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Ali Vitale
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Harry Litman
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Ali Vitale
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Josh Marshall
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Ali Vitale
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- [01:07]
Harry Litman
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. Trump stunned Washington this week by threatening to yank Todd Blanche's nomination as Attorney General rather than give in to the demands of rebellious Republicans to kill off the slush fund. And after we taped, Trump abandoned all pretense of accepting the fund's elimination and threatened to put Blanche's nomination on ice while trying to force the settlement through via legislation and filing an appeal from the decision that invalidated the settlement agreement as a collusive fraud. Fraud. There were more pyrotechnics in the Senate as Republicans grilled Anthony Fauci, the man who oversaw much of Trump and Biden's Covid responses. Faced with a barrage of hostile questions and a nasty Department of Justice ready to act on any referral from Senator Rand Paul, however bogus Fauci pleaded. The fifth and perhaps the most humiliating debacle for the administration so far, arose when Jeanine Perot was forced to drop the case against David Hearn, the former Olympian accused of damaging the Reflecting Pool, and to disavow all of her prior incendiary statements about Hearn to discuss a week of strange moves and unforced errors from the Trump administration. I'm pleased to welcome three expert chroniclers of the legal and political abuses of the Trump age. And they are Glenn kirshner. Glenn spent 30 years as a federal prosecutor, rising to head of the homicide section in the D.C. office before the department. He served six years in the army as a judge Advocate general. And he's now a prolific legal commentator with a great YouTube and substack both in his name. Glenn Kirshner, thank you for your service and thanks for coming back to Talking Feds.
- [03:30]
Glenn Kirshner
Great to be with you all.
- [03:32]
Harry Litman
Josh Marshall, the editor in chief of Talking Points Memo, my go to blog from way back. Josh now writes daily columns and hosts the TPM podcast where he provides insights into the big political stories of the day and which is, as I say, a must stop for me every day. Josh, always a pleasure and honor to welcome you.
- [03:52]
Josh Marshall
Thanks for having me.
- [03:54]
Harry Litman
And Ali Vitale, the host of MF Now's Way Too early and a senior congressional correspondent. She is also, among many other attributes, the author of why America Hasn't Put a Woman in the White House Yet. All right, quite a week for Todd Blanche and maybe John Cornyn and Thom Tillis. It was going to be a vote in the Judiciary Committee yesterday. We tape on Friday, but it's still going back and forth. Trump is talking about pulling the nomination and keeping Blanche as acting until Till and Cornyn are gone next year. Is that brinksmanship negotiation or is it a genuine pushback from Trump and his surrounders?
- [04:48]
Ali Vitale
I think it's the first real actual read of the Hill that he's gotten right. Like, I don't think that he has another option yet. And I put an asterisk here because we on the Hill talk about this group of lawmakers that aren't coming back to Washington either by choice or by Trump force as this YOLO caucus. You only live once. But I don't know that that L stands for live. I think it stands for leverage. And that's because at every other turn these Republicans have tried to talk the talk. And then when it comes time to vote or actually buck the administration and their party, they fold. They fall in line, but they've leveraged for something, whatever it's been in the past. In this instance, when I talked to John Cornyn on Thursday outside of his office, he truly looked me in the face and said, I am prepared to vote no. And I've covered him for years now. I was down with him in Texas during his runoff. I actually believed him and I still do. So if he votes no, I mean, it would be the first tangible time that we've actually seen one of them stand up and do it. But the way in which he's saying, like, look, I'm just standing up for conservative principles of the doj, shouldn't treat other people differently just because they are, in this instance, the President of the United States, I think we should reign that in. And, of course, that's an unpopular thing to say because it's not what the president wants. But Cornyn also said something that I had never heard these Republican senators say before, and he told me the president could fix this in a second. And they do this thing where they like to say, well, he's getting bad advice from some staffer or some this or some that. The staffer is the President of the United States. He is his own staffer giving himself the advice. And so, I don't know. I usually am of the mind that these guys don't do the thing. They just talk about doing the thing, bucking the president. Maybe this one I'm wrong, but they've certainly gummed up the process more than I would have given them credit for two weeks ago.
- [06:41]
Harry Litman
And there's not much that they're really asking for Trump to do. Josh, you're nodding. Yes. And Cornyn, by the way, has said if he thinks it's just me and Tillis who are objecting here to the whole phony baloney settlement agreement, he's got it wrong. But why do you concur, Josh?
