Harry Litman (5:17)

Hey, Al.

Al Franken (5:18)

Yeah, it's been a while. Thanks for doing this.

Harry Litman (5:21)

My pleasure.

Al Franken (5:22)

I want to go over some legal stuff with you. That's what you do.

Harry Litman (5:26)

Okay. I'm the right guy, I think.

Al Franken (5:29)

Specifically, I want to get into a few things. The retribution prosecutions, Comey and Letitia, James and Bolton. And I'm sure there's more to come. Right.

Harry Litman (5:44)

So he says. Adam Schiff, Andrew Weissman. Yeah, he's got a whole gallery of villains.

Al Franken (5:52)

Then I want to talk about what Trump's been trying to do in Portland and Chicago and probably elsewhere and where that's going. And are we looking at him invoking the Insurrection act at some point to go after the enemies within?

Harry Litman (6:12)

Yep.

Al Franken (6:13)

And then I want to talk about the case argued before The Supreme Court, Louisiana v. Clay.

Harry Litman (6:19)

Yep.

Al Franken (6:20)

On Section 2 of the Voting Rights act, which very well could determine the balance of the House of Representatives for years to come, actually. Then also just the destruction of the White House.

Harry Litman (6:36)

Why not?

Al Franken (6:37)

Is that legal?

Harry Litman (6:39)

Well, you know, he's not gonna touch the. The East Wing. He's. This year. Oops, sorry. It's just in. I mean, it does seem, you know, like, so often, what precedent do we apply? But, I mean, can you. Can anyone, even if they are President of the United States, just take a bulldozer? The lights seems kind of odd to me. The people's house, but there you go. He didn't get a permission from the people. We know that.

Al Franken (7:03)

Yeah. And then the $230 million in the.

Harry Litman (7:07)

Justice Department, there's nothing good on that list, but I think there's nothing good going on now. So.

Al Franken (7:14)

Okay, let's start with Comey and Letitia James and John Bolton. During the campaign, Trump told his supporters, I will be your retribution. And I think he meant, I will be my retribution.

Harry Litman (7:30)

Yeah.

Al Franken (7:31)

Let's talk through the cases. Comey has called this a vindictive prosecution. That seems pretty obvious, doesn't it?

Harry Litman (7:41)

Well, yes is the short answer. There's actually. It's funny, these things succeed so rarely. Everybody thinks the government has it out for them. And lo and behold, the government does have it out for Comey. I'm an exdoj guy, and this is, to me, rock bottom, ninth circle of hell. I can elaborate. But in terms of the actual wording, there's vindictive prosecution, selective prosecution, and then due process clause and equal protection. He's actually gone through all four. And I think part of the argument will have to do with. What precisely do you have in mind, Mr. Comey? But the basic notion that the reason it's being brought is because the President ordered it for political purposes. I think the is as, you know, apparent as the nose on his face. And so it is an. Absolutely.

Al Franken (8:38)

I mean, what is the case against him?

Harry Litman (8:40)

I'll tell you that case now. But I want us preface it by saying, if Trump ordered up this. We'll get to Bolton in a moment. A prosecution that actually had some merit, it still would be a constitutional violation. You can't do that if that's the reason. But here's the case. Your buddy Ted Cruz. What do you say about. You have a great line about Ted Cruz.

Al Franken (9:03)

I probably like Ted Cruz more than most of my colleagues, and I hate Ted Cruz.

Harry Litman (9:08)

Exactly. Anyway, so he's questioning him about testimony he gave Comey gave four years before that, about whether he gave a story over to the press. And he says, are you saying that you didn't? And he said, I stand by my testimony from four years ago. That let me just note as a lawyer, first, it's a true statement. You have to have a false statement for defamation. Second, who gives a crap? Which is legal speak for materiality. There's really, you know, lying to Congress is not a crime. If you're you know, lying about your children or whatever, it has to be material to their investigation. So it's a really, really, really lousy.

Al Franken (10:01)

What was it? What the charge that he had been involved in what that in the whole.

