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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 episode with colleagues drawn from the deep bench of the thriving pro democracy outlet the the Contrarian. The Trump administration's response to the fatal shooting of Renee Good is provoking outrage and ever wider protest in Minnesota. For his part, Trump has threatened to use the Insurrection act and more federal officials are surging into the state. On the legal fronts, the Feds moves to block any meaningful investigation of the shooting triggered widespread resignations at both main justice and in the Minnesota U.S. attorney's office. The Department of Justice has, however, decided to open a criminal investigation into Minnesota Governor Tim Walz and Minneapolis Mayor Jacob Fry based on the far fetched suggestion that they are conspiring to illegally obstruct from federal agents. Meanwhile, Minnesota has filed a lawsuit calling for an end to what it terms an unconstitutional federal invasion. Elsewhere, Fed Chair Jerome Powell responded to threats of a prosecution against him with a steely message calling Trump out for the blatantly bogus accusations and the President's bottomless desire to to control all aspects of government here, interest rates setting. All of this comes on a week marking Trump's Constitution busting first year in office, Martin Luther King Day, and the contrarian's own anniversary as an important player in the battle for democracy and the rule of law. To tackle the latest uproar over ICE's rampage in Minnesota and a Department of justice slavishly following Trump's personal agenda, we have another redoubtable trio of contrarian mainstays and they are Norm Eisen. Retired Ambassador Norman Eisen is the founder and executive chair of the Democracy Defenders Fund and the publisher of the Contrarian. I just have to mention that Norm is a heavy lifter he in the court battles against Trump's many, many overreaches.
- [02:46]
B
Thanks Harry. So excited to be here with you and our friends, including Katie Fang, a.
- [02:54]
A
Trial attorney, legal analyst and independent journalist. Katie's a founding contributor to the Contrarian. She previously worked as a prosecutor for the State Attorney's offices in Miami Dade and Broward counties in Florida. So she's got that invaluable perspective for the Minnesot scandals. Katie, thanks for being here. As always.
- [03:16]
C
Harry, you've got the best adjectives. I just want to put that out there. If anybody, I'm gonna have to go like Google and look them up in the dictionary.
- [03:24]
A
I don't know if that's a good thing, but thank you.
- [03:26]
C
But you use the adjective retired or Norm, and I don't think Norm retires from anything.
- [03:31]
A
So, yeah, he's the informal ambassador at large to the world.
- [03:36]
B
I'm the most unretiring retired person in America.
- [03:41]
A
Say no more. Jennifer Rubin, the editor in chief, co founder, and, let's face it, guys, lifeblood of the Contrarian. Before launching the Contrarian with Norm, just about exactly one year ago today, Jen wrote an opinion column for 14 years at the Washington Post. Thanks so much, as always, for being here.
- [04:05]
D
It's wonderful to be here.
- [04:06]
A
All right. Man, oh, man, oh, man. Is there a lot of news from Minnesota? I think it makes sense to think about the political context first and then move to some of the legal issues. Look, poll after poll shows that the killing of Renee Good and the administration's decision to basically embrace Jonathan Ross's conduct are making approval ratings for Trump and ICE plummet. So why is the administration bear hugging its own aggression in Minnesota doubling down with more boots on the ground instead of backing down?
- [04:51]
D
They don't know how to do anything differently. These people never know when to stop. They are their worst enemies. Trump thinks he's invincible, and no one has shown him wrong. Whatever he wants to hear, he is told by his minions. And I think at this point, they do nothing but double down, double down, double down. Goes back to the Roy Cohn. If you admit error or you retreat, you're cooked. And you're right, Harry, this is absolutely killing them. I had a fascinating couple of conversations this past week, one of them with Latasha Brown, and she said, you know, we've gotten so far away from our humanity that this had a way of cutting through it. It's sad that it takes the image of a young, attractive, frankly white mother to get people to see themselves in another human being. But be that as it may, because we have a empathy gap here, that's what it did. And there isn't a person who isn't completely in the Trump cult that doesn't see what happened here, doesn't feel empathy, doesn't see that something is deeply wrong. And the fact that the image got out so quickly, I think set people's minds, so that when Trump then came out, it was preposterous, and the lie he was telling was another cruelty, was another offense to our eyes and our hearts. So I think, although it shouldn't matter the identity of the victim, Latasha was telling me, we've had so many black men, black women, Hispanic, Men, Hispanic women, all sorts of folks who have been killed, maimed, deported. Sometimes it takes someone that middle America can absolutely relate to in order for them to say, oh, my God, this could be me. And I think the overreach of ICE has been building for a very long time now. And this just absolutely hit people in their gut. And I think Trump doesn't know how to back down, doesn't know when to back down. And so he'll keep going. And Democrats, I think, for once, just need to put one foot front of the other, say we want restraints on ice. We're sick of giving these people unlimited, unrestrained funding. Enough. And let the politics from there play out.
