BILL BARR'S JUSTICE

TF 37 Bill Barr's Justice

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Jennie Josephson [00:00:00] Producer Jennie here. Talking Feds is now six months old and we have big plans for this show which obviously includes more Feds eating tacos. But to make those plans possible we need to understand a little bit more about what you like and what you'd like us to improve about Talking Feds. So head over to our website Talking Feds dot com and participate in our listener survey. It only takes a few minutes and you can complete the survey anonymously. Thanks. 

Matt Miller [00:00:37] Hello and welcome to a special edition of Talking Feds. Special for two reasons. First, I'm obviously not your usual host Harry Litman. This is Matt Miller filling in for Harry today. And second, for today's episode I'm the only former Fed in the room. Instead, we're going to do something new and talk to three of the most well sourced reporters covering the Justice Department and try to find out just what is going on over there right now. I served as the chief spokesman for DOJ during the Obama administration and the DOJ press corps used to beat me up regularly with tough questions. Today, I finally get to turn the tables. Our guests for this episode are Evan Perez CNN senior Justice Department correspondent. Evan has been on the DOJ beat for more than 10 years covering the administrations of both parties. Devlin Barrett DOJ reporter for The Washington Post. Like Evan, Devlin has been covering DOJ for more than 10 years and has seen just about everything under the sun. Though I think a few new things in the past couple of years. And finally--


Devlin Barret [00:01:33] It's gotten weird. 


Matt Miller [00:01:35] And finally, Katie Benner who covers the Justice Department for the New York Times. Katie is a relative newbie to this beat having joined it last year. But you wouldn't know it from her reporting. She has turned out scoop after scoop after scoop since joining the beat. And in fact if you've been paying attention to the news the last week you know that all three of our guests have been breaking major stories but they've agreed to a one hour cease fire to be with us here today. Thank you all for joining. So lets kick it off with what, to me, is one of the hardest questions for undertsanding the Justice Department today and what's going on there and that is: Does Bill Barr really believe the FBI and the Intelligence Community were enaged in a giant conspiracy to keep Trump from being elected or has he launched this investigation into the Russia investigation to try to make Trump happy or is there some other reason that is not apparent to those of us on the outside. 


Evan Perez [00:01:59] Look I think before he became attorney general Bill Barr already had some pretty skeptical views of the rush investigation. We know that because you know he wrote memos we wrote he wrote memos that he helpfully sent to the Justice Department expressing some of his cup skepticism about investigating the president. But we also know that you know he is you know he's a voracious consumer of conservative media. So he reads a lot of this stuff. So I think he does believe that something smells about the way this began. Now the Justice Department is very careful to say that nobody there including the Attorney General is questioning the central thesis that Russia interfered with the 2016 election. They're not adopting what President Trump says about the Russian investigation that the whole thing was a hoax and all this stuff. That is not where Barr is, but Barr is definitely skeptical about you know some of the things that were done. He thinks that something doesn't smell right. And so that's what he's doing. And what's so unusual, obviously, is the personal attention he's giving to this as far as I can tell this is the closest management of any case I've seen by an Attorney General in forever. I can't imagine you know anybody from Alberto Gonzalez to Eric Holder to Michael Mukasey, anybody engaging in this in something like this you know where they're flying overseas to help introduce the prosecutor who's running the case John Durham. You know I've never seen anything like that. So you know I think that's where this sort of departs from what is normal. 


Katie Benner [00:04:22] And I think it says something about Barr too. He's a well-known micromanager from his first go at Attorney General in the 90s. He's known to have paid very close attention to everything that is happening and even now he wants to be read into pretty much everything. I guess a positive reading or an optimistic reading of what you're saying is that he understands this is such a politically sensitive investigation that having his imprimatur on every single step will help protect Durham should Durham turn in a report that says nothing bad happened. You know it helps legitimize that in the eyes of the conservatives who are hoping that he does find something and of the president who hopes that he does find something. I think that's a very optimistic read. It's one way to look at it. And I think another is just that as you say his personal interest in this is such that he wants to know everything. 


Matt Miller [00:05:08] Devlin, what's your take? 


Devlin Barret [00:05:10] I would actually go further. I think there is no question that Barr believes there's something there to find and he believes that at a minimum mistakes were made in the course of the Russian investigation. And there's a couple of ways to think about that. One, I think for those who suggest that Barr is trying to mollify or please the president, I think that's a fundamental misreading of the situation and you know I think they they are essentially, they may think the problem exists in different places among different people but I think they both believe there is a problem and that it will eventually come to light what the problem is. 


Matt Miller [00:05:49] So I guess the thing I don't understand is what is it to him that doesn't smell right? Because the thing you usually see are questions about the FISA application for Carter Page but that is already under investigation by the Inspector General. It's been under investigation for a long time. I don't know why he would need to have this second investigation. So what is the thing that he thinks? 


Evan Perez [00:06:10] Well I mean I think that's a great point because he clearly you know look he is the boss of the FBI so he could get a lot of the answers that he is seeking. 


Matt Miller [00:06:20] And he's going outside the FBI, right? He has the authority to look all over the governement. 


Evan Perez [00:06:23] Yeah, that's the thing. I mean this is you know this is this this thing that he's spearheading doesn't really exist if it wasn't something outside of the FBI that he's after. And so I think that's one of the reasons why he got the president to give him this authority to be able to get and declassify information from the intelligence agencies. He is I think going to be essentially taking stuff from the CIA and all the other intelligence agencies that provided information. And I think he's particularly, as you can see from his recent activities, you can see that he's particularly focused on on what information was being gotten from foreign partners, from from U.S. allies that saw something and said something, right? That's usually the way we work with the intelligence agency, the FBI they impress upon our foreign partners to turn over information if they see something that they think is worth noting. And so that's usually what happens. And so what he thinks appears to be wrong here is that something was done between the U.S. intelligence agencies and the foreign intelligence agencies to perhaps look at Americans.  There's something that he believes happened here that did not happen the right way. And look I don't know what the whole of his of his thesis is, but those are the hints we're getting from watching his activities. 


Katie Benner [00:07:56] Yeah and if he sees this global conspiracy that would go beyond what the DOJ Inspector General you know go beyond the purview of the DOJ Inspector General. But I think that the weird thing is that he picked John Durham to do the review because Durham is not known to be very partisan. He's not known to be sloppy. He's extremely careful. And he was asked to review the CIA's use of torture and he found no--. 


Matt Miller [00:08:21] By Eric Holder. By Democrat. 


Katie Benner [00:08:23] By Eric Holder. And he found no wrongdoing in that program where people were possibly being tortured. So it's hard for me to see a world in which John Durham really finds wrongdoing and people running down a tip. So, he's a strange choice--


Evan Perez [00:08:34] Yeah I mean he's of the institution, right? He is--


Matt Miller [00:08:37] Well yes, although, I would say, you know the bar is much lower for him in this report. In the CIA probe it was a criminal investigation, so he had to find wrongdoing that he could prove in court. He had to be able to prosecute a case. This doesn't look like a criminal investigation at least not yet or if it is we don't know that yet. It hasn't been reported yet. 


Katie Benner [00:08:54] It's not. 


Devlin Barret [00:08:54] It's a strange animal, right? That the selection of Durham to look at activity just to see if something inappropriate happened is strange, except when you think about who Durham is and what Durham has done. I think you know Barr's thinking in part because Durham's there to be able to investigate the CIA. As Katie was saying, the Justice Department Inspector General cannot go down that road. But Durham can and I think what Barr envisions by Durham being in charge of this is they're gonna be able to look at the entire universe of collection of intelligence overseas including what the agency did and come up with, whether there are no warts in this process or something worse, you know a review not just of what the bureau did but what the CIA did. And so I think Durham's place in this makes a lot of sense and it tells you a lot about what Barr thinks he's going to find or at least is looking for. But again, it becomes a circular argument because you come back to, "OK but what is the thing." And no one has really been able to articulate yet of the folks who think this is this is a very valid exercise. No one has really been able articulate yet what is the piece of--what is the thing that smells what is the thing that may not have been done badly? 


Katie Benner [00:10:13] I think we're going to wait for a while too because it's hard for me to envision a world where Durham's review would come out before the Inspector General report. So we have to wait for the IG report--. 


Matt Miller [00:10:21] And that's soon right next. Next couple months. right? 


Katie Benner [00:10:24] Hopefully. 


Matt Miller [00:10:24] The IG report for listeners into the the FISA application into Carter Page and some other internal DOJ matters. 


Katie Benner [00:10:31] And then depending on what the A.G. finds about the behavior of the FBI, I would think that that would influence Durham's work. 


Evan Perez [00:10:41] Yeah, I mean at a minimum I think the expectation in the building is that Durham is continuing his work into well into next year. So here we go back into an election year with something hanging over everything-- 


Katie Benner [00:10:55] And can he come up with results before the election? Can he say what he has found before the election without influencing the outcome of the election? 


Matt Miller [00:11:03] Of course he can. Well one thing one thing I know about John Durham from being in the Obama administration when he was appointed look at torture is he is slow. It took him three years to do that investigation. So it makes sense to me that it would come out sometime next year. And that goes to when you ask what it is that that DOJ is trying to do here. Some former CIA people and a lot of a former Obama administration officials think that there are two goals. One, is to smear John Brennan. That the IG at DOJ has already taken a whack at Jim Comey and taken some nicks out of him. But no one has hit Brennan yet. And this is the way to get Brennan. That's obviously a view that, you know, Trump obviously wants to retaliate against all of his political opponents and Bill Barr is doing it here. The other idea is to produce something that discredits the idea of Russian interference even if it doesn't discredit the underlying premise that the Russians did it, but cast some some, kick some dirt up around the 2016 narrative just in time for 2020. I wonder if you guys pick up anything in your reporting that obviously DOJ is not going to come out and say that but-- 


Evan Perez [00:12:05] But look I think the obvious animus towards John Brennan is out there for everyone to see. 


Katie Benner [00:12:13] In the tweets? [LAUGHTER] 


Devlin Barret [00:12:16] And it's mutual right? Like you know every time one takes a whack the other one comes back pretty quick. 


Evan Perez [00:12:20] I think it's you know Brennan is outspokenness that really got to them and I think it irritated a lot of them including including Barr. I think Barr has taken a dim view of some of the things that Brennan has said and that has given rise to a lot of conspiracies, some of them from members of Congress who say that they've seen documents that give them reason to believe that John Brennan ordered things that cut corners, that went around the U.S. laws that restrict what the CIA is able to do. So again that's some of the things, those are the things that Bill Barr has been reading. And so I don't know if he believes them but those are the things that I think have helped fuel some of the things against especially the John Brennan part of this. Now for the rest of it, the undermining of the investigation I think that's true. I think that's very much the the view of Barr and a lot of people is that you know this this investigation should not have happened certainly should not have happened the way it did. And so it was a much much overblown thing is what they think. 


Devlin Barret [00:13:31] Yeah and I think there's also like there's a feedback loop problem, like a political feedback loop problem when it comes to these agencies. So for example you talk to plenty of folks in the FBI who aren't that jazzed that people like Comey and other formers are in the public space regularly taking very hard shots at the administration. Because whether they have earned that cynicism and distrust I think is a completely valid argument for them to make, but I got to say if you are if you're a Republican and you're on the other side of that and the former leaders of these agencies spend most of their public life trashing the administration. I think it's a legitimate thing for Republicans say, "Wait a minute. Maybe you guys do hate Trump. And maybe you guys started hating Trump."  I mean one of the problems becomes well when did you first realize you hated Trump. And if you are overseeing the investigation of Trump maybe you're giving them at least four Republicans and remember part of this is about each side playing to its own base. Right? So as long as as long as the former officials are so strident in their criticism again maybe maybe justified maybe not as long as are so strident in their criticism. I think that actually helps Republicans stay on side with the president and with his supporters. 


Matt Miller [00:14:41] Even though that's not typically a predicate for launching an investigation. 


Devlin Barret [00:14:45] No, no, no, no-- 


Matt Miller [00:14:45] I see your point. I certainly see your point. One of the questions I have about this, Katie you a-alluded to this a little bit earlier is why Barr is so personally involved in this. I mean the point typically, if you were inside an administration and you were about to launch a very politically sensitive review, if you're at the Justice Department, you appoint an independent prosecutor like Mueller or a special counsel or you appoint someone like John Durham to get you kind of give him special jurisdiction to remove the political taint, especially if you're Bill Barr and the way the Russia investigation--there are so many questions--right or wrong-- I think right. He would say wrong--but there are questions and criticism about the way you handled it. You appoint someone like Durham who's independently respected to give you some distance from it. Obviously that's not how Barr is looking at it because Barr is jumping into the middle of this. 


Devlin Barret [00:15:30] Yeah, we're not doing distance. 


Katie Benner [00:15:32] So it's interesting, Barr has compared what happened to the Trump campaign in 2016 to  COINTELPRO which is this really dark moment in law enforcement history. This horrible horrible thing where we were surveilling you know African-American leaders and were simply you know Vietnam War protesters and law enforcement got out of hand. And to compare an investigation into whether or not a foreign power interfered in an election and the decision to see if there was a campaign that was working with that foreign power to this really dark moment would imply that Bill Barr who, as far as I can tell, doesn't say things he doesn't mean, that he truly believes that what happened was extremely terrible. And if you're somebody who wants to preserve presidential power who believes in executive power who believes in sort of the sanctity of the executive branch and and who the president should be and how the person should be treated, this would probably be extremely personally galling as well as professionally galling. So it doesn't shock me that he has taken this sort of interest and is micromanaging in this way because of who he is. It is shocking of course that it's happening, but given how he's spoken about the decision to launch the CIA investigation and the Trump campaign, it's not a huge surprise that he is heavily involved. 


Evan Perez [00:16:50] What's amazing to me is the reaction, certainly from Democrats, at Bill Barr because it's almost like they're shocked at who he is. 


Katie Benner [00:17:01] It's like they've never read anything he's written or-- 


Evan Perez [00:17:04] Did you not know that he was-- 


Matt Miller [00:17:04] Did you not read the memo he wrote about the Mueller investigation before he was--


Katie Benner [00:17:07] Or the e-mail to Peter Baker where he said there's more predicate to investigate Uranium One than there is to investigate--


Matt Miller [00:17:13] I think that is the most telling quote that has ever come out of bill bars Barr's mouth because that told me not just that he's very conservative because you can be very conservative and be committed to the rule of law--. 


Evan Perez [00:17:23] But I think he's more conservative than even a lot of people in the building and people know who know him really thought. 


Matt Miller [00:17:29] Not just more conservative but that in his time outside government spent a lot of time immersed in conservative media and right wing media and FOX News and has internalized some of the conspiracy theories you hear on those because no matter what you think about what the--how the Justice Department has been run, what you think about Bob Mueller, i's hard to say with a straight face that there was more of a reason to investigate Uranium One thhan the Russian interference in the election. That is a Sean Hannity type talking point. 


Devlin Barret [00:18:00] So I'm going to be a little contrarian. I think the best way to understand Barr is to just read his oral history interview in 2001 at UVA. That is an amazing document, mostly because he clearly never thought he would be back in government. So he's just letting it fly. And I will say for anyone who's like a big nerd and is curious like how the Attorney General thinks, that one document is the best source in my mind of understanding who Bill Barr is and how he thinks. And two things come flying off the page when he talks in that thing. One, is he's a very conservative guy who has very strong views about executive power and two, he thinks he is much much smarter than almost everyone he comes into contact with and he may be right about that. I'm not making a judgment call on, you know, I don't do IQ tests but I think those two factors you see playing out almost every day in the current Justice Department and I think it's--I take Evan's point that you know there is a conservative media ecosphere now that didn't exist then and that may be influencing his thinking. I don't know that it needed much influencing. I think he is a a conservative guy who really wants to get his hands on the wheel at all times and and make the cargo exactly where he wants it to go. 


Katie Benner [00:19:23] I mean when he built us house isn't  it famous that he really did all of-- you know he'd designed his library. He measured the room down to the last inch. He is the person who chose all of the decor. He plans all of his parties and he's not, it's not just in this one area of his professional life where he takes a heavy hand. 


Matt Miller [00:19:43] You alluded to maybe the best case defense for the investigation earlier for his involvement, his personal involvement in the investigation which is that if it eventually produces no evidence of wrongdoing Bill Barr can say I was involved in this and defend it to kind of the president into the conservative world who would be skeptical of that conclusion otherwise. I have a related question which is beyond the conservative media world. His involvement now looks like him pushing for an outcome that fits with his preordained conclusion. Does he care about what the broader world thinks about him as Attorney General. 


Katie Benner [00:20:21] All shaking our heads no. 


Devlin Barret [00:20:24] That's not a big concern. 


Evan Perez [00:20:24]  Yeah, he does not really, he doesn't care. And to be honest, I think, you know, I think one of the things that that happened very quickly with Barr was his willingness to say stuff. And, you know-


Katie Benner [00:20:38] Spying? 


Evan Perez [00:20:38] Right. I mean use words and it was the use of rhetoric in a way that usually attorneys general don't do because you want to try to rise above and sort of be able to say that you're not playing politics and so but he doesn't care. 


Katie Benner [00:20:52] It's also deliberate. That Senate testimony, the congressional testimony money where he said spying, the first day of his testimon, if you look at the transcript he said "unlawful surveillance" and nobody noticed and didn't say anything about it and it didn't really make any headlines. So the next day when he took the microphone he said spying. And it got the reaction he wanted.


Matt Miller [00:21:10] Oh that's interesting. 


Evan Perez [00:21:11] No it's very deliberate. Actually I do think he's very very careful about what he does. And I think you know his use of rhetoric you know is one of those things that he does. He likes to pepper-- 


Devlin Barret [00:21:25] But remember too like how he became the Attorney General. In his confirmation hearing his pitch to the Democrats was, "Look man, I've done this job before. I don't care what the president wants. I'm not looking to satisfy anybody or get a new job." He said, "This is my last job. I don't care." And that was his best selling point to Democrats. What I think the Democrats failed to anticipate or predict and you know no one sees the future, is that he just honestly believes a lot of this stuff. And so he doesn't need the president. You know it's not like the Jeff Sessions relationship with the president's constantly beating down on the guy's head. Do this, do this, do this. This is actually there are plenty of pieces of information to suggest this is actually at least as much Barr pushing up going like, "I'm doing this, I'm doing this, I'm going to go get it." . 


Evan Perez [00:22:11] You know what's what's interesting about him is that he's a bit of a grenade thrower right? He sometimes will just throw things and just to see what the effect is in the room and look that's great at a dinner party. And you know from all reports Bill Barr is a great dinner party guest because he's gonna be entertaining, he's gonna be the center of attention, he knows how to tell good stories. He's a good time Charlie, right? But, you know, when you're Attorney General it's normally what we expect of Attorney General is that you know you're a little more careful about wording in certain ways in order to to appear that you're nonpartisan. He doesn't care about that so much. And so he's willing to to stir the pot. 


Matt Miller [00:22:51] And look there is an argument to be made to always do what you think is right. Don't worry about what the public is going to say, don't worry about criticism do what you think is right. And that is true to some extent. But at the same token there is a cost to the Justice Department when your actions cause the public or at least cause one party, cause a significant percentage of the party to lose faith in the independence of the Justice Department and the credibility of its investigations. And your point is he doesn't care but I think that's right he doesn't care about the criticism. What I worry about is that criticism accrues to what people think the Justice Department's doing and that's damaging long term. 


Devlin Barret [00:23:29] It is, but I think part of it depends on what do you think is the future of the Justice Department and FBI is going to be? So because we're all like sort of trapped in this, sort of, 2016 cycle that never ends. Like do you believe that the DOJ is going to get back to a place where the public generally believes them to be, an impartial and fair, even handed part of the government overseeing investigations? Or do you believe that given what happened in 2016 we are going to be on a treadmill for a very long time in which there is basically a Republican view of the Justice Department and a Democratic view of the Justice Department right down to specific investigations, and that dynamic will not go away and therefore you have to fight on the battlefield that you're presented with politically and that's that everything is politics? 


Katie Benner [00:24:16] Yeah. The Justice Department isn't exempt from this huge change that's taking place in D.C. over the last few decades of hyper partisanship you know. So post-Watergate you could have this cleansing moment where people get swept out of the department and everybody vows to do better. And the American public is hopeful for it. And you know Congress has passed all these laws to make sure a Watergate never happens again. We will not see that with Donald Trump whether or not he is impeached. Congress does not behave this way anymore and the Justice Department cannot escape Washington. 


Matt Miller [00:24:46] However I think the Justice Department if a Democrat is elected in 2020 or 2024, you will see most likely I could be wrong but I think you will see a Justice Department under a Democratic administration returned to the kind of traditional norms--because Democrats at this point th.at Bill Barr doesn't worry about criticism from the mainstream, Democrats very much do. Democrats would look at the John Durham thing and say I'm not going to touch this because I don't want my integrity to be questioned so I do think the big question--you're right. One question is will DOJ just flip flop back and forth and keep investigating the other party? But the other question is are Republicans going to run just the Justice Department one way and Democrats the other? And obviously I know that some that's through the eyes of the beholder. 


Devlin Barret [00:25:31] Spoken like a Democrat [LAUGHTER]. 


Katie Benner [00:25:35] And also, Trump is an unusual Republican. I think you could make the argument that if it were a Jeb Bush or if it were Mitt Romney that we wouldn't see the Justice Department used as a cudgel to go after people's political enemies. 


Matt Miller [00:25:46] Yeah. I agree. That's right. 