Harry Litman (10:07)

Brouhaha over his firing and such, he had played to the press or his buddy Dan Richmond had or whatever. He says not, but it does. And they say that was a false statement, but it's not. Or, and then of course, Ted Cruz's question was convoluted and you wouldn't even know what he was talking about. This is the worst count for a false statement to Congress I've seen. And, and Comey has a very strong case saying, look at all these times. No one ever brings this case. So in terms of the law on selective prosecution, vindictive prosecution, you have first a really good showing that this case wouldn't normally be brought. But you have a much stronger than that because when you get to the second part, you have what you never have an actual email that somehow was published by Trump saying, you know, these guys impeach me, TWA and conviction, we need justice. Saying nothing about in fact, when he was asked, well, what's the crime? I don't really know, but they're guilty as hell. So it's just completely conclusive proof, it seems to me, of what's going on. And that is he orders and indeed he has a prosecutor say, you know, I don't want to do that. So he brings in someone who's not even a prosecutor.

Al Franken (11:33)

In other words, he had the U.S. attorney resigned.

Harry Litman (11:39)

U.S. attorney was his own choice, longtime Republican to head the office. And he stood up for again, what I want to say is the single most important duty of a federal prosecutor, which is not to indict someone when they're, when you don't have facts in the law to support it. That that's like Kafka esque to do. Right. So the U.S. attorney said I won't do that. And he, and he stepped down. Trump said he fired him and then he brought in an insurance lawyer who wouldn't be qualified to be an intern in that office. Lindsey Halligan is nobody in that office. I've worked in that office, Al. It's pretty professional office would even be with her and the grand jury or at the arraignment of Comey. She just went in, you know, we'll find out how bad it was. But she's probably didn't know where the, where the door to the grand jury room was.

Al Franken (12:36)

Well, the arraignment Wasn't that done by the. The attorneys who. They came from North Carolina or something?

Harry Litman (12:43)

Yeah, they had. Well, what her. I think at the indictment, she did all alone. And it's going to be, I think, a real comedy of errors. But, yes, then it came time to do the arraignment. You know, I was a U.S. attorney. It would be very rare to appear, but wherever you went, you'd have, like, a phalanx of six people to make sure you weren't so stupid. They couldn't find a single person in Alexandria, so they had to go get a couple people from a whole nother office.

Al Franken (13:14)

And they're doing the case against. Against Comey, so it would appear.

Harry Litman (13:17)

You know, so the case now has gone to motions. He filed two motions three days ago. One was, this is selective prosecution. The other was, she's not even validly appointed for the same reason as they bounced Alina Haba in New Jersey. It sort of complicated the scheme, but basically, once that previous U.S. attorney's interim appointment had run, you can't just put in somebody unless they're a very narrow set of categories and she ain't.

Al Franken (13:51)

Will this be tossed before they get to trial?

Harry Litman (13:53)

Yes, I think so. And, you know, Comey and others are saying, oh, we want to go to a jury and be vindicated. And his very fine lawyer is saying, you know, Liberty, we. We got to take every good shot. And I think both those defendants, all the time, motions to dismiss, they always lose. I think these are two good ones. A point about the second, that she wasn't validly appointed. He. The judge recused himself because he works with that office all the time. It's actually gone to another judge in another circuit to try that. That claim. But so we have that and the motion to dismiss. And one, One other final point on the motion to dismiss. You know, you normally gets tossed out right away. He. Comey has asked for discovery. I mean, what's so striking about the case is the strength of the evidence that Trump did exactly what Comey is saying. I think Nakmanov, if he. That's the judge, if he doesn't grant the dismissal outright, it's got to grant discovery. And that's going to put the White House in an absolute hissy fit.

Al Franken (15:02)

Now, why did he go after Comey? Was this the Russian investigation? Why does he hate Comey so much? Comey got him elected.

