal arguments,
- [26:40]
A
including ones that have succeeded in the very kind of cases. The Little John cases.
- [26:45]
D
Yeah, exactly. So all a long way of saying, I think that there's, this is small comfort, I guess little comfort is the phrase I'm looking for. But I think that future administrations will have really good arguments that that part at least is not binding on them. And so to Glenn's point, all the more reason now to go look at Trump's taxes because they basically set up a flare that says, hey, there's something to see here that I don't want you to see, which, which is just kind of dumb.
- [27:19]
A
One point to underscore what Mimi said, because it's been underreported. The general counsel at treasury, the highest lawyer in the department, he's a Clarence Thomas clerk, a partner in a white shoe firm. And he said, I am out of here. And I think he sees the writing on the wall, which is someone is going to have to say, and it's going to be at the Treasury Department. These payouts are kosher in the sense the first sort of provision of all these things. They're a bona fide settlement of a bona fide dispute, and it fails right there. And we're talking about potential criminal liability. Even this guy, it's a plum job. And he's gone quietly. I think that says a lot. But, Ken, I wanted to return to what you brought at the beginning because that's really the developments as we take from the last couple days. Talk to us a little bit about the kind of murmurs to screams on Capitol Hill with the Republicans and how distinctive it is in the overall sort of run of Trump 2.0.
- [28:22]
B
Yeah, I think this is a watershed. We have not seen this kind of pushback yet on anything. And this is the reporting. I'm not a Hill reporter. I'm relying on reporting by the New York Times and others who said that Todd Blanch went behind closed doors and met with senators about this and he got hammered over and over again. And I don't know, was this a surprise to him because he, as Mimi said, he's been incredibly brazen. You know, he's very slick. He's much slicker than Pam Bondi. He can go and he can sit for any network interview and just, you know, talk his way around a question. And he's very articulate. He was a federal prosecutor for what, nine years? So he's a different breed than Pam Bondi. But he's also been carrying Trump's agenda forward in ways that no one even imagined could be possible. I mean, the things that he's done in his short time as acting attorney general, the cases he's brought forward against James Comey and juicing up the so called grand conspiracy investigation and bringing that indictment against the Southern Poverty Law center, all these cases that were languishing and now are, and then now this settlement fund and he goes out and he defends it on national television and then he goes to the Senate and gets absolutely slaughtered. Behind closed doors. And we don't know exactly the motivations of all these different senators, but it seems clear that some of them are just thinking, how is this going to look to my constituents? This is not what they care about right now. And it's also, it's got to be a factor that Trump's poll numbers are in the absolute toilet, particularly on things like the economy, where Republicans have historically been in good shape, and even on immigration, which is supposedly his signature issue. I mean, he is one of the most, if not the most unpopular president in modern history right now, even as he still has huge sway in the Republican Party. So we're gonna find out because to Mimi's point, these lawsuits that have been filed, they may have very little chance of success overstanding. And if they, even if they do, they're gonna take a long time. But Congress in a very short order could put a stop to this. They could just pass a bill that says, you can't do this. And it'll be really interesting to see whether that's the direction we head.
- [30:19]
A
And then there'd be a certain veto though, right? But I do think I talked about this today again in that substack just politically and not a one shot deal. Right. They want to constitute these five. God knows who they are. I mean, in a sense they're like they're officers under the Constitution with all the authority they have. But people are going to start lining up. You're going to hear reports of who got it, which they're trying to keep confidential. This is a rolling kind of scandal. I think that he's going to have to parry. And I. And the number one thing I think it might even start this weekend is Republicans going back in their town halls and fielding the question, are you actually for paying out all this money to the January six offenders? What are they going to do? And if all the Republicans, you know, do revolt about this, it does seem hard as a practical matter that he, you know, is able to bring it home. Is there a political solution here, you think?
- [31:21]
D
Well, I mean, there is a political solution, there's a congressional solution. Whether it will be. I mean, your question, I think is will it happen? Right.
- [31:29]
A
Well, here's my question. Actually, I said it poorly. Let's say the rump protests really increase in volume and number. Just the kind of outrage expressed by a lot of Republican voices. Do you think they just have to fold up their tent in the face of that?
- [31:48]
D
Look, I mean, it has happened. I mean, I don't think we should totally write that off. I mean, it happened in sort of certain incidents with respect to the Epstein files, where there was. I mean, part of it was that there was legislation.