- [07:00]
Josh Marshall
I just think that's the case. What does John Cornyn have to lose? I mean, his political career is over. So, you know, those are the chits that Donald Trump plays in. So unless he wants to do another January 6th and have people, you know, storm the Senate, I think, you know, that is the currency. And John Cornyn doesn't have anything to lose. And Tillis, pretty much the same thing. Although Tillis, you know, this is new for John Cornyn. Thom Tillis has been kind of in this lane for a while. So that's basically what I think. I mean, my sense is, and maybe curious what Ali says about this, is that there are times when the Senate has, in effect, said no to Donald Trump, but not at this point in the process. It's behind closed doors earlier on when people can kind of signal like, that's not gonna happen. We're not gonna do that. And, you know, sometimes things get redirected, but when they get to this point, it's always what Donald Trump says. And that's what makes this, you know, a bit new under the sun. What adds a level of unreality to this is on the One hand, like, okay, the nomination goes down and he's back to being acting. I mean, it shows you the sort of the fun house we're operating in. Right. It kind of doesn't matter. And that sort of gives the lie to the fact that this entire process is a bit of Kabuki, because he's gonna keep running the Department of Justice either way. And on the other hand, you have him saying, okay, I'm gonna. I'll wait you out. We'll do this again when you're gone. Now, it's certainly not like we can have much confidence the Democrats are gonna run the chamber in January, but they could. It's possible, and it's very hard to believe that he's gonna have a friendlier Senate. So it's not much of a. It's not much of a threat. Yes, he is being bucked. Right. They are, at least for the moment, saying no. And yet on kind of in both directions, the threats are meaningless because the big loss for Trump is just that, you know, they're not gonna come and take that little lowercase, italicized acting off the nameplate. Right, okay. Like, okay, great. So there's just, again, the climate of unreality and weirdness that just is the climate in every room that Donald Trump is president.
- [09:24]
Harry Litman
Glenn, let me ask you about the figure of Todd Blanche here and Josh's notion of some kind of Kabuki theater. He very truculently, in front of the Senate said, I don't have to put it in writing. It's dead. My word is bond, et cetera. It kind of looks like that was phony. Right? Because it does seem like when push comes to shove, a, he's not the decision maker. Right. We keep hearing from Tillis and Cornyn. He wants to negotiate in good faith. But also B, it's been very much a kind of real distinction that Trump or somebody is insisting on. Don't put this sucker in writing, Harry.
- [10:08]
Glenn Kirshner
This reminds me of mob rules, right? Don't put anything in writing. Don't talk on a phone that might be tapped. You know, okay, so the proposition that lawyers will orally either enter into settlement agreements or orally cancel settlement agreements that were entered into and fully executed. There are only two groups of people who don't believe that nonsense, lawyers and non lawyers. Those are the only people, I think, who would quibble with that proposition. So all of this is, I think, Todd Blanche trying to retain some ability at some point to say, you know, I'm taking it all back. I was just kidding and as you know, even though I said those things, we never did execute a rescission agreement in writing. Therefore, we're going to go ahead and move forward. So, you know, but listen, I am enjoying Todd Blanche's failure to launch in the position of permanent attorney general. And the only point that I would have otherwise made, but it was already more eloquently made than I could have made it is I fully support Donald Trump's decision to withdraw or shelve the Blanche nomination until after the midterms because that might be a miscalculation. We don't know what the composition of Congress will be. But I fully support him in that.
- [11:36]
Harry Litman
Ali, let me add, you've got your ear to the Hill. The best. My sense of this is you don't have other Republicans grumbling about Tillis and Cornyn. Maybe the opposite. If this goes through, it's a very unpopular settlement agreement that has now caught the popular imagination, you could say, and they'll have to run against it in the coming midterms. But I wonder if you have a sense that actually the Republican caucus is kind of behind Cornyn and Tillis and want them to succeed in, you know, eliminating the agreement.
- [12:16]
Ali Vitale
Here's the thing is, and Cornyn said this on Twitter after the president first said, okay fine, I'll just make him acting again and I'll wait until you guys aren't in Congress anymore. John Cornyn said if he thinks that we are the only ones with problems about this, he's wrong. And I can name two people who are being, I mean, like vocal ish, but the process isn't with them yet. Right. Cuz we're focused on the Judiciary Committee and that's Tillis and Cornyn. And then you go to the full Senate, if you get to the full Senate. And that's when people like Bill Cassidy and Lisa Murkowski are the people that people like me chase down the hallway. But they are already saying that they are on the fence and that they have the same questions that Tillis and Cornyn are asking about this fund that they are fielding right now. And so the idea, and I said this when I was covering the hearings from, from the beginning, the first day that Blanche was up there for Ms. Now I said to get this job, he is gonna have to make agreements with senators that will put him crosswise with the person who he needs to have the confidence of to serve in this job and to continue serving in otherwise he's Jeff Sessions. And you don't wanna be Jeff Sessions if You wanna be a successful attorney general in the Trump era, but you gotta get confirmed.
