0:06

Welcome to Talking Feds, a roundtable that

0:09

brings together prominent former federal officials

0:11

and special guests for a dynamic

0:13

discussion of the most important political

0:15

and legal topics of the day.

0:18

I'm Harry Litman. It's

0:20

our quarterly return to roots with

0:22

a close scrutiny of the current

0:24

mindset, morale, and methods of the

0:26

Department of Justice. With three of

0:29

the old hands and former insiders

0:31

that know it best. The

0:33

sharpest focus, at least from the

0:36

outside, remains on the two indicted

0:38

cases against Donald Trump. One

0:40

faces numerous legal challenges but has

0:43

an experienced judge capable of moving

0:45

it along, while the other

0:47

appears straightforward but is presided

0:49

over by a less experienced

0:52

judge seemingly ill-equipped for the

0:54

task. Separate from the

0:56

challenges of trying Trump is the

0:58

complication of muzzling him. A

1:01

number of courts, state and

1:03

federal, seem flummoxed by Trump's

1:06

so far incorrigible practice of

1:08

going public with insults, provocations,

1:10

and flat-out lies about judges,

1:12

witnesses, prosecutors, law clerks, the

1:15

deep state, and anyone he

1:17

sees as complicit in the

1:19

attacks against him. Though

1:22

it sometimes may feel that way to us,

1:24

it's not all Trump all the time at

1:26

950 Pennsylvania Avenue.

1:29

Merrick Garland and company of

1:31

late have been taking on

1:34

a spike in hate crimes

1:36

against Jews and Muslims, discriminatory

1:38

red lighting practices, and wild

1:40

west unlawfulness in cutting-edge high-tech

1:42

industries. And of course

1:45

there's the perennial task of

1:47

managing key relationships, in particular

1:49

the FBI and the

1:51

White House. To break down

1:53

the department's performance as we approach the

1:56

highest water days of the legal age

1:58

of Trump, we are really

2:00

fortunate as always to welcome

2:03

three insiders with detailed long-term

2:05

familiarity with Merrick Garland and

2:08

the department. And

2:10

they are Katie Benner. Katie covers

2:12

the department for the New York Times where

2:14

she was part of a team that won

2:16

a Pulitzer Prize in 2018. She

2:19

previously worked

2:21

at the Times San Francisco Bureau

2:24

and as a reporter for Bloomberg

2:26

and 4 Chin Magazine. Thank you

2:28

as always for joining these quarterly

2:31

DOJ episodes. Katie Benner. Thanks

2:33

for having me. Paul Fishman, a

2:35

partner at Arnold and Porter where

2:37

he is the head of the

2:39

firm's crisis management and strategic response

2:42

team. He's done it all at

2:44

DOJ including serving as a very

2:46

senior official of main justice and

2:48

as the U.S. Attorney for the

2:50

District of New Jersey. Thanks Paul

2:53

for joining. Always happy to be with

2:55

you Harry. And Amy Jeffress,

2:57

a partner of Paul's at Arnold

2:59

and Porter where she serves as

3:01

the co-chair of the White Collar

3:04

Defense and Investigations Practice. She spent

3:06

13 years at the U.S. Attorney's

3:08

Office for the District of Columbia

3:10

where she was among other positions

3:13

chief in the national security section

3:15

and also had extensive experience in

3:17

main justice including as counselor to

3:20

the Attorney General. Thanks for joining

3:22

Amy and by the way happy

3:24

Thanksgiving to everyone. Thanks. Great to be

3:26

with all of you. So quite a

3:28

bit has happened in 9th and Pennsylvania in the

3:31

last three months. Much of it

3:33

goes beyond Donald Trump but let's start

3:35

there. We're in the thick of litigation

3:38

in special counsel Jack Smith's two

3:40

federal cases, the one in D.C.

3:42

before Judge Tanya Chutkin growing out

3:44

of the events of January 6th

3:46

and the one in southern Florida

3:49

before Judge Aileen Cannon growing out

3:51

of his pre-warning of classified documents

3:53

after leaving the White House. Let's

3:55

start with the Chutkin case where

3:57

jury selection procedures start. in

4:00

early February, so we are

4:03

really chugging along. The

4:05

department found a response to Trump's motion

4:07

to excise language from the indictment, which

4:09

is sort of beside the point now,

4:12

but they suggested that January

4:14

6 itself is going to

4:16

be front and center. We don't

4:18

really have insider knowledge, but just

4:20

based on everyone's experience, do

4:23

we have an assentiate of how the

4:25

department's going to try the January 6

4:27

case, who are the

4:29

major witnesses, what their theory will be?

4:32

I think one of the interesting things about

4:34

the substance of the filing is that the

4:36

prosecution is, in some ways,

4:39

previewing the fact that they're going to treat

4:42

Trump much like they treated the other

4:44

descendants who stormed the Capitol, even though he

4:46

wasn't there that day. I mean, you kind of

4:48

get a sense from that, from the charges themselves,

4:50

which were very similar to the charges against many

4:53

of the J6 defendants. What's

4:55

interesting, and you see from the filing, is

4:57

they're previewing this idea

5:00

that the riot was actually

5:02

a tool of Donald Trump's,

5:04

in a long-running scheme to

5:06

retain power, that it was just something that

5:08

was a natural culmination in a series

5:11

of acts that began

5:13

after the election, that it wasn't a spontaneous

5:15

riot, and that he did use

5:17

this both to threaten the

5:19

vice president, Mike Pence, and then also to

5:21

intimidate other people who would try to keep

5:24

him out of the White House and try

5:26

to get him to step down. And by the way, the

5:28

Trump folks have focused in response to

5:30

that... Absolutely. ...on the idea that he

5:32

didn't have any idea that they would

5:35

be violent. And I think

5:37

that kind of misses the point, right? Because

5:39

following on what Katie just said is that

5:42

disrupting the vote, disrupting

5:44

the electoral college acceptance by

5:46

the House was

5:49

actually the point for him. And

5:51

he wanted those people to go to the Capitol, whether

5:54

he wanted them to go to the Capitol to break

5:56

windows and hurt policemen and do the

5:58

incredibly horrible things that... they did that

6:00

day, he's going to say, didn't see it

6:02

coming. That's a very interesting issue of proof.

6:05

But it doesn't really matter for Jack Smith's

6:07

theory. His theory is they were there to

6:09

put pressure on officers of

6:11

the United States government, senators and members

6:14

of the House, to get them

6:16

to not do their jobs. And that,

6:18

I think, is the primary point. Which

6:21

is sort of how he skirts the issue of whether or

6:23

not he should have charged Donald Trump with inciting a riot.

6:26

It doesn't matter whether or not a riot happened,

6:28

even just having people outside the building screaming, hanging

6:30

like pants, or having people outside the building yelling

6:32

and screaming was enough to try to pressure lawmakers.