Harry Litman (15:10)

That's right. And therefore, after he did, he had wanted to have a little dinner with Comey, and they had that dinner and he wanted to exact a Pledge of loyalty from Comey. And Comey said, no. This was like when we first were discovering March of 2017, what a madman he was. This is when the deputy and others want, should we do we need the 25th amendment? So he fired. First chance he got, he fired Comey. Remember, he wouldn't let him take the fba. He was in California. Comey, he flew. He had flown out there on the FBI plane. Trump fired him and said, you can't take the FBI plane home. You have to take commercial aircraft. And then from there, Trump said, laurie Law, you know, they better not. He better hope there aren't tapes. Well, it turned out that surprise Trump was lying. He said exactly what Comey said. And so then the combination of that back and forth, including in public settings after Comey was out of office, and the whole Russia thing, thing that he blames everyone. Those together have put him on Trump enemy number one through five somewhere.

Al Franken (16:24)

Okay, we're gonna take a quick break. We'll be right back with Harry Lytton. So we got a new sponsor, Graza, my olive oil of choice. You know, I love to cook for me and Franny and for my, my kids and grandchildren, for friends. And I love cooking with olive oil. And Graza is a delicious, easy to use extra virgin olive oil at an affordable, everyday price. Graza is always fresh. They pick, press, and bottle all their olives in the same season. You can see the harvest date on every bottle. I never thought about that before, but it's comforting. Graza has two types of extra virgin olive oils to stock your kitchen. There's Sizzle, that's their everyday cooking oil. Perfect for roasting, sauteing, and, well, anything you cook. And they also have Drizzle, a flavorful finishing oil that's great for dipping bread and whipping up a salad dressing. That's Sizzle and Drizzle, the name of the two Graza brothers. Speaking of family, my family loves my marinara sauce. It's simple. I slowly saute garlic and onions in Graza's Sizzle oil, put in the canned tomatoes, a bay leaf and basil and cooked slowly for hours. Perfect for pasta, eggplant, parmesan, lasagna. Of course, olive oil is the healthiest fat that I add to my meals. I'd highly recommend Graza for any home chef who likes to cook. So head to Graza Co and use Franken to get 10% off and get to cooking your next chef quality meal. That's G R A Z A CO and use promo code FRANKENTODAY for 10% off your first order. Graza. The best olive oil in my kitchen.

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Al Franken (19:47)

Okay, let's go to Letitia James. Yeah, this is about a mortgage.

Harry Litman (19:53)

The charge against her. Okay, let's go straight to the charge. You know, apparently a lot of people do this, including in Trump land they have three cabinet officers. No one has mentioned it, but yes, she bought a secondary home and she says she bought it for a great niece who was in a sort of tough spot in life so she could live there and has ever since rent free, says James. And the niece testify to a different grand jury rent free. But that testimony wasn't heard by the grand jury that indicted her and the grand jury that indicted her. It's both. By the way. Both indictments are just like pieces of trash. They are so poorly done. There's no details. And we don't, we don't, you know, know really basics about both. But I think what they're saying in James's case is to get a slightly better mortgage. She said that this was going to be a secondary residence and it was really an investment property. Why is that? Because the great niece paid some rent even though the great niece says she didn't. The grand total of sort of loss if this had happened, $18,000. Every U.S. attorney's office have guidelines that say amounts below thus. And so just forget about throwback in the, in the water if they're actually, you'll like this top secret because if you know that the fraud guideline is 500,000, then then you commit a $499,000 fraud and the feds won't take you. So, anyway, 18,000 is a joke. Frauds in the federal system are hundreds of thousands of dollars. But, yeah, that's the idea. She. And on at least one document, because she has others where she didn't. She said, this will be a secondary residence and they're going to have to prove, in addition, including intentionally, knowingly, at the time, etcetera, it was going to be a rental property, meaning the great niece would pay some rent. Except she says she didn't. Another real, real, real dog of a case. Both of these out. You know, the. All the evidence that goes to Comey also goes to James. He's been so. And James, he's been on the war path even longer. Of course, she successfully sued him civilly for millions of dollars.

Al Franken (22:21)

But that wasn't that. That settlement money was thrown out, right?

Harry Litman (22:27)

Not completely, no. So it was reduced. And the settlement itself, I mean, I'm sorry, the. It wasn't a. It was a verdict.

Al Franken (22:36)

Right.