- [32:02]
A
I think it's a good analogy.
- [32:04]
D
But Trump had to sign it, right? And DOJ had to basically stop saying we won't release anything. I mean, again, if there was a legislative. But it was really because the political winds overtook what Trump and collaborating with DOJ was trying to do, which was just make the whole thing go away. There have been these moments of sort of common ground, right? I mean, about the Fed chair, Jerome Powell. There was not a legislative solution there, but essentially, you know, they backed out. I mean, Jeanine Pirro's claimed that she's leaving it open, but it wasn't her decision. It was because Trump and probably Blant realized that there was unanimity on this, against it, some unanimity. And so you do get these moments, and I try to always highlight those. And so this feels like we're going in that direction where. Because the political people and the legal people are all kind of starting to say the same thing. And you just never know when momentum is going to kind of keep things going in that direction or when something else outrageous is frankly going to happen and shift attention away, which is obviously part of their strategy and works. And so I would hesitate to predict that that is where we'll end up. But I think there are historical. In our short little time so Far under Trump 2.0, there are examples of it, and this feels like one of them. It feels like the Jerome Powell example. And it's partly because it has to do with money. And people get more understandably outraged about their financial systems and money, of their government being abused than anything else.
- [33:59]
C
Harry, can I jump in and say, when you use the term congressional solution, the first thing that came to mind is, well, that's kind of an oxymoron these days, right? Congressional solution. I don't know who I have less confidence in, the Republicans in Congress or Donald Trump's dirty DOJ leadership. And I never called. I never called DOJ the dirty doj, because there are still so many good people who have their heads down trying to do the work of the American people rather than the work of dear leader. But, boy, Donald Trump's doj leadership is about as. As dirty and corrupt as you can imagine. So I am not a political pundit or a political guy, but the way I see it, if there comes a moment when the Republicans believe they are more at risk at losing reelection, if they continue to remain tethered to Donald Trump and his bad policies and his crime and corruption than if they break from him. I kind of feel like that's the only thing that may cause Republican politicians to step away from Donald Trump. This is not about ideology, it's not about party, it's not about traditional politics. It's about, I think, their own power and retaining it at all costs. And if they believe breaking from Donald Trump and starting to speak out against him will make it more likely they'll win reelection, I think they're going to start doing that. Growing up, I never felt like that was what motivated all politicians most. But I think we have learned that in this day and age, it, it does motivate the Republican Party.
- [35:39]
B
Yeah, I agree with you. The problem though, as we've just seen demonstrated in primary elections, that Donald Trump still holds sway over the primary base. So he can get somebody, he can knock somebody out in a primary even as he's costing them the general. Clearly, I mean, his policies and his unpopularity or dragging the Republicans down in the general. But like, especially if you're a House member, that's not your first concern. Your first concern is can I win a primary? It's an incredible situation we find ourselves in politically, but that's what he just demonstrated, that he holds absolute sway in the Republican Party.
- [36:13]
A
Remarkable. Yeah. That one power, even as everything else is tubing on him, he really leverages. Okay, I'll hazard an opinion that I find it hard to see the legal silver bullet. I think that this will continue. We're only a few days in. I think the drum beats will continue here because all individual members are going to be really pushed to defend or not. It's not just a one time deal, it's going to be rolling out when Enrique Terrio moves, etc. We'll know more in a week. But it only, I think they might have hoped, you know, a couple bad news cycles, but it's obviously more than that. I wanted to move just because this is a whole DOJ thing. To your point, Glenn, and all the good people in the field, but I think we may need some air quotes here as well, because I at least wanted to ask everyone about some bad shit that's happening in the field. Federal prosecutors in Chicago, big important office, were forced to drop a flagship case of their own against people they said obstructed federal law enforcement. What's the misconduct here and how does it sort of play in the overall kind of parade of really unusual, unprecedented. Man, we would never have seen this in any Republican or Democratic DOJ in the past.