6:35

You used, Katie, the term long running. And

6:37

I think that is a good way to

6:39

explain the indictment, which doesn't start

6:41

with January 6. It starts right after

6:44

the election with the fake-elector schemes. And

6:46

he goes through all the different states.

6:48

So to your original question, Harry, there

6:50

are going to be a lot of

6:52

witnesses to events that took place well

6:54

before January 6 with respect to the

6:56

overall conspiracy to undermine the results of

6:58

the election. So I think it's going

7:00

to be much more than just January

7:02

6. And let's bring it

7:04

home. I mean, don't you

7:06

think someone somewhere has written

7:08

some draft of an opening

7:10

statement as former AUSAs? Are

7:13

we going to see pictures

7:15

of the melee during opening

7:17

statement or just stick to

7:19

Trump's chagrin and frustration at

7:21

losing? It seems to me

7:23

he envisioned something like

7:25

this. And this happened to our

7:27

country, ladies and gentlemen. Do you

7:30

think that's, you know, as

7:32

a matter of trial tactics where we're

7:34

headed? I would try to get it

7:36

in for sure. I mean, look, if you if you look at

7:38

the images, if you started with the images of

7:41

members of the House of Representatives

7:43

cowering under their desks, if

7:46

you started with images, not

7:48

so much of the guy with his

7:50

feet on Nancy Pelosi's desk, but if

7:52

you have images of the senators and

7:54

representatives running down the hallway in fear

7:56

for their lives, the effect

7:58

was very nearly to

8:01

stop the process entirely. I mean,

8:03

it's a credit to the House

8:06

and the Senate that they got back into

8:08

their chambers, right? It's a credit that the

8:10

actual, but pretty clear that Donald Trump would

8:12

have been thrilled if they had continued running

8:15

straight out of the building and gone home.

8:17

A USA Jeffress, you agree? Because

8:20

you could imagine instead starting with

8:22

Cassidy Hutchinson and she heard Mark

8:24

Meadows say this, and as Paul

8:26

averted, I don't think you draw

8:28

a relevancy objection given the indictment,

8:30

but do you think that's what

8:32

we're going to see? I

8:34

don't actually. I think it's a more complicated

8:36

indictment than that. And so just looking at

8:38

it, it's a 45-page indictment and you don't

8:40

get to January 6th until page 36. So

8:42

there is a lot

8:45

of information about what's going on in the

8:47

States. And I think a lot of the

8:49

testimony is going to have to present that.

8:51

What was happening in Wisconsin and Pennsylvania? What

8:54

were his teams doing there to try to

8:56

come up with ways to overturn the election

8:58

results? And so January 6th, what happened? That's

9:00

the culmination of all of this. But to

9:03

me, that is also maybe the culmination

9:05

of the trial. I wouldn't necessarily start with

9:07

that in my opening statement. I think he's

9:09

got to lay out a whole path. And

9:11

then by doing so, he also undermines Trump's

9:13

defense that, well, I wasn't even there at

9:16

the Capitol and I didn't know it was

9:18

going to be violent. He was involved in

9:20

the entire scheme leading up to that day.

9:23

All right. That's our place. We're beginning

9:25

to be at a point where a

9:27

theory of the case and an order

9:29

of witnesses, I think, is being charted

9:31

out, right? So to eminences from the

9:33

department, I thought that contrasting views in

9:35

particular are interesting. I don't want

9:37

to back off my disagreement with Amy. I love to

9:39

disagree with Amy. A very good friend

9:42

of mine for a really long time and she's recruited

9:44

me to our law firm. So I owe her enormously.

9:46

But I wasn't just going to say they open with

9:48

that image as the first thing in the case. But

9:51

I will take issue with Amy on one

9:53

thing. They will draw a relevant subjection on

9:56

everything that they do. In this case, that

9:58

defense team is going to argue that

10:00

everything should be kept out, that the

10:02

jury should hear no evidence whatsoever, that

10:04

everything is too prejudicial. But won't that

10:06

be done at the motions for the

10:08

eliminate stage, though? But you've tried cases

10:10

with lawyers who, and ironically, you know,

10:12

what their strategy is to be

10:15

as obstructive as their client is. Yeah, it's

10:17

interesting. And part of that may be their

10:19

own strategy, and part of that may be

10:21

simply implementing his direction. And that's a whole

10:23

other discussion, but that's right, because there are

10:25

special considerations given what I think are reasonable

10:27

predictions about how Trump's team will try it.

10:29

Yeah, quick question about Mark Meadows,

10:32

who it looks like may have

10:34

testified under a grant of immunity,

10:36

but with no cooperation agreement. How

10:39

significant is that development in and of

10:41

itself, and do you see him playing

10:44

an important role at trial? Well,

10:46

he's indicted in Georgia, right? So I think it's

10:48

really difficult, you know, and he has a very

10:50

good lawyer. I think they have to be very

10:52

careful about how to navigate this, and I

10:55

don't know anything. And yet they testified, right?

10:57

He's got a cop, at least to that, whatever

10:59

he said, that I agree, I was stunned. And

11:02

he does have the best lawyers out there. Who represents him?

11:05

George Terwilliger. Not just Terwilliger,

11:07

but he's got a scolief.

11:09

The writings. And he has John

11:11

Moran, and he has George Terwilliger.

11:13

Are the best written products. And also, Meadows

11:15

wasn't the first person to testify under a

11:18

grant of immunity. Cash Patel did as well

11:20

in the documents case, the government got nothing

11:22

out of that. And so Cash wasn't really

11:24

used in that indictment. But here's my

11:26

question. My familiarity with the

11:28

law of immunity is not as recent

11:31

as it once was. But

11:33

if he testifies at the federal trial in

11:35

March under a grant of

11:37

immunity, isn't Fonnie Will's going to have

11:39

a really hard time convicting him and

11:41

showing that everything she's got, she obtained

11:43

without regard to that grant of immunity?

11:46

I mean, there's no question that she

11:48

gathered a lot of evidence independently of

11:50

that. But he's going to get one

11:52

hell of a Castegar hearing in front of her, if that's

11:54

what happens. That's my best guess of his strategy

11:56

in having done it, right? Right. That

11:58

seems right to me. end of the day, that's how

12:01

Oliver North got off right in

12:03

the Iran contrast because because the witnesses

12:05

at the criminal trial of Oliver North when

12:07

he was immunized in front of the Iran contract committee,

12:10

couldn't say that they

12:12

hadn't been influenced in some way by

12:15

his testimony on national television. They had thought, seen

12:17

it, they had read about it in the newspaper,

12:19

and so ultimately the department lost his conviction on.