- [07:37]
A
You speak about the empathy gap. David Frum has, as always, a really excellent trenching piece in the Atlantic where he thinks he's talking about Vance's totalist partisanship. And he thinks that this is exquisitely the ICE message, to quote him. It's not about law enforcement. It's about letting protesters drive off on skate without punishing them for their disrespect. And that would let them get away with it. And that would be an intolerable affront to the MAGA vision of who must submit to whom. So he sees it as not just one among many Trump overreaches, but one that, to take Vance's view, expressly plays into the vision of not even MAGA law enforcement, but MAGA power. What do you think about that view?
- [08:33]
D
Fascism? Yeah.
- [08:35]
B
Harry, the only word I disagree with is totalist. I think you meant totalitarian.
- [08:43]
A
Katie has said I pick my adjectives carefully, but we'll say it's a friendly amendment. I'll take both.
- [08:50]
C
No, I said I thought they were fantastic. I didn't think you were judicious about it.
- [08:53]
B
I just felt, Katie will police your adjectives and I'll do the adverbs. Okay. The thing that we saw as the week unfolded and ICE became increasingly unhinged is a kind of police power violence, unrestrained police power violence that is very foreign to the American way. And it reminded me at a conversation this week with the wonderful Brian Fair, who's the chairman and the acting head of the Southern Poverty Law Center. And Brian and I were talking about it, and we agreed it reminded us of the overreach of the Jim Crow culture in the early 60s that then triggered an American swing of sympathies to the civil rights movement.
- [09:54]
A
The dogs tearing at African Americans pants and such.
- [09:58]
E
Right.
- [09:58]
B
Yeah. And when that was on Walter Cronkite every night. So there's a kind of perplexing reaction over and over again, of complete disdain for the will of the public. I'm not one who believes Trump is going to attempt to or get away with the suspension of elections. People are anxious about that. And he himself said this week, gee, maybe we don't need elections at all because I'm so successful. I don't think he's going to go there. But it does raise the question, do they not believe they're ever going to have to face the American people again with this degree of alienation? I know we've heard that the Republicans on the Hill are in absolute freefall because they seek the House slipping away and the wave could take the Senate with it.
- [10:56]
A
What about that, Katie? Such a searing, historic moment as the Floyd case, the Rodney King case, or with the profusion of news and the difficulty with getting started with prosecution, does the air leak out of the tires in a few weeks? Could this be a signal moment that people write about in history, you know, in an overall reversal of Trump's fortune?
- [11:20]
C
So the benefit of going after the brilliance of Jen and Norm and them being friends and colleagues is I get to create an amalgamation of an answer. To answer your question, I concur with Jen that I do think Republicans, and specifically maga, kind of can't help themselves. It's kind of in their DNA to functionally be dysfunctional. And yet I always like to say the one thing that we cannot underestimate about them, though, is they don't mind the short term pain for the long term gain. Meaning even though they may be dinging really badly in the polls about people's opinions and views about how this has been playing out and rolling out for them, they're like, well, look, we'll take the hits, we'll take the licks. Because this is a war, right? This is a battle, and it's not the war for them. And I do think that's part of the long term calculus. I always oscillate between saying they're just a whole bunch of dumb, shitty people. But then I gotta say, you know what, Maybe they're playing some chess that we really still have to continue to appreciate. And then the other thing that kind of dovetails off of what Norm said is it is shocking and alarming. It shocks the conscience to see that type of unchecked, unrestrained flexes of power because we are used to, when we do see that happen, we are used to the checks and balances of a civil rights division at the DOJ stepping up and saying pattern in Practice, you know, I am going to do these consent judgments, consent orders with your out of control law enforcement departments. You know, I can police myself as the federal government because I have that ability to have decency and integrity. And I understand how that still works in the big scheme of how this government runs because we don't have that checks and balances anymore. I think, Harry, that is why there is this emboldened kind of, I don't really give a shit that the people don't like this because there are people out there that do. And for maga, it's always been, let me play to that small percentage of the crowd. Their leering and cheering is drowning out the cries of sorrow and horror. And so for them, they find the pats on the back to be the redemption. And for them there is no soul redemption because they're soulless, they're ghouls. Right? And so I think that I always have to back myself off that ledge of thinking that this could be it, this is the inflection point that's going to turn the tide. I think that I always have to back myself up sadly and say, unfortunately, I do think this is a part of a bigger scheme at play here.