- [13:31]
Harry Litman
Great point.
- [13:32]
Ali Vitale
And so I think the problem for him is he can go and say it's mute. It's moot. It's moot. It's dead, I promise. But he's always gonna sound like he's doing the Princess Bride and that it's somewhat alive because it's only mostly dead. And it's because Trump at his Cabinet meeting today says, well, it's dead, but I wish it wasn't. There's a lot of people who I think could benefit. And in doing that, Trump knows he's keeping it alive. And that's why I joke that it's John Miller or John Barron or whatever fake name Trump used to use, because it's always him. It is. He is the ultimate arbiter. We always talk about the audience of one. No one cares about the IRS settlement unless your last name is Trump. And so, of course, this is something that is central to him. And it's why Todd Blanche is in a vice. And if it's not this vice, it'll be another vice. Whether he's acting or permanent, this is always the conflict of interest and why you don't have former personal attorneys in the Trump era, like having a glide path to nomination. But ultimately, I think the bigger concern here is once we get into the realm of him just making everyone acting because they can't be Senate confirmable. And this is not just Trump who has done this. Right. Julie sue, the Labor Secretary under Biden, couldn't get Senate confirmed and he kept her there until the end of the term. Right. But we are in such a different window of people with lacking experience. Bill Pulte as Director of National Intelligence with no national intelligence or national security experience. I mean, we are so jumped. The shark skipped the plot. I mean, this. But once Trump does it with this, who knows who ends up in the Cabinet when people start leaving. And I think that's the bigger concern that's starting to percolate on the Hill and in, you know, to the extent that there are traditional conservative circles, those
- [15:16]
Harry Litman
circles, Quick lawyer's point, is that you're totally right as to Blanche and Julie Hsu, but the reason Blanche can get by here is because he was confirmed already as Deputy Attorney General. I'm just back to Blanche. We had seen him as this figure of real standing in the administration, supposedly behind the scenes. He walks Trump back from the very worst things. Haven't. Can't imagine what those ought to be. Do you Expect really that he is at least in a deep freeze or that it'll be pulled out next week. Just thoughts about how real the kind of fine, I'll take my blanche and go home is.
- [15:59]
Josh Marshall
I don't know why it wouldn't be real. What does he have to lose? I mean, he clearly wants this super bad. And considering that he has to give up essentially nothing to at least in his mind, hold onto it, why wouldn't he do that? I mean there's a lot of, there's been a lot of reporting going back to the first administration that he likes people being acting, it makes them more dependent on him. So why wouldn't he do it?
- [16:26]
Glenn Kirshner
And Harry, can I add an obvious addendum to that? You know, if somebody came to me and said, I really, really need immunity from bank robbery, I really need it, I really need it, I really need it, I, I would start to think, dude probably had robbed some banks. So we know why Trump wants this, but not only for himself, for his family members, for his businesses. I don't have to tell you all, we're living in the legal upside down with a Department of justice that is little more than a gun in Donald Trump's hand and he's just pointing it and firing it, sometimes indiscriminately, but most directly it is perceived enemies. And you know, my, my heart breaks every day for my former professional home. And Harry, you would probably say the same. My beloved Department of Justice, which is unrecognizable for sure.
- [17:17]
Harry Litman
The bottom line in some ways is, man, oh man, this weird thing out of nowhere Trump really cares about. Okay, how's this on heartbreak and not even DOJ, we saw Republicans grill Dr. Anthony Fauci, who had headed much of the pandemic response on Capitol Hill this week. What's going on? Why do Rand Paul and other Senate Republicans think that he is worth pursuing and still want his scalp?
- [17:49]
Ali Vitale
This is the culmination or the latest chapter of a years long feud specifically between Rand Paul and Anthony Fauci. But certainly other Republican senators joined in and the backdrop to it is that they wanted to get him in front of that committee answering questions that they could then go back and compare and say, well, it's perjury here, or you lied to Congress here, or you tweaked your words here, or your guidance was different. And that's where all of you come in. Because the legal strategy was very much on display. What it became was first of all a time warp that I questioned who it really was meant to Serve.
- [18:24]
Harry Litman
Yeah.
