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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. The Supreme Court issued its long anticipated tariffs decision striking down Trump's signature policy. And as an unconstitutional usurpation of Congress's taxing powers. Trump responded with a rabid, unhinged press conference in which he rained down abuse on the justices who ruled against him, saying that they were a disgrace to our nation.
- [00:46]
B
I'm ashamed of certain members of the
- [00:49]
A
court, absolutely ashamed for not having the courage to do what's right for our country. And it wasn't just scotus. Courts around the country continued to hand the administration a series of stinging defeats in immigration cases, while increasingly taking DOJ lawyers to task and even holding them in contempt for the repeated flouting of court orders. And the fallout from the Epstein scandal continued to ensnare the high and mighty, including former Prince Andrew and officials in several European countries, even as the Trump administration tried to posture that there's nothing left to see. To analyze the new terrorist decision, the string of court rebuffs to the administration's immigration initiative, and the first real sign of legal accountability arising from the Epstein files. I'm pleased to welcome a trio of experts on US Courts and justice, and they are Kyle Cheney. Kyle's a senior legal affairs reporter at Politico. He's been there for over a decade on different beats. In his latest role, he's been keeping a watch on the progress of Trump's agenda in the federal courts. And I just want to say, and you know this, if you watch my daily YouTube hits, he is really the essential first go to source. When something big happens, the cry goes up. What did Cheney say? We're really pleased to have him back on Talking Feds. Thanks, Kyle.
- [02:25]
B
Appreciate that. Thanks for having me.
- [02:27]
A
And another reporter very much on the spot for all kinds of pending cases, Adam Klassfeld. He's a leading courtroom reporter. He's the editor in chief of All Rise News. For more than a decade, he's covered the top stories in court cases, cases from state, federal, and even military courts. And we frequently get together for substack lives in the wake of big moments out of the courts. Adam, thanks for joining.
- [02:52]
C
Thank you for having me.
- [02:53]
A
And a very good, and I have to say, old friend. Now, now, the talking feds is getting a little bit long in the tooth. Mimi Rokaw, a former federal prosecutor for the Southern District of New York, where she worked for over 16 years. From 2021 until this past year, Mimi served as the elected district attorney of Westchester County. She's now an adjunct professor at Fordham University's law school, a top legal commentator, and I think I'm permitted to say this very heavily in the midst of writing a new book. Mimi Rokoff, thanks for being here.
- [03:30]
D
Thanks for having me.
- [03:31]
A
Want to say a word about what you're writing?
- [03:33]
D
I'm writing about everything that you talk about every week.
- [03:36]
C
Okay.
- [03:37]
D
That we all talk about the take of doj, the political takeover of doj, and the heroes who are standing up to that. And I'm sure every one of you here will be quoted multiple times in my book, cited multiple times, because it's, it's truly a team effort to keep up with this.
- [03:56]
A
No kidding. All right. Speaking of keeping up with stuff, shortly before we went on air to tape, we tape on Friday, February 20, a much anticipated decision in the tariffs case came down. Let's just talk top line first. Briefly, what's the basic rationale of the opinion? Anyone?
- [04:18]
C
I would say that the basic rationale of the ruling striking down Trump's tariffs is that the Constitution gives taxing authority to the Congress. I mean, more specifically, that the rationale that Trump cited to get around that basic constitutional principle, the International Economic Emergency Powers act, was not a rationale at all, that it put a weight on. Two words that it could not bear in the words of Justice Roberts. But before we get into ipa, before we get into how no president before Trump interpreted a law for nearly half a century, we have to get to the basic constitutional principle that goes all the way through Gorsuch's concurrence. I think that he just lays it out there and, you know, I have it in front of me. I'm just going to read.
- [05:15]
A
You've already done all 46 pages, Adam.
- [05:18]
B
I'm impressed.
- [05:18]
A
Go ahead.
- [05:19]
C
Let me see here.
- [05:21]
A
Well, while Adam gathers it, let me, I do want to say this is going to play big headlines. Trump gets stinging defeat. And it certainly he amplifies that case with his raving press conference. But court watchers anticipated this decision, and it really was at the oral argument, a pretty straightforward submission. As Adam's now saying, a tax is a tax, and that's a really core congressional power. And the statutory interpretation, even the different ones, are pretty sort of direct and clean, though there are big side disputes and kind of fault lines that run through the 170 pages and six opinions, if I have it right, Adam.
- [06:10]
C
Yeah. So here's what gorsuch wrote, said, yes, legislating can be hard and take time, and yes, it can be tempting to bypass Congress when some pressing problem arises, but the deliberative nature of the legislative process was the whole point of its design. You know, he said during oral arguments that the colonial duties imposed in the Navigation Acts was the spark of the American Revolution. He said, shortly before that passage that I just read, reflecting the same sentiment that helped fuel the revolution, he asked, referring to Alexander Hamilton, what legislative power could be more sacred? So it's fundamental. You know, it goes to the obscene power grab at hand.