Harry Litman (22:36)

And it's. And it still stands up, even though the court of Appeals reduced the amount. And, and, but that, you know, and she did, when she campaigned. I don't know if you were in New York yet at the time, you know, she made it clear she, you know, was interested in investigating Trump. But anyway, for both Comey and James, just the most stark example of something that is plainly unconstitutional, violation of the principles of federal prosecution. That the reason it's being done. And same thing. Lindsey Halligan trots in there and signs her name. This. This time she says a very weird detail. She's saying, I didn't even tell my superiors. I just wanted to get it done. You know, she had, like, a lot of. A lot of stuff to do that day or whatever. So the idea that she would indict a high official and not mention it to Bondi Blanche seems incredible. And a final point, these kinds of cases, you have a special section of the Department of Justice that's considered the sort of, you know, jewel in the crown, the public integrity section, or you used to. That's the section that, with the Rick Adams prosecution, they basically just have completely demolished. It's gone from 30 lawyers who were all put in a room by Emile Beauvais and said, somebody has to agree to this dismissal or I'm firing everyone. 30 lawyers is now two. It's defunct now, so there's no kind of professional check at all.

Al Franken (24:16)

Okay, so we've got Bolton.

Harry Litman (24:20)

Yeah. Okay. The first point to make about Bolton is it's a different case.

Al Franken (24:25)

This is in a different District, different office by a.

Harry Litman (24:30)

This is the most important. I mean until Bondi squandered it, there was a presumption of regularity for what the DOJ did and this would be an example where it applied. 12 year veteran head of the National Security section in Maryland had been investigating this for a while. So that already is a very big distinction.

Al Franken (24:55)

What is, what is the charge here? Bolton?

Harry Litman (24:57)

So the charge is ironically something akin to the Mar A Lago case that Bolton didn't follow procedures with classified material. Let me, let me zero in though. He was writing a book. There was a bitter dispute with the Trump folks about what he could put in. He won that dispute but at the time he was writing it like a lot of people, he kept a diary by sending himself emails. So far so good. But then and Al, this is really like huh, bizarre. How could a guy like Bolton be so ham handed? He CCed his wife and his daughter who were, didn't have classified systems and in fact one of them was hacked.

Al Franken (25:43)

By, by an Iranians or something.

Harry Litman (25:45)

Yeah. So that's like whoa, John, John. Now it all happened in 2018, 2019. We know the Biden folks didn't prosecute but it seems like maybe this most important detail of sharing it with the wife and daughter hadn't been known. So the first thing you can say about the case is it's not that it's different. And the second thing you could say about the case is it's not an obvious loser. The third thing you can say about the case should matter, but I think it maybe won't which is there's still a contributing factor of Trump's animus for Bolton or so it seems that really pushed things and that shouldn't, that's illegal. Even if you have a solid charge. That's his lawyer is the same lawyers as for James and he's playing the same tune. You know, they're just coming after me because, but you know, people who know the system how carefully this is part of the like the, the Hillary stuff. Right. It is really true. You've got to turn square corners with classified information and it's one thing to have you up, but really it's, you got to scratch your head to say why would, would Bolton, you know, actually didn't he know better? Because it really, it's, it's very bad form that he served everything up to his wife and daughter who you know, he could have served it to you non classified system. So he's, you know, that's different. Now they'll have Some motions work, et cetera. But the number one thing to say for me as a DOJ guy is Comey James, 9th Circle of Hell doesn't get any worse. Autocracies do it, not democracies. And Bolton is not that case. It's funky. But the other two are flagrantly improper.

Al Franken (27:43)

Okay, let's talk quickly about this $230 million that Trump is asking or demanding from the Justice Department will get because he runs the Justice Department. So he says, I'm suing myself.

Harry Litman (27:59)

Yeah, right. Yeah. So he says, I'm blaming. As if he's blaming himself. No, it's the other way. He is there. And you're right. So who would normally remember how pissed Trump was when Sessions recused himself? So there's got, you know, really, every ethics person would say the recusals have to go all.

Al Franken (28:17)

Sessions had to recuse himself. He had talked to the Russians and.