12:21

So the question is, is that going to happen

12:24

here if he testifies first for the feds in

12:26

March? Let me just broach the

12:28

legal question for everyone who's listening. If

12:30

you testify underground or immunity, your testimony

12:33

is compelled so the Fifth Amendment says

12:35

it can't be used against you and

12:37

there's been very stringent ways of interpreting

12:39

that, whereas Paul says Fannie Willis could

12:42

have big headaches trying to show

12:44

it. All right, just a quick

12:46

closeout here. It's set for March

12:49

4th. Do you think that's

12:51

going to hold or pretty close

12:54

and what prospects are there

12:56

for delay? The judge seems

12:58

to be moving forward, taking steps to call the

13:00

jury in advance of the trial date is one

13:02

of those steps. So it seems like it will

13:04

go to trial in the spring. And whether there

13:07

might be a delay because of pretrial

13:09

issues, it's possible, but it seems

13:11

to be on track to me. I thought

13:14

one interesting development was the appeal of

13:16

the gag order, Harry. I think that's

13:18

actually a very interesting issue. There's not

13:21

a lot of cases like this one where

13:23

you have a criminal defendant running for president.

13:26

This is a first. And so applying the

13:28

traditional case law in this context is just

13:30

very difficult. And I think the argument in

13:32

the court of appeals reflected that. But Judge

13:35

Checkin's order was really directed at you can't

13:37

try to try your case in the media

13:39

and you can't even more importantly, you can't

13:41

threaten and harass and intimidate witnesses and court

13:44

personnel. And so we'll see what the DC

13:46

Circuit does with that. But I thought that

13:48

was very interesting litigation. Justice

14:00

tries dozens of cases all the time

14:02

involving people who are running for office. Bob

14:05

Menendez is running for office, right? There are

14:07

mayors and councilmen and governors who have not

14:09

resigned and have run for office after they've

14:11

gotten indicted. Usually they quit. So usually this

14:14

isn't an issue, but it's not unique in

14:16

that way. And his First Amendment argument really

14:19

doesn't have any greater or lesser resonance for

14:21

me because he's a candidate for the presidency

14:23

as opposed to a different office. His First

14:25

Amendment rights are not different in that regard,

14:27

I think. Yes, his rights are not

14:29

different, but what sets him apart from somebody like

14:31

Bob Menendez for now is

14:33

that he's also willing to say things that most

14:35

candidates who are under indictment would never be willing

14:37

to say. So it actually does make him very

14:39

unique. And there's an argument that I think that

14:42

the Justice Department has tried to make and

14:44

that other officials have tried to make

14:46

that this is not a political case, that this is

14:48

just a righteous indictment on criminal activity. And there's a

14:51

part of that that's true. But I think one of

14:53

the reasons why a lot of Americans struggle with this

14:55

case and do see it politically is because

14:57

at the end of the day, what happens

14:59

in these criminal cases, whether or not

15:02

he was being unfairly prosecuted

15:04

or she was persecuted, actually goes to

15:06

the heart of part of his campaign.

15:09

So there's a way in which this is just tied up

15:11

with politics, but it doesn't matter that the

15:14

department wants to say this is simply

15:16

a criminal prosecution. There's a reality, sort

15:18

of a real politic level that isn't

15:20

possible to not see politically. And Trump

15:22

is more than willing, more than other

15:24

candidates so far. To

15:26

draw that out, make it explicit and weaponize it.

15:28

And I think that that is why this gag

15:31

order issue that Amy brought up is one of

15:33

the more fascinating aspects of the case so far.

15:35

And he makes a very good point

15:38

as always, but also what is also

15:40

different is that the case itself is

15:42

about politics. So

15:44

Bob Menendez's case or a case involving

15:46

kickbacks or bribes or embezzlement or the

15:49

other kinds of crimes that public officials

15:51

are usually accused of when they're indicted,

15:53

they bear some relation often and they

15:55

must to the way they conducted their

15:58

office, but not about the political... process

16:00

in that way. And that also does make this

16:02

a little different. But if you narrow the gag

16:04

order a little bit to say, you can't

16:07

talk trash about witnesses and

16:09

about the prosecutors and about the judge,

16:11

that is a little narrower. And I

16:13

think that's ultimately where the court's going

16:15

to end up. That's my sense as

16:18

well. They'll be more targeted. I think

16:20

the important practical issue as far as

16:22

delay goes is whether they'll announce it

16:24

and apply it or whether they'll announce

16:26

it and remand it, giving Trump another

16:28

round, at least of a quick appeal. So

16:31

just on this filing that came out where

16:33

I think it's Molly Gaston, the prosecutor who's

16:35

working for Jack Smith, sort of lays out

16:37

this argument. The reason why they even got

16:39

to do this is because Donald Trump, his

16:42

lawyer said, we don't want any information about

16:44

the January 6th attack at trial. I mean,

16:46

I'm oversimplifying it, but they said,

16:48

you know, we would like to suppress

16:50

this information. And the

16:53

department used this as an

16:55

opportunity to lay out a really

16:57

strong argument against Trump. I

16:59

mean, they had valid reasons too. They

17:01

said, in fact, we do need to mention

17:03

January 6th in the attack because it's essential

17:05

to our case. But they did go further.

17:08

They used this filing to say a lot

17:10

more than they had to. And that

17:12

said to me that prosecutors,

17:14

having learned from the Mueller

17:16

investigation and from Donald Trump's

17:19

own behavior, that he is going to try to

17:21

take advantage of how violent the

17:23

department normally is. That while Jack

17:25

Smith is not going to be holding cross

17:27

conferences about what the department thinks or feels

17:29

in the way that Ken started, he's

17:32

going to take every opportunity to make

17:34

a strong case against Donald Trump in

17:37

speaking documents at every turn. And

17:39

that that is not the worst

17:41

strategy to combat this imbalance

17:43

of power between the Justice

17:46

Department and a defendant that typically

17:48

exists. And again, a typical defendant doesn't go

17:50

out and attack the Justice Department in the way

17:53

that Trump does. So this hasn't been a big

17:55

issue. But now it's a really big issue. And

17:57

I think that Smith team is trying to go

17:59

at this. creatively within the letter of

18:01

their own policies and within the

18:03

letter of the law. It's

18:05

a great point, Katie, and it's a

18:08

classic sort of prosecutor move. You speak

18:10

through your filings before the court and

18:12

they are doing that very effectively. And

18:14

I think even more my sense is this

18:17

has been sanctioned at the highest levels of

18:19

the department. We saw this in like the

18:21

Mar-a-Lago search warrant. We can take the

18:24

opportunity when given to lay some

18:26

stuff out for the American people

18:28

and try to counteract the

18:30

torrent of what's often actually just

18:32

false information. The photos in that

18:34

search warrant, but they could and

18:37

they were like, if Trump's going

18:39

to say there was nothing there, why don't we

18:41

just put in photographs of what was there, which is

18:43

really powerful. Right. But it's, I keep harping

18:45

on the men in this thing, but he is

18:47

my own state center. But they did the same

18:49

thing in that indictment. They have pictures of the

18:52

gold bars, right, and the cash in the jacket.