- [06:56]
A
All right, look, he came out. You know, there was this lesson that he tried to also enunciate. Well, I have other ways to do it. He actually, the court mentions that in one part of his opinion here. The other ways he could possibly. Kavanaugh, you know, he could have tried to play it as not so bad. We've already reframed it. He goes berserk. Right? The other justices are cowardly and basically bought by foreign interests, and they are lap dogs. I mean, really bad. And he thoughts about it, but also whether that will play into a narrative that's maybe not what he wants about the courts being his enemy and undependable.
- [07:44]
B
If you watched that press conference, it was sort of this kind of schizophrenic performance where you had, like, I was trying to follow it, and it was just this sort of rollercoaster because it was what an outrageous, terrible, disloyal decision that also made us stronger because I can actually do more tariffs now. And it clarified. And actually, so actually, I love it. It's great for me. But also, how dare they tell me I don't have this power? So, like, the message is a muddle. I think the issue that Trump. Trump locked himself into a box here because he had been saying when the reading, when the writing was on the wall, he said, if you watched the oral arguments, you knew this decision was coming. It was pretty. They telegraphed it pretty clearly.
- [08:19]
A
He wanted to go to the oral arguments at first, remember? Yeah, that's how big this was.
- [08:23]
B
And then afterwards, posted on Truth Social, Becky, when I think he realized he was gonna lose, you know, if they rule against me, it's gonna destroy the world. It's gonna destroy the country. And then he realized that, you know, he kind of kind of cried wolf, you know, given that they have other tools in the toolbox. But the second thing is, Trump has made tariffs central to his political identity for probably his entire time in public life. His unconventional counterintuitive view of tariffs that most economists disagree with, that most Republicans disagree with. But he's made that the core of his being. So this cuts, Tim, in a deep, personal way. Even if he can save face with some other mechanisms that end up filling in, you know, some of the tariffs, this hurts him in a personal way, which I think is why you saw the visceral anger mixed with. But it's not so bad.
- [09:10]
D
I mean, I think this is a perfect example of the law running up against political strategy, which is what should be happening a lot more than it does in this administration. I mean, we have seen examples of it and we've talked about them here when they try to, basically, they being the Trump administration, decree something, right, like, he is a criminal, I am going to prosecute him, or this will be the law, and I can do this. And then judges rule against them or grand juries don't vote for something. And here you have the. I am all encompassing. I can make any kind of tariffs I want. I can do anything I want. And not once. I mean, I think this is one of what, like three times this year that the Supreme Court has said, actually, no, you can't. And we're starting to see it more and more in sort of small ways. Seeing it from the Supreme Court is a more monumental and important thing because obviously, you know, everything eventually will, will end up there. That's a legal question. And I think, you know, there's so many different pieces to this decision, Right? I mean, depending on who's whose opinion you read, they have different rationale. But the kind of overall takeaway from the majority that's cobbled together is you can't just say things are an emergency and that's it. And that is the crux of so much of what they. How they try to justify so many things, sort of for people who, I mean, a lot of people care about tariffs. But even if you don't care about tariffs, two of the big kind of takeaways are that, you know, what they say politically as a strategy often works. I mean, they are often able to sort of shove things down our throats as a country because Congress doesn't do anything that they shouldn't be able to. But often they are stopped more and more. I think more and more is right. Yeah. Seeing the Supreme Court stop them is huge. And then the second takeaway is no, at least in this context, and we hope in further ones, when the Supreme Court gets the case, we hope. You cannot just decree that something's an emergency and Therefore, self legislate, basically.
- [11:25]
A
That's a great and important point, the emergency point. And I think basically we're wary of that. That's what we were looking at in the Illinois v. Trump. But they went on another direction. I think here they're Delphic on would they defer to emergency? They sort of take it as a given, but then just say under the statute, you declare emergency, but the rationales you're proffering are not listed there and you can't do it. I just wanted to underscore one thing Kyle said, which is I've long since given up trying to psychoanalyze Trump, but you do get the sense that tariffs really are, you know, next to messing with elections. This was his thing, is his thing. So it's pretty damn clear he took it personally, especially with respect to the two justices he had appointed whom he savaged. And then even Kavanaugh, whom he had been rough on before, he made sound like, you know, the incarnation of Brandeis and Holmes.
- [12:24]
C
So to tie the two things that he takes personally, subverting elections and tariffs, one of the things that he said in the conference was that the justices that he appointed who ruled against him didn't have the courage. And it kind of reminded me about Mike Pence on January 6, 2021, and that this is someone who just think again when we talk about the other tools in his toolbox. Yes, he has other tools. Kavanaugh spoke about them. But so Chief Justice Roberts, in a footnote where he talked about that the cited statutes contain various combinations of procedural prerequisites, required agency determinations, and limits on the duration, amount and scope of the tariff. So what it doesn't have in the other tools is a kind of dictatorial say so power. And that's why we have this sort of, as Kyle appropriately pointed out, schizophrenic sense of these things, where on the one hand, oh, this is terrible because he's lost the one thing that he wanted, a unilateral approach, and he's trying to pretend unconvincingly that he hasn't lost that power.