- [37:34]
C
You know, I would say the misconduct seems to be something that is a recurring problem in this Department of Justice. It is not knowing what the hell to do and not do in the grand jury. I think in Chicago they, they were. I hope I'm not getting the Wyoming case. They're so similar attorney and listen. And maybe that was what Lindsay Halligan said and maybe it's what some of those people at the D.C. u.S. Attorney's office said when they were, you know, going into grand juries. I mean, but I think some of it is born of ignorance and incompetence and lack of experience. Maybe some of it is born of nefariousness. But what people don't, I think appreciate about what the grand jury is really all about is, you know, we are not only the prosecutors when we're in the grand jury and we're the whole show, no judge, no defense attorney, nobody sort of protecting the rights of the defendant except us. I mean, it's our job to literally be the prosecutor and, and to protect the rights of the defendant by making sure we're not violating the rules of the grand jury, making sure that in our capacity as legal advisor to the grand jury, we wear two hats. And some might say it feels a little incestuous that you're the prosecutor and the legal advisor to the grange, but we are. And it seems like these people in Chicago and Wyoming and in Virginia, when Lindsey Halligan was saying Lord knows what to the grand jurors in both the Letitia James case and the James Comey case, things that, you know, basically were pretty dang prejudicial and got those indictments thrown out, coupled with the fact that she didn't have any more lawful authority than, you know, Bugs Bunny to walk into a grand jury room and get an indictment. I mean, it's this, this sort of gross abuse of prosecutorial power in a cavalier way. They just don't care. They're bad mouthing defendants. You know, they're murderers, they're bad guys. I mean, there was reporting that the U.S. attorney in Wyoming is handing out his business card to grand jurors saying call me anytime. And there's. And then I heard in the Chicago case where our friend Kat Abu Ghazale, who was running just recently lost a race for Congress. They indicted her. She was one of the defendants who just had her case dismissed with prejudice. It can never be rebroad. I wonder how that bogus prosecution ended up impacting her chances of being Elected, but you know, they were just doing all these absurd things in the grand jury. And I don't know how we're going to get one. The quality of the attorneys back to the Department of Justice that we're going to need to rebuild and reform and repair. But then what might even be harder than attracting good candidates back to doj? Once the rule of law comes back into the light of day, how do we rebuild the public's confidence in the legitimacy of the way we did business, our entire professional careers at the department? I mean it's, you know, it's a horror show on so many fronts and
- [40:43]
A
not just the department. Mimi, I wanted to ask you because you, besides 16 years in the SDNY, you were also in a headed the estate system. And of course you use grand juries a lot. The kind of common thread here is people going in grand juries and saying, ah, trust me, these are really bad guys. It's gonna, we got great cases for you, only you don't have to really sweat it, et cetera. Now you got training. Glenn and I did as well at the doj. I just wanna. Twice in a week. How like unusual and crazy and inconceivable in either the Department of Justice or the Westchester County DA would this be for people to sort of understand what it says about the whole institution really, that these kinds of screw ups or worse are occurring?
- [41:31]
D
Yeah, it's a hard thing to explain to people, the sort of one uniqueness or unusual occurrence of cases, real, you know, charged cases or cases being investigated that they would like to charge, being stopped in their tracks because of essentially prosecutorial misconduct. That's what we're talking about. I mean, Glenn described it well. But when I would go speak to the grand jury as da, they would serve for about a month and, you know, as they were ending, I would go and thank them for their service. And I would go in the grand jury room and I would chat with them and I would try, you know, some of them were really chatty and like to talk. Some of them just wanted me to say my thank you and get out of there so they could leave. But I always gave this the ham sandwich speech, actually. And I would say, look, your service is really important. In fact, there's a federal judge, Judge Martin, who used to say that other than military service, grand jury and jury service is the most important service you can provide to your country because we can't function without it. And our justice system is a pillar of our democracy. And I would say to the grand jury, I Know, grand juries get a bad rap, and you guys probably have heard that, that a grand jury will indict a ham sandwich. And my point to the grand jury is, I would say I don't really think that's an apt analogy. This was before this administration because the grand jury acts as a check on prosecutorial power because we know we have to bring the worthy cases to the grand jury. And so the third rail is really that the grand jury system sort of brought out, I would say, the best in prosecutors. I mean, again, I am not one to ever say prosecutors are perfect. And there are things that happen due to sloppiness or worse, always here and there, but not on this systemic level. Because what we were all taught to do was to treat the grand jury in a way that was. That was a check on us that we wanted. If a grand jury started questioning our cases, we. We would go back and have a big powwow about whether we should even be bringing this case. Right. Well, you know, if the grand jury is questioning it, we have a problem, not, hey, let's lie and tell them we have other evidence or, you know, create something improper. And the other part of it is that there was a whole disciplinary system within DOJ and within district attorneys offices, et cetera, that if someone was found to have commitment to some kind of misconduct, intentional or not, it would be investigated. And that was a terrifying thing. And nobody wanted that. Nobody wants that microscope on them. No one wants that reputation of that happening, even if you are cleared. And now that whole system is dismantled or eradicated in a way weakened in a way that no one needs to fear that. And in fact, the message from the top is we don't care about DOJ or rules and, you know, for example, saying things that are outside an indictment.