18:54

What's interesting about this and sort of ironic in

18:56

some sense is that defendants complain all the time,

18:58

justifiably in some circumstances and not justifiably in others,

19:01

that the reason they hate speaking indictments

19:03

is that the department lays out traditionally

19:06

in an indictment, speaking indictment is one where

19:08

it just doesn't say you committed fraud on

19:10

such and such a day, full stop,

19:12

right? It lays out the entire way in

19:15

which the defendant allegedly did that. And the

19:17

reason the government does that is it's

19:19

one chance at the beginning to

19:21

lay the stuff out for the public so the

19:23

public knows what the case is about. But defendants

19:25

and their lawyers have decried that practice for decades

19:27

and decades and decades. And it hasn't been going

19:30

on for 100 years. It's been going on probably

19:32

from 30 or 40 really

19:34

robustly. And then prosecutors do

19:36

it for that reason. And defendants hate it

19:38

because it puts all this information in the

19:41

public domain way before the trial.

19:43

Here you sort of have the opposite issue,

19:45

right, which is that Trump is talking all

19:47

the time. And now Smith is looking for

19:49

a way to sort of even the score

19:51

and that's that in the public record. Really

19:53

good point. All right, so let's go South

19:55

down to Mar-a-Lago. So, Cannon,

19:57

she's been tough on the government.

20:00

and gentle on Trump, we

20:02

can speculate why. But

20:05

my question's just this, a sort

20:07

of legal strategy tactics. Given

20:10

current trends, is there any

20:12

opening or do you see one on

20:15

the horizon for the department to seek

20:17

recusal from the 11th Circuit? Are they

20:19

stuck with their for the duration, do

20:22

you think? I expect so. I

20:24

haven't seen her do anything that I would think

20:26

would warrant recusal. It is somewhat

20:28

ironic that the delay is happening

20:30

in that case and not in

20:32

the DC case because I was

20:34

talking earlier about how I think

20:36

the indictment in DC is fairly

20:38

complicated. This indictment in Florida is

20:40

not at all complicated. It is

20:42

quite straightforward and it delivers the

20:44

goods, as you were saying, in

20:46

terms of the photographs of the

20:48

classified information, obviously where it shouldn't

20:50

be, and recordings of discussions of

20:52

classified information. It's a quite strong

20:55

case and a simple one.

20:57

I find it odd, and there is

21:00

classified information and there's litigation that has

21:02

to take place about how that's used

21:04

in court, but it's not especially complicated.

21:07

It is ironic that that case may be delayed and

21:09

the DC case is the one that's poised to go

21:11

forward. I agree with Amy. I

21:14

think, so first of all, the old expression, if

21:16

you shoot the king, you gotta kill the king. If you

21:18

take a shot at recusing a judge and you take

21:20

it up to the Court of Appeals and you lose, it's

21:23

a very, very, very dicey proposition. I

21:25

did it once in the seven and

21:27

a half years I was U.S. Attorney

21:29

and that's something you think very long

21:31

and hard about. Especially if you're DOJ,

21:33

right? Well, especially in a case like

21:35

this, right? And typically there are two

21:37

things about this. One is the Court

21:39

of Appeals is more likely to do

21:41

it if they see their own orders

21:44

being ignored. So if, for example,

21:46

they send the gag order back to Judge

21:49

Shuttkin and she issues the same order again

21:51

without regard to what the Court of Appeals

21:53

said, that would annoy them. But here,

21:56

where they're largely discretionary calls,

21:59

that judges may... all the time, the court

22:01

of appeals is going to be less interested in doing that.

22:03

The second thing, and I don't really know the answer to

22:05

this, is to seek the

22:07

recusal of a judge in circumstances

22:09

like this in front of the court of appeals,

22:11

you need approval from this solicitor general's office, I

22:13

think, to take that position on appeal. And

22:16

I'm not sure what that dynamic would be

22:18

in the context of a Justice Department that's

22:20

being run by an attorney general who is

22:22

clearly keeping his distance from this. And

22:24

even though the special counsel regs require you

22:27

to run the ordinary traps in the department

22:29

to get immunity or to get somebody's tax

22:31

returns or to get whatever approvals you might need

22:33

for a RICO or something like that, I'm

22:35

not sure how that would work in this

22:37

case. My view is that part of this

22:39

is she may have whatever biases she's had.

22:42

She also hasn't been a district court judge

22:44

very long. Some people have spectacular instincts and

22:46

some people don't. And I think that

22:48

some of this is she just may not be that

22:50

good a judge. This to me

22:52

is the biggest contrast with Chutkin. Chutkin

22:54

knows how to run a court and move

22:57

a case along and I don't think she

23:00

does. And it leads to a kind

23:02

of brittleness and even peak to the

23:04

DOJ, which is always the easiest target

23:06

in this. Let me ask one

23:08

more nuts and bolts question that really interests

23:10

me. Are Nauta

23:12

and de Oliveira likely to

23:15

plead here? It's a

23:17

tough call for them because it's their

23:19

employment versus their liberty. What do

23:21

you mean? Well, if they get convicted,

23:23

they could go to jail. And so I'm

23:25

sure that they're thinking about pleading, but they

23:28

also, I think they both still work for

23:30

Trump. Don't they? I think they

23:32

do. Well, I think Nauta certainly he wants to be there

23:34

in the long run, I think. Yeah. Unlike

23:37

the three people who pled guilty in the Georgia case,

23:39

all three of them are lawyers. There

23:41

were some others, but like when you look

23:43

at Ken Chesbrough and Jenna Ellis and City

23:46

Powell, like they were facing basically the end

23:48

of their careers as lawyers if they lost.

23:51

People could be facing the end of their careers as lawyers, but they

23:53

were facing consequences that Walt

23:55

Nauta is not going to be facing if

23:57

he doesn't plead and he doesn't give evidence.

24:00

to the prosecution. He is a

24:02

co-conspirator here, but of course, Cannon could

24:04

go pretty light on him, I guess.

24:06

I think that's right. If they have no criminal

24:08

records, I don't know that they

24:11

do, and it's a relatively minor offense from

24:13

this sort of aiding and abetting that they

24:15

behaved in, I think that they might just

24:17

risk it in order to continue to stay

24:19

loyal to Trump and to work for him.

24:21

They may not be facing much of any

24:24

jail time in any event, even if they

24:26

are convicted. And there might be some

24:28

sympathy for them in a jury trial, given the positions

24:30

they were put in. So I think it's a very

24:32

tough decision. I'm not sure they do plead guilty. Right.