- [13:35]
B
Right, That's a good point. And I think, like, look, all of those things that he said I can do now, he's had the capacity to do before. So why didn't they do it before? Because they aren't the same as the sort of, as you said, the unilateral control he could have done these other mechanisms, they didn't. They chose not to do that because they're more complicated. They may not hold up either. They don't have the same impact. They don't have the same leverage in negotiations. That unilateral, I can just charge you whatever I feel like does.
- [14:01]
A
Yeah.
- [14:02]
C
He also always had the power to go to Congress, which was the way of doing things since the founding of our republic.
- [14:08]
A
And he actually said he won't. And that was a little bit of a headline in the presser. He said, I hereby decree that these other things are in full effect, whatever. But he made it clear he's not going to take this as an invitation to go across the street. I think we'll be seeing a lot of op eds and writings about what this is revealing in the Supreme Court. I think I've suggested, as you have, that the actual core ruling in the Roberts opinion is kind of straightforward statutory interpretation. On the other hand, in Gorsuch opinion, among others, you really have a very strong divide on this major questions doctrine idea. Did anyone have thoughts on what was revealed about the kind of cracks and fault points within the court in the decision?
- [14:59]
C
If it doesn't expose my naivete, is anyone surprised that it is? It wasn't as lopsided as it could have been. I mean, I was watching those oral arguments and yeah, six, three is a healthy majority, but I was thinking maybe seven, two, maybe even unanimous. Was anyone surprised that this was while a hearty, emphatic defeat, not a washout?
- [15:27]
A
You know, I wasn't. That's a great question. Let me answer it. I think a pretty burning question that's only gotten hotter in the wake of this opinion about the so called major questions doctrine, which is pretty much an invention of this court from just a few terms ago and what it means when it operates. And just one sort of final point, and then we can kind of move on to the practical implications of the opinion, which is Justice Barrett, who in 2023 in Biden v. Nebraska, signed on to this newfangled idea, seemed to be inching, more than inching, striding away from it in her. There were six different opinions here, but she basically said, I'm doing normal statutory interpretation, which is what Kagan did as well. So the future of that doctrine, which I think really matters in a lot of these big executive power cases, I think is now a bit up in the air. Okay, here's what's really up in the air. What the hell happens now to hundreds plus billion dollars? I mean, they've gone ahead, they've imposed these tariffs. The plaintiffs were people who are asking to get the money back. What a mess. Can it be unraveled? How can it be unraveled? Any thoughts about what now?
- [16:53]
B
Well, this was one where Trump, Trump's frustration may be shared more broadly. He said, the court told us what we can't do. They didn't tell us what to do next. And so he said, you know that, he said, we'll probably be litigating it for the next five years, you know, which is probably true, I think.
- [17:08]
D
Yes.
- [17:08]
B
I mean, there's this massive unraveling that could be happening. I mean, we will see it litigated to the ends of the earth here, literally. But, you know, I don't think there's any roadmap for how to, how to go from here.
- [17:20]
C
I found it very notable to your point, Kyle, that the majority didn't really, it seemed entirely silent about it. And it was the dissent that brought the issue of the refunds in the context of, oh, how could we not allow Trump to do something that is so unlawful and unconstitutional? Although, of course, they did not think that it was. But the interesting thing that I do remember from oral arguments that Neil Katyal, when arguing in favor of the challengers against the tariffs, said there are statutes in place. It's not like they had to reinvent the wheel, that they had to come up with some path. He pointed to statutes that exist and whatever messiness that exists around it. I think that all of the folks who are, you know, we're all talking now, we'll probably soon be discussing the lawsuit to collect tariff rebates that are under those statutes.
- [18:15]
A
I agree. And I predict that the sort of reflexive response of the administration will be, oh, we're now doing that over this so you don't get any money back. And so the legality of those other efforts will be teed up. All right, Trump, at least. And I think from the little coverage I've seen so far, the emphasis is Supreme Court hands Trump major defeat. And as everyone kind of assesses the chessboard going forward, who's with them, who's not, et cetera. Where the Supreme Court is matters a lot, the kind of bottom line political impact of the decision for Trump.
- [18:59]
D
I mean, I think one thing is we're analyzing this in terms obviously of the law and what it might mean for future Supreme Court decisions. But as we said, kind of at the beginning, but just to kind of draw it out a little bit more. So much of Trump's power, I think, comes from the perception that he is powerful and that he can't be stopped. And that's why I was trying to bring in sort of small examples that until you look at them all together, don't necessarily feel like he is being at least slowed down here. You know, there certainly are people, as we discussed, I think, who are saying, well, they're just giving him a way out of a politically damaging policy anyway. They're throwing him a bone because. Or us a bone because they're going to rule in his favor on more important things. I don't know. We don't know, obviously. But I think this perception of him being able to do anything he wants, there's at least a nick in that. And that's part of why he's so frustrated. It's not just that it's tariffs, which is one of his passionate issues that he cares so much about in a personal way. It's that the Supreme Court, at least for now, you know, majority said no. And he cannot stand that. And it helps people in the country understand that there are some limits, period.