Evan Perez [00:25:46] OK. Let's pause here for one quick second and talk a little bit about the way Republicans looked at the beginnings of the Obama administration. Look I'm not I'm not going to equate the two things but when Eric Holder asked and ordered a review and an investigation of some of the practices, the post 9/11 practices we're talking about the torture. We're talking about some of the releases of documents. We're talking about the look at CIA black site prisons. There was a lot of criticism from Republicans because they viewed it as a partisan thing. They viewed it as a cudgel being exacted upon the previous administration. Some of it because the incoming president had been a critic of Bush. Right? And so  if you listen to Republicans, what you're hearing from them is that you have 'but Democrats did the same thing" and they bring that particular thing up. And so I just think it helps to just stand back a little bit and just think about what how each party has behaved in the last couple of administrations, I'm not saying the same thin,g but that's how they see it. 


Katie Benner [00:26:59] The difference being that Obama never said publicly or previous to that Bush never said publicly I'm going to ask the Justice Department to go after somebody I dislike. And I think that the rhetoric coming from the White House is a key difference that that Trump would say, "I want my Attorney General to protect me. I want my Attorney General to go after my enemies and destroy them." 


Devlin Barret [00:27:17] That's true. But I feel like the dynamic is different in one key way and that's that, you know, Evan and I are old farts. So we went through the joy that was Fast and Furious and and sort of that era of you know Justice Department internal investigation scandals for lack of a better term. Those stories by and large were what you would think of as middle of the book or back of the book stories meaning they were not the front page stories. They did not dominate the airwaves. I think part of what's so crazy about what we're all covering now is that this crap is on the front page every day and this crap is the central conversation in politics most days. And I do think that is a different position for DOJ to be in and that's why I'm sort of skeptical and cynical about the notion that, "Oh you know when the dust settles we'll all go back to sitting quietly in our chairs." I do think like that the fundamental difference between now and then is like this is the centrepiece of the whole deal in D.C. and that's not, I would argue, that's probably an unhealthy place for both DOJ and the Bureau to be. 


Matt Miller [00:28:20] I agree. So let's that's a great transition. Let's talk about the other center piece investigation going on right now especially since you've brought up Fast and Furious and the torture investigation and you're gonna drag me down a rabbit hole where 'm arguing with you about the same things I've been arguing about for 10 years. 


Devlin Barret [00:28:34] Oooohh, listeners are gonna love this. 


Matt Miller [00:28:34] Not you, Katie. Devlin and Evan. 


Evan Perez [00:28:35] Nation of cowards. 


Matt Miller [00:28:39] Yes, nation of cowards if we want to bring out all the old Holder hits. Let's talk about DOJ's role not in the investigation into the past investigation of the president but let's talk about the new investigation into the president and DOJ's role. Because they have been kind of up to their eyeballs in it. As I understand it, the department's role in the Ukraine story is the Whistleblower initially goes to the CIA general counsel who goes to the White House and then to the Justice Department. They start looking at it in August. The Whistleblower gets more concerned, then files a formal complaint with the Director of National Intelligence Inspector General who refers it to DOJ as a possible criminal matter. DOJ then does a couple things. One, they look at this very narrow question of whether the president violated campaign finance law and decide there's not enough to open a full investigation and two, when the Inspector General for for the Intelligence Committee wants to send the complaint up to Congress, the Office of Legal Counsel writes an opinion saying that that it should basically stay in the executive branch. Since then, all of this gets out in dribs and drabs. The Attorney General is personally named in the Whistleblower complaint, seen a lot of noise out of that department the last week or two: He had nothing to do with this! He didn't know about it. He's angry about the president referring to him. What is going on at DOJ as this scandal which now has led to impeachment inquiry into the president is kind of engulfing the White House engulfing the State Department hitting on DOJ. What's the mood like there? 


Evan Perez [00:30:23] What's amazing to me, the most amazing thing to me about this is that the Justice Department people thought that, you know the release of the transcript and they did a backgrounder and gave us some information, gave us a little bit of a timeline. They really thought this was going to tie this up in a neat bow and then everybody would just go away and say OK we're moving on. 


Katie Benner [00:30:47] And we didn't yet have the timeline that they knew in mid-August. 


Evan Perez [00:30:51] Right. So they adjusted the timeline. That was a big--it's always a big mistake when you release a timeline and then you "oops", forgot some parts of the timeline and you have to change it. That's always bad [LAUGHTER].


Matt Miller [00:31:00] Especially when those parts implicate you having knowledge about the scandal much much earlier. 


Evan Perez [00:31:05] And so that's one of the things that to me that I just I'm still like surprised. We were all sitting there last week and thinking you guys really think this is going to go away. This doesn't go away because there are some very big questions. I mean you rephrase one of the big ones which was: Why did they limit themselves to just the narrow thing of campaign finance? And one of the things that they've said is, "Well this is what the ICIG told us to do. This is what the Inspector General was asking. 


Katie Benner [00:31:27] Right, if we get a referral we investigate the referal. We don't go beyond that. 


Evan Perez [00:31:31] And that's that's just crap. That's not true. I mean that's not Justice Department policy. If you read the criminal code it says that the Attorney General has the ability and the Justice Department or the FBI can look into whatever they want. Any other possible crimes, not just the one. So that's not, that's not true. So the question remains you know why did you limit yourself to that? And look, I mean I think we all kind of know what the answer is. I mean, nobody really at the Justice Department or the FBI really wants to spend another couple of years investigating the presiden. 


Katie Benner [00:32:09] Knowing what the outcome has to be which is you can't indict a president so--


Evan Perez [00:32:14] They're scarred. 


Devlin Barret [00:32:14]  I mean, I will express some sympathy for DOJ in this sense. None of these laws, none of these criminal statutes were written to ever contemplate the notion that a president of the country would suggest to the president of another country, "Hey can you investigate this other guy who may run against me?" Like there are things that the criminal laws can do. And there are things that criminalize probably can't do and this may just be one of them. 


Katie Benner [00:32:40] We've seen through this whole process that it's very very difficult for the executive branch to investigate itself. That's not what it's set up for either explicitly or implicitly. The entire Executive Branch is created to protect the president if not because he's constantly getting information from all these cabinet heads. So when McGuire testified he we all felt bad for him because he said there could have been a privilege issue because it was the president. So I then have to actually deal with the White House that is just how things work. My only legal counsel is the Justice Department. So then I had to go to them what else was I supposed to do now? All of these are avenues by which information can get back to the president. So to have the Executive Branch investigate itself is an almost impossible thing anyway. 


Matt Miller [00:33:22] And you see that with the trap DOJ set up where they said, "This shouldn't go to Congress because this is a matter for the Justice Department to investigate. Oh by the way, we're not going to investigate this. Oh by the way even if we did investigate him, well we can't indict the president any way." So there's this massive catch 22 where under the Executive Branch's view of at least this scandal and probably others, there's really no way for anyone to look at the president's actions. 


Katie Benner [00:33:46] Which is why whistleblowers go to Congress. Usually. 


Matt Miller [00:33:50] If they're allowed to. 


Evan Perez [00:33:51] Right exactly. And again you know the issue here you know for the Justice Department is that you know they they've gone through this just the last couple of years and so and usually I mean to be fair, if you're going to look at a campaign finance issue, normally things like this would get kicked over to the FEC, to the election lawyers and they can do a civil thing. Right? So you know usually you don't bring a criminal case and something like this especially where you know someone is incoherently speaking and not really being clear about what they are asking to do. Right? So you can empathize with the people who are having to review this. And by the way, Justice Department says that Barr was minimally involved. 


Matt Miller [00:34:37] That is the big question I have. So we have already established in this podcast thaat Barr is a micromanage [LAUGHTER} That he cares very much about about the big things at the department and he cares about the little things like--. 


Evan Perez [00:34:46] Except this. 


Matt Miller [00:34:47] --the decoration of the decoration of his library. Who's calling the shots on this investigation? We've seen the finger pointed at the head of the Criminal Division division--apparently made the call on his own about about whether to open a full investigation. The head of Office of Legal Legal Counsel wrote this opinion and Barr wasn't really involved. 


Katie Benner [00:35:06] Well there is a world in which if you look at the timeline John Demers the head of the National Security Division goes to the White House to read this reconstructed transcript on August 15th. He sees his own boss's name in it. If you are Bill Barr and you are hopefully surrounded by smart people and John Demers comes back to the building and has to notify somebody in OIG somebody ODAG, that the smart people around the Attorney General would immediately move to remove the attorney general from the process if he's not going to recuse. I'm not saying that happened but if you are surrounded by people who are minimally competent, they will do everything they can to at least be able to plausibly say that Barr wasn't involved. 


Devlin Barret [00:35:48] I think it's fair to say we don't actually know enough to make a judgment call as to what Barr knew and/or did in that time period. I also think it's fair, to Katie's point precisely, I don't think it's fair to question like, "Would the people in the fourth and the fifth floor of the Justice Department have been smart enough to be like, "You know what, boss, we're not really going to keep you up to speed on on some of this stuff. We're gonna do our jobs and we'll let you know if there is an issue that needs to come to you." Now, the bottom line is we don't actually know for certain what happened. 


Evan Perez [00:36:18] We also we still don't even know when Barr finds out about this. Right? Because that's a question that the department has not been willing to answer. When exactly did he find out that his name is mentioned on this call? Is it when Demers comes back after the 15th of August, after this becomes an official formal complaint. We don't know. 


Matt Miller [00:36:39] I'm very skeptical about, obviously don't know either, I'm very skeptical about the scenario that Devlin described where they just kind of keep it away from him. Because two things: First of all, if you really want to protect the Attorney General and look when you're in a like when you're on the job I used to have it you run the Office of Public Affairs your prime directive is protect the Attorney General if you're the AG's chief of staff- 


Devlin Barret [00:37:00] Could you repeat that again, please? 


Matt Miller [00:37:01] Protect the Attorney General. 


Devlin Barret [00:37:02] OK. Thank you. I'll need that for later. 


Matt Miller [00:37:05] Exactly. The way you protect the Attorney General in this instance is you tell him to recuse himself. And a smart Attorney General would say from the beginning, "I'm named in this complaint." The minute you find that out, I'm going to recuse--. 


Katie Benner [00:37:16] Well, we're in a new world where recusing oneself means that the president thinks you're his enemy. 


Matt Miller [00:37:21] I know. But here's the thing--


Devlin Barret [00:37:22] You trying to get the guy fired? 


Matt Miller [00:37:24] Right. But you don't recuse yourself if you want to stay involved. And to me if you have a Deputy Attorney General like we have now, who has never worked at the Justice Department before, never been a prosecutor, doesn't know how the building works and he's working for an AG like Bill Barr who's a mike micromanager, my suspicion of how this goes is the head of the Criminal Division is doing his thing. The head of Office of Legal Counsel is doing his thing. They're reporting in to Rosen, who is the Deputy Attorney General. And Rosen is making sure Bill Barr knows what he's doing. And because Barr is not recused, if he ever doesn't like the direction things are going, if people start to look like, Yyou know what. We're gonna make this decision at the White House doesn't like." Barr is there to step in and reverse it. 


Evan Perez [00:38:07] Look I think I can understand your skepticism. Because of the way how we've seen things generally work in the last in last year or so, but I mean to Katie's point, Barr really was in a place where you know I mean we know the answer right which is that you know there's no way Barr and recuse himself and not suffer the consequences that-- 


Matt Miller [00:38:28] Jeff Sessions suffered. 


Matt Miller [00:38:31] But Barr told the Senate I heard him say, "I don't care if the president gets mad at me and fires me." Maybe that wasn't wholly accurate. [LAUGHTER]


Evan Perez [00:38:40] Well things change. 


Matt Miller [00:38:41] Evan you said something to me early in the days when I was at the Justice Department. You covered the Justice Department during the last two years of the Bush administration when the place basically imploded in scandal. There was a scandal around hiring and firing of people, of U.S. attorneys, of other career officials and you told me that for a long time the department, like any institution, its hard--you go around knocking on alot of dooors and people kind of stick together. Don't return your calls, they're not ready to talk. And when scandal starts to break open, that's when everyone starts to think more about their own reputation than the institutions and they start protecting themselves. With this Ukraine scandal touching so many people in the administration, are we at that point yet where the Justice Department is starting to break down and the Deputy Attorneys General office is pointing fingers at the AG, it's a usual thing that happens there-- 


Evan Perez [00:39:36] What's interesting about this one is so we've gone through cycles, right? Right at the beginning of the administration when Trump is really mad at Sessions and Sessions is taking all the incoming and there's some certainly some tension between the fourth and fifth floor. Rod Rosenstein has appointed a special counsel. Sessions is very surprised to learn this because he's at the White House when he finds this out [LAUGHTER] and gets a phone call and is told that you know Bob Muller is coming on board. So all of these things--. 


Matt Miller [00:40:06] That was a particularly cruel thing to do. So if you're going to do it don't do it while he's in the Oval Office right. 


Evan Perez [00:40:11] It's a very ruell thing. But Rod Rosenstein does this and it leads to a very long period of tension between the fourth and fifth floors of the department. And so one of the things that did happen was you know you did get a little a lot more whispers and a lot more people coming out. It doesn't seem to be happening right now. I mean, people right now everybody is cowering behind every piece of furniture it seems like. 


Matt Miller [00:40:35] The wagons are still circled. 


Evan Perez [00:40:36] Well I think, I don't know if it's the wagons necessarily. It's more that I think everybody just waiting for the next-- 


Katie Benner [00:40:43] Also it hasn't hit the building yet.  Sate Department is under the gun. DOJ is still--it's interesting you know if Nancy Pelosi wants to do this impeachment in four to six weeks, if that's really her timeline, she has to be so singularly focused on the phone call. She has to be so singularly focused on the people who are coming to her who are from the State Department. She may not ever get a chance in four weeks to delve deeper into what Bill Barr has been up to or what Ed O'Callahan has been up to. And if she doesn't then DOJ will not feel the heat. 


Evan Perez [00:41:13] By the way there's so much--I mean we know that one of the things that John Demers did when it comes from the White House after reviewing the transcript is he starts memorizing everything. And we know that one of the great things about the Justice Department is that everyone writes emails and memos and they memo everything. 


Katie Benner [00:41:29] Woooo. Paper over it. 


Evan Perez [00:41:30] So there is paper, there is a paper trail that I think we all would love to see because it is fascinating. It will be fascinating to see how they were handling those key, the 10, 12 days, the scramble that was going on behind the scenes there in the building. You know supposedly it's a quiet time in Washington. Right? They're all on vacation but all hell was breaking loose in that building. And we don't know to what extent, you know, anything was done wrong or right. I mean, we simply don't know. 


Devlin Barret [00:42:02] Yeah I mean I think to Katie's point, I think State is still at the center of this hurricane and I think the time crunch may keep it at State. And to your question, to me in recent history the toughest internal time was what I think of as the Matt Whitacre era and how the fourth and the fifth floor of DOJ on some days that were just like, "Man, I'm not going to say it on a live mic." But that was a tense time internally with camps within the building and people you know they're doing the bureaucratic version of shiving each other. I don't see much of that yet, but I also wouldn't try to predict like so where we're going to go from here where we're gonna go from there? I do think it's there's more that that type of tension seems to exist more at state right now when people are are being forced to take sides right now because subpoenas are flying. 


Matt Miller [00:42:54] Matt Whitaker is a great segway to my last question which is I'm not going where you think that we spent a lot of time talking about the political leadership of the department, basically this whole podcast. The department over the three years of this administration I think has been more of a public political football than probably any time in its history and there are a lot of career officials there, investigators at the FBI, lawyers at the department who have seen the president attack their integrity. You know besmirch the department, run its reputation through the mud over and over again. How's morale for those people right now? Three years into the Trump presidency. 


Evan Perez [00:43:38] People are exhausted. I mean that's the sense that people are tired of this. They're tired of being in the center of all of this stuff. Well I'll tell you this. There's a difference also though betwee--Devlin and I commiserate about this all the time--about the you know covering the department and covering the FBI. The FBI is a different animal and they are just, it's just decimated the morale. You know people are afraid of everything. I mean you know, if a cloud comes up over the building, they're immediately looking for incoming, right? They just don't know where this is going to go next. And you can tell in everything. They're not able to tell their story. You know the FBI might do something good but they're afraid to talk about it because you know they're going to get questions about other things, right? And so that's one of the things that I've never I never thought I'd see. You know during the Bush administration during the Obama administration. The presidents themselves were a little fearful of the FBI. They were like, "Well, we can't touch that thing because if we do the FBI is going to leak against us and we will we will suffer the consequences." I've never seen, I never thought I'd see the day that you know the FBI is essentially been cowering and been brought to heel and it's been done by this president. This president has basically just made sure that you know they are afraid of doing anything and saying anything and you could see it in just their behavior in handling this thing. 


Devlin Barret [00:45:02] So I think everything Evan is saying is right, .but I think that reflects that the dynamic at headquarters and in the Justice Department. So FBI headquarters and main DOJ I think that is absolutely true. I think one of the ways that this has affected the institutions that I don't think we fully understand the implications of is that I don't think a lot of the stuff actually matters to the field offices or the U.S. attorney's offices that are doing the work. You know you don't pick up much in terms of folks out in different states you know any state or around the country saying you know like man I went to see a witness and he just harangued me for 20 minutes about the Carter Page FISA. Anecdotally speaking, you don't hear much of that and I do wonder like is one of the sort the weird side effects of this process is that headquarters and the field are just going to be further apart for a while and that the fields are just going to do their own thing and try to just not interact with it with headquarters at all because if you think back to sort of the history of those institutions, you know 9/11 was a big impetus for headquarters taking more and more control over everything the fields do. And I think now because of all this political stuff you're seeing the fields actually getting a little more breathing room and a little more hands off because headquarters just has too many problems to deal with. 


Matt Miller [00:46:22] Kate do you have any final thoughts? 


Katie Benner [00:46:25] No sounds good. 


Matt Miller [00:46:26] Great. I think that's a great place to close.  Thank you Katie, Evan, and Devlin for joining us. And thank you listeners for tuning in to Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple podcast or wherever they get their podcasts and please take a moment to rate and review this podcast. You can follow us on Twitter at Talking Feds pod to find out about future episodes and other Feds related content. And you can also check us out on the Web at Talking Feds dot com where we have full episode transcripts. Submit your questions to questions at Talking Feds com whether it's for Five Words or Fewer or general questions about the inner workings of the legal system for our sidebar segment. Thanks for tuning in. And don't worry, as long as you need answers the Feds will keep talking. 


Jennie Josephson [00:47:09] Thanks to Matt Miller for guest hosting this illuminating episode Talking Feds is produced by me Jennie Josephson, Dave Moldovan, Anthony Lemos, and Rebecca Lopatin. David Lieberman is our contributing writer. Thanks to Courtney Columbus for recording this episode and Allison Wilson for editing. And thanks to the incredible Philip Glass who graciously lets us use his music Talking Feds is a production of Dalito, LLC. Harry will be back next week...Or sooner. 


THE WHISTLEBLOWERS' MOMENT

TF 36: The Whistleblowers’ Moment

Printable Version

Harry Litman [00:00:07] Welcome back to Talking Feds. Prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. I'm also a whistleblower lawyer and my legal practice, while part time, has been exclusively representing whistleblowers under the False Claims Act, which you may have heard of. It's also known as Lincoln's Law. It was passed in the wake of the Civil War when, in Lincoln's words, unscrupulous contractors would sell the Union Army sugar but it would really be sand, pants that fell apart in the rain, crippled beasts and the like. But in the last 30 years or so it's had a great resurgence and has returned over 60 billion dollars to the federal treasury. We are in the age of the whistleblower officially. In fact, we're in the very day in the week of the whistleblower in the midst of the Year of the Whistleblower. A whistleblower complaint has succeeded where the Mueller report did not in initiating a bona fide crisis in the presidency and bringing the prospect of impeachment to the fore. We are expecting today Wednesday October 2nd a whistleblowing complaint from the State Department. There is a tax whistleblower on the scene and this is all with respect to the Trump administration, there's been an explosion as we're going to hear in whistleblower activity generally in recent years. So who are whistleblowers and what is this burgeoning phenomenon? To discuss we have three superbly qualified experts. First, Eric Havian. He is a partner in the San Francisco office of Constantine Cannon. He has 25 years experience representing whistleblowers under not just the False Claims Act but other statutes. He is, to my mind, the finest whistleblower attorney in the country. He's also a bona fide Fed having served as an Assistant United States Attorney in the Criminal Division of the U.S. Attorney's Office in San Francisco from 1987 through 1994. Eric Havian welcome to Talking Feds. 


Eric Havian [00:02:34] Thanks, Harry.  Nice to be here. 


Harry Litman [00:02:35] And what's been your biggest or most noteworthy case, whistleblower case, and under what statute would you say? 


Eric Havian [00:02:45] Probably the most significant one, it's not biggest by dollar volume, but there is a case that we had representing a whistleblower, it seems timely now because it involved national security. A Case involving the company which in this case was TRW, manufacturing a defective fifty dollar component for black spy satellites. They knew it was defective. They knew it had issues when one of the satellites was getting ready to launch. They saw the government who were NRO which was launching it saw some anomalies. They asked the company,  "Is anything we're seeing here? Something we need to be worried about? They said, "No, it's fine." Satellite went up. It went blind a little while later. Government has some pretty large damages. The company ended up paying three hundred twenty five million but tellingly the amount of damage was actually much greater than that. But the reason they only paid three hundred twenty five million dollars was because the government was terrified of a case that would go in open court and reveal national security secrets. So, in a way, there was a little bit of extortion going on there. 