24:35

And the argument in the jury is going to

24:37

be, we didn't know what we were moving. He

24:39

was the president of the United States. If he told

24:41

us it was okay, we assumed it was okay. They're

24:43

going to have some version of that. And then if

24:45

they get convicted, they're going to say to Judge Cannon,

24:48

look, he's Donald Trump. He's an incredible bully. What were

24:50

we supposed to do? I'm not sure that that's going

24:52

to carry the day, but it might in front of

24:54

her. And

25:03

now a word from our sponsor,

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for today. a spirited

28:01

debate. I wanted

28:03

to return and from the vantage point

28:05

of the DOJ to this weird I

28:07

think you've already identified it as a

28:10

singular problem in history of Trump a

28:13

criminal defendant not only a former president

28:15

but a guy whose legal

28:17

strategy is to scream

28:20

with a megaphone

28:22

what depraved, complete

28:25

corrupt everybody in the system

28:27

is including family members and

28:29

the like. Obviously you

28:32

know for judges this is a really

28:34

tricky problem they really don't want to

28:36

be the person who puts him in

28:39

jail but their their tools are limited and

28:41

at one point I think he can force

28:43

them to say next time

28:45

Mr. Trump and then what

28:47

are they gonna do? I wanted to

28:49

ask about how that's playing from

28:52

the department standpoint how do

28:54

you think Jack Smith and

28:57

team are thinking about this

28:59

whole gag order constellation of

29:02

problems? Well if you look

29:04

at what happened in New York and of

29:06

course that was not the department's case but

29:08

the judge there was so upset because Trump

29:10

went after his courtroom clerk and that really

29:12

is unacceptable and it puts a person who

29:14

is you know not a public figure in

29:16

a position of you know potential danger and

29:18

I think if if Trump tried to do

29:21

that in federal court you know go after

29:23

the judges law clerks or court

29:25

personnel those judges would have the same reaction and

29:27

the department would take steps to protect those individuals

29:29

I think that's a red line that he shouldn't

29:31

cross again and he was lucky to get away

29:33

with what he did in New York. Do they see

29:35

it as like look anybody

29:37

else you know does that they should go

29:40

in same as Donald Trump or do they

29:42

see it as an as a nightmare that

29:44

would totally complicate the case having him actually

29:46

have a gag order that he violates. I

29:49

guess the question is it's in terms of sanctions

29:51

right is that the least restrictive sanction that the

29:53

judge could impose with or that the prosecutor is

29:56

going to ask for right if you're talking about

29:58

my hatty what do you do And

30:00

the answer is you take away his phone. He

30:03

could live at Mora Lago with no

30:05

internet access. If I were the judge,

30:07

I wouldn't put him in. The security concerns are too high.

30:09

The risk is enormous. And I'm just by the way true.

30:12

I think in the end, a judge is going to have

30:14

to think about this in terms of sentencing, right? But

30:17

for the moment, it's just in terms of

30:19

sanctions. The image of Donald Trump being told,

30:21

you can't live at Mora Lago. You

30:24

can't mingle with crowds of people, which

30:26

is exactly what happened. And you effectively

30:30

select the conditions

30:32

of incarceration that

30:34

are necessary to maintain

30:36

order in your court, which

30:39

does not mean he has to be in a cell. It

30:41

does mean he's got to be in a place where he

30:43

can't communicate with anybody but his lawyers and his immediate family

30:45

and a member of the clergy, maybe. It

30:48

doesn't have to be that he's incarcerated. And

30:50

so that's how you could figure out some combination

30:52

of conditions that wouldn't let him plead or wouldn't

30:54

let him make public statements. I'm not saying that

30:56

that's the right answer. I'm just saying the jail

30:58

is probably not the right answer here. The

31:00

judge in New York started with fines and

31:02

relatively small ones in the overall context. And

31:04

I think that that's where I would go

31:06

if he started violating. You start with fines,

31:08

and then you say, this happens again. We're

31:10

going to have to consider greater sanctions. But

31:14

if he wants it to, and it strikes me

31:16

maybe he does, he can drive it

31:18

to that point. And then what I

31:20

think Paul, your analysis is spot on for judges.

31:23

I'm just wondering where is Jack Smith

31:25

and the department? If he continues to

31:27

do this and they're the ones whose

31:30

trial and the integrity is threatened, is

31:32

it the least bad option to put

31:34

him in? How are

31:36

they thinking about it as prosecutors? I wonder

31:38

if you have any thoughts. You're

31:40

talking about the integrity of the trial,

31:42

which I think is an important concern

31:44

here. But I was really talking about

31:46

the physical risk to individuals and especially

31:48

nonpublic figures. The integrity of the trial

31:50

is a slightly different issue because there's

31:53

this issue of to what extent is

31:55

he really threatening witnesses? And one

31:57

of the examples from the Court of Appeals argument the other day was that he was

31:59

a victim of the trial. him saying things about Bill Barr.

32:01

Is Bill Barr's testimony going to change because of what

32:03

Donald Trump is saying about him? Probably not. So is

32:05

that really a threat to the integrity of the trial?

32:08

And I think a lot of the witnesses in these

32:10

cases are, you know, quite solid and

32:12

are not going to be intimidated by anything

32:14

that is tweeted about them. And so the

32:16

integrity of the trial to me is, it's

32:18

still important, but it would take a lot

32:20

more to threaten that than it does, in

32:22

my view, to threaten these, you know, court

32:24

employees and other people who really should not

32:26

be put in harm's way because of this.

32:29

I think that the Amy thing about the

32:31

credibility of the trial is probably

32:33

the key to how

32:35

the Justice Department is thinking about this because

32:37

it's not just the credibility of the trial,

32:39

it's the credibility of the verdict too. If

32:42

the credibility of the trial is undermined, the credibility

32:44

of the verdict will be undermined, and then that

32:46

is really not what you want as a prosecutor.