- [20:21]
C
I think that's such a great point about how the perception of power emboldening his power. And that's always been the case. Next week, not to go into too much of a digression, there's going to be a vindictive prosecution hearing of Kilmar Brio Garcia. And there was a time when the Supreme Court said, no, you can't let that man languish in a El Salvador prison and where he is tortured. You have to facilitate his return. And he's strung up victory after victory after victory after victory from that. So when that happens, it does change the public perception. And to your point, Mimi, the whole perception of, oh, well, maybe the Supreme Court will burnish its bona fides and rescue Trump from a policy that is unpopular. Trump refuses to be rescued. He just doesn't like any pushback at all. And he comes out with a speech to try to vilify anyone who stands in the way of his power. And that's useful information for Chief Justice Roberts, who has tried to tow that line of balancing the ledger cautiously. It's a good lesson for the chief.
- [21:31]
A
Great point.
- [21:32]
B
I said to my colleague Josh Gerstein, you know, if I were to Donald Trump and I had gotten that presidential immunity ruling two years ago that basically kept me out of jail for potentially for the rest of my natural life, I probably wouldn't, you know, go burn that bridge when I get a ruling I don't like. Even if you don't like it, you say, I don't like it, but you don't have to accuse him of being disloyal and shows you the short term thinking involved here to some degree, but again, underscores the point of the centrality of this issue to his Persona, like the deep, the deep roots of it, but actually to Mimi's point. So it's funny, it's clairvoyant, because I'm writing an analysis now of this, and that's the heart of the analysis. This shows it's a narrative, it's a trajectory that Trump doesn't want out there, that I can be contained or constrained. My power's waning. Maybe I'm on the, you know, the last bits of my, you know, before I'm a lame duck president. He doesn't like projecting weakness, and this projects weakness on a central issue at a time when he's had some other defeats recently on the Epstein files and in Congress. And you have the midterms coming up. So there's a lot of reasons why this comes at a very bad time for him.
- [22:38]
D
He would do so much better to ignore it or to paint it as a victory, but he's incapable of it because of what Kyle just said. It goes to this narcissistic personality and this impulsivity too, right. That he can't just say yes, well, you know, moving on. He has to try to strike back even when it's ineffective.
- [23:03]
A
I mean, it was very Trumpian. And yet. So, like, you never would see a president talking that way. Just two quick points. First, to Kyle's point, you know, we on talking fits have long been aware of Mimi's clairvoyance. That perception point is excellent and strong. And I think, and Kyle, this reinforces what you're saying too. It was a free association kind of sociopathic oppressor. And the very first thing, the thing that he couldn't help but unburden himself of immediately is the charge of disloyalty from his justices who weren't with him and they should be ashamed, et cetera. And then the only other point I wanted to quickly raise is we took it on the chin and not the slightest hint of we're going to disobey, disavow. Maybe we have to do it other ways, but the overall Supreme Court rules, that's final. That was very much implicit in the message, which, you know, it might not have been. 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.
- [24:27]
E
Thank you, Harry. In today's spirited debate, we uncorked the notion of drinking bottled wine versus canned wine. Yeah, wine in a can. Wine connoisseurs may stay true to the bottle, but wine cannosaurs have adopted the untraditional packaging for its added convenience. Ideal for picnics, concerts and outdoor events. Really, anywhere? Corkscrews are scarce, and since aluminum cools faster than glass, it reduces the time it takes to chill your favorite Sauvignon Blanc. But swirling your wine in a glass does help it open up, which gives it a lot more flavor. Of course, you can always transfer your canned wine to a glass, but if you're looking to experience the subtleties of a nice bottle, drinking from a glass adds a lot. There are wines more suited to the bottle, and there are those well suited for the canned life. Crisp and sparkling whites and particular tend to fare best in cans, but bigger, bolder wines will usually benefit from a nice glass. It would seem both have their place still on the fence between bottles or cans. There's always wine in a box.
- [25:40]
A
Thanks to our friends at Total Wine. And more for today's a spirited debate Speaking of defeats at the hands of courts so you referred to this just now. The tailspin in DOJ's credibility and ICE is being held to account continues across the country. Kyle, I wanted to start with you because you've been tracking the way judges across the country are ruling on aspects of the deportation initiative. So maybe just tell us for starters what you found and how in broad strokes the judges are now thinking about Trump's immigration enforcement and the sorts of various defeats he's been dealt.
- [26:24]
B
Sure, it's been sort of remarkable as I didn't start tracking this in a concerted way on purpose, but it became this almost mission because we started to see it balloon. You know, the alarm of the courts, the degree, the tenor, and then just the breadth of the rejection. Everywhere where this administration, in addition to a mass deportation effort, is also undergoing and undertaking a mass detention effort where basically anyone that they intend to deport, even if those people are pursuing asylum claims or other forms of legal status, they not only say they can detain them, they must detain them in some immigration facility and have been doing that in a large scale way, most acutely in Minnesota where they had the surge in enforcement. But everywhere. And judges are not just rejecting it, but in extremely alarmed and pointed ways, saying this is essentially a human rights catastrophe. And what's most remarkable is these are not left and right judges. Doesn't matter. These are judges that Trump appointed himself, dozens of them. And judges appointed by every president since Ronald Reagan, hundreds of them, versus a small handful, mostly appointed by Trump, siding with the administration, very small number. The big caveat to that is the fifth Circuit Court of Appeals recently endorsed the administration's sort of mass detention policy, which, you know, is a huge. It's a huge deal because Texas, where a lot of these cases are emerging from, is under the 5th Circuit. But it's a very unsettled issue. And I still think the breadth of the rejection everywhere is, you know, now it's a story that's really emerged, but I started to see it forming months ago, and now it's really exploded in this revulsion by the courts.