Harry Litman [00:03:44] We're also joined by Rob Vogel. Rob is also one of the most prominent and experienced whistleblower lawyers in the country. He's a founding partner of Vogel, Slade and Goldstein which he started just five years out of law school. He is also the former Taxpayers Against Fraud whistleblower lawyer of the year. And prior to that he was a trial attorney in the commercial fraud section of the Department of Justice's Civil Division. Welcome, Rob. And what is Taxpayers Against Fraud? 


Rob Vogel [00:04:17] Taxpayers Against Fraud is an organization devoted to representing the interests of the community of lawyers and Whistleblowers involved in False Claims Act cases. 


Harry Litman [00:04:30] And finally we welcome Tom Mueller to Talking Feds. Tom is neither a whistleblower lawyer nor a Fed. He is, however, one of the worldwide experts on whistleblowers and whistleblower statutes. A former Rhodes Scholar and summa cum laude graduate of Harvard, he is the author of "Crisis of Conscience" whistleblowing in the age of fraud, which was published yesterday by Penguin Random House. Tom, welcome. 


Tom Mueller [00:04:59] Thank you, Harry. 


Harry Litman [00:05:00] Your previous nonfiction book was entitled provocatively. "Extra Virginity". It was about fraud of a different sort. Can you give us the summary of that in essence? 


Tom Mueller [00:05:12] Great olive oil is one of the great foods and the keystone of the Mediterranean diet, but it's very hard to come by because of a range of criminal actors who make a lot of money by selling cheap stuff as extra virgin olive oil. So I learned a lot about the world of food fraud and I think that predisposed me to look into whistleblowing and the much broader range of misconduct that they call out. 


Harry Litman [00:05:36] So let's start there and whistleblowers in general. You know, who are they? Eric and Rob you've been representing whistleblowers for more than 50 years together. Tom, you interviewed 200 plus whistleblowers just in broad strokes, what character traits or background do they share, if any? Are there any generalizations you can make about whistleblowers? Who are these people who now everyone is just beginning to hear about? 


Tom Mueller [00:06:05] You know, each whistleblower had an arc of experience that they said quite often, "Well, I wouldn't have blown the whistle if I had been ten years younger or if I'd been married and so on." But I did feel like there were certain bedrock characteristics in their whistleblowing that underscored that they needed to not only go away from misconduct but stand up and try to stop it. And one is a certain inflexibility ethical inflexibility that black and white people they quite often say--. 


Harry Litman [00:06:31] Rules is rules. 


Tom Mueller [00:06:32] "I'm a rules kind of person." Yeah, you know, "I'm a rules girl," as one of one of them said. That that doesn't necessarily mean they're the life of the party. I think being someone who's even a contrarian or at least willing to challenge authority and challenge the loyalty of the group is critical. 


Harry Litman [00:06:48] What about that, Eric? I mean, you don't think of them as necessarily being you know the most popular people in the third third grade schoolyard? 


Eric Havian [00:06:55] No no. They were the ones who got beat up because they wouldn't budge from their position. But you know, I mean Tom's absolute right. The other thing I would note in terms of a common denominator, Rob I'm sure you've seen this too, it's just a myth that they do it for the money. The money can be important. In fact, the money can be an essential feature. That's not why they do it. They never come to us or virtually never before they've been screaming and yelling and waving their arms inside the company, trying to go within channels and it's only, they only come to us as a last resort. I mean isn't tha--


Harry Litman [00:07:28] And by the way, we should just say that there are some like, we're gonna be talking about the Trump whistleblowing which are under schemes that don't even provide for money. But it is true that most of your work as lawyers is under statutes that do give the whistleblower a reward. 


Rob Vogel [00:07:41] So the False Claims Act provides that somebody who reports the fraud against the government can get 25,30, 15, 15 to 30 percent is the range for the recovery of whatever the government brings in as a result of the case. And so actually some of the whistleblowers we deal with in the False Claims Act arena actually are doing it for the money and some of them are doing it for revenge. And that's an important factor here. You know, in the national security whistleblower field -- the money not important at all in the national security field. But most of them are doing it because of a conscience issue. They see something that they just deep down know is wrong. They are nonconformists. They are rule-oriented and they need to get this right. 


Harry Litman [00:08:26] And is that sort of what you mean by, is it revenge just against some rule breaking in the system? You think of revenge as being more personal as having been beat up in the schoolyard as it were. 


Rob Vogel [00:08:38] When I say revenge I mean in response to being wronged by the people they're blowing the whistle on. And most often it's retaliation against them for having tried to do the right thing. So it's a blend of revenge and conscience. Sometimes it's revenge for something unrelated. Now in this present context of this whistleblower complaint the person who stands out to me as very dangerous from the Trumpian standpoint would be John Bolton who was recently said to be fired, the morning after he actually offered his resignation. So you know he could have an ax to grind in that sense and--. 


Harry Litman [00:09:18] Almost anyone in the intelligence community. Trump has been famously not just dismissive but disparaging of them. You've said, Eric did I hear you right, and Tom is that your experience as well, that usually before they come to you and the legal system, they've actually tried to do the right thing and go within the company, the system, the government et cetera and been... well gotten what sort of response generally? 


Eric Havian [00:09:44] Yeah, I mean there's there are studies that actually have documented that that's exactly what happens, that they go internally first in the vast majority of cases and then they come. And you know they love -- one of the things that's so great about this job is our clients love us because not because we're so loveabl, although of course we are, but really because we're the first people who have actually listened to them and that's what they're craving. They crave someone not to just slap them down and say you're not a team player but someone who will listen with an open mind. Now, you know, most of the time we have to tell them we don't think you really it's in your interest to file this case. You just don't have all the facts or whatever but they're still grateful.


Harry Litman [00:10:26] That's something people don't know, right? We hear about the big verdicts, but those are you know really really the exception. And there's a lot. Well it's it's a tough road being a whistleblower, would you say? 


Tom Mueller [00:10:38] I've heard constantly in the interviews that I've done for my book that the whistleblower would say, "I just couldn't get anyone to hear me. I kept saying the same things." And they began to kind of question their sanity and I think they're co-workers. The reason that some people are sent for fitness for duty psychological exams is because their co-workers are thinking, "This person must be crazy because they're torching their career." There is a genuine disconnect and understanding and simply cannot understand what this person is doing. 


Harry Litman [00:11:04] Let's be more concrete. So what is a typical response from the company, the entity. What are, what are you--


Rob Vogel [00:11:11] Let me give you an example. One of the whistleblowers who I represented was the medical director of a company and he was fresh out of his medical training and he discovered that his company was selling a defective product. He raised it with the board of that company and they unanimously said that there was no reason to disclose this defect to the FDA. They also said they were going to fix the problem. He bided his time for a few months and he realized that they were not fixing the problem. And so he, at that point decided, to contact counsel and he ended up contacting me. And this was about now three months after he had already raised it with the board. He brought it back to the board and they again voted unanimously not to do anything, with him being the lone dissenter. In our first conversation, what he said to me is, "Am I crazy?" And I had to explain to him that actually he wasn't. That this was a pretty common phenomenon, at least in my practice, where people who worked for companies that were thought to be reputable, thought their company would not do such a thing, and they must be the only one who thinks that this rule, and it's a very fundamental rule, you know like don't produce a product that kills the patients or don't backdate all the documents. You know, for an accountant. That they're the only one who actually thinks that this matters. 


Harry Litman [00:12:41] I mean, I can chime in on that from my own experience. There are instances of, really you know, wicked or creepy pushbacks on the whistleblower. But this notion of paralysis is what I've seen a fair bit. That someone, they'll be faux responsive to the whistleblower, "We're thinking about it. We'll take care of it." A few months will pass and then, basically, they've spoken to some lawyer or somehow gotten frozen and without really disparaging him, but obviously seeing him now as arm's length, an outsider, someone to fear and that vibe, of course, when that happens in a workplace, you know it right away. It's just nothing ever happens. Tom?


Tom Mueller [00:13:26] Part of the reason that it's so destabilizing as a whistleblower too is that sense of almost, "Am I the crazy person here? Everyone else is saying black and I'm seeing white." Until they find someone like Eric or like Rob, to be able to talk and have them say, "Oh, yeah. This is standard we see this all the time." People are making money decisions instead of health decisions. Untill they hear that voice, they can really begin to question their own sanity. 


Harry Litman [00:13:51] Why is fraud so rampant? You know, so Rob in your situation, it's not as if the board as a whole did this, you know, greedy and malevolent decision but somebody did in some part of the company and it's then the company as a whole that gets scared to make it right. I mean, you know, you find again and again, you almost see a defense. How could they be so stupid? And yet, they are. So, Eric how can they be so stupid? Companies that commit huge fraud? How did it happen that somebody put it in that 50 dollar part and everything went dark? 


Eric Havian [00:14:27] Well, you know, if your kindly Mr. Jones and your company is three people and you deliver milk on the weekends, you know if your people are cheating you or the customers. It's really easy. As our economy has become more complex, as companies have become ever larger, as the structures of those companies have become more complicated and there's less control at the top so that even if you are a CEO who wants to do the right thing, you don't remotely control that organization. And what you do, though, as a CEO really matters. Because if you create unreasonable pressures for profitability, those pressures will filter down. And the trouble is you don't know how they're going to filter. And oftentimes, if you're in a large organization, someplace in the organization there's some manager who's got some bill that's due that they can't cover or that they foresee in six months or a year and they're going to say, "Look, I got to make these numbers. I've got to make this happen. I don't care how you do it." And maybe they're not the ones who actually commit the fraud, it may be someone even below them who feels that pressure, but that sort of corporate pressure with the need to report the earnings as of tomorrow every single day. Those kinds of pressures I think are what are just increasing in our economy and that's what creates the fraud. 


Harry Litman [00:15:38] Legally speaking, how high does that have to go up in order for the company to have liability for the fraud? Is that a hard question? 


Rob Vogel [00:15:46] Nancy that's a very easy question. It doesn't have to go high at all. If somebody is acting within the scope of their employment and they are committing fraud, then the company is going to be liable. There has been a split in the law over whether it has to be benefiting the company or benefiting the person. Can the company be excused if it was just to benefit the person individually? And even there, the law tends to say that the company is liable. 


Harry Litman [00:16:10] What accounts for the sort of social ambivalence that I think we really do have toward whistleblowers. Whistleblowers report experiences when they come to the lawyers of being really ostracized, having hellish couple of years and yet they're extolled. You know, just yesterday Senator Grassley gave that kind of paean to whistleblowers that you hear in the public sphere. But but people, in fact , feel ambivalent about them. Do you think a) That's correct? And b) what accounts for it?


Tom Mueller [00:16:43] Well I think, you know, all of us to a certain extent, being human beings, are schizophrenic, in the sense that we value and we claim to value truth and justice and genuinely feel that's important but in our day to day lives in our workplaces loyalty and obedience quite often trump, no pun intended, truth and justice. And, in this particular case, you know where your bread is buttered is where your allegiance is lie. You know, and even when we recognize that that a whistleblower has performed an amazing service, saved billions of dollars in fraud or saved thousands of lives, there's still that little voice in us, that little voice that says, "Yeah but they turned on their team. They weren't a team player." 


Harry Litman [00:17:27] Nobody likes a tattle tale. 


Eric Havian [00:17:27] I mean, and you're seeing it now in real time. I mean, you know, these Republicans who are trying to defend the indefensible, they see the president going out and saying this is treasonous, that perhaps we should be executing this person and all of them know that's wrong. I mean, every single one. I question whether the president does, but there's no question that the Republicans in Congress all know that that is a really bad and wrong thing to say and yet, you know, it's like the old expression, "Where you stand depends on where you sit." And that's the problem. 


Harry Litman [00:17:58] When we think of whistleblowers in kind of common culture, I think they bring to mind a spectrum of different people. I would put up you know Daniel Ellsberg as one. Katherine Gunn whom there's a new movie about starring Keira Knightley. But who did a report in sort of real time in the Iraq war. But there's also maybe Edward Snowden, Julian Assange. Do you yourselves have sort of views about -- do you think the different positions they are in represent sort of morally important distinctions? Are are all whistleblowers born or made equal? What about this, you know, the spectrum I've laid out. Do they all count as whistleblowers? And what makes for a more or less righteous whistleblower, as you see it. 


Tom Mueller [00:18:47] Well I think in the current environment where corruption, institutional corruption is extremely widespread, the breadth of whistleblowing the definition of whistleblowing tends to expand to anyone with a conscience who's willing to act on it. Now obviously there are laws that specifically determine who are official whistleblowers according to law. But I think all the people you mentioned had good facts and brought forward, in good faith, those facts under the definite impression that they represented a serious misconduct. And those facts have stood the test of time. If Edward Snowden revelations had caused the death of one person, you would've seen that person's body on the front page of every newspaper all or maybe--. 


Harry Litman [00:19:28] Everybody? You guys agree with that. 


Rob Vogel [00:19:30] I don't agree with Assange. I don't think Assange fits into the category the others. He seems to be broadcasting things wherever he can get them to hurt whoever his agenda wants him to hurt. 


Eric Havian [00:19:40] Yeah, well I know -- when I think of Assange--. 


Tom Mueller [00:19:40] The question is, "Is there an agenda? Or just no editing?" 


Rob Vogel [00:19:45] I suspect that there is an agenda, but that's my own. I don't know much about--. 


Harry Litman [00:19:49] Of course, whistleblowers can have agendas. . 


Eric Havian [00:19:50] Well they almost always have some agenda but sometimes it's a very narrow agenda, to simply get the facts out. But I think Assange is a harder case. I wouldn't dismiss him entirely. I mean, the thing that's troubling to me about the Assange case and I've written about this, is that they're using the Espionage Act to go after him and the actual espionage piece of it that fits within the statute. It's a hair's breadth of evidence really. It's minuscule evidence and yet they're using that because they want to say, "No we're not going after him as a journalist. We're going after him as essentially kind of a spy." And I just think that that's dangerous because there really isn't a lot of to distinguish Assange from other people who are the "good journalists" and who are objectively reporting in terms of being prosecuted for espionage. 


Harry Litman [00:20:39] Well that doesn't make that a special case and I'll state my probably contrary view in this group that Snowden seems different to me because this sort of heroic tale that he presents of having outed the abuses domestically were -- first of all he didn't come forward first. I don't know if that's essential for a whistleblower but so much of what he revealed was a) dangerous to people in the field and b) not what he is lionized for having revealed. Let me ask about one other case before we move on to the whistleblower because I think some listeners are pretty interested in it Reality Winner? Any thoughts about her? 


Eric Havian [00:21:16] Well she, I mean, my feeling about her is that it was really the sentence that seemed unfair. 


Harry Litman [00:21:22] Right. 


Eric Havian [00:21:22] I mean, it's one thing to have said, "OK. She shouldn't have done what she did." But but she clearly didn't have nefarious motive. She didn't turn it over to a foreign government. She turned over national security information to the press. To The Intercept. And typically, at least before the last five to seven, eight years, that was viewed as very very different and not deserving of long prison terms. But she got five years and that's a long time. 


Harry Litman [00:21:46] And also arguably, indistinguishable, from what like high officials do in Washington every day--. 


Tom Mueller [00:21:52] Right, if you look at David Petraeus and how he was treated and the conduct that he engaged in, the double standard hits you in the face. 


Harry Litman [00:22:00] Yeah, the big shots definitely you know drop the dime on the journalist. All right. So let's move to the whistleblower complaint that has, in fact, brought the Age Of the Whistleblower crashing down on us. So the whistleblower that launched the Ukraine inquiry, first of all notice there were 12 people on the phone, one of whom we've just learned, is the secretary of State Pompeo. And yet, only the whistleblower came forward. So is that consistent with your experience, this sort of thing Rob you were talking about with your client? All these other people knew something was amiss. We have only this one mystery man or woman who actually blew the whistle and he or she was not even among the 12. 


Rob Vogel [00:22:47] That's completely consistent with my experience for two reasons. One, is that this person is blowing the whistle on people who have power over his career and paycheck and that's enormous of course. Which one of us would counsel somebody to do something that's gonna put their family in jeopardy because they have no income. And perhaps no health insurance et cetera. And the second thing is, as we talked about earlier, it goes against the fact that he's not going to be viewed as a team player. So he's wondering, all these other folks, these other 10,12 people who heard the call and the many people talking about it, they're not going forward. Why shouldn't I just take the route that they take and be part of the team? 


Harry Litman [00:23:33] And keep my head down. 


Eric Havian [00:23:34] And you know the other thing the reason in this instance is the so-called "protection" , it's known as "The Intelligence Community Whistleblower Protection Act, really provides no protection at all. Not only is there no reward, but it does say you can't retaliate against the person but it provides no route for that person to go to court to get damages as they could under the other whistleblower statutes that apply to corporate whistleblowers. So you know, why should somebody take the chance without even a real protection from disclosure of their identity and retaliation beyond the goodwill of some people who work under a president who clearly has a different agend? 


Harry Litman [00:24:14] Well, why indeed? Tom, what's your  -- from being really familiar with different whistleblower motivation -- how do you you know fill in the colors on what we just know as a sort of outline. 


Tom Mueller [00:24:26] Well there are bystanders and upstanders. And for whatever reason, this person, perhaps gathering a consensus from other people as well, from these twelve people, perhaps becoming a clearinghouse but apparently realized, "Hey and no one else is gonna stand up and say something. I've got to do this." And I'm sure, in their job description, reporting waste fraud abuse and misconduct is in there. So in a sense it's a professional requirement, a dangerous one. But you know, I think that this person just said, "Okay no one else is gonna do it I better do it.". 


Harry Litman [00:24:56] By the way, it's especially true of the intelligence community. I mean, in a sense, the intelligence community are a bunch of whistleblowers. Talk about playing by the rules. You know, trying to do what's right. And yet he or she stood alone. But there is an interesting aspect of the complaint. It's not simply the original July 25th call to Zelinsky. The complaint really does lay out a wealth of what you could call water cooler communication where you know this, in its face really alarming conduct by the present United States. Obviously, everyone's talking about it but nobody you know goes forward and actually does the complaint. 


Rob Vogel [00:25:41] And yet, the nature of this complaint is that he's either explicitly or implicitly leading the investigators if there will be investigators to witnesses. So it makes me think that he understands that there are people out there who will tell the truth when asked. 


Harry Litman [00:26:01] Yeah, what do you make of that? First of all, the complaint itself is really well crafted. You wouldn't normally --it almost feels like there was a lawyer-- 


Eric Havian [00:26:09] I wish our clients all came to us with complaints like that. 


Harry Litman [00:26:11] Do you think that -- he has a very fine whistleblower lawyer now -- do you think he probably or she went to the lawyer first?


Eric Havian [00:26:21] Well, you know, that's an interesting question. It's hard really to know. But certainly his complaint is laid out the way a lawyer would lay out a complaint. 


Harry Litman [00:26:29] Right. 


Eric Havian [00:26:29] And so you know, we understand these analysts are extremely sophisticated and it's been suggested that he is an analyst. So perhaps that accounts for it. But you know the other thing I want to mention here is we've been saying there's only one whistleblower. Most whistleblowers require gestation periods of months if not years before they can just bring themselves to come forward. And so I don't think it was beyond the pale that if this person hadn't come forward that someone else would not have come forward in the coming weeks or months or you know maybe when the administration had gone -- which of course would be a little late but still. 


Harry Litman [00:27:05] No, it's an excellent point because there's actually motivations under the other statutes to come forward first. But her, presumably, you know whenever you know about the misconduct it's right to come forward. What do you think? Well Tom you want to-- 


Tom Mueller [00:27:19] I just want to ask, I mean is it not reasonable to assume that in the vetting process that the IG gave this complaint, he would have questioned some of these witnesses. Kick the tires, right? Find out what this person knows. 


Harry Litman [00:27:32] I think we know that happened. That that was part of the determination. 


Eric Havian [00:27:35] I mean, one of the things that's going to be fascinating is whether the administration will seek to throw a cloak of privilege over the IG's interviews with these key witnesses. It will be fascinating to know what they say. 


Harry Litman [00:27:47] But what a dramatic moment that's going to be when the whistleblower, you know, I think by now the whistleblower knows that he or she is at a point of no return. Can be granted protection against criminal prosecution, as you say, you know, a totally nasty vindictive administration could still make, essentially, you know, make his or her professional life hell or or go away. 


Eric Havian [00:28:12] I hope he hasn't had a slip up in his handling of classified information. At any point in his career-


Harry Litman [00:28:17] I mean, right. Isn't that isn't that the number one strategy you find for your clients they have good information but the number one instinct of the defenders once once the battle is joined is to try to ravage the whistleblower for and it could have nothing to do with the complaint or your employment, right? Just send a private investigator out there is there. Is there any drinking any any misconduct? 


Eric Havian [00:28:42] Forget the investigator. No one has yet threatened to execute one of my clients. (LAUGHTER) 


Harry Litman [00:28:47] What about -- do you think by the way that constituted reprisal under the statute? 


Eric Havian [00:28:51] Absolutely. 


Harry Litman [00:28:52] No doubt about it. So Trump has already violated the statute. Well you're not a lawyer Tom, but does that seem right to you. I mean-- 


Tom Mueller [00:28:59] I mean yeah. I mean, you know, I had a slightly different question. I mean, in this particular case is it not conceivable that given that Trump has as aggressively alienated the intelligence community, since his arrival and that given that this person is basically stating the case of the Intelligence Committee that the President of thee United States is a huge liability and a dangerous person perhaps treasonous, is it not the case that this person could actually have a soft landing given that his whole team is actually agreeing with what this person says? 