32:49

I guess like reputationally

32:51

that Jack Smith and Merrick Garland would think about

32:53

this differently too. You know, Jack Smith, his reputation is he

32:55

goes in and he wants to win, and if he feels

32:57

like he has more than 50% chance of winning,

33:00

he's going to take the case trial, put it before

33:02

jury and see what happens. Reputationally,

33:04

Merrick Garland, when he became Attorney

33:06

General and in his first year,

33:08

especially in offices of AG, he

33:11

was thinking a lot about that credibility

33:13

issue around the Justice Department. Our courts

33:15

and our DOJ don't really have a

33:17

lot of meaning if the public does

33:19

not believe in them. The

33:21

Justice Department can do everything right, a judge can

33:23

do everything right, but if a huge swath of

33:25

the population has been convinced, for example, by

33:27

Donald Trump that these people are criminals and

33:30

liars, those things are less

33:32

meaningful in some ways and really

33:34

undermines democracy. And

33:36

so is it worth it to

33:38

stand on a principle and find Donald Trump

33:40

and eventually put him in jail before his

33:42

trial even begins if that

33:44

is going to, in the mind of the public, increase

33:47

the likelihood that they think that this is a

33:49

purely political prosecution designed to

33:51

keep Donald Trump out of office and that

33:54

whatever conviction or whether or not

33:56

a conviction happens, no matter what a jury

33:58

decides, there's no credibility here. And

34:00

I think that somebody like America would be

34:03

weighing those things and saying,

34:05

is that worth it? And I

34:07

think that that's not necessarily the worst

34:09

thing in the world to be weighing in

34:11

this moment because this is such a sensitive

34:13

issue. It's not just the

34:16

safety of people, whether or not they could be persuaded,

34:18

whether or not somebody is going to threaten Bill Barr

34:20

or go to his home. It is at the end

34:22

of the day that the ponderance of all the activities

34:24

that happened before a jury comes

34:26

back and says whether or not they think

34:29

Donald Trump committed a crime. Is

34:31

that going to undermine what the American

34:33

people think of that verdict, especially

34:35

when it's just politically

34:37

sensitive? And I think that is

34:39

a reasonable lens. And again, reputationally, that's a

34:42

lens that Merrick Garland would be willing to

34:44

think about and consider it sort of, and

34:47

he was a judge, reputationally that's just not

34:49

the way Jackson has talked about it. I think

34:51

that may be right, but I think

34:53

that maybe giving Jack just sort of one

34:56

step less something,

34:58

I'm not sure what the word is,

35:01

that he deserves under these circumstances. I

35:03

think prosecutors, good prosecutors, responsible prosecutors, prosecutors

35:05

who have been in the supervisory hierarchy

35:08

do think about that. His

35:10

role at The Hague was to think about

35:12

the credibility of international prosecution at the highest

35:14

level of the world court, right, at the

35:16

international court court. And so I think that

35:18

he probably, he doesn't come to this without

35:20

that idea. And because of his

35:22

role in both the U.S. Attorney's Office in Brooklyn

35:24

and in the public integrity section, I think he's

35:26

had those conversations with people because even

35:29

if it doesn't happen in this context, I

35:31

know Amy's had these conversations, I know Harry has

35:33

too, is when you're bringing the case at the

35:35

end of the day, is it a case that

35:38

you can make a federal case out of? Always,

35:40

is it strong enough? What if we don't win?

35:42

Should we bring it at all? People make those

35:44

calls, and if the dialogue is sufficiently robust in

35:46

the U.S. Attorney's Office or in the building at

35:49

950 Pennsylvania Avenue, people learn that. Some

35:51

people are better at picking it up

35:53

than others, but I think he's been

35:55

exposed to it enough. The

35:57

one wrinkle I think gets thrown into this is that it's not a case of a

35:59

federal case. not typically the case in most

36:01

political corruption cases at least, that

36:04

people associated with the trial are actually in

36:06

danger. And since we've already seen, we

36:09

already know that what

36:11

Trump says and

36:13

the way he says it and the

36:15

forum in which he says it can

36:18

actually precipitate action by people who think

36:20

that they're doing something that's righteous in

36:22

some way, even though they're completely misguided

36:25

and maybe crazy, in this context

36:27

where people, yeah, Bill Barr is not going to

36:29

change his testimony. But when you said

36:31

something about throwing eggs, is it possible that somebody

36:33

could attack Bill Barr? Or Tonya

36:35

Tchaikin. Right, exactly. I mean, I think that those

36:38

people, I assume, have increased security and they will

36:40

continue to have that. I wonder

36:42

about people like Cassie Hutchinson. What's that story

36:44

for those people and how are they living

36:46

their lives as people know that they have

36:49

basically left Team Trump and they may give

36:51

testimony. If I'm a prosecutor, if I'm

36:53

thinking about what the obligations are of the Department

36:55

of Justice to make sure that my witnesses

36:57

stay safe, that has to be crossing his

36:59

mind under these circumstances. I think it's

37:01

probably paramount in a lot of judges' minds

37:04

now that something like this really could happen.

37:06

It's a problem for the system, even if

37:08

they're thinking about it just in terms of

37:10

an individual case. Paul, I take

37:13

your point that I think there are discussions

37:15

that Smith and in fact Lisa Monica or

37:17

Garland participate in. But I do want to

37:20

say that, Katie, I think

37:22

you put it really beautifully, that ultimate

37:24

look out that the

37:26

best prosecutors are doing for how,

37:28

if there is a conviction, it will

37:30

settle in the American mind

37:32

and in history. So

37:35

it's not like we've solved the

37:37

problem, but I think that really

37:39

expresses the mindset that is specific

37:42

to DOJ. All

37:44

right, let's spend a few minutes,

37:47

as I always try to do anyway,

37:49

he states, talking about something other than

37:51

Donald Trump. So Mayor

37:53

Garland's been quite concerned and sounded the

37:55

alarm about hate crimes against Jews and

37:58

Muslims spiking in the country. all

38:00

the war in Gaza. I don't know

38:02

if you've seen stats but tripling worse.

38:05

How should the DOJ be

38:07

responding and is there

38:09

more that needs to be done here?

38:11

What would you be thinking of in

38:14

their shoes? They are

38:16

responding, Harry, and they're bringing cases. They've

38:18

brought several already and I think they've

38:20

been acting very promptly. There was a

38:22

Cornell student arrested. There was another announcement

38:25

just recently of another hate crime prosecution.

38:27

I think that's how Merrick Garland would

38:29

prefer to be known as leading

38:32

a department that is doing what's

38:34

necessary in these difficult times and

38:36

bringing cases like that. I would

38:38

also say the recent multi-billion dollar

38:40

settlement with Binance. It's a huge

38:43

crypto enforcement settlement and then obviously

38:45

the prosecution of Sam Bankman Freed

38:47

is another. Would you put Google

38:49

antitrust in with that too? Google

38:51

antitrust is obviously very different but yes, they

38:54

have talked for two years now

38:56

about wanting to reinvigorate antitrust enforcement and here

38:58

they are taking steps to do

39:00

that. These are the things that

39:02

I think they wanted to be known for.