- [44:39]
C
Right.
- [44:39]
D
The Abrego Garcia case is one of the best examples of that. Where in their press release, they talk about him being, you know, a member of a gang and violent and this and that. None of that, though, is alleged in the indictment, and none of that would likely be proven up at trial. But they are leadership comfortable with violating these rules, whether they be grand jury rules, court rules about speaking outside the indictment, and pretrial publicity or norms. And those kind of leadership actions and decisions have a huge impact on the rank and file. Not the career people who were raised like we were on the Justice Manual or the principles of federal prosecution, but on the new people coming in. And that is the greatest fear. I will say, as one sign of hope on that, though, the fact that DOJ is struggling so much right now with hiring, and they clearly are. I mean, I don't know the numbers, but we see how they are desperately, you know, basically offering, you know, bonuses and free vacation. That is a good sign that lawyers don't want to go work for this administration. And yet law school applications are at an all time high, driven in part, I think there's been reporting from people wanting to become lawyers and uphold the rule of law. So those are the signs of hope I'm holding on to.
- [46:08]
B
Yeah. And if I could just offer some perspective on this whole issue of these cases that we're seeing with this misconduct. When I talk to people around the country about how the DOJ is operating, what they tell me is, you know, 90 to 95% of what's happening in the field offices is just the way it's always been. It's career people doing drug cases. And that's the hopeful thing. Right. That's the silver lining here, is that these cases are not the norm. But there's this layer of political and controversial cases. This was the Broadview Six was about ICE protesters in Chicago. There's all the retribution cases where the regular career people will not put their names on those cases. They don't want any part of it. And some of them have resigned if ordered to. And so they're finding these people who are willing to do it. And clearly a lot of them have no idea how to present a case before the grand jury. And they're very inexperienced. And I agree with you, like, the reputational damage to the DOJ when something like this happens is incalculable. You have that and then you have the decimation of things like the National Security Division and the Civil Rights Division in Washington, where huge chunks of the lawyers have just walked out the door and they haven't been replenished. And so even though 90 to 95% of the department is running as normal, there's really been some significant damage that will take probably years, if not decades to rebuild.
- [47:25]
A
You're right, of course. And you know, Mimi and Glenn, I can vouch for how incredibly out of keeping it was with another department. But what it shows is that 5% of cases, that's how the department's reputation will be made or broken, largely broken now. And the real question it raises is, is there a connection between the rot at Main Justice, I think that's an apt word to use, and what's happening in the field and at least say in Wyoming? Glenn mentioned this. That was a U.S. attorney who came in obviously as sort of political glad hander, unconcerned with the niceties of the Constitution. And that's the way those screw ups happen. Speaking of the high profile cases. So we have Trump and the department are still waging their vendetta against James Comey. He's due in North Carolina next week. He's seeking a delay and he said in order to bring pre trial motions. I wonder your thoughts about his trial and in particular the prospects that he gets it dismissed without even going to trial for one or other of the motions that his lawyer says they're going to bring.
- [48:35]
C
Well, Harry, I'm not a betting man. I'm not a high roller. Right. $1 is my betting limit.