- [18:24]
Ali Vitale
I don't know what the constituency of this was, other than, like, for Rand Paul and maybe Bernie Moreno, But I think it really. On two fronts. It was pretty devastating to see Fauci, who. If we just all remember how difficult Covid was and how fast moving, and when you're dealing with public health and you're seeing so many people die and you're just trying to give guidance that can save even a few more lives, I mean, that's what it felt like both on the receiving end as an American citizen and then covering that administration at the time for. Right. So if you put that lens to it, like, yeah, maybe Americans do have questions about how could we do this differently next time so that more people don't lose their lives. Right. I mean, there could be a real opportunity for something constructive. But good faith is so out the window. And you saw that really on Capitol Hill. And they're also still centered on this idea of lab leak theory and did the virus get created in a lab in Wuhan as opposed to being naturally occurring? And that's just such a huge conspiracy theory on the right that when I question who the constituency of this hearing was, maybe it's that, like, a return to conspiracies. Yore a simpler time. But truly, I was baffled by the settling of this score, and I don't know that it worked the way Republicans thought that it would.
- [19:36]
Josh Marshall
To sort of follow up on Alan's point. You know, there was this point where I think it was. I can't remember who did, but one of the senators had these people stand up behind Fauci and what the lead in Washington that in each of these cases, like, a few of these people had gone to outdoor events during the lockdown and hadn't worn masks. And some, like, local member of the PTA or like, the city council said, hey, you should wear a mask. And they. They had this thing of kind of like, can you look these people in the face? I'm like, wow. It was just like any. Anybody living in the actual world just looks at this and says, like, someone chastised you, like, at a picnic, like, five years ago. And this is like, I'm not man enough to look you in the face for what I did to you. I mean, like, this is just, you know, I think, you know, back in 2021, 2022, regardless of what you think about lockdown policy or whatever, the society was exhausted. Right. Whether you should have worn them or not, people that were sick of wearing the masks, that schools were out of session. Everybody was very mad. And that sense of societal exhaustion and frustration was real. And it gave a lot of these things that were either just sort of nasty cherry picking or in some cases, verging on conspiracy theories a little. Some oomph, right. Cause people didn't wanna wear masks anymore. I remember in New York City, in the week or 10 days or so before they shut down the city, Bill de Blasio and the then Director of Public Health were doing daily things. And I remember at one point they were like, if you're in the subway car, our understanding is you can't transmit it to each other because it's on your fingers. And like, okay, but that's what they thought then. And I remember at the time I was writing like that. I don't think that makes sense. You know, you don't know that. And I remember there was another time where again, the then Director of Public Health, when some people, including myself, were saying, like, people should be wearing masks. This is probably like an aerosolized virus. And she was saying, well, we don't want people to. I'm afraid that masks will give a false sense of security. But the point is, is that everybody was just trying to figure stuff out. It was weird. And people were trying to figure stuff out as best as they can. And I think for 60, 70% of the population, this is ancient history. And that whole kind of like getting so worked up. I think people. It's not even like, Fauci versus Rand Paul. Just why are we talking about this? This is bizarre. To go to Ali's point. I think the real key here is that it's really hard for Republicans at the moment to find things that are fun to talk about in public. They've got the Iran war, they've got Trump doing all this bizarre crap. They've got ice. They've got all the, you know, it's not a fun environment. So this is kind of like, I don't know, high school reunion. You're looking to have a good time, right? So I think that's right. I don't know what they were expecting, but I think they're kind of, in their own way, they are locking down in a different way with the core of the Republican Party that still cares about this stuff. Cause again, I really think that people are done with it. And the whole thing seemed bizarre.
- [23:02]
Harry Litman
And, you know, to the extent it's not just, I'm done with it, I'm bizarre. The figure of Fauci as against everyone else, when you think about this, you think about Fauci doing real things and Trump talking about bleach and, you know, how can that be good for them? Why, since he's been pardoned, is Rand Paul think that he can still go out? There's a wrinkle here having to do with possible vulnerability. Can you explain it?
- [23:32]
Glenn Kirshner
Yeah, there's a legal wrinkle that makes for kind of a fun law school exam question here. And I've been kicking it around with some of my fellow former career prosecutors, and it's actually pretty fun to debate. I hope the audience agrees.
- [23:46]
Harry Litman
Maybe not for Fauci, but yeah.