- [28:01]
A
So the legal issue, it's funny, you see all these things like the chief judge in Minnesota saying, ice has violated more orders in a month than most agencies in their lifetime. It's all about this issue, as Kyle says, that they've taken as their right, notwithstanding court after court after court, saying, uh, and that is the ability of courts to put them at liberty while a immigration proceeding is happening. Because, you know, I think we saw this March 15th. Abrego Garcia. The basic strategy is get them on the collar and stick them in a detention center, and then we have control, and then it's all over.
- [28:43]
B
And I guess what's been so conscience shocking about a lot of it to the judges really has been this idea that, you know, look, for 30 years, that's been the sort of modern iteration of the immigration system was adopted by Congress. Every administration in the last 30 years has understood that mandatory detention requiring people to be held really applied primarily to people right after they cross the border, right after they come in through a port of entry. And so it's a subset of people in the country who are undocumented, maybe pursuing asylum, maybe pursuing legal status. But those people could be held and maybe even deported in an expeditious way. But people who were inside the interior of the country, sometimes for decades, no criminal records, those people would at least have the chance to seek bond, some sort of ability to show I'm not a danger to the community. I may have established roots here. I may have US Citizen spouses, children. You know, I run a business. So maybe I should at least have the opportunity to seek bond and remain in my community while you still try to deport me. I can still be deported, but at least don't have to sit in a cell or a detention facility while that's going on.
- [29:44]
C
I was Just going to echo what one, Harry's high praise of Kyle's work on this particular subject, the mandatory detention. And the rulings, the kind of tidal wave of rulings on this subject that have come rebukes from every judge. And now, what you said, Kyle, about the fifth Circuit, I was struck by a phrase in the dissent. It was a 2:1 ruling from the most conservative court in the nation. And the ruling dissent had a turn of phrase. They said that for purposes of detention there, the border is now everywhere. And the kind of infringements on liberty that people expect when you're crossing a border, that, okay, you might have a different set of rights than when you are in the middle of the country. And I think the dissent really touched on something so important that this government is now treating anyone anywhere under these circumstances as if they're at a border crossing. And that's what makes us so chilling.
- [30:49]
B
And, you know, look, I think we've seen from the 5th Circuit and what I suspect we'll see from the 8th Circuit, which had arguments on this earlier in the week and sounded similarly to the fifth Circuit, is that they say, well, why should people who evaded detection, got into the country and managed to set up routes be treated more favorably than people who came to the border? Either they may have presented themselves to the border Patrol or they got apprehended. Why should people who evaded that detection get treated more favorably? And I think that's. And what the people representing the detainees say is that's a question that Congress needs to answer. And Congress passed this law in 1996. It says what it says. Maybe it had some. Maybe it was a half measure. Maybe it was something they decided to do because they recognize that people who live here for decades, even if they shouldn't have gotten in in the first place, maybe we have a different calculus for whether to detain them or not without bond. But for whatever it is, that's what the law says, and that's why most judges are ruling against the administration. But I think the circuits in this case say they can't grasp why Congress would adopt an imperfect system and so seem to be saying, well, the policy logic is in one direction, so that's what we're going to rule. That's the direction we're going to rule in, even if that's not what the law says.
- [31:55]
A
And let me just specify a little more what the law says. So Judge Jones in her two to one opinion, said that someone who's been here 30, 40 years, and we are now beginning to get to the people who have great sympathy, among others in the community, are, under the legal standard, applicants for admission, even if they've never applied. So that I think, to Kyle's point, policy or not, the idea that they are somehow applicants for admission seems kind of Alice in Wonderland. And that's the legal point. And the other point I wanted to raise about it is I think the people that we're talking about were part a big part of the bipartisan immigration bill that everyone wanted to treat in a certain way and that Trump actually told the Republicans not to pursue in order for him to have this issue in his election against Harris.