Harry Litman [00:29:32] My best guess is he -- first of all, you raise two points. One, is we see this person as you know a total Boy Scout and hero. It does seem to me you can see a motivation. Trump remember, you know, his first day in office went after firing Comey, you know, incredibly crassly going to the was at the CIA and the in front of the wall of heroes and, you know, talking about himself this is a guy who must be loathed by many members of the Intelligence Community and you could sort of see that you know that that motivation there, that he's sort of in some ways it's the community as a whole. 


Eric Havian [00:30:08] Well you know, support for him probably breaks down to about 55 percent in favor and 42 percent opposed. I mean this is the country we live in. So I think he may have something of a soft landing but, uh, I wouldn't think-- 


Harry Litman [00:30:19] My best guess -- what do you think?  Let's go around on that. Will he actually be, you know, hurt professionally? My best guess would be no, that they wouldn't get away with it. 


Rob Vogel [00:30:29] I think in the long run he will have some brightness they look forward to. But in the short run it's going to be very difficult. Because in the context of being a government employee, you know, they all answer to the top and we know what that entails. And yet you know will, in the future, will be he be treated as folk hero with all the things that go with that?


Harry Litman [00:30:51] Maybe he's next detailed to the Ukraine or Kazakhstan. 


Eric Havian [00:30:54] I'd say there's a 70 percent chance that he leaves the agency before the end of Trump's term. 


Harry Litman [00:31:00] Yeah I can see that right. His life has now been changed irrevocably. What do you guys think about the New York Times decision to go as far as they could to out him or her?. 


Rob Vogel [00:31:14] I think that was an awful decision. And you know it's obviously the instinct of journalists to publish when they get information but there they were misconstruing the role of a whistleblower and they were buying into the defense strategy which is that it's all about the whistleblower. And if the whistleblower has second hand information, then that's not as good as as someone who was an eyewitness. And if the whistleblower has a bias that's not as good. So we need to know about the whistleblower in order to attack the whistleblower. In fact, the whistleblower provides a roadmap. And as soon as that roadmap arrives, the first job of the investigator -- and we all used to be on the Justice Department's side, so we used to run these investigations --  is to try to corroborate the whistleblowers allegations through other sources, documents and other witnesses. And it's not until you have actually corroborated these central elements that you can relax and say, now we've got a case because it's assumed that the whistleblower has some baggage. 


Harry Litman [00:32:18] Right. Everyone agree? 


Tom Mueller [00:32:19] Yeah, in this particular case Rob has exactly right. Need to know is that a critical factor here. If it were some abstruse fact about a nuclear power plant, if it were some abstruse question of national security that needed an explanation and needed a CV behind it to make us trust it, that's one thing. This complaint reads -- it's absolutely bullet proof. Absolutely clear. You know where these bodies are buried. You know the questions that you need to ask. 


Eric Havian [00:32:47] Well you know the irony here is that the fact that the president's defenders keep emphasizing that the whistleblower has very little firsthand information is precisely the reason that his personal motivation is so beside the point. It's not relevant. He is going to identify the people who have the firsthand information. He has already said in his complaint that there are many people who he spoke with who had firsthand information. So his credibility is not what's on the line. He is not going to be the one that testifies if there is a Senate trial of impeachment. It's going to be the people who have the firsthand knowledge whose credibility will be at issue and the president and his defenders are free to attack their credibility if there's a basis to do so. But to attack this witness's credibility, when as Rob says he's just providing a roadmap is nonsensical. But it is the playbook. I mean, the president has stolen corporate fraud America's playbook on how you deal with whistleblowers and discredit them. 


Rob Vogel [00:33:40] Right. But what is really behind the corporate playbook on trying to take on whistleblowers is deterrence of future whistleblowers much more than anything else. It never works in terms of defeating the investigation that is started as a direct result of the whistleblowing. What it is doing -- that said it can deter other witnesses from coming forward by showing them, "Look what happens to you if you did do what this whistleblower just did."


Harry Litman [00:34:09] And by the way, we've talked about, you've talked about motivations of the honest whistleblowers et cetera. We all know stories, I expect you do as well, of people who in fact were kind of ruined unfairly for having blown the whistle. Yes? Especially if they didn't have sort of the benefit of good legal advice, kind of you know, going in? 


Eric Havian [00:34:29] That's a common outcome --. 


Harry Litman [00:34:31] Stresses, divorce-- 


Eric Havian [00:34:33] Absolutely. And that's why you need a financial reward. I mean, there should be a financial reward for national security whistleblowers. Not because we want to pay for the information but because these people's lives will never be the same. 


Tom Mueller [00:34:43] It's a net present value lump sum payment for a lost career. 


Eric Havian [00:34:47] Exactly. 


Rob Vogel [00:34:47] That's exactly right. And when prospective clients come to me and I'm sure it's the same with with you Eric and Harry that they come in and they present the scope of the fraud and you do a top of the head damages analysis. What is the likely return here? And you ask the client what are they earning right now. What is their age? I mean, these are the questions we ask, so you can give them an idea of the likelihood of success in the case times the possible homerun value times the possible, you know, regular base hit value and then the likelihood of any success at all etc. and the taxes and the fees that go into it and you say to them, "Look, you know, even though this case you know we've had executives come to us that are earning a million dollars a year. And even if the case is worth to the government 50 million dollars it may not be worth it to you. 


Harry Litman [00:35:45] Yeah. So this is a, you know, a great point. And many of them come in having read about the home run stories and I think they eventually come to completely value this sort of more sober look of their attorney. But Eric, do you want to sort of amplify what Rob just said? What's your first meeting or second meeting with a whistleblower like? What are you trying to accomplish and, you know, how are you trying to, sort of, you know give your best advice to someone who hasn't decided whether to file yet? 


Eric Havian [00:36:19] Well Rob describes stage two for us. Stage one is always: Listen. Really really listen. You know that often--. 


Harry Litman [00:36:28] You mean you're doing the listening? 


Eric Havian [00:36:29]  I'm doing the listening. And I'll have questions sometimes but sometimes you don't even have to ask the questions or sometimes you don't even get to ask questions because you've got somebody who's been dammed up for a long period of time. They will roll their story out to you. Now sometimes, you know, I'm a lawyer. I think like a lawyer. I have to reorganize the story so I can understand it. But but those first meetings are usually devoted to that so that you can do the analysis that Rob just described. So you can say to him, "OK I now hear what you're saying. This this is good or this is not good. Or you know home run or a base hit or whatever. And this is what it would be worth to you. You need to make a decision. Is this really worth it? Because I can tell you now, here's what's going to likely happen to you in terms of your career. Things we can't predict or what's going to happen to you in terms of your family and well the stresses that will be put on your family." 


Harry Litman [00:37:20] Although, by the way, the lawyer client relationship here, maybe you would compare it to Family Law. It really isn't like a normal business client. You will wind up with with, you know, quite a lot of handholding, especially once you've committed then to sort of be in the boat together. 


Eric Havian [00:37:36] One of my former partners had a client living in her home for a while because she just felt like it was the right thing to do. 


Tom Mueller [00:37:43] Is it a concern as practitioners to have these wonderful on paper these wonderful guarantees and the noble whistleblower and so on on the books on the law books. But in practice in society we acknowledge accept acquiesce in the personal and professional destruction of whistleblowers as well. 


Rob Vogel [00:38:01] Well let me put it this way. It is a lot easier for us to decide to take cases when somebody is coming into our office and the die has already been cast. They have already been fired for what they did. They've already suffered the retaliation. And so now they have much less to lose or someone who comes in who's at retirement age. You know, these are great prospective clients because you don't have the same cost benefit analysis you have to go through. 


Eric Havian [00:38:28] Your question though is really a good one, Tom. Because as a society we're getting better. I guess that's what I would say. I mean you wouldn't before seen whistleblowers as remotely characterized as heroes and now at least there's some segment of society that appears to recognize that. It's still not as good as it should be and it's still not enough to keep those people from being viewed by a large segment of society as rats as tattle tales as whatever expression you want. But we're moving in the right direction. And this national security whistleblower, who clearly, his motivations as far as we can tell so far are all the right ones I think helps the image of people who are whistleblowers. 


Harry Litman [00:39:06] Tom, you couldn't have gamed it precisely to know that your book would come out, you know, the week of the this whistleblower but obviously your, well you've made clear in your book, that you think the whistle blower phenomenon is is growing and is going to continue to be really important across broader sectors of U.S. society, European society, and the like. Why do you think that? What's your sense of, you know, whistleblowing over the next 10, 20 years. 


Tom Mueller [00:39:40] I think whistleblowing is on the rise because institutional corruption is on the rise. And I think that, ideally, we wouldn't need whistleblowers. So many whistleblowers have told me, "Look I was just doing my job. Why do we need a special word for this? But until we can get institutional corruption under control, whistleblowers are really the only source of information particularly in a highly secret environment. They're really the only source of information for public harm, both financial harm and danger to the public's health. 


Eric Havian [00:40:11] You know, there is actually some analytical support for what you just said, Tom. Because there are studies have been done internationally of countries and they asked questions about how often do you see wrongdoing that you're told to ignore? And then, how how much whistleblowing do those countries have? And they find a pretty close correlation. The more people are forced to look the other way when they see wrongdoing, the more likely they are to blow the whistle. 


Harry Litman [00:40:37] Forced you mean just by kind of social pressures forced. 


Eric Havian [00:40:39] Exactly social pressures. I mean, these are countries that don't have ample reward system for whistleblowers like we do in the United States or corporate whistleblowers. But nonetheless, the psychological pressures -- many people just can't internalize and live with comfortably the idea of being told to ignore serious wrongdoing. And I really believe that even though we don't have a high percentage of people whistleblowing of the total population of people who know of wrongdoing, still I do think it's even for the people who don't blow the whistle, they go through a lot of turmoil when they're told to look the other way at corporate wrongdoing or the National Security wrongdoing especially obviously the stakes are higher. 


Rob Vogel [00:41:18] But one of the fundamental underpinnings of a successful whistleblower law or regime is that you can depend on the rule of law and that's what makes our current time so perilous because we have seen the erosion of these standards of law in the Justice Department itself at the highest levels and in various other agencies. And, you know, when when you think about blowing the whistle you have to be dependent on some institution to take your allegations seriously and take it forward and take action, not just to protect you but to take some action. And here what you had was this whistleblower's complaint was effectively quashed in the first month by the Department of Justice apparently or the White House. And only through the perseverance apparently of the Inspector General of the Intelligence Community did this come to light. 


Harry Litman [00:42:11] I think we could go for hours more. It really is a phenomenon. we're in the whistleblower age and it's not going away. It's time though for our final segment Five Words or Fewer where we take a question from a listener and each of the Feds has to answer in five words or fewer. Our question today comes from a listener on Twitter and it is, "Will there be more Trump administration whistleblowers?" Tom, five words or fewer: 


Tom Mueller [00:42:40] Yes. Corruption causes whistleblower cascades. 


Eric Havian [00:42:45] Yes, but not till the end of the administration. 


Harry Litman [00:42:49] Judges? 


Eric Havian [00:42:49] You don't count those articles. Those articles don't count. 


Rob Vogel [00:42:53] Yes. Dissenters realize the stakes. 


Harry Litman [00:42:57] Yes. 


Harry Litman [00:43:02] Thank you very much to Eric, Rob, and Tom and thank you very much listeners for tuning in to Talking Feds. If you'd like what you've heard, please tell a friend to subscribe to us on Apple podcast or wherever they get their podcasts and please take a moment to rate and review this podcast. 


Harry Litman [00:43:21] You can follow us on Twitter at Talking Feds pod to find out about future episodes and other Feds related content. And you can also check us out on the Web at Talking Feds dot com where we have full episode transcripts. 


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Harry Litman [00:43:40] Whether it's for or Five Words or Fewer or general questions about the inner workings of the legal system for our Sidebar segments. 


Harry Litman [00:43:50] Thanks for tuning in. And don't worry, as long as you need answers the Feds will keep talking. Talking Feds is produced by Jennie Josephson, Dave Moldovan, Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer. Production assistance by Sarah Philipoom. This episode was recorded by Courtney Columbus. Transcripts by Matthew Flanagan. Thanks as always to the incredible Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito LLC. I'm Harry Litman. See you next time. 


ARE WE F***ED?

Jennie Josephson [00:00:00]  Hi. Producer Jennie here. The Talking Feds team is just back from the Texas Tribune Festival where we recorded some terrific episodes. One that's in your feed now about the latest in the endless Escher painting that is the Trump investigative landscape, but also a really strong episode coming soon about voting rights that is really just a must listen. Before that we were in San Francisco taping episodes about Russian organized crime and a really thought provoking episode about a troubling topic for me personally, The federal death penalty with a last minute guest who is sure to generate some, what's the word, interest. Go check out Harry's Twitter feed if you want to know who it is. But back to Texas. Sometimes the best episodes happen because another episode hit a snag. You think you're doing a huge weighty episode about the presidency and the next thing you know you're going for huevos rancheros at Cisco's in East Austin. Credit to Matt Miller for the recommendation. And then Joyce Vance suggests we invite Mieke Eoyang, Vice President for the Third Way's National Security Program. Mieke had a long career on Capitol Hill which turned out to be invaluable for this episode. 

TRUMP AGONISTES

TF 34: Trump Agonistes (Rush Transcript)

Harry Litman [00:00:06] Welcome back to Talking Feds, a Prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. Today we're in Austin Texas -- which more than lives up to its image as a super cool and fun town -- at the Texas Tribune Festival in the library at the Texas Public Policy Foundation. And, in fact, we are here right next to the Governor Rick Perry balcony. And as some of you know the governor himself figures in the events of the last week. He was dispatched in place of Vice President Pence considered a bit of a come down to the inauguration of President Zelensky of Ukraine. 

THE WHISTLE IS BLOWING

Harry Litman [00:00:07] Welcome to Talking Feds, the prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. 

Harry Litman [00:00:20] I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. I'm joined today by four of your favorite Feds, charter Feds, all well-known to anyone who's been near a television or this podcast in the last couple of years. 

MCCASTROPHE

Harry Litman [00:00:06] Welcome to Talking Feds Now. A special breaking news episode of Talking Feds, a prosecutors roundtable that brings together some of the best known former Department of Justice officials for a dynamic discussion of the most important legal topics of the day. And today Friday the 13th at the Department of Justice we have the breaking news that, well we're not exactly sure, that there is a big question mark at best looming over the proposed indictment and prosecution of Andrew McCabe the former deputy director of the FBI who has famously been vilified by the president of the United States in a series of tweets that have accused him of everything from being a liar to committing treason. We're going to be talking about what has happened in the McCabe prosecution which right now looks to be an embarrassing debacle within the department and what might be happening next. 

SDNY (2); STILL IN THE HOUSE

Harry Litman [00:00:06] Welcome back to Talking Feds, a prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. Today we're back in New York City with the SDNY elite crew that you've come to know and told us all about SDNY itself to talk about the potential prosecutions that may still remain in the wake of the Mueller probe. We've been hearing quite a bit from both opponents and friends of the president that the real risk remaining now might come from the SDNY and the investigations that are still open. That Bob Mueller handed off we'd like to try to really unpack those and see what risks there are and to do it. 

La Cosa SDNY: An Insider’s Guide to the Most Renowned United States Attorney’s Office

TF 30: La Cosa SDNY: An Insider's Guide to the Most Renowned U.S. Attorney's Office


Harry Litman [00:00:07] Welcome back to Talking Feds, a prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. Today I'm in New York City with three colleagues and former officials. And you can cut the mystique with a knife. 

Printable Version

Harry Litman [00:00:36] Here we have three hot shots from the Southern District of New York and we are going to be talking about the Southern District of New York. The vaunted office we've heard so much about over the last couple years, so you know many of them. But first Mimi Rocah returns to talking Feds. Mimi is Pace Law's Distinguished Fellow in Criminal Justice and a legal analyst for MSNBC and NBC News. She was for many years an AUSA and then a supervisor in many leadership positions in the office of the U.S. attorney for the Southern District. Mimi, welcome back. 


Mimi Rocah [00:01:17] Thanks Harry. Great to be here in person with you. 


Harry Litman [00:01:19] We are also joined again by Jennifer Rodgers, a lecturer at Columbia Law School and a longtime member of the SDNY. Who had more who logged more time between the two of you?


Jennifer Rodgers [00:01:32] Mimi logged more by about three years maybe two years. 


Mimi Rocah [00:01:35] But Jen was there [CROSSTALK]


Harry Litman [00:01:40] OK. And finally Elie Honig returns to Talking Feds. He's an analyst for CNN as well and a special counsel at a Lowenstein Sadler also for many years a supervisor in the SDNY specializing in organized crime prosecutions. 


Elie Honig [00:01:57] Thanks for having me. I'm definitely the junior member here. 


Harry Litman [00:01:58] Although am I right that some of you had the same actual supervisory positions as others, you inherited one from the other? 


Elie Honig [00:02:07] We kind of all there was. It was you guys rotated being out on maternity leave and I filled in for one and then the other. 


Jennifer Rodgers [00:02:14] Well Mimi was the Chief when I was the deputy chief and then you were the deputy chief while I was the chief and then we were co chiefs. 


Harry Litman [00:02:21] So anyway organized crime and it's all a blur and you're all good friends. All right. 


Harry Litman [00:02:26] Well look I was a justice for many years and hearing about SDNY, SDNY, the Sovereign District of New York as it's sometimes known and we've been hearing about it for two years both in its institutional role and also for the specific investigations that may remain even in the wake of the Mueller probe. So I'd like to talk about actually both in turn. I think there's a lot of things that people are curious about with such an institution as SDNY. So let me ask you guys and briefly if if one of you says the same thing as the other and you don't have to add fine but if you have something different to say. So just quickly what about getting the job, did it take a long time were you trying--was that the thing you really wanted? Did you pass up other things? Mimi, what was your introduction to the big the big leagues of SDNY? 


Mimi Rocah [00:03:25] Well I definitely wanted to be a federal prosecutor in New York and I applied to the southern and eastern districts which I think, you know, most people do. I had actually clerked in the Eastern District of New York. So I had to sort of it was hard for me to tell my judge in the eastern district that I was going to the Southern District of New York. 


Harry Litman [00:03:45] I don't understand why's that? 


Mimi Rocah [00:03:48] Because he had been a prosecutor in the Eastern District. I clerked for him in the Eastern District and you know there's a rivalry between the eastern districts in the Southern District of New York--. 


Harry Litman [00:03:56] That severe? So you had to steel yourself to let him know. Crips and Bloods?. 


Mimi Rocah [00:03:59] Yes. I mean,  my entire time in the southern district I'm not sure he ever quite foregoing the Southern.  But we're still very friendly, he married me in fact. So, you know, he presided over my wedding, so I guess he got over it. But like many people I mean I had, you know, who wanted to be federal prosecutors I just I'd heard about this, you know, mystical place the Southern District of New York. And so it was impossible to turn down an offer from the Southern District of New York. I felt very privileged to have gotten it. I was hired by Mary Jo White at the end of her tenure. You know, when you get that call from Mary Jo White you just say, 'yes" immediately. I think most people say "yes" no matter who they get the offer from. 


Harry Litman [00:04:42] Well what if you got the offer from EDNY first? You say "yes" immediately you hold out for the big-- 


Mimi Rocah [00:04:47] You know, I've heard people have that have that debate. I didn't have that problem. So I was able to withdraw my application from Eastern before, you know. I heard. It definitely is--I think most people, you know, I've heard maybe one story and it's pretty legendary about someone not accepting an offer on the spot from the Southern District of New York. 


Harry Litman [00:05:08] Speaking of getting off to a great start you guys, you know, dress up nice and pack your lunch and go for the first day. You've heard yourself about the culture, you know, as Mimi mentioned, but you don't know exactly what to expect. I assume you're a little bit intimidated but I want to hear a little bit about the first three, four months when you encounter it is your basic impression., "Whoa this is just like what they said. this is pretty intense. Or is it, like,  "What was the big deal? Why is everyone so you know intimidated by this? Just a kind of regular job." What was the the feeling? Jan you want to give a sort of-- 


Jennifer Rodgers [00:05:47] Yeah, I was super intimidated. I mean, I had worked at a firm that didn't do any criminal work, so I really had no idea what the difference between an arraignment and an indictment and a presentment. I knew nothing. And it's really overwhelming when you kind of feel like you're jumping into the deep end without knowing how to swim. And what's amazing about it is you feel so overwhelmed the first few weeks and then by a month in, six weeks in, eight weeks, you obviously still know far from everything but those little basics like at least you're getting your arms around it so that as the new people behind you start, all of a sudden you're the senior person accompanying them to court which is ridiculous. But that's how it works. But I found the learning curve incredibly steep. I was really intimidated by it all. And it was just, you know, walking down the office or next door to my slightly more senior colleagues for help on basically everything and then you return the favor as people come in behind you. But it is a scary time for sure. 


Harry Litman [00:06:44] Everyone agree ? Both a steep learning curve and an intimidating one?


Mimi Rocah [00:06:47] Yeah. But the great thing about it and I'm sure this is true at other offices too, you feel like you're not doing it alone. You have this great camaraderie with the other people who are going through at the same time. It's almost like, um,  slightly you know, we're in this battle together helping each other get through it. 


Harry Litman [00:07:06] And both in terms of that camaraderie, that feeling but also in terms of the intimidation, did you feel it was more keen for you as a woman? I know there were a lot of women there by then but did you know it was sort of tougher to be the new kid?


Jennifer Rodgers [00:07:21] I didn't think so. 