- [23:49]
Glenn Kirshner
And then quickly, on the political piece, Josh and Ali are the experts, but you know, to me, when I was watching that, it's like all of a sudden, everybody has another opportun talk about how Trump wanted people to inject bleach and shine very powerful lights inside their body. He never did say what the entry point for the powerful light was. But this doesn't seem to work to Trump's political advantage. So is it really just a personal beef that Rand Paul has? And when Dr. Fauci opened with, the reason I'm invoking the fifth is because rand Paul has made it clear that he won't sleep until I'm behind bars. And I think that actually feeds into the legal test of when somebody can invoke their Fifth Amendment right against self incrimination. Because, Harry, I hope you're with me here. It was drilled into our heads as prosecutors that you can only plead the Fifth right, invoke your Fifth Amendment privilege against self incrimination for past crimes. You cannot invoke it for future perjury, because what you're about to lie is the kind of shorthand way that, that we say it. But, you know, it caused me to do a deep dive back into the law. Now, I hung up my license to practice law after 30.5 years as a prosecutor, and it's in inactive status. So I have to brush up on these things from time to time. But if you go back to the supreme court case in 2001 of Ohio versus Reiner, here is what they said the test was for invoking the Fifth. They said one of the Fifth Amendment's basic functions is to protect innocent men. They had not yet come out of the cave, so they don't bother mentioning women, innocent men who otherwise might be ensnared by ambiguous circumstances. And then they set out the reasonable cause test, which summarized is, a witness only needs to show reasonable cause to apprehend danger, legal peril from their Answers. So I pose the question, did Dr. Fauci have any reasonable cause to believe he would be in potential legal peril if he said anything of substance other than pleading the Fifth? Well, ask James Comey, who was baselessly accused of lying before Congress. Or ask Jerome Powell, who had some subpoenas issued that were ultimately thrown out properly because they were issued for an improper purpose. Ask Jack Smith, who's being put through that Precise ringer, the 1001 ringer right now, that being the Federal code section. That's basically perjury, lying to Congress. Ask Cassidy Hutchinson. They wanted to go after her for lying to ask John Brennan. And on and on and on. So did Dr. Fauci have a reasonable cause to believe he might be in legal peril if he started to answer questions? You're damn right he did. So I think it tests our understanding about, well, you can't just plead the Fifth if you intend to lie or if you're going to say something in the future. I think the reason Fauci won the day, and I think he will continue to win the day legally, they can't bring a 1001 false statements to Congress charge. They can't, I don't think, win a contempt of Congress or an obstruction of a congressional proceeding charge, because I think Fauci has the Supreme Court reasonable cause test on his side. So the whole thing was nothing but a circus. And I don't see it inuring to Donald Trump's political advantage or, you know, his, his, his advantage when it comes to his determination to punish his perceived enemies.
- [27:33]
Josh Marshall
Can I make one point about this? You know, I don't have a Lexis or Westlaw account to crack out anymore like you guys do, but when you kind of gave us an overview of what the issue was about, you know, only for retrospective things, what occurred to me was kind of what you've said in a more legally precise way, which is that is all based on the Department of Justice following a structure, a legal structure of rules, and based on that, following the rules, rules that you place me in, chronology and all this kind of stuff, but they're not following the rules. So any fear I have is by definition, rational and reasonable.
- [28:12]
Glenn Kirshner
Yeah. And, Josh, that's such an important point because we're living in the legal upside down. But here's my concern. I don't think the courts are going to be willing to throw out all sort of, you know, law and precedent and, you know, the way the rule of law worked in the before times, because this DOJ is Corrupt. Yeah, I think that makes a lot of practical sense, but I think that's where there's a bit of a friction there.
- [28:36]
Josh Marshall
Yeah, no, that totally makes sense. I'm just saying that it. Let's put it this way. On actually thinking through why the Fifth Amendment is there. Right. And what you are actually protecting against, I think that the ordinary and regular structure of the law not being in effect is very relevant. I agree with you that that's not to say that if I get in trouble that the trial court or the appellate court or the Supreme Court is gonna see it as I say, but I think as a more fundamental constitutional question, that it's. That it's, you know, that it's quite relevant. And the case you bring up makes the point, you know, if the standard sort of in the final analysis is do you have a rational basis to be concerned, you know, that you are putting yourself in jeopardy? Trump gives a really good rational basis.
- [29:26]
Harry Litman
I mean, so he's a walking rational basis. Right. And the air is acrid, as Justice Scalia put it, about that risk. To me though, the dynamic, yeah, it was farcical, but it was worse. It really smelled like, you know, McCarthy Red Scare kind of stuff. This is a very gentle public servant, obviously, you know, doing the right thing. And he was just cowed into having to, you know, he obviously was pained even to choke out the invocation of the Fifth Amendment, but he was just forced into it by the complete Looney Tunes nature of the proceedings.
- [30:08]
Ali Vitale
But, like, I mean, you guys are the lawyers here. Like, doesn't it? Despite how clear it seems that this is political and premeditated, that also is what's at play when you talk about the Comeys and the Jack Smiths and the Letitia James. And yet even if their cases end by ending and not being further prosecuted, they still start. Right. Like, isn't that the point? And so it makes me question, like, as we get into an era where Republicans are probably going to use this lame duck period to exercise that subpoena gavel, as long as they can get it, what are people to do? And then when you start saying, well, I'm not gonna show up for subpoenas, that makes you as bad as the Republicans who ignored them during the January 6th select committee. Right. And down and down we go.