- [32:58]
D
One specific decision I don't think we've yet mentioned is the judge holding the DOJ lawyer in contempt in Minnesota, Judge Provenzino, which I thought is. I mean, we're talking in general about judges in the immigration context, but more generally being sort of fed up with this administration and its misrepresentations and its defiance of orders, et cetera, not in spite of the doj, but almost at the direction of DOJ leadership when it happens. And, you know, I think this is so interesting. I mean, first of all, I think the judge was well within her right. I mean, it is something that doesn't happen often. But, you know, again, shows how they see that this administration doesn't really care what they order. And here, what the administration, through this DOJ lawyer hadn't done, is one, release the immigrant who they had detained in a timely manner, and second, release his documents. I think that's what the actual contempt order was for, that they didn't give him back his documents as she had ordered. And, you know, this sort of gets to this question that we've talked a lot about, about the role of DOJ lawyers and how they handle the direction. I mean, I'm going to call it that from leadership to basically do what they say and not what the court says or the law says or the Constitution says versus their own legal and ethical obligations. And we've seen remarkable pushback, I think, from career prosecutors across the country who have refused to go along with it with the administration in many, many cases here where, you know, I'm not necessarily faulting this individual prosecutor, but the judge seems to be saying not only are there consequences for the administration, but there's consequences for you, AUSA lawyer who is defying this. And, you know, that's. But also, it's not just an important sign to the administration, it's an important reminder to the lawyers that we've all been talking about. That your obligation is not to this administration, it's to your oath, it's to the ethical rules, it's to the court, it's to many, many things, but it's actually not to Trump and even this administration to do whatever they say, no matter what. So I think, and I also think it's interesting that Daniel Rosen, the US Attorney in Minnesota, called this a lawless abuse of judicial power, which is incorrect because it's certainly within her power, even if something that is rarely used. But Rosen is interesting because he has, in other contexts, shown himself to have a tiny shred of independence, like where he came back to the court and said that ICE had lied in very significant ways in another case about how and why they detained someone. And so it's like he showed that little bit of independence and then pulls it back promptly here to say, oh, no, this is a lawless abuse of judicial power, which is exactly what the Trump administration would want him to say.
- [36:23]
A
I just want to jump in for one second as the other former prosecutor on the panel, because what you're saying is exactly right. She had ordered the judge, had ordered the AUSA several times. Give the damn identity documents. Now, you and I, if a judge, when we were at DoJ, had said that more than once, we would scamper and turn the place upside down. This one, you know, went to ice and ice. Apparently, I dog ate it. I'm not sure the very day that they started talking contempt. And it does raise the point, why haven't they done it before? They did turn up the identity documents. So it both shows that you could always have done it, but also the cavalier attitude that you would take to courts, that, to me, and I expect to you, Mimi, is just completely breathtaking for a former federal prosecutor, which you're not, Adam Klassfield, but you got a lot of good points all the time. So what do you got to say?
- [37:17]
C
Thank you. Thank you. I was just going to point out that that particular contempt order that Mimi was talking about, just moments before we started recording the same judge, Judge Provenzino, issued an order where she was. And I'm going to read directly from it, the refrain of understaffing in too many cases has worn out its welcome, particularly when it comes at the expense of individual rights. And what we've seen so much, particularly in Minnesota, is the hollowing out of U.S. attorney offices. The U.S. attorney's office. There is a shred of its former self as they tried to pressure out anyone who. Who not only wouldn't refuse to investigate the killings of Alex Preddy and Renee Goode, but in some cases harass the widow of Renee Goode and so many other things that caused the shakeup in that office. And here's a judge saying, okay, I'm gonna grant you some grace, I think was the word that she used, but said this court would never allow a private attorney or litigant to rely on I'm too busy excuse to justify disobedience to a court order. The government is no different. Yeah.
- [38:28]
D
And it's also a way of saying to the administration, you know, she can feel bad for the prosecutors who are overworked and saying, this job sucks, et cetera, as we all can. But this is 100% caused by the administration and DOJ leadership. Even people who resigned, especially people who resigned. You know, it was not a, I'm ready to leave because I want to leave my job. It was, I have to get out of here because I cannot work under these moral, ethical circumstances.
- [39:00]
B
Yeah. And I think the judges are starting to make the point a little bit more sharply, too, that, yes, the people, they're being overworked. There's too many there. The flood of habeas cases and immigration cases are overwhelming the system. That is a deliberate choice for this administration. And what they're saying is it's almost willful. I mean, they boast about having the most deportation resources they've ever had in history, and they couldn't spare a chunk of that to, like, ensure that the other side of that, the legality, the constitutionality of what they're doing was, you know, had the resources in court. Well, that's. The judges aren't buying that, like, it's a choice to let. Let your DOJ offices flounder so they can't resolve these. And that's why the judges are getting increasingly angry and saying, oh, you're understaffing is not an excuse here. You have the resources. You're just not. You're choosing not to use them to support, to uphold people's rights.
- [39:44]
A
It's a great point. And you find the judges. I mean, it's not. Just not buying it. You always had at doj, you know, well, you have a higher responsibility. Do this and that. The judges have little by little departed, and they're basically calling DOJ and ICE liars in these opinions. Now, the squandering of credibility by the department here has been more, you know, severe and spendthrift than any other spot. And again, I'll just say, as a former prosecutor, it just wigs you out to hear courts describing DOJ that way. I really want to leave a little time. There's this going to keep playing out to talk about Jeffrey Epstein, the man formerly known as Prince Andrew was arrested this week in the UK for leaking official secrets to Jeffrey Epstein. Seemed like a seismic development, and it's maybe the latest demonstration that the files have a lot more to come out. Adam, you spent an hour speaking with a British reporter about the arrest. Tell us not just about the investigation of Andrew, but how this is playing across the pond and how it's comparing with what seems to be at least a hopeful effort by the administration that it all kind of died down.