Mimi Rocah [00:07:22] So I guess this is good. Jen and I actually have a different view on something. I did in the sense that I thought, and I learned this early on, and later when I became a supervisor I told this to a lot of women, I thought men were--it came more easily to them to say, "You know, I can do this. I've got this. I know the answer." Whereas I was constantly questioning myself and I and I saw that in some other women not all so some of it is just personality. But what I later told women I supervised was nobody knows what they're doing in her beginning. It's just men are less self-conscious about it. So just act like you know what you're doing and you will eventually, but that's kind of what you need to do. So you know I don't think that's just a gender thing but I think over my life I've seen that it gets harder for women to sort of decide that, you know, I can do this even if I don't know what I'm doing. I'm ok doing it. 


Harry Litman [00:08:20] I mean I can tell you as a quick note of comparison with other offices. I was a newbie in two different offices and I had the same feeling you did but with even less support. It was like, "OK, here's a file go off to the judge and--" What? "Harry Litman for the United States and we're asking for...bail..I think."


Elie Honig [00:08:39] No,  the other one. 


Harry Litman [00:08:45] Exactly. All right. So you're there. It sounds like you're getting your sea legs after a few months, ecetera and now your you're one of the gang. So let's talk about the gang. First, you mention this competition with E.D. N.Y., which everybody knows, just to tell people, is the Eastern District of New York. So it's the neighboring office. How does that play out? Is it more them than anyone else? Would you also be competitive with the Northern District of Illinois? Another prestigious place. Or it's just because they're neighbors. And is it is it, like, a friendly competition or is a little bit... 


Elie Honig [00:09:27] Someone said earlier Bloods versus Crips. I wouldn't go--I think the better analogy is Yankees Mets. 


Harry Litman [00:09:31] OK. 


Elie Honig [00:09:32] Right? We're sort of playing the same game and we sort of--. 


Harry Litman [00:09:34] By the way, you guys are the Yankees--. 


Elie Honig [00:09:36]  Well it's also geographically correct. Yankees play in the Bronx which the Southern District, Mets play in Queens which is Eastern District right? And the Yankees have this illustrious history, World Championships--gosh, any Eastern District person is going to be--The Mets won once!  But you're in the same game and you're you're all trying to do the same thing and there's a certain amount of respect. But Southern District we think we're better, just when it comes down to it- 


Harry Litman [00:10:02] And why do you think by the way? You think you're better because you were better when you were hired.  So overall you were better? 


Elie Honig [00:10:06] No, no--


Harry Litman [00:10:11] Or you actually think you were formed in six months into the better prosecutorial machines. 


Elie Honig [00:10:17] Part of it I think is is neither of those, it's just by being in the southern district. You have certain cases and certain traditions--. 


Harry Litman [00:10:24] That make you better? 


Elie Honig [00:10:26] Yeah. Tha no one--


Harry Litman [00:10:26] Just  walking in the door. Because because of these traditions you're-- 


Elie Honig [00:10:31] No, but it's the same thing as getting drafted by the Yankees versus getting drafted by my favorite team the Phillies. Like, there's more of a history and a tradition and an ethic there. 


Harry Litman [00:10:39] Yeah,  but that doesn't make the rookie better-- 


Elie Honig [00:10:43] But it's what we think. (LAUGHTER). 


Harry Litman [00:10:46] (LAUGHTER) OK. All right. Well we'll cut to the chase at the very end. But do you think this now that you're out? 


Elie Honig [00:10:53] Yes. Of course. I t was fully indoctrinated. 


Harry Litman [00:10:56] All rigt, so explain it then. There must be a reason that's--. 


Elie Honig [00:10:59] Wel,l we get the biggest and best cases. 


Harry Litman [00:11:01] Okay, that's a reason.  


Elie Honig [00:11:02] Yeah, we've made them over the course of our history. Part of that is an accident of geography. Right? We're a quarter mile away from Wall Street.  Many of the worst, of course 9/11, but many other horrible terrorist attacks have happened in Manhattan. We have Mafia in our district. I mean, it's sort of every kind of crime you can think of happens in Manhattan. Manhattan's the center of the world and we're in Manhattan. So there is an inherent built in advantage in terms of getting the highest impact cases. So I think that goes a long way and a lot of it's just an ethic and attitude and people talk about this Southern District swagger and, "You guys are like a mafia." To which I say "yes and yes" and we're kind of proud of it.  


Harry Litman [00:11:40] So you think you have a little bit more of a swagger than the Eastern District of New York.. 


Elie Honig [00:11:48] Or you can name Northern Distric of Illiinois or whatever. (CROSSTALK)


Harry Litman [00:11:54] I was in the Western District of Pennsylvania. I tangled with Mary Jo White once on a case and I somehow wrested about half of it from-- but it was pretty clear, you know, even though we're both U.S. attorneys, who was, sort of, the boss. Well anything to add to this? You guys are fill in the blank. "You're the best because..." Here, we'll make it a multiple choice:  Because the best cases and so that makes you the the best. The best people from the start and that that makes you the best. The best culture, so you're not the best until you're there for a while and then you're the best... 


Mimi Rocah [00:12:31]  I think it comes down to a little bit of all that. Certainly everything Elliei said. But from the first day you get to any U.S. attorney's office you're taught by the people who precede you. And the southern district has had some incredible prosecutors. I think the unit chiefs who you know for the most part are are people who you know have just incredible experience and it's set of principles about what it means to be a good prosecutor but also be an aggressive but fair prosecutor. 


Harry Litman [00:13:06] I want to say to gte back to that. 


Mimi Rocah [00:13:07] Right. I mean, I think the Southern District teaches you to take chances. It prides itself on doing that. So you charge cases that other districts would run away from maybe, you know, because you're no--you're taught to not be afraid to lose a trial. You know it's OK. And so you know you take a risk in charging a case if it's the right thing to do because we know this person is guilty of the crime. 


Elie Honig [00:13:33] There is an aggressiveness and this is what I was talking about with the ethic and I think if you ask federal agents in the tri state and beyond area, "Where would you most like your case to land?" They will tell you in candor Southern District. And I have examples of that. One of the best mafia cases I did under Jen and Mimi came to us because a New Jersey based FBI agent was dissatisfied with the way New Jersey handled and charged his case. And he cold called me and I went over and met with him one day and I called probably one of you two and said OK. This is a nine count racketeering case including a murder, we charge it. It became a huge case. We convicted a captain of murder and he kept bringing us cases afterwards because there is this aggressiveness and sort of fearlessness. We're not cowboys. We can talk about this later.  We don't overcharge we. We are very careful about what we do. But there's also this sense of if it's the right thing I'm going to do it even if it's a tough case. 


Harry Litman [00:14:25] Yeah. All right so, very briefly, we've got in the corner there a phantom figure who's the Eastern District of New York representative here just for the next forty five seconds and he says wha?t Does you say you're completely full of it. You're not better. Or does he say, "Yeah you're better and here's the reason."


Jennifer Rodgers [00:14:43] Well I don't know what he would say. I mean, I think he'd have to concede, as maybe I know since we both did hiring for a lot of years, that they--ypically when people go to Eastern it's because they didn't get in at Southern. 


Harry Litman [00:14:55] Except Ellie--. 


Elie Honig [00:14:55] Eastern said no to me. 


Jennifer Rodgers [00:14:59] Ellie's  the reverse. But usually that's true. And, in fact, to the point where I heard at one point that they were making on the spo offers. The US Attorney and Eastern was saying to people, "I'm giving you this offer and you have to tell me right now,"  because they didn't want them to say, "Oh let me go make a quick phone call and see where I am at Southern." But look, I mean they're an amazing office too. They have a lot of the same characteristics that we do and it's the only place in the country where there's one FBI office covering the territory that two U.S. attorney's office cover which means we're kind of no matter what you want to think about who's better and who's stealing whose prospects, we're fighting with them for the same cases at the same FBI office at the same agent. So that kind of creates a competition that you know would be there regardless of whether there was kind of any other sort of inherent competition there. 


Harry Litman [00:15:49] All right, so let's talk about this notion of aggressiveness and SDNY being like a little bit more,  even more than a little--although I heard you know emphasize both both Ellie and Jen emphasize prudent and don't overcharge etc., meaning you walk that perfect line in the SDNY. So it sounds like you think that's true. That's the reputation. What's the impact of that reputation. Do you find in the world when you go in front of judges, when you have defense attorneys.  Are people, you know, a little cowed by you? "It's a southern district coming." Or do they want to take you down especially? Do you come at them with a reputation for arrogance deserved or not. You know, what downside or what's the general consequence of wearing the big, you know, "FDNY We're Aggressive" t shirt emblazoned on your. --when you come into court. 


Elie Honig [00:16:54] It's interesting. I think if you asked defense lawyers, "Where do you want your client to be charged?" I think, you never want to be charged federally as opposed to state.  Because Federal penalties are generally higher than the state. But I also think defense lawyers that I dealt with understand that we can be reasonable that we don't take sort of angry vindictive measures that we don't pile on. We didn't do these 88 count indictments, right? We would try to get our indictment sort of as narrow and tight and well-formed as possible. And I think there's a good amount of reason. And I'm sure we all have stories like this but I have many stories where you had a narcotics defendant who we easily could have if we insisted on the mandatory minimums do 40 years or 20 years. But you look at all the circumstances and try to do the right thing. I mean I have very specific examples of that. I was mid-trial once on a case where the guys were gonna go down for 25 20 and 20 years. My chief at the time, now a judge, Ray Lohier, looked at the whole case and said, "Look you're going to win this trial I get it but the right thing to do here is to give him a little less time." And that's what we did. 


Harry Litman [00:17:56] Oh, you temporized your aggression in that one? 


Elie Honig [00:17:57] Yeah...what does temporized mean? (LAUGHTER) Moderated it? 


Harry Litman [00:17:59] They know that in the Eastern District of New York. 


Elie Honig [00:17:59] That's a confusing word for the jury, I'd lose 'em. 


Harry Litman [00:17:59] Right, you'd need it for the Court of Appeals then. You know, you weren't as aggressive as you could--you're boasting now or whatever that you guys are aggressive. That's part of your rep, etc. You've just given me example where you weren't. 


Elie Honig [00:18:21] Aggressive when appropriate.


Harry Litman [00:18:25] OK well we'll change the, you know, the T-shirt motto. But you're certainly considered aggressive you agree with that? 


Jennifer Rodgers [00:18:32] Yeah. 


Harry Litman [00:18:32] And so what are the consequence of that in front of-- are judges tougher on you? Do they give you--stay with baseball--you know, if you're throwing them all good you'll get a slightly bigger strike zone, the umpire I'll give it to you. Or it might be you know that you've got a bigger cross to bear being from the Southern District. What's it feel like?


Mimi Rocah [00:18:52] I think it's really important to emphasize that--I think all three of us have said this in different ways. From day one, it is ingrained in you to be aggressive meaning take chances on what you will charge take chances with arguments you'll make. If it's the right thing to do. Don't just be aggressive to be aggressive. That is actually I think completely counter to the culture there and--. 


Harry Litman [00:19:16] Give me the short definition of what it means to do the right thing? 


Mimi Rocah [00:19:21] It means to not be aggressive where there are there is good reason to not be. To back off a charge.To not send someone to jail for the absolute longest time that you possibly could or try to because you do not seek the highest sentence because there are mitigating factors that you see and you take into account. Sometimes that's up to the judge to make that decision. But we all know you know learn early on that in charging decisions and what sentence we seek we as the prosecutors and is this true of any prosecutor have this immense power and you have to use it responsibly--. 


Jennifer Rodgers [00:20:00] And that's by the way I think,  I think you wantt to get into this later. That's where we most often butted heads with main Justice and DOJ. Because there's guidance coming out of DOJ as we all know about how you have to charge things and there was a memo that came out. I can't remember which DAG it was under. You know what I'm talkking about? 


Mimi Rocah [00:20:17] The Ashcroft Memo? 


Jennifer Rodgers [00:20:18] The memo that said you basically, you have to charge the highest -. 


Mimi Rocah [00:20:22] The Ashcroft Memo. 


Jennifer Rodgers [00:20:23] --the highest possible charge you you can. Yeah. And so that's an instance where we in the office might say we don't think we should have to do that and there's a reason for that. And so you know you start fighting with justice and that's why Justice looks at us and says like, "Come on, people. Get in line you know what's wrong with you that you're trying to use your prosecutorial discretion in charging?" Which of course you should be able to. But Main Justice is main justice after all. But that's I think one of the tension points that we always had with Washington that you know would sometimes cause them to look at us. with-- 


Harry Litman [00:20:54] Well while you say "main Justice's main justice after all" but really a big part of your reputation. The origin of the so-called Sovereign District of New York is that you know another attitude toward what you said Jen "main justice is main justice." That means you salute and have to do what they say.  And how would . you ever think about violating any-- it's a real thought that like you know an edict from main justice will be a "recommendation" to the Southern District. They maybe will, maybe won't. There's gonna be a real tussle on your hands. Is that a fair reputation and how is it justified within the office that you're you know actually not following sometimes or going your own way on DOJ policy? 


Elie Honig [00:21:45] It is it is a fair I think overall characterization and again some of it's just cultural. I was sort of taught from very early on they are not our bosses. In fact, the only the only time Preet Bharara--. 


Harry Litman [00:21:55] --and they are yet--. 


Elie Honig [00:21:56] Well they are, technically, but we don't recognize it. I mean, the only time Preet Bharara got actually angry at me was, we had a visit from Lanny Breuer who was I think Chief of the Criminal Division at main justice in D.C. at the time and I said something like referring to Lanny as "our boss". I think I said, "Well our boss is coming up." Preet just said, "Lanny Breuer is not your boss. Lanny Breuer is not my boss." So that's just a sense of sort of the culture. But there are specific examples I think Jen gave the best one. This memo comes down right from DOJ saying thou shalt charge everything to the max. And I don't remember ever giving that any more than just passing notice and nor did any of my chiefs at the time. I think I was in narcotics at the time say "OK we're all doing this."I mean it would lead to absurd results. 


Harry Litman [00:22:38] I can tell you, bud, we had those absurd results when I was--. 


Elie Honig [00:22:41] I mean, I don't think I ever charged everyone to the maximum of everything. That would be insane. 


Mimi Rocah [00:22:48] You know, at the end of the day though, you're still a government attorney you're still a government employee you do have to follow, for example the DOJ rule that a president would, you know, should not be charged. 


Harry Litman [00:22:58] There's mavericks and then there's, like-- 


Mimi Rocah [00:23:00]  No one in the Southern District is going to go around that. Under any U.S. Attorney I think that's my personal belief. 


Harry Litman [00:23:06] And that's because, unlike other edicts, it's a...super serious one? 


Mimi Rocah [00:23:11] Well I think it's hard. I mean like I said it's not that you just ignore the other rules or the other guidance or the other policies is that there are there is so much discretion that comes in the job that I think you can find ways to justify your way around them. This kind of a rule about indicting a sitting president how can you find your way around? I mean, there just isn't really--


Harry Litman [00:23:36] Yeah, I can report by the way having been at Main Justice as well as as a U.S. Attorney's office there's a concomitant kind of...fear of you--You know if sometimes the Deputy Attorney General whoever it may be is going to have to you know really get an argument going and go call Mary Jo White. And with anyone else it's a straightforward thing. But like Mary Jo might really you know give it to him with two barrels. Okay,  so you know you've now been out for a few years, you've given the whole sense of the culture there. I want to know if it feels about the same. In retrospect do you think the SDNY you know called it true and right? Do you see as you sit here and you don't have to document exactly. Did you ever make because you were the SDNY either out of confidence or this aggressiveness. You know, a real mistake that you now regret? 


Mimi Rocah [00:24:32] Of course. I mean I don't think anyone from the Southern District of New York would say that even given all these things that we're saying that we were perfect. This is about what you strive for. You know I think I as a prosecutor, I as a supervisor made probably wrong judgments. I mean it's all about judgment. I saw other people make wrong judgments. People are human you know. So it's not about being perfect. We're talking about what we were taught to aim for and try for and strive for and what I think the office as a whole at least under the U.S. Attorneys I served under did strive for. 


Harry Litman [00:25:12] Well and others, you know you don't have to tell us what they are but feel like, "I kind of wish on that one I kind of wish I'd been more by the book. E.D.N.Y., instead my SDNY handbook made me really go too far not far enough etc.? I think like MimI said we've all made mistakes and things we wish we would have done differently. But I don't think that's ever because we were Southern District to the contrary. I think sometimes being Southern District saved me from making a mistake. I remember very early on I had I just tried my first case and early on there's this sort of anxiety about am I getting enough trials right?


Harry Litman [00:25:50] Well no right. That's a big thing. That's right. You can go a few years and not get a trial because they're so big. 


Elie Honig [00:25:56] Yeah.  But even early on: "The people up and down the hall from me have three and four trials but I only have one." And you want it, right? Everyone knows their stats. So I just finished my first one and I was getting ready to try what I thought was going to be my second one and I can say that the person who supervised my first was Rich Sullivan who's now a judge on the southern district and he was great supervisor and I was getting ready to try my second one and I just stopped by his office and said, "Hey I'm getting ready to do my second case." And he said "Tell me about it." And I'll just, long story short it was a very shaky case that probably there was a much lesser disposition that was the right thing. And I told him that I said: "But I really want to kind of get my second trial running." And he said: Whoa. We don't do things that you run up your stats and your record." And it was the right thing to give this guy a much much lower. I think it was a non-custodial plea a probationary play. It was in retrospect now that I'm a little older and a lot older and a little wiser. It was absolutely the right thing to do. So I think  having that Southern District influence prevented me from making a mistake. 


Harry Litman [00:26:55] Okay, and you know right now as you sit here the converse kind of example doesn't come to you. 


Elie Honig [00:27:00] I can't think of a time when we ever when I was ever involved in anything where we overextended because we had to be the big tough Southern District and got burned. 


Harry Litman [00:27:07] Yeah that's exactly what I'm talking about. 


Jennifer Rodgers [00:27:09] Yeah I agree. I mean yes some regrets. I'm sure plenty of mistakes. But you know never felt like I did anything unethical. Never you know aired on the side of against a defendant's rights you know nothing like that. So I can sleep well for that stuff. 


Harry Litman [00:27:25] By the way so quick side point I want to go back. You just mentioned Ellie, everyone's aware of his or her stat.


Harry Litman [00:27:31] So in the same way, now you're in there you're in this vaunted institution. Some people some vaunted institutions. Everyone's you know happy they're in it together. Some there's a real strong competition that remains. What what was what did the attitude tend to be toward your colleague? You know about who's getting ahead of whom or what. Once you were in the you know paradise was it all kind of fine? 


Jennifer Rodgers [00:27:58] That's a good question and it's so funny because you know you would think it would be very competitive. And I really found that it was not. And part of that is because except for very very early on where sometimes I'll try a case by yourself you're always on a team. Investigations, trials when you're in a senior unit you're always on a team and it's not like you're with the same person. So you're kind of you know you and your colleagues in your unit are switching around working together on different cases all the time. So there's just this collegiality that I think extends far beyond any competition that there would be. And you know no one's on partner track. No one's making partner here. Yes there are supervisors who are made--


Harry Litman [00:28:38] Made? Like a Made Guy? (LAUGHTER)


Jennifer Rodgers [00:28:38] That's right. With a very comprehensive ritual (LAUGHTER) 


Jennifer Rodgers [00:28:43] But you know. So yes there is some sort of elevation that happens to people if they stick around long enough. Which many people don't. But it's not like you're at a law firm. I mean Mimi and I were at the same law firm before the office and you know if you sent around an office wide request for like a sample or something people would ridicule you. It's like: Why are you sending around a request for this kind of motion? Are you lazy? Aren't you going to do all the hours yourself to come up with this? Whereas at the U.S. Attorney's office constantly every day is like does anyone have a you know motion to dismiss response on this particular issue because we're all sharing and helping each other. No one has the time to reinvent the wheel and so that's just kind of how it was. 


Elie Honig [00:29:22] And it's so true. There's such a team atmosphere there. I mean yes there's friendly rivalry and "Oh I've done double the trials of you." But it's I mean one of the traditions that Southern District is when somebody is giving an opening address to a jury closing address or getting a verdict an e-mail goes around and our offices steps away from the courthouse and people would file into that room. And I'll tell you like waiting for my friends juries to come back and especially people I supervised juries to come back. I was just as nervous as my own chair is like watching your kids play sports right. I mean you are pulling for each other and helping each other and when you're on trial there is this understanding that if you need anything anyone will help you out. You can call a unit. Well I'll give one story. So I was getting ready to try a five defendant human trafficking case and my my partner who I was getting ready to try this with his wife was pregnant with twins and us being guys we didn't really understand timelines we kind of roughed it out in our heads and we're like, "Well, maybe she'll give birth towards the end of the trial so we front loaded it for him and backloaded it for me. Well guess what his wife gave birth weight eight days before the trial on a Sunday and the trial started the following Monday. And so I sent around an office wide e-mail. 


Harry Litman [00:30:29] Was this their first child


Elie Honig [00:30:31]  Uh, no. They had one but this was the two girls. So I sent around an office wide e-email saying I'm really thrilled to announce so and so's had twin healthy baby girls beautiful everything's good. In a related note does anyone want to hop on a trial with me. I'm defending a trial that starts in eight days and Mimi was a chief at the time I was not. And she was like I'll do it. I mean I got 30, 40 responses from people at the highest levels the office to people who were brand new and in no position to do this saying if you're serious I'll do it. And the person who ended up doing it with me Lisa Zornberg became sort of my.--but she didn't know a thing about the case. And in eight days she was up. I mean, I opened--. 


Harry Litman [00:31:06] You gave the opening argument. 


Elie Honig [00:31:07]  But she was ready to go eight days later and that's sort of the ethic of the office. People were willing to drop everything they were doing and jump into this emergency situation. 