- [30:56]
Josh Marshall
Well, it actually also potentially puts you in a more reasonable level of jeopardy.
- [31:00]
Ali Vitale
Yes, exactly.
- [31:01]
Josh Marshall
If you just blow it off, you're actually not allowed to do that.
- [31:03]
Ali Vitale
Correct?
- [31:04]
Glenn Kirshner
Right. Yeah. Just ask Bannon and Navarro. But Ali, I think your point is exactly right. The process is the punishment, it's not the outcome. But you know, for a very long time, Donald Trump was promising that he was going to lock up his perceived enemies. Hillary Clinton is the OG of Donald Trump's wrath. Lock her up. Lock her up. Ten years, we heard that. And you know what? He never prosecuted anybody vindictively until he did James Comey. And for probably a couple of years before that, I was saying, I don't wish that on anyone. A vindictive prosecution. But. But I'm almost looking forward to the first one. You know why? Because the federal judiciary will cram it down DOJ's throat, figuratively speaking. And that's exactly what has been going on in every attempted vindictive prosecution. I leave Bolton out because he actually did commit crimes in the way General Petraeus did. And you know, sorry about your luck, sport, but you shouldn't have done it. But all the other ones, they've gone down in flames. So the judiciary has held strong. And what I think, even though the process is the punishment for each of them, I think it weakens Donald Trump with each failed prosecution. I don't think it strengthens him politically.
- [32:14]
Josh Marshall
I think that's right. And I think that is also an example of so much that is going on right now is not strategic for him. We're operating within the mental universe of a rapidly aging man and his whimsical and his very immediate impulses and things that he feels that he needs in the moment to feel better. Right. I really think that to a great extent, the reason that we are in this now six month long deadlocked conflict with Iran is because by the end of last year, he was losing power in the United States. He was becoming less powerful, he's becoming less popular. He was getting more hemmed in on various fronts. And that upset him at a basic kind of existential level. And that made him lean into these areas where a president in practice, regardless of what the Constitution says in some theoretical sense, where an American president is basically all powerful and can do whatever he wants. And that was almost an executive self soothing that he was doing. He was making himself feel better for what was happening domestically in the US by showing that outside the borders of the US he can do whatever the fuck he wants. And he has this experience in Venezuela which bizarrely kind of have, to give him credit, he kind of pulled off, right? He goes in there and kind of kidnaps the heads of state and somehow that led to him kind of running the country as a colony. And then he gets pitched on this idea of do it in Iran. It'll be the same thing. And he did it, and that's where we are. And so a lot of these things are we're operating within this man's impulses and whims. And he's always been someone who his entire psychic universe is. There are the dominated and there are the dominating, and I'm the dominating. And anything that gets in the way of that creates all these kind of weird impulses for him. And that's kind of for the moment. It is Donald Trump's universe, and we're living in it, living in his sort of deranged mind.
- [34:30]
Harry Litman
I think that there's a lot to that and what it suggests with a normal president coming to the end of her or his term, they would, you know, have some respect for the institution, their own legacy, whatever. But it suggests that as his power diminishes, his both caprice and corruption could increase. His last chance to take these, you know, swings for the fences like the East Wing, and, you know, it makes it a hard two and a half years. 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.
- [35:26]
Total Wine and More Narrator
Thank you, Harry. In today's spirited debate, we pop into the beer aisle for a closer look at the two main types of beers. Ales versus lagers. And to help separate lagers for males, it first comes down to one thing. Fermentation. That's the process where the yeast does its magic to give the beer its alcohol content and carbonation. Now, ales are fermented with top fermenting yeast at warm temperatures somewhere between 60 and 70 degrees Fahrenheit, whereas lagers are fermented with bottom fermenting yeast at colder temperatures between 35 and 50 degrees Fahrenheit. Because of their warm fermentations, ales can generally ferment and age in a relatively short period of time, three to five weeks. Lagers can take longer, up to six to eight weeks. The difference in temperatures and time means this. The quicker fermentation in ales, including stouts, Hefeweizens, pale ales and IPAs, creates a fruitier, spicier flavor that's crisp and refreshing. At Total Wine and More, we have over 1100 ales, so you can explore all you want. Lagers, including Helles Pilsners, have a smoother, richer, more mellow and robust flavor than ales thanks to their longer fermentation time. We can thank the Bavarian brewers from the Middle Ages for discovering the benefits of longer fermentation after storing their brews in ice caves during the winter. In fact, lager in German means to store, which adds up since lager beer was brewed, covered and stored with ice harvested from nearby lakes. At Total Wine and More, we have an ice cave of our own filled with a huge selection of ales and lagers from around the world. Just remember, the next time you enjoy one, give a little cheers to fermentation.