Harry Litman (28:21)

Yeah. You know who else has to recuse himself? Todd Blanche. The guy who would normally. Todd Blanche is not only.

Al Franken (28:30)

He is the.

Harry Litman (28:31)

He was. He's the deputy Attorney general. He would make this call. He was not only. In all the litigation, he continues to assert, even though it's, like, impossible and unlawful, that he is both the deputy attorney, but he remains Trump's personal. He's elected to serve the people, to take care, etc. But when he went down and talked to G. Lane Maxwell, he was working for Donald Trump, the citizen. Okay, he would be the guy this would go to, but after him, Stanley Woodward did the same.

Al Franken (29:05)

This is the $230 million it would go.

Harry Litman (29:07)

So here's what Trump is saying. There is a provision that it's very rarely invoked, but if the. The department not just indicts you, but like it's way, way illegitimate, meritless, maybe vindictive, you can sue for to get fees. Now, it's usually the. Here. Here's how Atlanta she's being when you do that. If it's more than $4 million, it has to go to the very top of the DOJ for review, because it's never like more than $4 million. And he, you know, the same way suing the New York Times, let's call it 150 billion. He did. You know, 230 million is nothing, no relation to reality. But anyway, he's saying, I am entitled to this. And the first step is this little piece of paper that he actually filed two years ago before the election. And that's the basis usually the DOJ maybe compromises or more typically says forget about it. See you in court. But that's right, you know, it would be, it would be a, you know, a. Like a total ethical disaster. And everyone is saying that. Even Republican senators are saying how bad it looks. And I just want to add to me what's so really galling and repugnant is it's part and parcel of this whole bullshit many pronged operation to say to rewrite the history of January 6th and of his taking those documents. Those were such obviously righteous cases with solid bases that should have been brought. But even doing this in the first place, he's also claiming his part that the search of Mar? A Lago was illegit. It was totally legit. All of this was solid.

Al Franken (31:04)

He had taken those documents and then he said he had returned them and he hadn't returned them.

Harry Litman (31:09)

Yeah, again and again.

Al Franken (31:10)

Again.

Harry Litman (31:10)

So that to me, the underlying part that. I don't know, Al, what you think I get worried that the American people, you know, start to think that oh okay, I guess maybe the Dems shouldn't have gone after him. And you know, and it's so if we had not pursued that case. Can you imagine after seeing January 6th, if we. I shouldn't say we. If the d. If the department hadn't. So that's, that's part of what's really disgusting. But the notion, you know, 230 million and that Todd Blanche or anybody who would decide this would work for him, that's such complete ethical violation. You know, I would think whoever does it could lose their license.

Al Franken (31:52)

Well, I wanted to go over the destruction of the White House. That doesn't seems like you want to get permission for that in some way, don't you think?

Harry Litman (32:02)

You know, so I wonder who this is. You know, certain things Trump does are just so cloddish and ham handed and obvious. This is one that like steam comes out of your ears. Cause it's, you know, nobody would even think of it. So there's no legal structure, you know that presidents come in and maybe redo the curtains in the Lincoln Room like this. And of course he said I won't touch the east wing. The east wing of the White House. And now he's demolishing it. And we'll have that forevermore. Right. I mean it'll be so sort of if we get out of this mess alive. What a, you know, such a shameful thing. He's kind of like godifying the White House, the people's house. And yeah, you gotta think he has no right to do it. But where does a court Even start, you know, you would have a sense of this also, it seems like politically, you know, just such a, you know, oh, you can't have health care, you get. But I'm spending 230 million to demolish the White House. You would think that would be something like Epstein that could actually stick, you know, with the American people.

Al Franken (33:19)

But he says he's paying for this ballroom from charitable donations from, you know, from people who are seeking favors from him.

Harry Litman (33:28)

He says that? Right, exactly. And that he'll give it to charity. But he backed away from that. He's, by the way, the corporate stuff, he's. He seems to have backed away from. But in any event, I mean, what the heck is he thinking? Is the. Is my first reaction. And then legally, it's like, this has to be wrong. But it's so out there, from what anyone's ever thought of. What do you point to? He's not taking care that the laws are executed because he's demolishing the White House. That seems right to me.