- [13:57]
A
There's an absolute circling of the wagons and if they're in a war, they've chosen their poster child, Jonathan Ross, who I, I gotta say is a flawed emblem. Jen, I wanted to ask because you said in passing about, you know, maybe Dems can finally put one foot in front of the other. You had a piece this week about the need for the Democrats to seize the opportunity to control ICE and the absence of, really, of an, of a unified message coming from the party? So concretely, what's the kind of prescription for how Dems should be able to take advantage of what is a strong majority that's appalled by the killing in the video?
- [14:46]
D
Well, actually, what I was going to say fits very nicely with this because Norm says, do they imagine they would never face the voters? Trump is not going to cancel the election. There's no way he can do that. But he is counting on Calais and the supreme court to grab 20 or so seats. He is counting on voter suppression, he is counting on voter interference. So he imagines he is impregnable. And that's why they do those things, because he's very unpopular and they need all those things to maintain control. No different than the white southern oligarchs in the South. If they ever let people vote, then that would be it for them. So we're back to pre1965 civil rights. And we may actually really be there if Section two goes by the wayside. So what can Democrats do? I think Democrats have to get away from the idea that if they can't see a win at the end point, then they don't try. They talk themselves into not doing so much because they see all the impediments along the way. We really can't win a criminal prosecution if the feds don't cooperate. Therefore we really shouldn't investigate and we'll back away. That misses the point here, which is not only preservation of evidence, not only the moral imperative, but the notion that these people won't be in power for forever and that another administration that will cooperate will come back to this and and then prosecute. Same thing in the political realm. They say, well, we really can't not fund DHS because if the funding runs out, then they'll all be essential services. They'll continue on. Only the good people will go out the door. We won't be able to get anything. So therefore, maybe we just shouldn't try again. Misses the point. Each one of these is an opportunity to hack away at Trump's support, to make the issue front and center. That's what they did with health care, and it was hugely successful. They didn't, quote, win because we have not gotten the extension of the ACA subsidies, and we probably won't because the Republicans are nowhere. But they made this a seminal issue. They rallied the country, they improved their position in special elections and in November, and they will keep at it. And that's the same thing they have to do on ice. They are overwhelmingly popular, so they need to get behind a set of very reasonable, very simply understood initiatives. Chris Murphy has some, Ro Khanna has some Maxwell Frost. And they're just basic things like, no, you can't point a gun at someone who isn't a threat. No, you can't use physical force to disrupt First Amendment protected activities if there's no threat. No, you can't use force on people without a reasonable belief that you or others are in jeopardy. So very common sense. Things that until now no one would have thought would be necessary to repeat, because no law enforcement operation behaves this way. And then the counterpart to that is in the state, they start passing legislation and let it play out in the court. Some of it may not survive, but a lot of it will. Pass laws that say you can't be masked in public, pass laws that say there's a state cause of action against federal officials. Pass laws that say that the legislature and the executive are empowered to and will preserve evidence in these sorts of cases. In other words, put up a set of deterrents to ram home the sense that we are on the side of normalcy, of decency, of justice. We will be there to take names and hold people accountable. Maybe some of this will actually, quote, work. But all of the incentives for bad action on ice right now is coming from the other side. They think they're acting with impunity. They think they have been told they have absolute immunity. It's crap. But these people never think it's going to catch up. They have to understand that there is a downside and they will at one point be held accountable either in courts or by legislatures or by some other faction. And so the point is the fight. That's the point. The point is to capture the nation's attention. It is to hold the floor. It is to make this an issue right up there with health care. And I think Democrats can do it.