- [37:15]
Harry Litman
Thanks to our friends at Total Wine and more for today's A Spirited debate. Harry here. You'll hear us talk in a moment about the prosecution of the man charged with damaging the Reflecting Pool. On Friday night, after we taped, U.S. attorney Jeanine Perrot dropped the the charges and said the damage had come from botched installation work, though we didn't know exactly what was coming. And when we talk about exactly why the prosecution was heading for a brick wall and why its demise exposes bigger issues with the DOJ's most politically motivated cases, stay tuned. So the reprisal prosecutions, and to me they're the worst thing that the DOJ has done. But now we have sort of a new entry and I wanted to ask you for starters, Glenn, because you probably have a sense of what happened or what's been alleged to have happened. The Reflecting Pool case. That guy isn't even a political enemy, right? He's just made to order for some bogus Trump narrative that vandals stole the handle and and he finds himself charged. And now, as seems to happen in all their big cases, it looks like they made some really fundamental blunders, including in the grand jury. Can you tell us about where things stand in the Reflecting Pool case and what's next?
- [38:50]
Glenn Kirshner
Yeah, Harry, Never in a million years did I think I would celebrate DOJ's blunders, losses and prosecutorial abuse, particularly when they're perpetrated by my former office, the D.C. u.S. Attorney's office. But you know what? You put Jeanine Pirro in charge and this is what you're likely going to get. So, you know, first of all, the arrest of the 67 year old Olympic canoeist David Hearn was pretty questionable in the first instance. But you know, I was recently interviewed by HuffPost and I said based on the publicly reported evidence, this case to me looks like bullshit. So here's the thing, when you charge any crime and I've been on the receiving end of this when you charge any crime that has a value of something that you have to prove, value of the damage you did to somebody else's property, value of something you stole. But the point is they put an expert before the grand jury, according to the reporting and the filings by the defense, who an expert on value. And the expert couldn't give any relevant testimony on the value of the damage done by David Hearn. That I believe is going to open it up to the judge ordering that all grand jury transcripts and all grand jury minutes be disclosed, just like they did out in Chicago with the Broadview 6. And it caused everything to implode. And that's not the only other jurisdiction where this happened. So this is more of Jeanine Pirro's incompetence, imbecility, prosecutorial overreach and flat out prosecutorial misconduct, not to mention abuse of the grand jury. So this case, I predict, will not end up going to a trial. The judge will probably throw it out on the motions.
- [40:41]
Harry Litman
And let me add one lawyer's point. The thousand dollars is what they used, what they needed to elevate this to a felony. It is an element of the crime. The same as a gun would be an element of felon and possession. And it does seem from what the news reports were, that they didn't offer a scintilla of evidence on an element of the crime. And the questioning here. We've seen this in D.C. glenn, I don't know if they were like this when you were practicing, but active grand jurors asking this guy, what was the difference? What was the value? So the issue had been already raised and surfaced and you gotta wonder, how is it that this grand jury, aware of the issue, wound up voting a true bill? What did the prosecutor advise them? They could say when there was zero evidence about this, that that could, they could have some explaining to do.
- [41:39]
Glenn Kirshner
And Harry, as we know, we are not only the prosecutor in the grand jury, but we are the legal advisor. We wear two hats and we have, you know, play it by the book when we're acting as the legal advisor to the grand jury. And I loved when my grand jurors asked my witnesses questions because they would often think about things that I didn't and I got to cover bases that I might have otherwise not covered.
- [42:01]
Josh Marshall
The other point, though, and this is, you know, I was reporting very closely on that, on the Broadview Six case in Chicago. And there's this pattern now and I think, you know, certainly in, you know, large blue cities, these ICE related cases it's tough going to get indictments against protesters, against whatever. We know that. It's just the community's very against it. And so you have these cases where we're seeing a pattern. Like when you're really wondering how they got it through a grand jury, when a judge allows them to sort of peek under that veil, the answer turns out to be they cheated. They either did like, big misconduct or things that are maybe, you know, misinstruction as to law, which, I mean, you guys tell me what you know. It's slightly different thing, but we see that a lot. And I suspect that that judge in Chicago had to see a lot of stuff before she. She was willing to say, okay, we gotta take a look at what you guys did before the grand jury. I suspect going forward, that's going to be less and less of a hurdle because we've just seen so many times where, if it looks fishy how they got the true bill, it's probably fishier than you even suspect.