Harry Litman [00:31:20] So this is a little bit off topic and then I want to return to maybe you know current day but this is not SDNY specific but another retrospective question. Now you guys have been out for you know at least a couple of years. Anything about the whole system you know SDNY included but you know looking at DOJ the federal criminal justice system that at the time you didn't give any second thought to you thought was fine but you now think in fact if you were the god of the criminal justice system you would change and you see now in retrospect was a little unjust? Does anything like that occur to you? 


Elie Honig [00:32:02] I had a different experience thanI think almost everybody who leaves the Southern District that I went to work for a state prosecutor right. 


Harry Litman [00:32:09] Fom there? 


Elie Honig [00:32:09] Yeah, I left the Southern District in 2012 and I spent the next five and a half years running the criminal division of the New Jersey Attorney General. So I went from federal to state. And boy what a reality hit that was right? 


Harry Litman [00:32:24] Why? 


Elie Honig [00:32:24] So I'll tell you a couple reasons. We used to bellyache about our judges like anyone would.  I'm sure you did too Harry. But man, what I wouldn't give to have one of them back-- (LAUGHTER). 


Elie Honig [00:32:34] The federal rules, the rules of procedure, so much better. The cases move so much more quickly and orderly than in state courts. 


Elie Honig [00:32:42] But the one thing that really I think is my answer to your question is the sentences, right?  Boy oh boy, the sentences that you would routinely hand out in federal narcotics cases in particular are through the roof. And when you get into the state system and you see the sentences, some of them are still outrageously high but you realize like a case that would a routine case federally a routine drug case--eighty seven a hundred eight months. Right. Remember these are like guideline numbers. I mean that's an outrageously high sentence for state systems. And so I think I look back and I think boy some of these federal sentences and you don't realize it when you're in this--. 


Harry Litman [00:33:18] So you feel this now where you didn't at the time you just sort of went went through it. 


Elie Honig [00:33:22] I do. I think particularly in drug cases narcotics cases the federal sentences are outrageous and hard to justify. 


Harry Litman [00:33:30] Yeah. Others? 


Mimi Rocah [00:33:30] Yeah, I mean I think there's a lot of things that you know part of this is looking back but it's also partly I mean I think we as a society are changing our views on you know mandatory minimums particularly in drug cases. I think are too harsh. Interestingly the other place where there was very high mandatory minimums that I did more work on at the end of my time there is in like child exploitation crimes very high minimum minimums. And I can't--. 


Harry Litman [00:34:00] And  this is just Congress's judgment right? Congress just lays them on--. 


Mimi Rocah [00:34:05] Right and whereas for example gun crimes in general very low sentences right. So I mean a lot of this is politics and sort of you know people Congress wants to look tough on you know who doesn't want to look tough on child exploitation crimes? But whether that 15 year sentence is actually justified under the facts of each child. And I mean I cannot think of a more horrible crime in many ways than child sexual exploitation and I feel very strongly about those cases but I don't think 15 year mandatory minimum is justified in every one of the cases that meets the statute. 


Jennifer Rodgers [00:34:44]  Yeah I agree. I agree. Like Mimi, I supervised the General Crimes Unit where the child pornography cases come in and you know some of those cases they're horrible cases. But for someone who has just found something on his computer getting 17 is really harsh. 


Harry Litman [00:34:59] Again this is a little bit different and since you left but we now have I mean Mimi averted to it a pretty strong attorney general a different kind of U.S. Attorney in place in the Southern District. So if you have current thoughts knowing both about the sort of irresistible force of Main Justice and the immovable object or vice versa. You have this very strong Attorney General who's you know hard to say no to and you know maybe have a more onboard or less sort of independent--hat's the wrong way to put it--but more onboard U.S. Attorney. How do you see that playing out now? Obviously if Southern District wants to indict a president that's going to be in trouble but are there is the overall dynamic likely to be different? Or will maybe the you know from the supervisory level and the agents on down that people will find ways to do what the Southern District always has done and find creative solutions. Any any thoughts?


Jennifer Rodgers [00:36:09] Well I'm very worried about this actually. And I'm interested to hear what Mimi thinks having been there during sessions. But you know when Trump came in and started his almost immediate attacks on DOJ and on the FBI it was really troubling. And you know it's only gotten worse. And Sessions at least to his credit did seem to try to push back on those. And so I thought for you know most of the time of this administration until very recently that at least DOJ was trying to stay the course and it would be a relatively similar relationship between Southern District and DOJ as it had always been. Now with Bill Barr I'm not so sure because for the first time you know I'm looking at my old shop DOJ and I'm concerned that that it's not being led by someone who has the best interests of the agency at heart. 


Harry Litman [00:37:00] Your shop or the or the whole DOJ? 


Jennifer Rodgers [00:37:02] DOJ. I'm talking about DOJ. So you know I just worry that you know in the past maybe you have the U.S. Attorney arguing with Bill Barr about you know whatever it is kind of your typical stuff and we push back and they push on you. But now you know you have an attorney general who I think is not trying to keep DOJ where it should be is not trying to push back against the president's attacks on DOJ. Is willing to let the institution be attacked and have power taken away from it. And so that is really concerning. I mean I think it's kind of heartbreaking for those of us who spent so much time in the Department of Justice to see that happening at least for me. 


Harry Litman [00:37:39] I'm seeing nods to either side of me. 


Mimi Rocah [00:37:39] To me it's not about that Bill Barr is such a strong you know forceful hands on Attorney General. It's that he seems well more than seems I think has shown himself to be much more willing to carry out the political agenda of the president. Right And so before this wall that we that we all just took for granted frankly. 


Harry Litman [00:38:10] Wall between whom and whom? 


Mimi Rocah [00:38:10] Between politics and the attorney general. Right?  I mean there's so many examples in the past of public outrage where that wall seemed to be breached and I'm not saying it never ever was but Barr with his rhetoric with his seemingly opening investigations that Trump purely it seems because Trump wants them you know into the origins of the Mueller Russia investigation things like that that he seems so consistently not just willing to let the wall down but almost. 


Harry Litman [00:38:44] What wall? 


Mimi Rocah [00:38:44]  He totally obliterated it and it seems like DOJ has become more and more a tool of the political rather than separate from it and pursuing things because of you know where the case is taken. So that's the part about Bar that I-- 


Harry Litman [00:39:04] All right and maybe Ill frame this to Ellie for last words: last words:  Why don't we then have the you know Southern District of New York marinated in the strong culture pushing back all the more. You must be afraid that in fact in your old office there will be some kind of increased capitulation. Is that true?


Elie Honig [00:39:24] IYeah I think there's there's two pieces of this equation. One of them is DOJ and I agree with what Mimi said and Jen said I think Bill Barr is different in kind from his successors or predecessors as Attorney General. We served under AG's as varied as John Ashcroft Alberto Gonzalez Eric Holder Loretta Lynch and sure, does everyone love and I mean everyone in DOJ and in the public love all of the policy initiatives they were forwarding? No there's healthy normal disagreement. While the Republican administration wants to focus on this kind of crime Democratic administrations want to focus on this kind of crime. That's how it should be. That's that's normal. But to see Bill Barr using the rhetoric of spying and no collusion and that there's a red line that's been crossed and investigating the investigators, I think puts him in a completely different category. I also do not think it helps that really the top three people at Main Justice right now Barr, Angle, Berman, and Rosen  have combined tried a grand total of zero cases from a prosecutor's perspective. From a criminal perspective and so they lack that-- 


Harry Litman [00:40:32] It really does matter.   From many offices as you come you work your way up you have someone who knows what's going on in a trial. 


Elie Honig [00:40:39] 100 percent. And on the other side if you look at the Southern District all of the U.S. attorneys that I served under were again very different but giants I think and seen as giants or became giants from Mary Jo White to Jim Comey to Preet Bharara, Mike Garcia. People who are seen as very formidable and who had recently been in the office within the past certainly the past decade often the past five years and had made major sort of groundbreaking cases in their time there. Jeffrey Berman I don't know personally but he has not been a prosecutor for 25 years I think he was last there in the early 90s. He spent three years. 


Harry Litman [00:41:16] He's the current person. 


Elie Honig [00:41:17] Yes the current U.S. attorney so I think he's different again in kind from the past six or seven U.S. attorneys and also he has this sort of strange status where he was never nominated by the president. He was never Senate confirmed. I don't know whether he's good or bad. I don't really know much about him directly but he is in a different standing and status than his predecessors. 


Mimi Rocah [00:41:38] OK. So Harry one thing I think it's important for people to know is what the Southern District in Manhattan the Southern District office looks like, feels like, is like: it's a dump. There is just no nice way to put it. It is a very old building I think built in the 60s has some really unusually artwork in the lobby. It's this massive government looking I mean from the outside it looks like it could be a jail except as big windows I guess. It is filthy dirty. You can't drink the water at least while we were there. Maybe this is has changeed. You couldn't drink the water from the water fountains. They were all closed off because of the lead levels. There were bugs routinely kind of walking around your office. Bedbug infestations regularly. You know there's the maintenance staff does as good a job as it can. But there's like a year's worth of dust and dirt just sort of ingrained in the furniture. It's just a really miserable looking place except for the windows and the views and some of the offices. Air conditioners that are so loud you have to turn them off because you just you can't you can't hear the person on the phone that you're talking to. You can't think. And I say this because I actually think it's sort of part of  the culture there. It's almost a badge of honor. It's a point of pride. 


Harry Litman [00:43:06] SNNY Pride, like: Bedbugs Don't Deter Us. 


Mimi Rocah [00:43:11] You know what. I don't care what this place looks like. I don't care. I am thrilled to get up and go to this dump of an office every day notwithstanding what it looks like because that's how important the job feels. That's how good the work is and how great the people are. And so you just become numb and immune and blind to it and you think it's the greatest place you know no matter what. 


Elie Honig [00:43:37] It was always fun when you would have big firm lawyers who made many many multiples of our salary. Beautiful suits come into meet and you go into a proffer room with actual mismatching furniture. 


Mimi Rocah [00:43:47] No wiidnows. 


Harry Litman [00:43:47] You guys must be really good to have an office like this. 


Elie Honig [00:43:52] Right. One side of the office actually faces the MCC. The Metropolitan Correctional Center.  There are some offices where inmates can see in and if you had one of those offices you would know and you would sort of be a little bit wary of that fact. And there was one story speaking of the windows you guys may remember this but they decided that they were going to put in brand new windows and they were these super high tech windows that would--. 


Mimi Rocah [00:44:11] Bomb proof. After 9/11. 


Elie Honig [00:44:12] Right if there was an explosion they would blow up out so they didn't impale the people inside and they also kept heat and air conditioning in and so it was this huge disruption they would have to clear out our offices it was really disruptive. They finally put in it took months and months all the windows. Then someone realized they put them all in backwards (LAUGHTER). 


Mimi Rocah [00:44:29] That's the government for you. 


Elie Honig [00:44:29] And they had to redo it! For you. So for a couple months the explosions would have come in and they were doing a good job of keeping all the heat and air on the outside. 


Harry Litman [00:44:39] And this was because of 9/11 these special windows? ThisI forgot to ask you about was there anything special about 9/11?I  mean here's SDNY. The center of the universe and it really is. 


Mimi Rocah [00:44:53] I think Jen and I could talk about this part for a long time. 


Jennifer Rodgers [00:45:01] Yeah it was crazy I actually was in Greece on vacation so I was not there but the office is very close to Ground Zero and so everything else under 14th Street were closed for I think about a week and a half. And you know, so when it happened there were kind of these phone trees that started you know supervisors started calling people to say you know don't come in. Go home we'll get word to you about what's happening next. So people who were at Mimi and my level didn't do much other than report when we were told to report. People who were senior you know there's a whole command center set up to deal with those emergency subpoenas and other things that started happening right away as part of the investigation of what happened on 9/11. So the terrorism folks had a command center and you know they obviously had certain judges who they were in touch with when they needed things from judges and they were working around the clock. I heard even like Martha Stewart like came and brought a cake or something to them (LAUGHTER). In the days before Martha Stewart was actually one of our defendents (CROSSTALK). 


Jennifer Rodgers [00:46:05] But people kind of knew that this was happening and were very supportive of those senior folks in the office who were doing this literally around the clock command center kind of emergency work in connection with that investigation. 


Mimi Rocah [00:46:20] So I actually was there I was there on 9/11 and headed to the office. Came up the subway right after the second plane hit. And my instinct though was to still go towards the office. I did everyone who was there including my now husband who was a prosecutor there who were coming out of the office and we just were told to just go North ,go North. Just walk. And so the entire office you know hundreds of people were just walking North. I walked to a colleague's house with a bunch of other colleagues who lived above 14th Street and we we watched on TV as the towers fell. I then walked home to the Upper West Side where I lived at the time and and was trying to get a hold of FBI agents that I knew because we had heard that so many of them had gone down. You know we didn't know what had happened. There were these just frantic efforts and were people from the Southern District of New York. Mary Jo White was trying to find certain people who worked in the office who had gone down and they they were safe but there were some really tense moments. I actually did go back to the office before it was officially opened with about five other people. They wanted to have a skeleton crew of people in the office. It was-- 9/11 happened on a Tuesday I think I was back there by Thursday and we had to go below the barricades below 14th Street. We walked around--\. 


[00:47:48] As I recall New York at the time downtown was closed down. Couldn't go near the tunnel and--


Mimi Rocah [00:47:53] We had credentials and got in and we walked around the office with masks on because I mean it was still like there was--I mean it's smoky I mean you could smell the chemicals. It was probably looking back not the smartest thing to be in that air but you know nobody thought about that at the time. And I remember walking into the office and it was like seeing this moment that clearly was just frozen in time because it had happened in the morning where people were at their desks eating their breakfast drinking their coffee checking their emails and so everywhere you look there was this half eaten breakfast. And it had this just very surreal feel plus you looking through this like smokyness. And I'm not even sure what we were doing there. We were there to sort of help support the command center if it needed it although they didn't really need us. It was truly this eerie just--you know and for months after that my walk from the subway to the U.S. Attorney's office, I'm sure this is true for you too Jen because of where you live, you would pass, I mean you could look down Church Street and see the pile. You know that Ground Zero. I mean you could see just as you're walking from the subway every single day you could smell it. You could see it. So it was very much a part of the Southern District. You know like I said I started in February of 2001. This obviously happened in September. A lot of things changed logistically. We got new IDs because all of a sudden they realized,  "Wow. You know we need to-" There were barriers set up around the office but it really also just heightened this feeling of what we're doing here is so important because this is one of the offices that's going to work on these kinds of investigations. Not that there was anyone to prosecute out of 9/11 but we didn't know that at the time and we didn't know if there would be more. 


Jennifer Rodgers [00:49:50] Yeah and everyone wanted in on that. I mean I went up to organized crime and terrorism which was one unit at the time, I think in February of 01. And you know Mimi you came up there when it was your turn too. I mean so many people just wanted to help by being a part of prosecuting those kinds of cases after that. 


Harry Litman [00:50:08] Guys this has beena phenomenal discussion. I think I personally but everyone who is listening will know so much more about SDNY and how they play in historically and going forward. Thank you very much. 


Harry Litman [00:50:26] Thank you very much listeners for tuning in to Talking Feds. If you'd like what you've heard, please tell a friend to subscribe to us on Apple podcast or wherever they get their podcasts and please take a moment to rate and review this podcast. 


Harry Litman [00:50:42] You can follow us on Twitter @talkingfedspod to find out about future episodes and other Feds related content. And you can also check us out on the web at talking Feds dot com. Submit your questions to questions at talking Feds dot com whether it's for five words or fewer or general questions about the inner workings of the legal system and federal prosecutorial practice for our sidebar segment. Thanks for tuning in. And don't worry as long as you need answers the Feds will keep talking. 


Harry Litman [00:51:23] Talking Feds is produced by Jennie Josephson, Dave Moldovan, Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer, production assistance by Sara Philipoom and Matthew Flanagan. Thanks to The Radio Arts Studio on the Upper West Side in New York City. And thanks to the incredible Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito LLC. I'm Harry Litman. See you next time. 


LEFT OF BOOM: VIOLENT EXTREMISM AND THE LAW

TF 29: Left of Boom: Extremism and the Law

Printable version

News Anchor #1 [00:00:01] MONTAGE: Breaking news tonight from El Paso, Texas. At least 20 people have been killed, after a shooting rampage at a shopping complex...

News Anchor #2 [00:00:09] Thirty two year old Heather Heyer died when a car drove into counter protesters... 


News Anchor #3 [00:00:13] The Gilroy police have confirmed, that this is an active shooting situation... 


News Reporter #1 [00:00:18] Family friends and strangers continue to leave flowers for the victims of Saturday's Tree of Life synagogue shooting... 


News Anchor #4 [00:00:25] The city of Orlando is starting to say goodbye to the 49 victims lost in the Pulse nightclub shooting...


News Reporter #2 [00:00:32] This busy Texas shopping center becoming the latest mass shooting... 


John Bash [00:00:36] We are treating it as a domestic terrorism case and we're going to do what we do to terrorists in this country which is deliver swift and certain justice. 


Frank Figliuzzi [00:00:50] Welcome back to Talking Feds where prominent former federal officials gather for a dynamic roundtable discussion of the most important legal topics of the day. I'm Frank Figliuzzi, former FBI assistant director and an NBC News national security contributor. It's my honor to guest host for Harry Litman. He'll be back in this chair next week. 


Frank Figliuzzi [00:01:14] Today we're talking about violent extremist ideology and how the law copes or doesn't with crimes inspired by ideology. The horrors of recent mass shootings in Gilroy, El Paso and Dayton have many of us questioning whether existing legislation adequately equips law enforcement to prevent such acts and to sufficiently address violent actors when they are motivated by what they believe. 


Frank Figliuzzi [00:01:47] Fortunately we're joined by three former feds who have all had extensive experience in this field. 


[00:01:55] First Barbara McQuade has graciously joined us. Barb is the former U.S. attorney for the Eastern District of Michigan who co-chaired the Attorney General's Terrorism and National Security Subcommittee. She was also an assistant U.S. attorney in Detroit for 12 years and is currently a professor from practice at the University of Michigan Law School. Hi Barb. 


Barbara McQuade [00:02:18] Hey Frank, thanks a lot for having me. 


Frank Figliuzzi [00:02:20] Of course. 


Frank Figliuzzi [00:02:21] It's also my pleasure to welcome Mary McCord. Mary is a visiting professor of law at Georgetown University Law Center. She's also the former acting assistant Attorney General for national security and a federal prosecutor for 20 years in the District of Columbia. Thanks for being here Mary. 


Mary McCord [00:02:40] It's my pleasure Frank. Thank you. 


Frank Figliuzzi [00:02:42] And finally we're fortunate to welcome Malcolm Nance to Talking Feds. Malcolm is a counterterrorism and intelligence consultant for the U.S. government's Special Operations homeland security and intelligence agencies with extensive field and combat intelligence activity. He's also an author of several books most recently "The plot to End Democracy." Malcolm, Welcome to Talking Feds. 


Malcolm Nance [00:03:07] Great to be here. 


Frank Figliuzzi [00:03:08] All right we've got a lot of ground to cover so let's dive right in to first a high level discussion in our first segment before we then dig into possible solutions and proposals. So since we're focused today on violent extremist ideology it's going to be important that we first spend some time understanding those terms because if we're just talking about violence that would be a different show and there are plenty of laws to address violence and if you focused only on extremism that would imply wrongly that we think that ideas in and of themselves should be subject to legal constraints. 


Frank Figliuzzi [00:03:46] To be clear what we're talking about are ideologies that contain the often lethal combination of extremism plus violence. The kind of ideology that incites people to commit the kind of mass murder we saw in El Paso or in the bombing of the Federal Building in Oklahoma City or in the mass attacks of violent Islamic jihadists on September 11th. 


Frank Figliuzzi [00:04:11] The Oxford Dictionary says an extremist is a person who holds extreme political or religious views especially one who advocates illegal violent or other extreme action. And a UK government initiative that I'm a fan of called Educate Against Hate says extremism is the vocal or active opposition to our fundamental values including democracy the rule of law and respect and tolerance for different faiths and beliefs. And we all know violence of course is behavior involving physical force intended to hurt damage or kill someone or something. 


Frank Figliuzzi [00:04:53] And since we're defining terms this might be a good time to insert what we call our sidebar segment to help us understand what we mean when we use the terms domestic and international terrorism. 


Frank Figliuzzi [00:05:08] Today for our sidebar we're very pleased to have with us the Emmy Award winning film and television actor Bradley Whitford. I'm a big fan of Whitford's because the work he does transcends entertainment and includes Zeitgeist defining shows like his portrayal of deputy chief of staff Josh Lyman on NBC's The West Wing or his Emmy winning guest spot on transparent and of course his recent role as Commander Lawrence on a dystopian drama The Handmaid's Tale. Today Brad explains the difference in the US law between domestic and international terrorism.


Bradley Whitford [00:05:52] What is the difference between domestic and foreign terrorism under federal law? Many people are calling for white supremacist mass murder to be prosecuted as domestic terrorism. The U.S. Attorney for the Western District of Texas who will prosecute the El Paso shooter said they are treating the shooting as a domestic terrorism case. But what is domestic terrorism and how does it differ from international terrorism? Federal law defines both domestic and international terrorism as any violent criminal act intended to intimidate or coerce a civilian population, influence government policy, or affect the conduct of government by mass destruction, assassination or kidnapping. International terrorism occurs primarily outside of the United States or has an international scope, target or means. Domestic terrorism on the other hand occurs primarily within the United States. 