- [19:53]
A
That's a lot of head nodding there is that. Thus sayeth we all, it seems like, and you know, it's a concrete program, not simply, oh, this is worrisome or whatever has been the more tepid responses. Also, there's, I think, an opportunity for governors and Norman's made this point before, to band together in a political way. Hey everyone, Harry here. As you may know, I'm extremely picky about advertisers and sponsors and do very few ads. But I'm making an exception because I've been really impressed by Quint's clothing. I am not what anyone would call a clothes horse, but I do really care about comfort and their clothes are super comfortable. I took the Traveler 5 pocket pants with me on a recent trip and I basically wore them every day. They were totally comfortable and my family said they looked good as well. Refresh your winter wardrobe with quince. Go to quince.com talkingfeds for free shipping on your order and 365 day returns. Now available in Canada too. That's Q-U-I-N-C-E.com talkingfeds free shipping and 365 day returns. Quince.com talkingfeds. Let's leave it there, I guess and move to the law because they are so intertwined. So, Katie, I want to start with you. For me as an ex dojer, these resignations first from the top people at the, you know, it's the same as public integrity, an absolute sort of delta force who works these cases. These Cases. Precisely. Hearing that the head of the Civil Rights Division told him, this isn't your night, wasn't surprising that they would resign, but it was deafening. And then for the next day, six people in Minnesota to follow suit and reveal that basically they were getting pressure to, you know, do a harsh investigation here of the widow of Renee Goode really was just too much for them and they'd endured the whole year. What's going on there? What about the resignations? You know, give us your sort of sense from the reporting about this aspect of it.
- [22:38]
C
I mean, I laud the integrity of people that will not allow themselves to be used as weapons to further the destruction of the norms and institutions that we have. I appreciate whatever public sentiment it creates that supports our democracy, but it's not meaning that the Bureau of Criminal Apprehension in Minnesota has now been. The doors have been swung open for them to come in and participate in the investigation. It still remains an FBI led investigation. Simultaneously, there's a parallel investigation by the Office of Professional Responsibility within ice, which I think is kind of laughable in and of itself that they would even have an OPR within ICE because they don't even train their ICE officers at this point. And I think it is understandable, Harry, why there would be such a lack of public faith and confidence in our law enforcement as well as in the ability for the prosecutors to be able to do their jobs. Well, if you see such an exodus of competency and experience. We've talked about this here and in other places, right. Centuries of experience is gone from the federal government when it comes to our federal agencies and specifically at the Department of Justice. And for those of us that have either worked there or worked adjacent to it is a stunning fall from grace for an office that was always supposed to be such an independent, stalwart defender of the rule of law. So of all of the things that have been suffering in the degradation of this regime, I think the Department of Justice is the biggest example of how badly our reconstruction is going to have to be. But in the wake of what happened to Renee Nicole Goode last week, you know, people just want answers. That's a big part about what is happening on the streets right now. And you know, Norm and I have a great colleague, Tom Jocelyn over at Democracy Defenders Fund, who's also a senior fellow at Just Security. And Tom and I and others have been exploring this idea of using the NSPM 7, the National Security Presidential Memorandum 7, to also justify prosecuting people that are out in the street that are doing things like honking their damn horn and blowing whistles, which sounds ridiculous, but they are expanding the definition of obstruction to include people that are being thoughtful, conscientious objectors to what they see happening in their backyards. And it is a terrifying abuse of power. And when you have abuses of power, as you mentioned a little bit ago, you always turn your eyes to the Department of Justice to fix it. And now there's no one to turn your eyes to, Harry. So I don't. That's one of the darkest things that's come out of the murder last week is this idea that we all use the word accountability loosely and quickly and often. Jen spoke of accountability. Jen, I don't know if people have the patience to wait for us to take the levers of power back to be able to have accountability. I think people's version of accountability has been, I'm going to take the street to show you what I am angry about. But I think if you really put your foot on the neck of people in a way that makes them feel so oppressed, my greatest fear is you do lay the table for. You're setting the table for Trump to come in and do insurrection act stuff. That's what my, my biggest fear is. You are asking people to have patience and to have the ability to, to control themselves when they really are facing some of their darkest moments.
- [26:10]
A
You know, what about that? Can we move to that norm? I think you have thoughts here, but remember the Unsuccessful briefs under 10 USC 12406? They had a kind of contrivance of taking a few anecdotes and trying to milk them as situations in which law enforcement was under siege. The protests are increasing in Minneapolis. It's not, you know, we've seen people just get tackled and arrested for absolutely constitutional activity. There's talk now of going door to door and trying to make people show papers. That's the kind of thing that Americans do not like and will revolt against. Do you worry of a tangible prospect of literally setting the stage for them to make a tenable claim of insurrection, which there's no straight definition, but a resistance against governmental authority that obstructs the execution of law that gets pretty loosey goosey. And you can imagine the A circuit, in particular the court that sits above Minnesota District Court green lighting it?