- [43:17]
Harry Litman
And I just want to say this is happening again and again in the supposed marquee cases that the DOJ really cares about. And I think there's just a combination of, first, they're putting a lot of rookies on these cases because they don't trust the people who have real experience. And then second, the cases are so weak, and that's leading to overreach when you combine it with the pressure on everyone to. I'm thinking of Lindsey Halligan to bring out an indictment, but it's not. Each of these stories would be notorious on their own if they were garn variety cases. But it seems to me that the eroded presumption of regularity is almost becoming a presumption of irregularity in the big cases. They just screw up, screw up and screw up more in their big marquee cases. And this is another one.
- [44:14]
Ali Vitale
I just, I mean, I feel this way regularly. And I just came back from Michigan and I talked to voters there and I talked to people who love Trump and who voted for him. I talked to people who don't like Trump and they don't want to see him in office anymore. And none of them are bringing up DC Beautification, the reflecting pool, like. But what I think those things tell voters who are bringing up the cost of gas and the cost of groceries and the idea that, like, the system just doesn't work. And if, even if they're a Democrat or even if they're a Republican, they just don't feel like these institutions serve them anymore. What this Stuff in the beautification lane tends to tell me is like, if you're a voter who feels that way and you're just looking at where the administration is spending time, money and attention, it's not on your concerns. And so I'm not someone who like, thinks that voters are gonna latch onto sandwich guy's case or Olympic canoe guy's case. They're probably, if they're talking about them, talking about them like that, but if they're talking about them at all, it leads them to the conclusion of if that's the focus, what about me? And like, I think that's why we're gonna see like a really strange set of results that, yeah, likely tilt in Democrats favor, but also bring us to this new wave of what I know you guys unpacked last week in talking about the Michigan Senate race of like, what kind of Democrat are we electing and what does it mean to bring a whole bunch of people who are political outsiders into a system that really rewards insider understanding and insider practitioners, specifically Congress. Right. And I think just brings up a whole lot of practical questions for voters who are just seeing systems that don't work for them, gilded or otherwise.
- [45:58]
Josh Marshall
I think you're so right in the sense that your average, you know, average voter who by definition is not very closely focused on politics, they're not going to know what is the, you know, what's the East Room and what's the ballroom and what's the arch and all this kind of stuff. But you do have this big backdrop of kind of like all these little processes and things being renamed and like building this and building that and you don't hear the specifics, but you say, like, that's what you're working on, like what you're building some obelisk somewhere in D.C. i've never been there. It does send this meta message of like, I don't think you're really. What you are focused on does not have a lot of relevance to me. And that, as I think we've seen in many elections, once that perception takes hold that you are focused on stuff that has nothing to do with me and I'm not in great shape, that's poison politically.
- [46:57]
Harry Litman
Really, really good points. All right, we gotta leave it there for now. We only have a minute left for our five words or fewer. But the way I think, the way you've brought in these fine grained questions into practice, broader grain political questions, is really valuable. All right, five words or fewer. Wall Street Journal, big story about Trump's prolific fundraising operation, how he's haranguing everyone for donations for everything and offering perks in return. Personal calls from Trump, candlelit dinners, maybe the occasional favor. What's the strangest thank you gift the President has offered up to donors? Five words or fewer, please.
- [47:40]
Ali Vitale
I said Old Trump Stakes.
- [47:42]
Harry Litman
Old Trump. Okay, very good. Little aged Aged. They're the most wonderful ever.
- [47:49]
Josh Marshall
Fill in your own pardon.
- [47:52]
Glenn Kirshner
The most important five words are release the Epstein files. Now, I know that's not responsive. I know it's not responsive to the question, but that's what I want to say.
- [48:01]
Harry Litman
That's your five words. I'm going to try to go on the Epstein theme as well with a real perk. A copy of the Epstein birthday drawing. Thank you so much Glenn, Josh and Ali. 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 write 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 norms and the rule of law. Paid Substack subscribers can now get Talking Feds episodes completely ad free. You can also subscribe to us on YouTube, where we are posting full episodes and my daily takes on top legal stories. Talking Feds has joined forces with the Contrarian. I'm a founding contributor to this bold new media venture committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Find out more@contrarian.substack.com thanks for tuning in, and don't worry. As long as you need answers, the Feds will keep talking. Talking Feds is produced by Lou Cregan and Katie Upshaw, associate producer Becca Haveian, sound Engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hansum Hadrenathan, 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 Deledo llc. I'm Harry Littman. Talk to you later.
- [50:25]
Ali Vitale
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