Al Franken (33:59)

But, you know, let's move to the deployment of National Guard troops in Portland and Chicago. And the justification for it is that there was reaction to ice in the streets. And it seems like ice, they got out of hand themselves. Right. In both cities, they're the.

Harry Litman (34:25)

But for cause of what they're saying, which is that we need the National Guard to protect our troops. And yeah, this is an extraordinary situation for the start because the local officials, when they've done this in the past, California, after Rodney King, the long official said, can you help us out for a couple days till the ship rights itself? Here you have the governor of Illinois.

Al Franken (34:49)

That was the Insurrection act with Rodney King. It's the last time it was invoked.

Harry Litman (34:55)

It was actually. Yeah, it was actually the 102 46, but stay the hell out is what they're saying. So you're really right. I think that the whole problem is that they've caused. Now they would say, well, we have to do these immigration operations. But that, Let me. Let me start and say this, I think is the single most important thing we've had. You know, in a half an hour. We've galloped over eight, you know, outrages. This is the single most, I think, worrisome and consequential thing happening in the country. Because he says, yeah, we want to protect our federal facilities. Little problem here. You can only do it under the statute. He's looking to. If either there's a rebellion, like a rebellion, right. There's a dictionary that says or insurrection. Well, Insurrection would be, he could go to the whole next step and we can talk about that. But the statute that he's talking about, it's got to be a rebellion or the normal forces can't handle the law enforcement problems. Both of those are like so complete fanciful claims here. Rebellion? I don't think so. You have say in Portland fewer than 30 peaceful protesters and sporadic acts of violence. The judge there said calling it a rebellion is completely untethered to the facts. And many courts now have said that. And then likewise, yeah, maybe they're sporadic acts of violence. That's what law enforcement is there and they can handle justice fine. So this is the, to me quintessential problem of the Trump era. To kind of use your framing from your great, one of your great books. He's just a lying liar who gets up lying and lies all day. And for the courts, the question comes what do you do with normally in an emergency situation, courts want to give the president playing the joints, got to act quickly, etc. They, but here to have an emergency, it's based on a complete, everybody knows bullshit factual predicate. And if they green light it, and this is right now, it could happen, you know, before this, this taping airs before the Supreme Court. What they've done is say we'll, we'll let him just claim these, these powers based on facts that don't exist. And if you're Donald Trump, you can take that, it seems to me, and play your emergency card everywhere, including for elections. Emergency, emergency. We need National Guard at every precinct.

Al Franken (37:39)

Now the circuit court in, in the ninth Circuit, well in Chicago they ruled against the Guard being there.

Harry Litman (37:48)

That's right.

Al Franken (37:48)

And, but in Portland, the ninth Circuit on a two to one vote rule that they could be there. Right?

Harry Litman (37:57)

Well, they, they ruled that they wouldn't put a stay, which is as good as saying that because they say the administration is likely to prevail. But more than that, just yesterday Al, there was a vote and the full 9th Circuit with 11 count them, 11 dissents, kept that, that decision in place. So you have all the higher courts completely, you know, and they really depressingly break along Trump versus non Trump lines in terms of appointees. But this is now at the Supreme Court anyway and we know how they're going to shadow docket form so they could, you know, just say relief granted, blah blah, blah, you know, and it could be that bad. But there's the two part problem par excellence for the Trump era. Can he get away with just lying? Can they, you know, if Something's really wrong and the law is an ass. If you can. You know, what are the district courts who were right there and they're supposed to defer to their findings? Say rebellion? I don't think so. Unable to execute laws. Give me a break. I mean, so clearly fanciful. So if that's the basis for getting this power, and then once you have that power unquestioned, you can, you know, emergency anywhere, everywhere. That's their, that's how tyrants operate. And you know, you look at Hungary, you look at Turkey, they, they take bullshit claims of emergency and use it to run roughshod over constitutional limits. It's the thing I'm most scared of, and rightly so.

Al Franken (39:38)

I mean, and if the Supreme Court decides, I think it decides.