- [27:19]
B
I think it's been very interesting, Harry, that the Supreme Court has repeatedly cut off Donald Trump's overreach under this cluster of statutes under the Alien Enemies Act. Similarly, you can exercise power if there's an invasion. He swear being invaded by trend. While I'm looking out the window, I don't see any tanks being driven down. I'm on Pennsylvania Avenue today, down Pennsylvania Avenue by Trinity Aragua members. And the Supreme Court sent that back to the Fifth Circuit, which even more conservative than the Eighth Circuit, Harry. They shut it down. Then you had the 7th Circuit, no great bastion of liberalism. Their case went up Trump v. Illinois, Trump v. Illinois on the meaning of regular forces. And there the Supreme Court said, not so fast, Donald Trump and really handcuffed Donald Trump on the narrowness of deploying the military. Now we have a third basis, third statutory basis that's being threatened by Trump's former defense lawyer, the thuggish Todd Blanche. And Trump himself. Well, Harry, he occupies the, the DAGS office. You used to walk that hallway in your DOJ days, I remember.
- [28:49]
A
Well, what a rogue he is. Including now coming out. I mean, you know, insulting good champion.
- [28:57]
B
It's a study in, you know, profiles encourage profiles in dictatorship. Some people swing in profiles in ambition.
- [29:05]
A
Perhaps.
- [29:05]
B
Todd Blanche used to be perfectly normal. AUSA in the Southern District of New York. So now you have the. And Trump himself saying insurrection Act. So we'll see if they dare to try that a third time. The problem is that statute, both its words and its legislative history make clear it's intended for insurrection. It's not intended to deal with the situation where, where ICE is rampantly violating the law. You have mostly peaceful protests and ICE provokes the occasional overreactions, which we must maintain peace and the good principles of peaceful protest. You are going to get overreactions by some. They're wrong. There's no excuse for violence, no matter how heinous they are.
- [29:59]
A
Impressively sticking to it. However, it's a, It's a disciplined crew in Minnesota, it seems to me.
- [30:05]
B
Yes, and that's, that's the point. These stray acts where somebody, you know, somebody breaks that discipline which shouldn't be done, which is wrong, that's not an insurrection. There's no inability to handle that with existing law enforcement. So I think the part of the reason Trump hasn't done it yet is he's going to lose another power in the courts. So my view is, you know, no insurrection here, but not that he won't assert it.
- [30:37]
A
And to add to it, 10 USC 124 06.
- [30:40]
E
Huh?
- [30:40]
A
What's that? Insurrection Act. Our president has now said there's an insurrection in the good state of Minnesota. I think that's vivid. Overall overreach. And there's a reason why they've stayed their hand but when you get down to the brass tacks of the words and the kind of claim they can make, I'm nervous about it. I'll just put it that way.
- [31:01]
D
Just a few quick points. One, I think both Katie and Norm talked about the self discipline that it takes. And Katie talked about when you put your foot on people's neck. We are going into Martin Luther King Day. You can now appreciate the Herculean self discipline of that movement and how those people were abused, beaten, killed, disrespected. You think of those scenes at the lunch counter. Food and other things were dumped upon them. In retrospect, it is almost superhuman what they were willing to endure that King was able to instill within the nonviolent directive that he knew was essential to winning over the American people. The other couple quick points is first, you have to tie this to individual lawmakers. You need to go to Maine and plant yourself outside Susan Collins office and say she is allowing Trump to kill people like Renee Goode. And you make it personal. You tie it to each one of these people who is vulnerable so they feel the heat. Maybe they cave, maybe they don't. But you are laying the predicate for the midterms, which is the whole ball of wax. So the ability to tie what Trump is doing and make those people responsible. Susan Collins is responsible for this in the same way that every single senator, every single House member. And the last thing I would say is Norm raised a great point about the Insurrection act, by the way. It's a horrendous statute as you now read it from our perspective. You understand when Shays Rebellion was going on, it made a whole lot of sense. The language is horrific. And whenever Democrats get in power, they need to amend it. Seriously. But one point that Steve Vladek, the great Steve Vladek made when I was interviewing him today, Harry is bending down and genuflecting to his side.
- [33:13]
A
We are not worthy.
- [33:14]
D
Where would we be without him? Is that within the language of the statute? It says it is in the President's determination that language doesn't come along every day. And that's if certainly judges want to find the hook that distinguishes it from some of the other statutory battles that they've had. And it's just one reason why this is so horrific. I almost ingest as Steve and I still think it's not a bad idea that if that's actually what it says, it's unconstitutional. Congress couldn't have delegated all that power because that's beyond the scope of what the framers ever thought the president would be able to do. And their 10th amendment, there are other amendments that really make that statute unconstitutional. So how about that for an argument that the Insurrection act is unconstitutional?