- [48:40]
A
That surprises me to hear Glenn put
- [48:42]
C
the full buck on this case being dismissed in the motions hearings. You know, I, it was unusual to see that a defendant was asking for his arraignment to be put off until October. And right. The, I guess principal assistant or whoever it is in that office that's prosecuting the case doesn't oppose. So I understand. He said, I need a whole bunch of discovery so I can make all appropriate motions like vindictive prosecution, selective prosecution, you name it. I was in both courtrooms when Letitia James case was being heard and when Comey's case was being heard in edva. And I predicted then they're both going away those cases. They didn't even need to get to the vindictive and selective prosecution motions because it was dismissed for a basically lawless indictment in the first instance. I mean, it is such an obvious vindictive prosecution and selective prosecution. And we've all handled threats cases and the proof in threats cases needs to be pretty exacting. Right. It can't be equivocal. It has to be clear and unambiguous. There may even have to be a present intent to do some harm. What do we have? We have the dictionary definition of the slang term 86. Comey could call as his first witness in his defense if it reached a jury trial, which it won't. Just put Merriam Webster dictionary on the stand and read the dictionary definition. It means to get rid of like, hey, you know what? We don't have any more meatloaf in the kitchen. You got an 86 meatloaf off the menu. We don't have it anymore. I mean, the fact that, you know, some mob movies might have used it as a slang to, you know, you got to get rid of that guy. 86 could mean impeach and remove it could mean you use the 25th Amendment. It's political speech. I mean, there are so many reasons this case is going to be dismissed on the motions, I believe. But the fact that he's doing that to Comey and Comey's daughter, he tried it to Letitia James, he tried it to Jerome Powell. He tried it to six members of Congress who cut what I considered a public service video as an old Army JAG prosecutor back in the 80s saying that, yeah, of course military members must disobey unlawful orders, and if we didn't, the whole military system falls apart. I mean, the pattern of gross abuse of prosecutorial power is staggering. I lose the ability to find the right words to describe how troubling it is.
- [51:21]
A
All right, it is now time for a spirited debate brought to you by our sponsor, Total Wine and More. Each episode, you'll be hearing an expert talk about the pros and cons of a particular issue in the world of wine, spirit and beverages.
- [51:40]
E
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B
Ready to drink.
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E
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- [53:06]
A
Thanks to our friends at Total Wine and More for today's a spirited debate. I want to get to the other Comey that you mentioned, because Maureen Comey has after Having been sacked for the reasoning that so many have received of Article 2, the President says so, is suing, and she's won the sort of initial motion to dismiss. We have a hearing coming up. I just wanted to ask about the relation between her case and the thousands of people who have been discharged. If she wins, does that mean that so many people who got the same elliptical, you're gone? No reason, really. We have to add that to the taxpayers bill, because DOJ is going to have to pony up all that money, I would say.
- [53:56]
B
I think all these people are getting their jobs back with back pay, but it's going to take years, of course, right? I mean, some of this may go up to the Supreme Court. You know, there are different claims for different kinds of people. But to me, this is actually one of the most startling features of the second Trump term that people did not anticipate, which is how easy it is for a president to actually break with decades of precedent and apparently the law and fire career government civil servants and just get them out of the way so that they could effectuate their own policy preferences. They didn't do this in the first term, but they've done it here, both at the FBI and the DOJ and all kinds of other agencies. And that's been the biggest factor, I would say, in their ability to get done what they want to get done in terms of these retribution cases or things that the FBI is doing with seizing ballots. I mean, they got people who protested out of the way, and now at the FBI, they're only elevating to senior positions, people who are not retirement eligible because they know that they have leverage over those people. Whereas if you're eligible to retire, you can just say, no, I'm not doing that, and I'll take my pension, thank you very much, and resign and protest. They don't want that. So I'm not an expert in employment law, but everyone I've talked to about this is. This is. I mean, these are all violative of law, all these firings. You can't do this. And these people are all going to get their jobs back. Of course, the Trump administration will be long gone by then, and maybe they'll
- [55:19]
A
have moved on, et cetera. Mimi, let me serve up a more general point, which is, you know, all this litigation has been basically in the preliminary stages. It's been about, is there a stay or not? But there's all this backlog of really arguably illegal action. Do you see it as pretty much all coming out in the wash after Trump leaves Or is there, you know, still gonna be a necessary reckoning for the wrecking ball from way back in the first few months?