Harry Litman (39:42)

They'll have betrayed us so badly if that happened.

Al Franken (39:45)

And we're gonna take a quick break. We'll be right back with Harry Lynn. I love to sleep. I love to get a good seven to nine hours every night. And I found out what really helps is a good bed with good sheets and a good pillow. And there's enough in the world to keep you up at night. Your bedding shouldn't be one of them. That's why I'd like to tell you about Ghostbed. Ghostbed is a family run company focused on quality and comfort and cooling, all in an effort to help people like you and me sleep better. Their mattresses are made from premium materials to help regulate temperature throughout the night so that you don't wake up overheated. And they're built to last, backed by a 20 to 25 year warranty. You also get 100 one night sleep trial to make sure that it's the.

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Al Franken (42:50)

And we are back with Harry Lippman. Let's talk about Louisiana v. Calais, which is about the case before the Supreme Court about the voting maps in Louisiana. After the 2020 census, the state legislature created a map that had one congressional majority black district out of six districts, even though the population of Louisiana is 1/3 black. And the US Circuit Court ruled that the state legislature had to draw a new map for 2024 with a second majority Black district. So the legislature did a redraw and created a second black majority district. Then a group described as non African American brought a suit to challenge the ruling as a product of unconstitutional racial gerrymandering.

Harry Litman (43:58)

Right.

Al Franken (43:58)

It went to the supreme court in the 2024, 25 session, the last session. And at the end of the session, the court decided to take it this session. And the suspicion is they may try to get rid of Section 2 entirely or hopelessly weaken it.

Harry Litman (44:17)

Yeah.

Al Franken (44:18)

Now we're talking here about majority black districts or they're called majority minority district. What's saying majority minority district.

Harry Litman (44:29)

So let me set that up. So a majority minority district is one in which minority voters are a majority. But if you think about how you can make these crazy quilt maps, this is what Louisiana did. It is 1/3 African American. And they were able to sort of put them all in in one.

Al Franken (44:50)

They drew, they gave them one district.

Harry Litman (44:54)

So they get one and they given out of six, the court said go back and draw another, which they did. And that that happened in the last election. So that's what in 2004. Yeah. And under section section two, I want to take one step back first, if you'll. This is the Voting Rights act, which we have always seen as the luminous example of the civil rights era, maybe the most important statute in U.S. history. It had two really strong operative sections, Section 5 and Section 2. The Supreme Court gutted Section 5. Just said, we think it's been.

Al Franken (45:34)

Section 5 was that Section 5 was.

Harry Litman (45:37)

All these states who have the bad history of doing stuff, they've got to ask for permission before they monkey around with changes. And it really, every, every election the DOJ would say, no, you can't do that. The Supreme Court, Roberts just said, yeah, that's been long enough. That left Section two. And most importantly, Section two had an effects test. It didn't matter if you were trying to be invidiously prejudice against minorities. But if you drew one of these crazy maps and it had the effect of disenfranchising or diluting the voting strength based on race, and the court would order and you know, you got to draw another.

Al Franken (46:22)

And that's what happened in Louisiana. They drew one. So one out of six, even though they were 33% of the.

Harry Litman (46:29)

There are currently 15 members of Congress who owe their seat to these rulings in Section 2.

Al Franken (46:38)

And just two years ago, the same court voted 5, 4, to add a second majority minority seat in Alabama.

Harry Litman (46:48)

Now, however, the Supreme Court, Justice Thomas is saying, I think Section 2 itself is unconstitutional because it discriminates based on race. That's his view. And others are saying, as they did in the Section five, do we really need it anymore?

Al Franken (47:07)

I think we have a piece of tape of Kavanaugh saying it's. Maybe it's expired.

Supreme Court Justice (possibly Brett Kavanaugh) (47:14)

This court's cases in a variety of contexts have said that race based remedies are permissible for a period of time, sometimes for a long period of time, decades in some cases, but that they should not be indefinite and should have an endpoint. And what exactly, exactly do you think the end point should be or how would we know for the intentional use of race to create districts.