- [34:14]
B
And not to geek out, but do you know who agrees with Gin? Historically, the United States Department of Justice Office of Legal Counsel, because for constitutional and other reasons, they read the Insurrection act as limited to three narrow circumstances. One, if the state requests assistance to put down an insurrection, that's not happening here. Two, when necessary to enforce a federal court order, the federal court orders are all going to run against the government not in its favor. And three, when state and local law enforcement have completely broken down, that's not happening here. State and local law enforcement are handling the situation. So none of the predicates, as the Insurrection act is read apply here. And I think that is going to be tough sailing, of course, the plain language of the statute notwithstanding.
- [35:12]
D
But that would be the great Katzenbach memo, which tells you how far we've come in the Justice Department. Norm's referring to that great memo in 1964, which. That's how the Justice Department used to behave. Putting guardrails against a rogue president, making sure that the Constitution was respected. Oh, how far we have come.
- [35:34]
A
How far we have come. And I just was thinking this a little when Katie made the point. For me, it's like hearing about those resignations where, oh my gosh, how, you know, everyone. The scales will fall from their eyes. And yet they have so crudely corrupted the Department of Justice. I fear it sort of plays as inside baseball. All right, I want to geek out for just one more second because something happened this week that I think is the first foray into what could be a very fertile area. Minnesota sues in response to this expansion of ICE authority, sues under. And maybe it was Jen who just mentioned a 10th Amendment theory saying, you know, you're coming in here and when you come to the state courts to pick up people and everything you're doing is forcing us to kind of participate in this overbearing initiative that is commandeering, which the Supreme Court has been very strict about, you can't push the state around even a little bit. So we're going to have this sort of rhetorical argument and this coming up. I think in many different states where the feds will say, you're impeding federal law enforcement, the states will say, no, you're trying to make us help and commandeer. So I just wanted to, you know, so for listeners to at least be familiar with that principle and ask what you Thought about the Minnesota lawsuit in particular.
- [37:08]
C
Well, look, you know, Harry, we have seen you. You want to give credit where Credit is due. 10th amendment issues were raised by California and Oregon when they were fighting back against the federalization of the National Guard and the deployment of the military in the occupation of their cities. This idea that state sovereignty should reign supreme when it comes to things like policing powers, if there was anything that was left to the states exquisitely and exclusively, it's the ability to police your own residents. There's nobody better to understand the dynamics of your community than your local and state police. And so the 10th amendment issue has been really busy, I think, in a lot of this litigation. Illinois also raising a 10th amendment challenge in its lawsuit that it also filed on the same day as the Minnesota lawsuit. I think what's interesting is whether the Supreme Court of the United States, which we know inevitably is going to touch this one way or another, is true to the sentiment it keeps on peddling, which is, we're just gonna kick it to the states. Everything as of late has been a let me kick it to the states so that the states, aside from abortion to other critical issues that deal with people, and if they're honoring, you know, the theme, then they should allow the states to remain sovereignty and to be able to take care of their business the way that the state deems fit. I think this is an issue that has gone widely kind of underreported and under analyzed, and it's the level of state and local law enforcement's involvement in what's happening in Minneapolis St. Paul. And I like to highlight when we hear very public voiced support by police chiefs and others that are saying, we don't need you here. We don't want you here, which I think factually helps us in the fight against the Insurrection act. Because, you know, the bench trial that we have with Judge Breyer in California and the evidentiary hearing and analysis we got from the great judge in Portland all hinged on judicial fact finding that relied upon, in that moment, the state of no chaos and the fact that state and local law enforcement were more than competent and willing and able to manage any measure of unrest that was taking place in their streets. And so I do think that we should kind of, in the court of public opinion, continue to uplift and amplify when we hear these police chiefs and the people that are in these positions to know better than Supreme Court justices and federal judges that they're doing this and they're doing it really well and that they have it under Control. And that, in fact, the reason why it looks like a shit show is because of the federal agents. Because the federal agents are morons and incompetent and they're intentionally provoking and instigating. And once they're gone, oh, my God, look, we're totally fine. I mean, you know, if there was any way to really track the facts to support a 10th Amendment claim, that's 100% where we should park the facts.