Bradley Whitford [00:06:53] The FBI Counterterrorism Division separately tracks domestic and international terrorism. Globally it has about 5,000 open terrorism investigations. 850 are domestic terrorism cases, about 40 percent of which involve racial extremists primarily white supremacists. The FBI has actually arrested more suspects in domestic terrorism cases than international terrorism over the last several years. 


Bradley Whitford [00:07:21] Given all this you might be surprised to learn that domestic terrorism is not a crime under federal law. There is a federal crime of acts of terrorism transcending national boundaries that carries punishments up to the death penalty. But there is no similar law for acts of terrorism within the country's borders. Domestic terrorism cases are prosecuted under other federal and state statutes. 


Bradley Whitford [00:07:48] For example Timothy McVeigh was tried and sentenced to death for the Oklahoma City bombing. Under federal laws prohibiting the use of weapons of mass destruction. Dylann Roof and Robert Bowers were prosecuted under federal hate crime and state murder laws for the attacks on the Charleston Emanuel AME Church and the Pittsburgh Tree of Life synagogue. In the wake of the El Paso shootings DOJ veterans have called for new legal measures that will help address domestic terrorism. They include Brian O'Hare, the president of the FBI Agents Association. Harry Litman former U.S. attorney, and Frank Figliuzzi, former assistant FBI director for counterintelligence. 


Frank Figliuzzi [00:08:33] Thanks very much to Bradley Whitford. You can follow Brad on Twitter @BradleyWhitford. 


Frank Figliuzzi [00:08:41] All right. Let's move from our definitions to our discussion. Mary, there seems to be a subjective nature to the concept of extremism it seems to be in the eye of the beholder and not all violent extremists ideology leads to actual violence. So are we even justified in trying to take a legal approach to extremist ideologies as motivators to violence?


Mary McCord [00:09:07] Our law has already taken that legal approach to extremist violence it's done it through the terrorism statutes that are on the books which in addition to criminalizing acts of violence criminalize especially acts of violence when motivated by a particular extremist ideology. And by that I don't mean a particular viewpoint, I mean an intent like we just heard in the sidebar to intimidate or coerce a civilian population, to influence governmental policy through intimidation or coercion. 


Mary McCord [00:09:38] So regardless of the ideology whether it's Islamist extremism as it was for example with respect to 9/11 and many of the terrorist crimes that we've seen prosecuted since 9/11, or whether it's far right wing extremism like some of the white supremacist motivated crimes we've seen recently here in the United States, or whether it's any other ideologically driven extremism when it crosses over into espousing certain viewpoints and ideologies into a radicalization toward violence where actual violence is solicited incited, that is when we leave sort of First Amendment protected speech and we really are talking about violence which is not protected, the Supreme Court has told us time and time again. 


Mary McCord [00:10:29] So I think it's important to pull away from viewpoint and the subjective nature of ideology and focus on what is the intent if the intent is intimidation or coercion. It's bigger than just a one on one crime. It's bigger than just a local issue or a state issue or a national issue it becomes an international issue and a matter of national security for the US. 


Frank Figliuzzi [00:10:51] And so we'll talk a little bit later about when that line gets crossed and when we discern that someone is moving down that path of violence as opposed to maybe just being aspirational. 


Frank Figliuzzi [00:11:04] One of the things that was an outcome of El Paso is that many of us are surprised to learn that domestic terrorism while defined in the American law isn't distinctly addressed as its own crime. I've talked to a lot of people who were shocked to hear that. Barbara you're a long time prosecutor. How does it work right now without having a specific domestic terrorism crime. How does it work if you're a prosecutor or FBI agent trying to get things done?


Barbara McQuade [00:11:36] It creates problems at two levels. One I think in terms of the actual work and another in terms of the public perception of the work and so in terms of the actual work it does leave gaps in the law when investigators and prosecutors find groups that are concerning, about planning acts of violence but they don't find a statute a federal statute that may be violated. And until there's an identified statute that can be violated the investigators and prosecutors can't open up a grand jury investigation. 


Barbara McQuade [00:12:08] Of course investigations cannot be based solely on First Amendment protected activity. But if there's not a crime on the books you can't really even investigate them and that causes challenges. I'll tell you just one quick story when I was U.S. attorney we had a case involving a militia group in rural Michigan that was plotting to kill police officers and we certainly wanted to investigate the group and we wanted to be able to arrest the group before they committed a crime. Frank you're probably familiar with the term left of boom where do signifies the attack. And if you imagine it on a timeline left of boom sometime before that attack and the FBI and U.S. attorney's offices always want to intercept violent groups left of boom before an attack occurs. But in that case it was solely a domestic group. They were anti federal government and we really had a hard time finding a federal statute on the books. 


Barbara McQuade [00:13:03] We ultimately did find vicious conspiracy which makes it a crime to levy war against the United States or oppose its authority by force. But it was a clumsy statute, it had an Orwellian name. We ultimately did charge the group under that statute and the judge dismissed the case before it went to the jury. And so there were definitely gaps in the law when you're trying to investigate purely domestic groups and then that's the actual problem and then in terms of the perception problem you run into this. 


[00:13:31] Where you refer to groups with an international nexus with ties to say al-Qaeda or ISIS as terrorists and then you refer to purely domestic violent groups as the active shooters, or based on their acts. And you don't call them terrorists and that causes problems too in terms of the moral equivalent of their conduct because by any measure what they're doing is domestic terrorism. I have to say I have to applaud the current administration which is referring to acts like El Paso and like Charlottesville as terrorism. When I was at the U.S. attorney's office I think the administration was always very reluctant to use the word terrorism because there was no actual statute. But colloquially I think people think of it as terrorism and I think to call it terrorism even if the ultimate charge might be technically something different I think is an effort to draw that moral equivalence. 


[00:14:25] Yeah I agree. I was pleased as anyone can be after a tragedy to hear the U.S. attorney in Texas after El Paso saying right away look this this is going to be looked at as domestic terrorism and I think it's important to say that from your example. I share frustration regarding cases I had to supervise where we were left with a big dilemma of whether to do what we called "knock and talk" to disrupt something we knew was going to about to happen or was being talked about particularly with militia groups because you do that knock and talk just to let them know we're onto you and then they get empowered when you can't arrest them and they feel like they're being harassed and abused and it makes its way around the Internet that you know we we blew off the FBI and you've got to you've got to make some decisions about when the violence might be happening or whether it's time to knock on and disrupt. 


Frank Figliuzzi [00:15:19] Malcolm. That's a good segway for you in terms of someone who's been a practitioner in the field and this whole idea of how to investigate violent ideology. The FBI Director Chris Wray has said on the Hill that the FBI doesn't investigate ideology they investigate violence and as we've been talking about the question is Isn't it too late if the FBI is waiting for violence to occur. So in your background experience what have you seen regarding successful interventions on the international terrorism side that maybe could be a moment implemented on the domestic side and this raises the whole question of the El Paso shooter if we switched his motivation to Islamic Jihad would there have been a different outcome. Would the FBI have been empowered to be in chat rooms and sites where they might have seen this planning take place. 


Malcolm Nance [00:16:14] I'm almost certain that had it been a jihadist that the FBI would certainly be investigating ideology. And since 9/11 one of the the core components of the national intelligence apparatus has not just been the collect against the target and collect against the organizational structures but certainly after 2005 between 2005 and 2010 there was a huge effort to go after the ideology and understand that the ideology was the driver of all of the acts. 


Malcolm Nance [00:16:49] In fact I wrote a book called "An End to Al-Qaeda" which was a very deep dive study of al-Qaeda's ideology and how that pushed the street level person into what we now commonly call radicalization. From that radicalization would lead them on to joining an organization or becoming a self starting terrorist which is what we saw al-Qaeda more from from the you know the core clandestine service type organization paramilitary to a disparate group of people who have weapons systems and just go out and do an act or a deed which gets them sort of membership into the group and allows them to be hagiographed after their death. Ideology despite what Director Wray says is always going to be a core driver. 


Malcolm Nance [00:17:41] I know you, know coming from the international perspective I got to use or against international terrorist groups national systems and intelligence collection methodologies. You just couldn't possibly imagine being used against an American citizen because of those misnomer as as Barb said earlier where people would say oh that's an active shooter or that's a militia man. And because they don't fall under the acts or and clearly defined under the statutes as terrorist. 


Malcolm Nance [00:18:15] There are intelligence resources that just can not be used you know or if they're used they're used exclusively by the FBI and the FBI itself doesn't have access to a lot of the analytical tools and resources that the National Counterterrorism Center or other intelligence agencies and apparatus would have because they are American citizens. And so once we can corral American citizens in their behaviors into the statutes as you know equal to being international terrorism then we'll have a lot more methodologies to collect against these these individuals not just wiretaps or you know the knock, knock and talks which you know I'm a big fan of. I think those disrupt American citizens who were essentially talking off at you know shooting off at the mouth. 


Malcolm Nance [00:19:12] But you know we don't apply that same standard to an American citizen that's joining al-Qaeda or ISIS. We, you know, I know the FBI does their knock and talks but because of the statutes there are resources that are used in the United States, offshore strategic assets the intelligence community have that the FBI has access to that we can't use against the militia group that may be planning the next Oklahoma City bombing. 


Frank Figliuzzi [00:19:41] So Malcolm raises a great question here and I think a lot of our listeners might be scratching their head at this point saying, well so what's behind this differentiation, what's what's the deal in our society where we seem to be very comfortable talking about another religion as extremist and violent. But when it comes to our own folks it seems we've we've got this huge gap. Mary, Barb can you weigh in here and just give us a brief history of how we got here how we got to this gap?


Mary McCord [00:20:09] Right. So a lot of this and a lot of the discrepancy has been driven of course by First Amendment concerns within the U.S. So for example a lot of the regime that that Malcolm was talking about has developed around our material support statutes which there are two of them and most people are familiar with just one and that is material support to a foreign terrorist organization. So this is a tool that has been used in more than half of the terrorism related prosecutions since 9/11 are brought under the statute material support to a foreign terrorist organization. 


Mary McCord [00:20:44] And what it requires is it requires a designation by the Department of State or the organization operating abroad. It must be foreign as a terrorist organization. So the criteria are it must be foreign it must engage in terrorist acts or have the capability or intent to engage in terrorist acts. And it must present a threat to U.S. nationals or to U.S. national security. So organizations such as al-Qaeda, ISIS, Boko Haram others are almost entirely Islamist extremist organizations. There are 16 organizations on the list. 


Mary McCord [00:21:22] There are few involving like the FARC in Colombia and some, a few others that are not Islamist extremist organizations, but the vast majority are because foreign organizations don't have First Amendment rights we're able to designate under U.S. law those foreign organizations as terrorist organizations. And therefore even a U.S. person in the United States an American citizen in the United States if they are providing material support or resources to that foreign terrorist organization that could be money that could be equipment that could be carrying out an attack on behalf of the foreign terrorist organization even here in the U.S.. 


Mary McCord [00:22:02] So think of things like the Pulse nightclub shooter in Orlando or the San Bernardino shooters pledged by up before they went on their shooting sprees. Those things would all be material support to terrorism and then can be investigated beforehand to try to be preventive. Now of course Pulse nightclub in San Bernardino those weren't prevented but there are plenty of others that have been based on investigations into whether an individual in the U.S. is providing material support to a foreign terrorist organization. We don't designate domestic organizations as terrorist organizations largely for First Amendment concerns because a lot of the speech that an organization might be involved in whether it's the KKK, whether it's Vanguard America, Identity Europa, Patriot Prayer some of the very far right wing ethnonationalists and white supremacist organizations engage in a lot of speech. In addition to some of their members occasionally engaging in violence but it would be very difficult to sort of differentiate within an organization between the protected parts of their expression freedom of expression freedom to assemble with others with the same viewpoint and the unprotected parts which are that advocating violence. And so I think that's one of the sort of historical reasons that we've seen the discrepancy. But that doesn't mean that we can't address more directly, the violence as we were discussing at the beginning of this program. Because when that ideology turns to extremism and turns to the actual incitement solicitation or engaging in violence that's not protected anymore. 


Frank Figliuzzi [00:23:47] That's helpful. Barb, so does this mean let's do a hypothetical here. If I'm in support of ISIS an international terrorist group and I decide I'm gonna rob some banks in the United States to help fund ISIS that I'm gonna be charged with material support to terrorism but if I'm part of a neo, American neo-Nazi group and I'm going to rob those same banks to support a bombing of a Jewish synagogue because of my neo-Nazi ideology that I'm going to be handled differently by the law and perhaps not even as stringently as that. Is that fair to say that we were going to look at those two scenarios differently. 


Barbara McQuade [00:24:30] Yeah I think you have to unpack a few things there. Number one of course robbing a bank is illegal so you could charge either of those individuals with bank robbery and so sometimes that's what happens in these types of cases. You all are familiar with the phrase the Al Capone theory of prosecution which refers to Al Capone's prosecution for income tax evasion because it was too difficult to prove that he was involved in gangland style murders and so sometimes you can just charge them both with what bank robbery. But if the purpose is to support a terrorist organization one foreign and one domestic just supporting the group there would be a distinction now there is a material support statute that covers domestic terrorism 18 United States Code Section 2339a. And if you know or intend your contribution to support an act of violence a particular crime then that can be charged. What's missing from the list of crimes though is a crime of domestic terrorism. So again there's a little bit of a gap there in the law but Frank the most directly answer your question if you simply want to make a contribution to the group to further its work by providing proceeds one to the foreign terrorist group that's on the designated list and another to a domestic violent extremist group. Then there is a difference there in how those would be treated. 


Frank Figliuzzi [00:25:54] OK so we've spent considerable time defining our terms understanding there's there's a gap here certainly between how we deal with international and domestic terrorism there's concern about free speech when hate speech becomes violent speech and moves to violence. So this might be a good time to launch into our second segment and get into some specific proposals options that might help us close the gap or treat these things more similarly and even more importantly allow law enforcement to get in and legally prevent violence from happening. 


Senator Lindsey Graham [00:26:33] Here. Come to order. Welcome. Hi director I appreciate you coming over. 


Senator Dianne Feinstein [00:26:39] It's been nearly two years since you're confirmed to run the FBI and so we have a lot of important topics to cover. 


FBI Director Christopher Wray [00:26:46] We the FBI don't investigate ideology no matter how repugnant. We investigate violence. It turns out a number of arrests we have through the third quarter of this fiscal year had about. Give or take. One hundred arrests in the international terrorism side which includes the homegrown violent extremism this year. This year. But we've also had. Just about the same number. On the domestic terrorism side. And I will say. That a majority of the. Domestic terrorism. Cases that we've investigated. Are motivated by some version of. What you might call white supremacist violence. But it includes other things as well. 


Frank Figliuzzi [00:27:35] So what are some proposed solutions to deal with what our law enforcement and intelligence tell us may be the number one threat we're now facing. So we've heard the FBI tell us this is not only growing but is likely the priority threat. We're looking at we've identified gaps. How do we deal with them. Mary is it time for a domestic terrorism law. What would such a law look like. How do we ensure we don't get into abuses that some claimed after 9/11. What are you looking at in terms of language and a proposal?


Mary McCord [00:28:09] So I think one thing to start out to be clear with this is the gap is very specific. The gap is really that there is no terrorism statute that applies to crimes of violence committed in the U.S. with the intent to intimidate or coerce if they're done with a firearm or with a vehicle. And if the intended target is not a U.S. government official because many people say to me there are crimes that apply there are crimes of terrorism that apply to domestic terrorism. And that's true but they operate in very limited circumstances. They operate when you're using or are attempting to use a weapon of mass destruction like a bomb. They operate when you're using a radiological or biological dispersal device. They operate when you're shooting down an airplane or attacking mass transit or when you're attacking a government official or government property. 


Mary McCord [00:29:01] Well we all know those are not actually the most common methods of committing terrorist violence in the U.S.. The most common method is through mass shootings using firearms and less common. But increasingly so are using vehicles like we saw in Charlottesville. And we've seen elsewhere a common tool of international terrorists as well over Western Europe and Southeast Asia. So that's where we have a gap and I say that because I've had people say to me there are statutes and they're right but they don't apply to almost every kind of terrorist crime that we see here including what we just saw in El Paso. 


[00:29:36] Well let me let me, you've raised something really important on this whole concept of weapons of mass destruction because driving a car into a crowd might kill eight or 10 people but on a given weekend in El Paso or Dayton where you have a hundred round magazines you could theoretically kill hundreds of people with a fully automatic or semiautomatic weapon so you're telling our listeners that the law does not look at automatic weapons as weapons of mass destruction. 


Mary McCord [00:30:06] That's correct. And you're absolutely right with the type of magazines and semiautomatic weapons that are available firearms that are available. They can cause as much destruction as a lot of bombs. But the way weapons of mass destruction are defined in the statute is an incendiary device. It would not apply to a firearm. And so that is that is one of the gaps that we're seeking to close here. Those of us who are advocating for a domestic terrorism statute. 


Mary McCord [00:30:31] But in order to avoid some of the First Amendment problems that we've been talking about I at least am not advocating for designating domestic organizations. What I have advocated for and what we've seen in some of the bills that have been introduced is simply making existing crimes of violence killing kidnapping assault with a dangerous weapon assault with significant bodily injury and attempts to destroy property where there's a substantial risk of serious bodily injury these violent crimes that already are crimes in every state when done with the intent to intimidate or coerce or to influence governmental policy through intimidation or course and regardless of the ideology behind them that is what these new bills and what I've advocated would become this new crime of it really I say terrorism within the territorial U.S. as opposed to domestic terrorism because for link all kinds of legal reasons that's sort of technically what it would apply to and it would still apply even if it was an Islamist extremism motivated or ISIS motivated crime because if it's if it's a crime of violence in the U.S. to intimidate or course it would qualify. 


Barbara McQuade [00:31:43] Can I just chime in on that. 


Frank Figliuzzi [00:31:44]  Barb, please. 


Barbara McQuade [00:31:46] Why I think it's necessary. Mary said that it would go after active shooters and people would drive a car into a crowd. Sometimes I hear critics say well we already have state laws that make those crimes. It would be murder and so problem solved right. But again it goes back to this idea of left of boom of wanting to prevent attacks before they occur and Frank as you know the whole mission of the FBI post 9/11 is to detect disrupt and dismantle threats before human life can be lost and so state law enforcement agencies in most parts of America lack the kinds of resources to do long term investigations the way the FBI can. They lack the national scope that the FBI has. They lack some of the tools that the FBI has such as search warrants in case of. Domestic terrorism across the country. And so enabling the FBI to investigate crimes domestic terrorism before they occur I think is the key to the statute that Mary has described. 


Mary McCord [00:32:47] And fully integrating the investigation of domestic terrorism into the national counterterrorism program and I think Malcolm probably could speak to that as well because that's what we're lacking now. 


Mary McCord [00:32:59] The National Counterterrorism Program is a program about prevention. And that's why tools like undercover online personas and sting operations are used in order to prevent. And we haven't seen that full integration. 


Frank Figliuzzi [00:33:14] So the law that you're proposing would include conspiracy. It would be a crime to simply plan these things we would not have to wait for the carnage we could actually get an investigative we when we see the planning phase. 


Mary McCord [00:33:28] Yeah. It would provide that sort of predicate for the FBI to open an investigation and use certain investigatory tools things like using undercover officers or undercover employees to go online and have engagement with others who may be planning acts of violence. Now you can conspire with an undercover officer under law but the officers could run sting operations. Now I know that there are a lot of people in this country that think that our law enforcement has already been too aggressive when it comes to preventing terrorism and don't really like sting operations. But these are tools that have been used historically across all kinds of different crimes. Think for example child sexual exploitation. The way that our law enforcement prevents child sexual exploitation is undercover officers. They go online posing to be pedophiles that get into chat rooms with other pedophiles and they run a sting operation so that when somebody thinks they're going to have sex with a 7 year old it's actually a sting operation. And we prevent actual sex with a 7 year old. It's the same type of techniques used in the terrorism prevention area. 


Frank Figliuzzi [00:34:35] So Malcolm you've studied terrorism you've not only studied it you've you've worked directly against international terrorists in terms of looking at this idea of having the law catch up and treat things similarly to international terrorism. What are the commonalities you're seeing are we are we on the right track are we seeing in things like El Paso white supremacy neo-Nazi groups the radicalization process. Are we seeing things that cause a bell to go off in your head and go look. That's that's not a whole lot different than the international side. 


Malcolm Nance [00:35:09] Yeah absolutely. Let me tell you a quick little story. When Anders Behring Breivik the Norwegian terrorist who went to you know set off with a car bomb in the center of Oslo trying to you know attack the central government then went to an island where he shot 68 children and an adult campers dead in an effort to essentially wipe out a political arm of his government. I was called that same day by a former student of mine who was in Norwegian intelligence and they sent me a translation of his manifesto as they were translating it into English and all of the principal players in his manifesto which by the way is now the same manifesto format that all of these white supremacist shooters around the world are using. 


[00:36:04] It was rife with American citizens who were extolling you know this international cabal of right wing extremists to carry out attacks against Muslims around the world to create this sort of crusader Vanguard. 


Malcolm Nance [00:36:22] And the first question I asked was am I dealing with an international terrorism problem that emanates from the United States. So you know for me I couldn't say yes. I mean you know people here in the United States have protected speech and all of the speech that they said was mainly public and this terrorist took that speech turned it into an ideology which today is now found in virtually all of our major active shooter situations right down to the format of the manifesto. 