- [41:08]
C
Well, they're saying at every level of the UK Government, no one is above the law. Remember that. You know, when it comes to Andrew Mountbatten Windsor, as he is now known, formerly known as Prince, I remember covering, you know, I'm in New York right now, and Southern District of New York is not too far away from me. That's where Virginia Giuffre's lawsuit began. That's where a number of lawsuits against Jeffrey Epstein and Ghislaine Maxwell began. And from all we know of this investigation, this is about misconduct in public office. There is a perception that this relates to the emails, the Epstein files, exposing that Andrew allegedly sent confidential information that he obtained from his time as envoy of international trade to Jeffrey Epstein. And for those who are following the financial angle, the information angle of the Epstein story, this is not a surprise. And there's the what's happening overseas, the international investigations. So many of them are circling around finances. Yes, they may turn to sexual abuse. Vicki Ward, who is the reporter who I was speaking to recently about this, she noted that they're looking into activity in London airports that may relate more directly to sex trafficking. But we are seeing investigations into the corruption angle in France. We are seeing other investigations in Latvia, in Lithuania. What we're not seeing a lot of investigations of in the United States, except for one in the Southern District of New York that Trump said, go look into whether any Democrats are implicated. And Mr. Jay Clayton, the U.S. attorney for the Southern District of New York, said, sir, yes, sir. So credible investigations that are actually going into using the information in the files. And we need to point out this is the same Justice Department and FBI that said in July that there was nothing to even merit an investigation. Well, the government of Poland disagrees into
- [43:19]
A
any uncharged third parties. Exactly.
- [43:22]
C
And any uncharged third parties. The government of Poland disagrees. The government of France disagrees. The government of The UK disagrees. Latvia, Lithuania. Let's go down the list.
- [43:30]
D
Yeah. I mean, that is what is so striking. Right? Two things. One, that you're seeing at least some degree of accountability in other countries, but not here. And then when you sort of look at what kinds of investigations are being brought in these other countries, so far they seem to focus on this abuse of power, which is important. I'm not saying that as a bad thing. I mean, sex trafficking, sexual abuse cases, as we've all discussed, are incredibly hard and victim survivor dependent. And so another way of approaching what really are abuses of power is through sort of public integrity, public corruption laws. We don't seem to have those here in this country anymore because they have decimated the public integrity section of doj. They've made crystal clear that unless you are a Democrat, they don't want you to be held accountable for abuses of power. I think it's really interesting, in the Wall Street Journal, a Justice Department spokesperson was quoted as saying about the arrest of Andrew, each country has its own laws and rules of evidence. Prince Andrew was arrested for misconduct in public office. Under UK law. No such federal crime existed here. I mean, that's wrong. First of all, there are laws on the book that are incredibly similar and for which we used to hold people accountable. And the one place that really stands out that this should be happening and is not goes back to the Alex Acosta plea sham that happened in 2008.
- [45:15]
C
Eight, I think.
- [45:15]
A
Yeah.
- [45:16]
D
Around there in Florida, when Epstein got that slap on the wrist for what should have been and was going to be a pretty significant federal sex trafficking case and would have stopped his conduct and Maxwell's conduct and probably others a lot sooner. But because he was given that pass, many more. There were many more victims. And we've never gotten to the bottom of the. That was not just Alex Acosta's decision on his own. He was the U.S. attorney. He did a lot of improper things to make it happen. He had meetings with defense attorneys that he shouldn't have had by himself. There were emails that were about deals that had been made, but I don't believe for a second that that was just his decision. There were other power players involved in that and they should all be held accountable, I think, criminally for that. Whether they can, I don't know. But there are investigations to be done and there are laws that could apply. And I think what we're seeing in other countries is that kind of accountability about the power structure and protection that went on for Epstein that you see in these files. Now, in a way that I had underestimated, at least I want to make
- [46:33]
C
just a quick point on the thing that you made about the two kind of different sides of the Jeffrey Epstein story, both the follow the money and the sex trafficking. And I don't think that they are necessarily separate stories. From the beginning of even Palm Beach County Police Chief Michael Writer's investigation, this was described as a pyramid scheme of sexual abuse where survivors were paid money to find other prey. And that was predicated entirely on money. And some of the other lawsuits that got much less attention in the Southern District of New York, which I also covered, were the lawsuits against major banks. One of them reached a settlement, not a bank case, but another kind of infrastructure case, a case against the state yesterday, but there were lawsuits against Deutsche Bank, JP Morgan, bank of America. And Senator Ron Wyden has a great investigation right now into the money trail. And I think that when one finds that who, who was receiving money transfers when and for what reason, France has an investigation into Jean Luc Bernell, Jeffrey Epstein's longtime accomplice, who is now dead and died in very similar circumstances to Jeffrey Epstein, the French modeling scout. But that dovetails with the financial investigation that they are now reportedly holding. So I think that these are different sides of the same coin.