- [55:53]
D
Oh, yeah. I don't think this is going away even after Trump leaves office. I mean, the beauty of Maureen's victory and her lawyer's victory in court is that these claims get to be heard in court. Right. Trump administration was trying to have sort of the best of both worlds. Say it's Article 2, the Constitution, which allows me to do anything I want, but at the same time, you have to go to that merit protection review board that we now have stacked with Trump loyalists and, you know, just made completely ineffective. And there's this enormous backlog because we fired so many people. So the beauty, the sort of really important part of this court victory in Maureen's claim is, no, you cited the Constitution. This is a constitutional claim, not an administrative claim. And Judge Furman said, you're right, and of course that's right. And so it's got to be in court. And so I do think you're going to have a lot of people who had been hesitant, who had just sort of accepted the fact. I mean, this is why she and her lawyers deserve so much credit. They didn't say, well, it's supposed to go to this administrative board. They said, wait a minute, this makes no sense. And so it's a novel way of fighting back. And now a lot of other people who were wrongly terminated are gonna get to take advantage of that, as they should. That remedy of going before a judge, and each case will be a little bit different. I mean, Maureen's, again, is perfect sort of poster child case for this because she was such an exemplary employee. And there's really. There's nothing they can say to dispute that. I mean, they can because they do make things up, but it'll be really hard to come by any proof of any other reason other than her last name and. Or that she was involved and knew the Epstein files, knows the Epstein files better than probably any other federal prosecutor or anyone at doj. And she was fired right before Blanche went to meet with Maxwell. So I think we're going to see a lot of these claims. Whether people want those positions back or not will be another question. But you know what? Maybe this is part of how we undo some of the damage, is that a lot of these people, even if they've moved on to other things, then there's a new doj, and they want to be part of. Of helping to rebuild it, and they can come back and get back pay which would maybe make it affordable for them to come back to government service.
- [58:26]
A
And that's a huge question. You know, we're about out of time, but I wanted to do a final question directed to you, Ken, Mimi, Glenn and I, we have some friends that we know in there, fewer and fewer. They're a selective bunch. But you really spend your time and you've talked about it talking to people all over the country. I think our listeners and I are always curious about what's it feel like in there now. What's the state of morale with the remaining folks? What's the relationship between this very aggressive new guard and the people? I just wonder if we can close with your sort of finger on the pulse of the state of morale at DOJ now.
- [59:11]
B
Sure. Well, obviously, of course, it depends on what kind of law you're practicing at doj, what, what particular division you're in. But if you had anything to do with political corruption or in some cases, white collar fraud cases. It is a dark, dark time at the Department of Justice. And of course, I'm not talking to the MAGA sympathizers who may be within the doj, so my view is somewhat limited. But a cross section of career people that we talk to, they just can't. They actually have trouble even believing what is happening to the Department of Justice. And then it happened this fast. We're only a year and a half into this term, and the damage that's been done is almost incalculable. The things that we are seeing, they just can't imagine it. And the only silver lining of that is that it's causing more and more people to want to talk and to provide information to the press and to Congress and to others to get the word out about what's happening behind the scenes, both at the FBI and the doj, because they're just really, really troubled. I mean, as you guys know, because you all work there, it's a special place. It's not the Department of Agriculture. Like, nothing against the Department of Agriculture, but like, you know, the best graduates from the best law schools clamor or used to, to get jobs at the Department of Justice because it's such a special mission and it's such a prestigious place to work either for a couple of years when you're young or your whole career. And that seems to have been lost at this moment. Hopefully it's recoverable. But yeah, I wish I could end on a brighter note, but it is a very, very bleak time at the Department of Justice.
- [60:46]
A
Okay, well, that's why we do these every quarter. Ken, Mimi, Glenn, thank you so much. A very, very illuminating, if somewhat grim discussion and hope to see see again soon on Talking Feds. Thank you so much Ken, Glenn and Mimi and thank you very much listeners for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. Check us out on Substack at harrylittman Substack, where I'll be posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of law. Paid Substack subscribers can now get Talking Feds episodes completely ad free. You can also subscribe to us on YouTube where we are posting full episodes and my daily takes on top legal stories. Talking Feds has joined forces with the Contrarian I'm a founding contributor to this bold new media venture committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Find out more@Contrarian substack.com thanks for tuning in. And don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Lou Cregan and Katie Upshaw, associate producer Becca Haveian, sound Engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hansum Mahadrenathan, Emma Maynard and Hallie Necker are our contributing writers and production. Production assistance by Akshay Turbailu. Our music, as ever, is by the Amazing Philip Glass. Talking Feds is a production of Deledo llc. I'm Harry Littman. Talk to you later.