39:04

I don't think they wanted to be known

39:06

for these Trump prosecutions in the January 6

39:09

cases. The January 6 cases

39:11

are getting a lot of resources and they're

39:13

very important and it's good that they're doing

39:15

that but that's not the affirmative agenda that

39:17

you go to DOJ to fulfill. Some of

39:19

these other things I think are probably much

39:21

more what they had hoped to be spending their

39:24

time on. Katie, do you

39:26

see these as coincidental cases or is

39:28

there like an initiative afoot? Amy's

39:30

comments are so interesting and two things

39:33

need to be in mind. One, certainly the department, one

39:35

of the first things Lisa Monaco talked about

39:37

was wanting to reinvigorate light-collar crime

39:39

investigations and that's what Binance and that's what Sam

39:41

Bankman Freed would fall under. Yes, the

39:43

technology is new. Yes, cryptocurrency

39:46

is relatively new over the last

39:48

decade but the crimes that they're

39:50

accused of are very old-fashioned

39:53

crimes, right? Moving money to

39:55

where it shouldn't be, hiding money, stealing money,

39:57

letting other people use the banking system for

39:59

illicit I mean, that's been

40:02

with us long before crypto. And so that is certainly

40:04

something that Lee's and Monica had

40:06

talked about, wanting to re-adigorate. And I certainly think

40:08

that's something they wanted to be known for. It's

40:11

interesting too, when you were talking about the

40:13

Hate Crimes Initiative, which Garland had said was

40:15

going to be something that he cared very

40:17

much about. I think one of

40:20

his very first speeches as attorney general, he tied

40:22

domestic terrorism to things

40:25

like disenfranchising people from

40:27

the vote, hate crimes based on

40:29

race, ethnicity, religion, et cetera. So

40:32

that was always something that's been with us. I

40:34

don't want to forget too, that because of

40:36

what's been happening in Gaza, it's not just

40:38

a matter of hate crimes

40:41

happening and increasing in the US. When Ray

40:43

testified a couple of weeks ago. Director of

40:45

the FBI. FBI director Chris Wray, I

40:48

couldn't believe this was overlooked because it was such

40:50

a searing moment, but he said that since the attack

40:52

in Israel and then the war on Gaza, the

40:55

likelihood of a terrorist attack, even in the

40:57

United States has increased. And so this is

40:59

now on the FBI's to-do list. I mean,

41:01

obviously the FBI and the National Security Division,

41:03

Amy knows this better than anyone right now

41:05

here with us today, is

41:08

always something that's top of mind for the United

41:10

States. But Ray was saying, this is really top

41:12

of mind right now that he'd gotten, what was

41:14

it? I don't remember, it was like over a

41:16

thousand or some huge number of tips. They're

41:18

looking at Hamas. They're trying to keep money

41:21

from flowing into the group. There have been

41:23

now calls for lots of terrorist activity, including

41:25

on US soil. So now we have to

41:27

worry about the possibility of terrorist attacks here

41:29

in the United States. So I think that

41:31

there's just a lot that came out of

41:34

that testimony, but that in terms of I

41:36

think for the department, it's like a multi-front

41:38

issue. It's what's going on with hate crimes

41:40

here at home because of the rhetoric,

41:43

because of the actions, because of the war.

41:45

And also what do we now have to

41:47

think about proactively, preventatively, because Hamas

41:49

showed itself to be extremely strong and powerful

41:51

in a way that was surprising. And that's

41:54

very inspirational. And I think that that's something

41:56

that the department is going to take seriously and we should

41:58

be paying more attention to that. inspirational

42:00

even to non-homage, to just prospective

42:02

terrorists in the United States, you

42:04

said. Yes. It's

42:06

like who would have ever thought Hamas would be able to break through the fence,

42:09

go into Israel, and

42:11

kill that many people. Katie

42:14

and Amy both made excellent points, right? But

42:16

there are through threads here. Look

42:18

what we're talking about, right? Somebody who speaks

42:20

or does something and inspires people who are

42:23

otherwise unconnected with that particular event to engage

42:25

in violence. That's the part of the piece

42:27

we were talking about with the gag order

42:29

and Trump's January 6th behavior.

42:31

But the lone wolf terrorist inspired

42:34

by somebody who does something like

42:36

what Hamas does is always

42:38

a threat and greater, says Ray. Remember

42:40

where Merrick comes from, right?

42:43

Merrick looked at two things that made the

42:45

most impression on him in his

42:47

time serving in the Deputy Attorney General's office, the thing

42:50

on which he spent more time than anything

42:52

else were the

42:54

Oklahoma City bombing and the Unabomber, right?

42:57

And so he knows that

42:59

world. He studied that mindset

43:01

and it scares him. It

43:03

really scares him. He

43:05

has been somebody more than any of the

43:07

other judges was always paying attention to the

43:09

Waco anniversary and what it would mean in

43:11

his courthouse because that was the day that

43:13

McVeigh blew the building up in Oklahoma City,

43:15

right? He understands where that comes from and

43:18

so that's important. The other piece that we

43:20

talked about, white collar crime, he was a

43:22

white collar criminal defense lawyer. He was a

43:24

federal prosecutor, right? He knows, Katie's right, line

43:26

cheating, stealing. That's what white collar crime is about

43:28

and he was an anti-trust lawyer. What firm was he at?

43:30

He was a firm called Arnold and Porter. Neither

43:33

Amy nor I were there. Then we were much younger. But

43:35

yeah, he was at our law firm and was a maid

43:37

partner at like the age of 14. I

43:40

mean, he was a wunderkind even then.

43:43

But there's one other piece of this that I think

43:45

that's worth talking about and one thing that he's paying

43:47

attention to in a way that I'm really thrilled to

43:49

see, he invited a group of faith

43:52

leaders into the Department of

43:54

Justice last week to talk

43:56

to them about hate. And

43:58

one thing that I think people forget. is

44:00

that all across the country there are, and you know this

44:02

Harry, there are 93 US attorneys

44:05

who interact with the community on

44:07

a very powerful level on a

44:09

daily basis, differently than the

44:11

Southern District of New York than on the Native

44:14

American reservations in South Dakota. But US attorneys are

44:16

out all the time talking

44:18

about the priorities of the department. I

44:20

would not be surprised to see what

44:22

we saw at the beginning of the

44:24

Obama administration when President Obama and Attorney

44:27

General Eric Holder were trying to increase

44:30

and improve the relationship between the Department

44:32

of Justice and in particular the Arab

44:35

and Muslim community back then. It was

44:37

still only eight years after 9-11, and

44:40

they were embarked on that process. And I

44:42

would not be surprised to see the Attorney

44:44

General give direction to people in the field

44:47

to really work on those relationships to

44:49

themselves, be giving speeches of the kind

44:51

he's going to give about hate and

44:53

discrimination and terrorism and what the role

44:55

of the Department of Justice is in

44:57

building those bridges as well as enforcing

45:00

the law. This is why I love these

45:02

discussions and why I think it's super valuable

45:04

to have people who really see the mindset

45:06

of the department leadership.

45:09

Let's just close two and a half years

45:11

or so in. Garland has

45:13

been famously arm's length toward

45:15

the White House. Any sense

45:18

of how you would assess the

45:21

current level of sort of warm

45:23

and fuzzy or affection, confidence in

45:25

the DOJ from the White House?

45:27

What's the state of that relationship

45:30

to the extent you guys have insight?

45:32

Harry, you and Paul and I met working

45:34

for Janet Reno's Justice Department, and we all

45:37

remember how much the White House did not

45:39

like her appointment of the special counsel for

45:41

the White Water, or I guess it was

45:43

independent counsel at that point, for White Water.