- [40:05]
A
Man, is that perfectly put, both thematically and and legally. It's not only been under reported, it's been under litigated until now, but I think it's going to be a growth area. And the Supreme Court's been ultra punctilious here. Right? You can't make them do background checks even if that takes 30 seconds. You can't, you know, force them to move a hair on their heads. And if they're that meticulous on the principle here, there's so many ways in which, unavoidably, the federal investigation invasion forces state authorities to play ball.
- [40:40]
B
The one thing about these legal theories is it does require some patience. That's why the discipline of almost everybody in Minnesota has been so impressive. We do have to look to America's lifelong battle against our dual state system against Jim Crow. There's still so much Jim Crow in American democracy. We'll celebrate 250 years this year, but also 250 years of trying to perfect the American idea. You know, it takes time. And in a way, there have been so many legal successes that we've enjoyed over 200 in the democracy movement this past year, stopping Trump, that people can be impatient. Why don't we have an injunction yet? Why don't we have a TRO yet? So the courts are working on these matters. And I think Katie's analysis is right. And if you look at the ultimate disposition, one of the most wonderful moments for me of this year was my clients in the city of Los Angeles, where ICE invaded and the National Guard, and we litigated both, and both litigations are still going. They showed me the footage of the National Guard leaving Los Angeles in the dark of night after the supreme court, literally at 3am they slunk out of town. That was a long running battle, ultimately successful, and the battle continues. And Katie brilliantly pointed out the 10th Amendment dimensions.
- [42:26]
A
All right, And I'll just say on these points of strategy and timing, Norm Eisen says. Norm Eisen knows, because you're involved in virtually everything. 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 brand particular issue in the world of wine, spirit and beverages.
- [43:00]
E
Thank you, Harry. In today's spirited debate, we unpeel the truth about Pinot Noirs to see where the grapes shine best. Willamette Valley in Oregon or Burgundy, France. Here in the US we classify our new world wines by the grape. Old World wines like those in Europe are classified by the region. In France, Burgundy is not only the region where Pinot Noir wines are from, but it's also the Pinot's ancestral home. No pressure, Oregon to level set. Pinot Noir is a thin skinned grape which makes it difficult to grow, especially in warmer climates. Burgundy happens to have a cooler climate with ample cloud cover, making it the perfect home for Pinots. The cooler temperature allow the wines to ripen longer, giving the grapes extra time to develop more complex flavors like strawberry and dark berries to black tea and earthy minerality. Burgundy produces Pinot Noirs that are full of aromas and nuances. If we hop across the pond, we have Pinots from Willamette Valley in Oregon with similar cloud cover, climate and soil composition as Burgundy, Oregon produces smooth and fruity wines that are slightly earthy and most definitely tasty, giving the region a Burgundy, a run for its money. You can find all of these at Total Wine and More, where we have a huge selection of Pinot Noirs from Oregon to Burgundy, plus wines from every region in between. All that's left now is to reach up to our shelves and pluck one out for yourself.
- [44:24]
A
Thanks to our friends at Total Wine and more for today's a spirited debate. Man, oh man. Minnesota is going to continue, but I want to spend a few minutes talking about the latest government official in Trump's crosshairs, Federal Reserve Chair Jerome Powell. It's almost. You have to scratch your head to even try to say it, but some kind of false statements to Congress involving testimony over. Oh, this just in. An overrun of costs on a federal building, the Fed's headquarters. Yeah, I know, Norm. You argued pretty convincingly. This is even weaker than the other reprisal prosecutions. I'll just add it also has this dimension from the Supreme Court, which has, in ransacking the independence of agencies, by and large, has cleaved off the Fed because everybody knows the disaster that would ensue if Trump could eviscerate Fed independence. Powell came out with a really strong kind of gutsy statement, something we, you know, haven't seen from a lot of businesses, universities, you know what's going on here. And has he, has Trump taken on a third rail that he's just going to have to back away from?
- [45:53]
B
Well, I'll confine myself to the Powell case because another one of the cases where I'm part of the litigation team is Dr. Cook's case and that will be its go to. So I'm not going to comment on that, but I will comment on the Powell case that this is the flimsiest yet. And you see this kind of downdraft of desperation where the allegations as bad as they were against Jim Comey and Tish James that were thrown out of court. And then in the James case, grand juries refused to re indict. As, as laughable as those were, the Powell allegation is even worse. Who among us has not had a cost overrun with a contractor? And then you drag in his congressional testimony to suggest there wasn't even a referral from Congress or even from the committee. You had Looney Luna, Congresswoman Luna sent a letter about Powell. I mean, this is too much. And what you saw, it was like a jump the shark moment because what you saw was even the normally both sidesy mainstream media were using headlines like nonsense allegations universally dismissed against Chairman Powell. Every living Fed chair of both parties came out against it. All of the bankers, the central bankers all over the world came out against it, including those from conservative regimes. I mean, the thing is so idiotic. He's a dictator dunce. He is like in the remedial classroom of dictators. And that's what we saw with Powell.