- [48:02]
A
Well, all that is true and you get the general this is sort of combined political legal point, but these emerge, of course, they are parallel crimes. I kind of want to put a two part question to you for a closeout. One is you do get the sense that the White House is kind of trying to roll the dice on a muted loss of interest from the public as a whole. But the victims are really keeping up the drumbeat. That tableau of the 10 victims standing behind Pam Bondi as she tried to kind of shuffle her papers and not look was, I thought, a really vivid. But then second, we're talking about all these people. We're not talking at all about Donald Trump. Now recall his this isn't a prosecutorial standard that Mimi and I would bring a case at. But there's something weird and unresolved. He tried so hard to keep this from coming to light. He woodshed at his allies who voted on the other side. We have a sense that there's maybe a couple million more pages. And Todd Blanche is nevertheless saying, oh, we're kind of done here. So where do things stand with respect to Trump himself, who was at the center of this? And now he is not even on the sidelines. He just seems off the field.
- [49:25]
C
One of the things that I find inexcusable that it became a one day story was the Miami Heralds pointing out his 2006 conversation with Palm Beach County Police Chief Michael Ryder where he said that everyone knew what Epstein was doing. And look into Ghislaine Maxwell. She is evil. That is wildly inconsistent with, with, It's a hoax. Move on. It's a Democrat hoax. Ghislaine Maxwell, oh, I wish her well. If you're calling her evil to the police chief right after the investigation becomes public. One, if you're doing that after the investigation, you are not a whistleblower as many Trump apologists would have it. But two, how is that not viewed as wildly inconsistent with all of his actions as president in his second term and his statements after Ghislaine Maxwell's arrest.
- [50:24]
D
Yeah, and it was also so incredibly self serving. I mean it was one of those, like, it's the reason why defendants statements don't come in at court because they're unreliable. Right. Because here somebody got arrested and he called, oh yeah, you know, good thing you arrested that guy. And clearly there was a lot of consciousness of guilt going on there. Harry, I agree with you. Like he has fallen off the center for the moment. And they've been doing everything they can since the day they came into office to try and make that happen, but it hasn't gone away. And I think for now the fact that it's kind of building into this bigger story where it isn't only focused on him, is not necessarily a bad thing because it was getting too politicized where it shouldn't be. And I think people are starting to grasp the scope, the seriousness, the depth of what happened here and what, you know, it's one thing to hear people say this happened to me and I didn't know what was happening at the time and et cetera. I mean, we can understand that because we've talked to survivors before. We understand. I just, I don't think that having the sort of bigger picture here is a bad thing. And I think it will come back to Trump if it should, because they don't understand. They keep underestimating, they, the administration, the power of this story and the survivors in particular, and their ability, especially now that they're unified to keep this going and keep fighting for something that they desperately have wanted for so long and felt so deprived of. That's a really powerful tool. And there have been a couple of, I mean, I haven't been following him that closely, but I know there was a report about Trump and An allegation and that was taken down and now it's back up because there was an outcry about it and there.
- [52:22]
A
An allegation of his having raped someone, you mean?
- [52:25]
D
Yes, yes. An underage girl. And so one, it is a bigger story and two, I'm not sure that we're done with Trump being the focus, but I think people need the bigger picture and understand why people care about his role in it, I guess is a good way of putting it.
- [52:44]
C
I agree with that point. Just want to make a quick addition to what you said, just a quick sentence. The reporting you're talking about, Mimi, was by Roger Sullenberger and he was pointing out that one of the then 13 year old girls who accused Trump of assault was interviewed by the FBI. That was the reporting.
- [53:06]
D
Several times, right?
- [53:07]
B
Multiple times, yeah.
- [53:08]
C
Four.
- [53:09]
B
Four times, yeah.
- [53:10]
C
Yes, yes. According to, you know, the biographical details of the alleged victim and the what the details in the FBI interviews are. Appear to match.
- [53:22]
A
Yeah, there you have it. I agree with me and I guess everyone this story is not going away much to the chagrin of the administration. So we'll talk about it on future roundtables. For now, we're out of time on what's been a really lively and trenchant discussion. Thanks to everyone. We just have time for our much beloved by listeners anyway, if not panelists. Five words or fewer, end of the roundtable feature. And today's question is the Justice Department Baildon now bears a banner with Trump's face on it. Everyone see that kind of severe lugubrious, like what the hell, black and white picture. But the question is what's the next aesthetic change coming to Main Justice? Anybody?
- [54:16]
B
I'm ready for you. Grand Jury. No? Bill Wallpaper.
- [54:21]
A
Oh, excellent.
- [54:22]
D
That's good.
- [54:23]
A
Well done.
- [54:25]
D
I was gonna say gold. Gold, Gold, Gold and gold.
- [54:30]
A
Exactly.
- [54:31]
C
Well, mine was a riff on the same theme. The Pardon Office, Golden Bribe Depository.
- [54:37]
A
Oh, okay. And I'm kind of combining. I'm going off that same theme today only. Discount on pardons. Thank you so much, Kyle, Adam 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@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. 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 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@the contrarian.substack.com thanks for tuning in. And don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Luke Cregan and Katie Upshaw, associate producer Becca Haveian, sound Engineering by Matt McArdle, Rosie Don Griffin, David Lieberman, Hansama Hadranathan, Emma Maynard and Hallie Necker are our contributing writers and production assistants. By Akshaj Turbailu. Our music, as ever, is by the amazing Philip Glass. Talking Feds is a production of Doledo llc. I'm Harry Littman. Talk to you later. Sat.