45:45

And I can't imagine that this White House

45:47

was very happy with the special counsel appointment

45:50

of Robert Herr for the classified information

45:53

investigation or the elevation or designation of

45:55

David Weiss to be special counsel. I

45:57

doubt that they're thrilled. with these developments,

45:59

but I would say that both sides

46:01

are probably aligned in this respect, which

46:04

is that they are both trying to

46:06

be very careful to keep those separations.

46:08

And so, even if these developments are

46:10

not welcome, they are probably welcome to

46:12

the extent that the White House thinks

46:14

it's very important that Merrick Garland remain

46:16

independent and demonstrate that he is so,

46:18

and Merrick Garland probably welcomes the fact

46:21

that, you know, the Biden White

46:23

House is not going to be reaching out about

46:25

any of these matters. They want to make sure

46:27

that they keep very, very clean on these matters.

46:29

And I think they both are. And I'm not

46:31

sure that they're going to get credit for that.

46:34

I think the world doesn't necessarily believe that the

46:36

department is independent, but I think

46:38

they are probably to a fault. That's the way

46:40

I see it. Look, I don't know

46:42

anything really firsthand about it, obviously, but

46:45

I agree with Amy, it's a little

46:47

tricky. Keep in mind that

46:49

when Merrick Garland started

46:51

working in Maine Justice in the

46:53

spring of 1993, he

46:55

was the number two in command of the

46:58

Criminal Division. Every recommendation for an independent counsel

47:00

that came out of the public integrity section

47:02

of the department, as it did in those

47:04

days, crossed his desk. He was in every

47:07

meeting with the Attorney General and the Deputy

47:09

Attorney General when that decision was made. He

47:11

knows the kinds of considerations that go into

47:13

that. I know because I saw the notes,

47:16

Janet Reno, when she was in the meeting

47:18

to decide whether to appoint Bob Fisk as

47:20

the independent counsel, a recommendation that was

47:22

later rejected by the special court. She

47:24

literally wrote on the bottom of her

47:27

page, damned if I do,

47:29

damned if I don't, bottom

47:31

line, just do the right thing.

47:34

I'm not kidding. She wrote that down and

47:36

Merrick was in the room, I'm sure, when

47:38

she said it, right? So he knows that

47:41

decision making. The thing that I think is

47:43

really tricky in Washington is he is a

47:45

member of the President's cabinet. They picked him

47:47

obviously because he was known for his integrity.

47:49

They picked him obviously because he was known

47:52

to be fair and incredibly smart and a

47:54

deep thinker and knew the issues of the

47:56

Department of Justice. But they also picked him

47:58

because it was his massive action against the

48:00

intrusiveness of Donald Trump in the Justice Department

48:02

telling Jeff Sessions and Bill Barr what to

48:05

do. And as it turned out in

48:07

the end, everybody else at the end, Rob Rosenstein got

48:09

importuned, Jim Comey, Jeff Clark. I mean,

48:11

it was really got, it became incredibly

48:13

awful and everybody wanted that barrier. What

48:16

I worry about is not so much the

48:18

criminal prosecutions because criminal prosecution should always be

48:20

independent of the White House. What I wonder

48:22

about and worry about are whether there are

48:24

other policy issues and other things.

48:26

So I don't know this to be true, but I

48:28

worry that they may be a little reluctant and he

48:30

may be a little reluctant to have the honest dialogue

48:33

with the President of the United States about

48:35

things that really matter, the Department of

48:37

Justice that have policy implications but are

48:40

perceived to be litigation matters in which

48:42

the White House might have a

48:44

view. And maybe he should know what

48:46

that view is and maybe he should express it to

48:49

them. I remember when the question was

48:51

whether the department in the Supreme Court was

48:53

going to defend the Defense of Marriage Act

48:55

and what the department stand was going to

48:57

be on what is ordinarily a general presumption

48:59

that the department defends an act of Congress

49:01

in front of the Supreme Court. And

49:04

when Eric Holder announced the decision that the department was

49:06

not going to defend the statute, he

49:08

very pointedly said, I didn't really talk to

49:10

the President of the United States about that.

49:13

And I thought that was kind of weird. And

49:15

Eric, he's my friend, but I thought it was

49:17

weird because the President of the United States was

49:19

a constitutional law scholar before he became the

49:22

President of the United States. And so the

49:24

idea that he wouldn't have a view on what

49:26

was a legal and policy matter that involved civil

49:28

litigation in the Supreme Court of

49:30

the United States struck me as unusual and maybe

49:32

not the right course, but they both wanted to

49:34

make sure that people didn't think they were talking

49:37

about things that they shouldn't be talking about. So

49:39

there is risk either way. I

49:41

think people don't realize during the

49:43

time when we met, there were

49:45

regular channels of communication where people

49:47

would go over, I participated to

49:49

the White House on things that

49:51

were litigation driven, but had real

49:53

policy implications. One that I remember

49:55

a lot is how to go

49:57

about freedom of religion where... You

50:00

know, they were pretty strong cross-current

50:02

and on policy issues, it's not

50:04

inappropriate. Nevertheless, I was going

50:06

to say once burned twice shy, but I

50:08

mean, burned is an understatement

50:11

for what happened during the Trump years. And

50:14

I think both of you guys are

50:16

in a very nuanced and sophisticated way

50:18

suggesting the imperative of reacting

50:21

to that maybe inevitably

50:23

has at least changed

50:25

things. And one could argue in some

50:27

ways, not to the optimal. I

50:30

think inside the department, there's a sense that

50:32

what Amy and Paul have surmised, that there's

50:34

a sense that people would agree that Garland

50:36

has perhaps made the wall between himself and

50:39

the White House too high, that he was

50:41

doing it out of an abundance of caution,

50:44

that he understands that his legacy is going to

50:46

be in part de-politicizing the

50:48

Justice Department to some extent, and that he

50:50

needed to be the example for that. How

50:53

history will judge that ultimately, I think,

50:55

is still up for grabs. But

50:58

certainly, inside the building, they

51:00

see that that was his intent and

51:03

that it has created some

51:05

issues with the White House, some

51:07

that are wrapped up in the prosecution

51:10

of the president's son that could

51:12

not be avoided. And so, you know,

51:14

they accept that there is a somewhat

51:17

strained relationship at times that is almost

51:19

a necessity at this point. And

51:21

there's an end. As you hear this, everyone's

51:24

back to work, but as we tape

51:27

it, it's the Friday after things giving

51:29

and we're all a little bleary-eyed, so

51:31

cut us some slack. Thank you so

51:33

much to Amy, Katie, and Paul, and

51:36

we'll look forward to getting the band

51:38

back together in three months to talk

51:40

more about the Department of Justice. And

51:46

we are out of time. Thank

51:48

you so much to Katie, Amy,

51:50

and Paul, and thank you listeners

51:53

for tuning in to Talking Feds.

51:56

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