- [47:54]
D
It's not like he took $50,000 in a kava bag, right?
- [47:59]
A
That guy was back last week. Honestly, where is the $50,000 anyway? Please, go ahead.
- [48:06]
B
It's a kava.
- [48:08]
D
Oh, God. Folks, this is what I put up with seven days a week. All right, so what was interesting is how, how long have all four of us been arguing the business community has to wake up? The rule of law is what allows them to prosper. They can't afford mass chaos in the street and deportation. Well, Trump figured out a way to actually wake them up. There were a surprising number of Republicans who squeaked up. You had Jamie Dimon, who can't find his spying to save his life, who spoke out. Now, was it as robust as we would like? No. Was it as widespread? No. But at least it got them to come out of their coma and recognize, oh, maybe we shouldn't be allowing Trump to do everything he damn Pleases, because this could hurt us. And I think it was one of those aha moments. What was so fascinating is not only did former Fed governors spoke up, but people on the board now were speaking up. So I think it was one of those moments where again, Trump is his own worst enemy and you just let him go. But I would caution on one thing. We're talking a lot about celebrating the 250th anniversary of our democracy. I take issue with that. We were not a democracy until the Voting Rights act passed. You can't have a democracy when 30, 40% of the people are disabled from voting in some of these southern states. And that's what we're going to go back to if the Supreme Court allows us. So this notion that democracy has been in place for 250 years is frankly bullshit.
- [50:08]
C
We've had a no monarchy for 250 years. Even though convicted felon Donald Trump wants to be king. Convicted felon Donald Trump.
- [50:16]
D
Exactly. Exactly.
- [50:19]
A
All right. All that is true. And I was also really struck as a sign of the crazy times we're in. You know, Jerome Powell, the chair of the Fed, you would just think definitely what you do with that kind of criticism is nothing buttoned down and quiet. And man, he came out of the box with a really strong pushback. Said flat out this is only because Trump wants to control interest rates. It's totally true. It's in front of everyone's face. But for the head of the Fed to say it shows, you know, the gloves are off and we are in strange, strange, troubled times.
- [51:01]
C
Harry, just one thing. He, as in Jerome Powell, he used the word pretext. And I was so grateful he used that word because that is the word that has been invoked in all of these cases. Pretext is the name of the game for this administration when it comes to these bullshit investigations and prosecutions. So I was thinking, thrilled, that Powell knew the impact, I think, in the court of public opinion to use that word pretext.
- [51:30]
A
So true. And courts have tiptoed to it at first. And then you have Judge Young in Boston basically calling Cabinet secretaries conspiring to violate the Constitution. Man, oh man, the people are on to this game. And I think pretext is the name of the of it. So much more to come. But we just have a minute left for the much beloved, at least by listeners, if not participants. Five words or fewer. Final feature. And today's question is more and more performing art groups are skipping the Kennedy center or pulling out of partnerships with it now that Trump has forced it to rebrand with his name. What new acts are we going to see at the center as the the Opera and Dance Company and others? Ditch it. Five words or fewer, please.
- [52:24]
B
WWE and Barnuman Bailey mix martial arts and monster trucks.
- [52:35]
A
We'll go with that. Six.
- [52:37]
C
Yeah, here's mine. Axe worse than Kid Roth.
- [52:44]
A
And I am going with Ice Capades. Guns on Ice. All right, thank you so much Jen, Norm and Katie. Hope to see you soon. And our next Contrarian episode, everyone, is going to be taped live in Princeton, New Jersey in a few weeks. You won't want to miss that one. Talk to you later. Thank you so much, Norm, Katie and Jen. And thank you very much listeners for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. Check us out on substack@harrylitman.substack.com where I'll be posting two or three bulletins a week breaking down the various threats to constitutional nature, 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 revolution, 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 Luke Cregan and Katie Upshaw, associate producer Becca Haveian, sound engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hansamhadrenathan, Emma Maynard and Hallie Necker are our contributing writers and production assistants by Akshaj Turbailu. Our music, as ever, is by the the Amazing Philip Glass. Talking Feds is a production of D llc. I'm Harry Littman. Talk to you later.