Harry Litman (47:46)

One little problem there. Congress says the opposite. Including in section five, they had passed, they had renewed it until 2030. And the court nevertheless said, ah, seems like long enough to us. And the same thing here. Now, they would never pass a new one this, but they kept renewing it. Doesn't that seem like the people's call, how long you should have it?

Al Franken (48:10)

Well, he's basically saying racism is gone. And you know, I would.

Harry Litman (48:15)

Well, that's right, that this is intention with a colorblind look at the young Republicans. Oh man, oh man. Right. And the guy who, you know, who got Bounced two days ago for all his. All his racist taunts. But I just want to cut to the chase, which is, I listened to the argument. I think Section two is just going to be in the waste bin of history, meaning the Voting Rights act, the kind of signal enactment of the civil rights era that the country was so proud of, kind of making. The big step to put its racist history behind us is probably dead or weakened at best. I think life support. And here's what I mean. In Section five, they said, oh, we're not overruling it, but everybody subject to it isn't anymore. So it's just got an empty little vessel that anyone in that vessel who makes the changes, but there's no one there. And Section two, they're going to do the same. They're going to say, we won't overrule it, but we're going to say something like this. This is a very likely possibility. If you're doing it for politics, Thomas is going to say, get rid of it. I vote against it. But the others will say, if you're doing it for politics, not for race, that's okay. Well, that's why they're doing it, of course.

Al Franken (49:40)

Well, you can't do it for politics, though. You can't do it right now.

Harry Litman (49:44)

You can't, because if it has the effect of harming race, if they get rid of that, Al, you know, it's all over but the. But the shouting. So really, it would be just about the end of the Voting Rights act, both sections, it seems to me.

Al Franken (50:00)

And this could affect the balance of.

Harry Litman (50:03)

Congress 100%, starting with these 15 folks. Right. Right now, of course, also one hopeful sign. You know, these are redrawn every 10 years after a census if the Democrats come to power in enough states.

Al Franken (50:19)

These are Southern states and not all.

Harry Litman (50:22)

Not all for the Texan 2. You know, my others also, the section 5 ones were.

Al Franken (50:29)

Yeah, but I mean, most of them are in the south and they are not going to become Democratic states. And their state legislatures are going to be drawing these up and they're going to get rid of the majority minority seats and.

Harry Litman (50:45)

Right. They'll just put everybody all into one little district. And that's why it'll look, by the way, like, you know, like that.

Al Franken (50:51)

And North Carolina just jettisoned a majority minority seat. This is happening and it's going to affect that. That will affect the next election. We don't know when they're going to decide. This Louisiana case, it may be too.

Harry Litman (51:07)

Late, probably by, you know, in the normal Course, unlike what they may do for the troops, which is shadow docket won't be till toward the end of the. The term next year.

Al Franken (51:20)

Well, okay, that's. We don't have a lot of good news for folks. Well, sorry we had to talk about so many disturbing things, Harry, but thank you.

Harry Litman (51:30)

Thank you. And look, you know, the. So many of these, I think, have people more and more you. I don't know where you were last weekend, but the no Kings rally, it does feel to me. I keep broaching these comparisons to Hungary and Turkey and the like. We still feel different to me. We still feel like the sort of ballast of our constitutional feelings from, you know, Pledge of Allegiance in first grade means that they're, you know, as crazy as this gets. I think maybe the popular opposition increases and it's hard to say exactly because we've never been in these straits, but I just don't see his going all the way to, you know, the end of the Democratic, Democratic experiment as long as, A, he's in the 40s and unpopular and B, there's, you know, popular opposition just based on. It's our Constitution, damn it. You know, get out of here.

Al Franken (52:28)

So I hope you're right.

Harry Litman (52:29)

I remain somewhat sanguine, but, man, you're right. What a, what a. What a rough road we're in.

Al Franken (52:35)

Good. Good ending.

Harry Litman (52:38)

A little. A little valedictory victory peroration.

Al Franken (52:44)

Well, I hope you enjoyed listening. That beautiful music is by Leo Kotke. The great Leo Kotke. I want to thank Peter Ogburn for producing this podcast. We'll talk again next week.

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