Malcolm Nance [00:36:58] So I think that that Mary's idea of taking what we already have these international statutes allowing for the protected speech but also giving the FBI and law enforcement agencies the ability to intervene left of boom you know and I love the title you know terrorism against the United States or terrorism in the United States because it gives a great psychological boom to law enforcement and government before you even get the statute written. I train a lot of state homeland security agencies in homeland security intelligence and they all think they're going to be seeing ISIS. They all think they're going to be having gun battles against al-Qaida. And I tell them No it's the Posse Comitatus guy. It's the Timothy McVeigh. They'll go to guns in a minute right. They come right out and have a duel with you right on the street and it happens so much that no one notices it but they don't get the title of terrorist. And I think that even as legislation is moving forward and we fill these gaps I think the psychological operation of the FBI the state homeland security agencies even local law enforcement now coming out and saying this is a terrorist act. This person will not be referred to as a shooter. He will be referred to as a terrorist. Can psychologically impact almost to a certain extent like a national you know knock and talk where they will not want to be associated with that term because they're ideological enemies right. The immigrants the Muslims those people to them are terrorists. And they see themselves as the old phrase go right. They see themselves as freedom fighters because one man's terrorist is another man's freedom fighter. 


Malcolm Nance [00:38:55] But as we're trying to work our way towards a solution which allows them you know national resources to be brought down to the FBI and other agencies just the discussion of it could have a psychological impact of on an enormous scale with a lot of these guys who are you know you say your ex state militia man. And the discussion nationally becomes about you may be designated as terrorist. You know once you're protected speech goes into you know planning and buying ammunition for action before we even have legislation you may actually be breaking up you know some of that discussion which may lead to terrorist plots. 


Malcolm Nance [00:39:39] So there is a force multiplier here just in the national discussion of who is a terrorist what is a terrorist. And the entire concept of bringing up legislation. One quick aside this has actually happened before when I was still in the military I was a lecturer for the International Association of Bomb techs and investigators on terrorism. 


Malcolm Nance [00:40:02] And in fact there was a lot of discussion around the year 2000 of tagging ammonium nitrate in the United States. No laws had been passed but the discussion after Oklahoma City was so widespread that we caught a terrorist coming from Canada through the port in Washington state in a car on a ferry carrying his own ammonium nitrate because he thought we were tagging in the United States weren't. So this entire discussion particularly against American citizens who you know think that they're all patriots and people who are going to refresh the tree of liberty with blood just the discussion and designation that they could be equal to al-Qaida and ISIS. Could practically short circuit a lot of these activities that we're talking about. 


Frank Figliuzzi [00:40:59] This is a powerful point. It really is. This is not just about law enforcement tools and investigative tools this is about counter radicalization. And I think you're right if these groups and individuals see themselves now as being labeled as enemies of the United States and put kind of on a moral equivalency with ISIS and Al-Qaeda it could change the dynamic could change the discussion could certainly increase the FBI ability to recruit informants who who have you know who have a kind of a revelation that's what they're doing is inimical to the United States. Great great point. So I can already hear and we heard it almost immediately after El Paso. I can I can hear certain segments saying look don't let's not move to a knee jerk response. There were there were some action the Patriot Act some elements of Patriot Act in response to 9/11 that were exploitative or abusive too. This is a question for the whole group. How do we ensure if we move forward with legislation that we aren't building in some abuses or or so will civil liberties issues. 


Barbara McQuade [00:42:07] I think that the bills that Senator McSally and Representative Adam Schiff have proposed include some oversight provisions in them. They require reporting requirements to Congress and to the Privacy and Civil Liberties Oversight Board to ensure how they're being used. There is the protection already there. Frank as you know in so many of our terrorism laws and in the what's known as the DIOG Domestic Investigations and Operations Guide that the FBI uses that investigations may not be predicated solely on First Amendment protected activity. And I think that's very important that we're not becoming the thought police. It is not the group that's that's favored is investigating and prosecuting a group that is disfavored. It is a focus on conduct and not an association. And I think even if we were to pass such laws they would ultimately be found unconstitutional. One of the leading cases on the material support statute for foreign terrorist organizations where there was a challenge for providing to some designated groups legal advice and training on how to be an advocate to change laws. That was upheld with regard to foreign terrorist organizations. But in that opinion Justice Roberts wrote that he believed such a law would not pass constitutional muster if it was focusing on solely domestic groups. So I think we have to be mindful of protecting our First Amendment speech and assembly rights. But I think by focusing on conduct as opposed to association we can do that if we're careful. 


Frank Figliuzzi [00:43:45] Mary your thoughts. 


Mary McCord [00:43:47] Sure. I mean you know I've been talking about this for a couple of years and I've met with a number of civil rights and civil liberties groups to hear out their concerns and you know they are very concerned that and this is based on sort of you know a long standing mistrust of law enforcement and in particular the FBI dating back to various abuses of several dozen decades ago. They're very worried that any additional sort of statutory tool that we provide will be misused by law enforcement and targeting the wrong individuals the individuals who are not actually a threat. And that's why you're seeing these oversight provisions in the draft statutes the Privacy and Civil Liberties Board was created after 9/11 to review a lot of the surveillance programs that came into public light. And it's a bipartisan committee reports to the president and has issued reports that really brought a lot of transparency into what our government has done as a means of surveillance. And so this would be a different mission for them. But I think the idea of having we call it the P-club Privacy and Civil Liberties Oversight Board to sort of review how a new terrorism statute is being implemented over the course of the first several years could be very helpful. Reporting to Congress I think would be helpful too and Barb mentioned this but be very specific about this. Have the FBI report on a year to year basis how many investigations are being opened up under the authority of the statute. How many are resulting in actual prosecutions what are the charges what is the result and more importantly what are the categories. I don't expect. Believe me I come from a career in law enforcement and really kind of hated Congress getting up in our business all the time. So I don't expect them to require the FBI to report on every single investigation you know with every detail but categories of investigation. 


Mary McCord [00:45:44] Is it white racially motivated violence. Is it animal rights extremism. Is it Islamic extremism. Is it in our anarchist extremism. And by reporting in categories the FBI will be required to essentially you know show its hand in terms of where is it prioritizing its resources. And right now FBI Director Wray and assistant director Mike McGarrity have both said that you know the white supremacist threat is the greater threat. That's where they're seeing most of their domestic terrorism investigations are mostly white supremacists investigations and most of the deaths from terrorism in the U.S. in recent years have come from domestic extremist causes which overwhelmingly are white supremacist and white nationalist extremist causes. So if the reporting were to show that the FBI were putting its resources to an area of extremism that is not where the real threat exists then I think that would be very obvious not just to Congress but to the American people and pretty effective oversight. 


Frank Figliuzzi [00:46:46] You know this this sounds doable and I, Barb's mention of the DIOG the domestic guidelines for the FBI almost made me cringe with flashbacks because there is extensive and I think the public doesn't know this or fully appreciate it because it is sensitive but there is tremendous oversight already and requirements of when you can open a preliminary inquiry when you can open and inform it when you move to a full investigation and extension requests being documented progress being required and supervision at all layers in the field and headquarters so I do think it's doable and I think reporting is an important part of that. So today most of our discussion has focused and in fact the national discussion after El Paso has focused on the law enforcement solution. The government solution. Criminal law proposals. Let let's just close out our discussion by touching on something else and asking ourselves is there another way to look at this in additional way to look at that involves the private sector and I'm talking about for example what we saw after the horrible tragedy at Sandy Hook and the Newtown Connecticut school shooting where parents sued a gun manufacturer. Is there a way to make it painful on the domestic side and the private sector for people to host Web sites or chat rooms. What what's the private sector role in all of this?


Mary McCord [00:48:11] Well I'll take a stab at that first. I think there's a couple of things going on there. You know civil liability because of the Communications Decency Act is very circumscribed when it comes to holding Internet service providers accountable. And we're talking about like social media platforms accountable for violence that might be incited or encouraged using their platforms. And that's an area of controversy and a lot of people are talking about whether that civil liability protection. Right now they're basically insulated from civil liability lawsuits such as you mentioned. They're not insulated from criminal liability so that means if a social media platform or an Internet service provider knows and has the information to know that its service is being used to incite violence is being used to actually do something that's not protected speech and put aside for a minute that a private company is not bound by the First Amendment anyway they can take down any content they want. But the question is could they ever be criminally liable. And I think the question is yes if they if they know that their platform is being used to incite violence and they're living it up there and they have an intent for it to stay up and be available there's always potential criminal liability. But I think you know those are bulky. Those are those are not the first line tools that should be used. When I was the principal deputy assistant attorney general for national security I had meetings with a lot of different social media platforms to help educate them about just how misused their platforms how much ISIS and al-Qaeda had misused their platforms to encourage incite violence. And it took it took a couple of years but they got much more proactive in taking down that content. And I think they've lagged behind when it comes to the domestic terrorist threat the white supremacist threat the white supremacist misuse of their platforms. I think they're starting to have an awakening there. We're starting to see more activity there certainly in the last six months to a year. And so I think more of those discussions. You know frank discussions between not only government and the private sector social media about the threat and how their platforms are being used but pressure frankly also from the users of these platforms and how the American public and the international public who who has you know Twitter accounts and Facebook accounts and and so on and so forth they should really be demanding attention to this issue. 


Frank Figliuzzi [00:50:35] It's almost goes back to Malcolm's point of kind of a counter radicalization psychological impact. Note no service provider worth a darn wants to be labeled as some kind of enabler of terrorism so something to watch. 


Malcolm Nance [00:50:47] You know one of the things with you know having social pariah status by these web providers who allow some of these things to stay off even though they're their free speech you know like you say free speech does not apply to the Internet. You know these private providers. YouTube is a good example of that. There is an enormous amount of of of information there and videos and Web talk that in any other group in the world outside the continental United States would have been targeted by U.S. intelligence right. As as you know terrorists ideology and radicalization training tools. I mean you know we did a lot of counter ISIS material that was being content that was being generated in the United States shared in the United States. 


Malcolm Nance [00:51:39] And the providers took that doubt until there's a public outcry and I think El Paso was step one of that. These providers have got to see they may not be actually you know they may be criminally liable but for the most part no one's putting plans on the Internet. They're just talking about their new world order. But as they're taken down in fact from the intelligence perspective I like the idea that they're all going to get. I like the idea of if they're going to go on to discuss you know or and these are you know with this channel lies is there a radicalization pipeline to an easily collectible you know space for academics and intelligence and law enforcement and they need to know that there's that old saying that you know we have in the international counterterrorism world about you know about being arrested in the United States for conspiring to work with al-Qaeda or ISIS. If you're talking to al-Qaida or ISIS you're talking to the FBI. You are not talking to ISIS. 


Malcolm Nance [00:52:46] And I want these people who are planning this who think that they're going to we launch the Fourth Reich in the New World Order here. It's not the Southern Poverty Law Center that's going to be coming for you anymore or the any defamation league. It's going to be all of us. 


Frank Figliuzzi [00:53:01] Well this is a great point because even even since El Paso there have been reports of up to two dozen arrests since then simply for people in the planning or even exploration stage and merely because the FBI too thinks the FBI opened what they call a threat assessment to take a hard look at it folks who might be doing this and then secondly the public is far more willing to come forward and report concerns and it's really resulted in almost a disturbing number of takedowns since El Paso. 


Frank Figliuzzi [00:53:33] This has been a great discussion of a vital topic. One can only hope that our lawmakers during their summer break right now are having an engaging in this same kind of discussion. It's been helpful for me and I hope it's been helpful for our listeners. We close out talking Feds with a segment we call five words or fewer. And this is where we take a question from a listener previously submitted and each of us have to answer in five words or fewer. Those of us in the legal and law enforcement professions and intelligence often have difficulty doing that as we speak we speak in and watch larger spaces. 


[00:54:14] Let's let's give it a shot though. Our question today comes from Penny in Michigan who writes Hello Talking Feds she says, w\ill the intelligence agencies refuse to comply with Attorney General Barr's new declassification powers. There's a lot there. This is of the president giving you know in the aftermath of the special counsel inquiry the president telling bar Hey I want it. I want a look at the origins of the special counsel case and I want every agency to declassify everything and give it to you so you can figure out what happened. But let's kick off our five five word responses with Barb. 


Barbara McQuade [00:54:54] No but resign and tell. 


Frank Figliuzzi [00:54:58] Wow OK. That's what we're hoping for a big statement to be made by certain intelligence agencies may be optimistic. Mary. 


Mary McCord [00:55:09] I'm going to be a little bit more positive here. I'm going to say I trust the intelligence community to do the right thing is what what the inference I'm drawing is. 


Mary McCord [00:55:21] Find a Way. 


Frank Figliuzzi [00:55:22] Find a way. Malcolm? 


Malcolm Nance [00:55:24] My five words are Oh hell yeah they will. They're not gonna play this game. 


Frank Figliuzzi [00:55:26] All right. I guess it depends on whether the head of the intelligence agency is a Trump appointee or not. I'm going to I'm going to give you my five words which is they will only partially comply. 


Frank Figliuzzi [00:55:42] I'm hoping that they push back and that they they never give up investigative techniques methods that could endanger lives or singular sources. Look this has been a wonderful discussion. I want to give my personal thanks and I know on behalf of Harry, he thanks Barb Mary and Malcolm for taking time out to share our thoughts with our listeners. I hope our listeners have enjoyed it and take taken away some some action items even perhaps for their own elected representatives. 


Frank Figliuzzi [00:56:19] If you like what you've heard, please tell a friend to subscribe to us on Apple podcasts or wherever they get their podcasts. And please take a moment to rate and review this podcast. You can follow us on Twitter. At talking Fred's pod to find out about future episodes and other Fed's related content. You can also check us out on the web at talking fed scum where we have full episode transcripts. Submit your questions to questions at talking Fed's dot com whether it's for five words or fewer or general questions about the inner workings of the legal system for our sidebar segment. Thanks for tuning in. And don't worry as long as you need answers the feds will keep talking. 


Frank Figliuzzi [00:57:09] Talking Feds is produced by Jennie Josephson. Dave Moldovan Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer production assistance by Sarah Phillipoom. Special thanks to Bradley Whitford and thanks to the incredible Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito LLC. I'm Frank Figliuzzi. 


THE REPUBLICAN OPPOSITION

TF 29: Republicans

Harry Litman [00:00:07] Welcome back to Talking Feds, a prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. We're here in Washington D.C. to tape a series of podcast episodes in front of a live audience -- live and robust -- at the Georgetown University Law Center just blocks from the Capitol dome. This is our third episode. All this week we're talking about what happens after Mueller. What are the challenges and prospects for our democratic institutions? And we're going to be talking today about principles and outcomes and Republicans for the rule of law. 

Harry Litman [00:01:03] So as the title suggests, today we're surveying the dangers and aberrations of Trump rule from the, perhaps surprising, vantage point of three prominent members of the president's own party. I would say strongly identified Republicans, dyed in the wool Republicans who, nevertheless, have found it important to express some opposition to the administration's conduct, which I think makes their views particularly compelling and interesting and courageous.

THE PARDON POWER

TF 27: The Pardon Power

Harry Litman [00:00:07] Welcome back to Talking Feds, a six-part series of live episodes from Washington D.C.. On the overall topic,  After Mueller: Challenges and Prospects for U.S. Democratic Institutions. We are again here at Georgetown Law School. Thanks to the hospitality of our co-sponsor the Institute for Constitutional Advocacy and Protection. And this episode is also sponsored by the American Constitution Society, the nation's leading progressive legal organization. Through its nationwide networks of over 200 student and lawyer chapters, ACS is dedicated to defending the language and the spirit of the U.S. Constitution. You can learn more at ACSlaw.org. 

Harry Litman [00:01:00] We're focusing today on a topic that has been at the center of the disputes about executive power and the President's imperial instincts, namely, the pardon power. We're going to discuss the values and purposes of the pardon power and then turn to an evaluation of the Trump administration's employ of it. And for this task we have the ideal panel, combining exceptional scholarship with deepest practical experience. 

WHO FIGHTS FOR THE PEOPLE WHEN THE GOVERNMENT WON'T?

Harry Litman [00:00:07] Welcome back to Talking Feds. The third of our six live programs from Washington D.C. We've heard in the first two programs from different vantage points but I think both detailing a kind of tough time to be at the Department of Justice. Today in this podcast, we focus on some ex-Feds who've responded to these and similar challenges by acting -- putting their experience and skills to work in the service of the institutional values of the justice system and the Department of Justice. But as a kind of pushback. Against the administration's abandonment of aspects of its traditional central mission and these people are also our co-sponsors for this entire series and to them we owe -- all their hospitality has made us welcome here in D.C. just a few blocks from the Capitol. 

THE WITNESS HAS LEFT THE ROOM

TF 25: The Witness Has Left The Room

Congressman Schiff [00:00:03] [MUSIC] Mr. Mueller and Zebley, would you please rise and raise your right hands to be sworn in. 

Robert Mueller [00:00:08] Over the course of my career, I've seen a number of challenges to our democracy. The Russian government's efforts to interfere in our election is among the most serious. 

Congressperson #2 [00:00:18] So what did you determine about the President's credibility? 

Robert Mueller [00:00:20] And that I can't get into.

Congressperson #3 [00:00:22] Were the president's personal finances outside the purview of your investigation?

Robert Mueller [00:00:26] I'm not gonna get into that. 

MOOTING MUELLER

TF 24: Mooting Mueller

Harry Litman [00:00:10] [MUSIC BEGINS]Welcome to Talking Feds, a prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. 

Harry Litman [00:00:20] I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. We're here in Washington D.C. to tape a series of podcast episodes in front of a live audience just blocks from the Capitol Dome. We've had five episodes so far this week and we are in the home stretch. All this thanks to our gracious hosts at Georgetown Law's Institute for Constitutional Advocacy and Protection. All this week we are talking about what happens, after Mueller. What are the challenges and prospects for our democratic institutions today.

CONGRESSES'S LAST STAND: MUELLER'S TESTIMONY

TF 23: Congress's Last Stand

Harry Litman [00:00:07] Welcome back to Talking Feds, a prosecutor's roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. 

Harry Litman [00:00:19] I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. We are here in Washington D.C., live, to tape a series of podcast episodes just blocks from the Capitol Dome. All this thanks to our gracious hosts here at Georgetown Law's Institute for Constitutional Advocacy and Protection. And for this episode as well, the American Constitution S-- Constitution Society, the leading progressive organization and network with over 200 lawyer and student chapters nationwide. All this week we're talking about what happens after Mueller. What are the challenges and prospects for our democratic institutions. 

Harry Litman [00:01:07] Today we're focused on what happens the day of Robert Mueller's testimony to Congress. Prior to the announcement of Mueller's testimony the House's effort to bring the report to life seemed to be getting nowhere and near checkmated. 13 weeks had passed and the House hadn't succeeded in having a single fact witness testify publicly. Stymied repeatedly by the administration's reflexive, and ultra aggressive policy of interposing dubious defenses that left Congress having to choose between caving and litigating the latter involving significant time. But Mueller is a law-abider and he got a lawful subpoena, and agreed to testify notwithstanding clearly preferring not to. 

TRUMP'S INTERFERENCE WITH THE DOJ

Harry Litman [00:00:00] If you're hearing my voice and it's the week of July 8th we are in the middle of our six episodes series here at Georgetown Law School and to reserve your seat for coming episodes, you can go to Talking Feds-dot-com-slash-news. 

Harry Litman [00:00:28] Hello to everyone here at Georgetown Law School and listening to the podcast. The Talking Feds have come to D.C. We kept hearing that there were some significant events happening here and we wanted to see for ourselves. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. 

Harry Litman [00:00:50] We're here in Washington to tape a series of podcast episodes at the Georgetown University Law Center, just blocks from the Capitol Dome, where someone appears to have angered the gods, because apocalyptic rain has been falling all morning but thanks to our gracious hosts at Georgetown Law's Institute for Constitutional Advocacy and Protection, we've put together six podcasts based on the theme After Mueller: Challenges and Prospects for U.S. Democratic Institutions. 

PUBLIC SENTIMENT IS EVERYTHING

TF 21: "Public Sentiment is Everything”

Harry Litman [00:00:00] Talking Feds is coming to Washington D.C. for six live podcast tapings with a phenomenal array of commentators July 8th through 11th. Stay tuned after the discussion for more details. 

Harry Litman [00:00:22] Welcome to a holiday weekend episode of Talking Feds, a prosecutors roundtable that brings together some of the best known former Department of Justice officials for a dynamic discussion of the most important legal topics of the day. This holiday weekend we're taking a little pause from the ongoing discussion of current events. We're going to have a mini episode to talk about a quote from a certain former president that many people these days are taking to sum up where things stand. 

Harry Litman [00:00:55] The quote: "Public sentiment is everything. With public sentiment nothing can fail, without it nothing can succeed." The president who said it of course, Abraham Lincoln. 

MUELLER REPORT MYTHS AND GERRYMANDERED MAPS

Harry Litman [00:00:07] Welcome back to Talking Feds, a prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. 

Harry Litman [00:00:27] On Talking Feds, we do special episodes which we call Talking Feds Now to react to breaking important news. And there have been two hugely important stories in Talking Feds land this week. And we're here or actually spread out across the country to talk about both of them. First, the revelation that Robert Mueller will be testifying before two House committees on July 17th. We're going to look at that story through the prism of an important and timely article by two charter Feds well-known to listeners of this program and MSNBC, both of whom recently testified in the House about the Mueller Report. 

NO HOPE

Harry Litman [00:00:07] Welcome back to Talking Feds prosecutors roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. Today we're talking about absolute immunity. What is it? Does it even exist? And what can Congress do in the face of the White House's assertions of it?

Harry Litman [00:00:38] Then we'll turn to discussion of one of the Supreme Court cases that have issued in the court's end of term flurry. We've got Feds in Boston New York and Washington D.C. to talk about it. I'm joined here in Manhattan by Paul Fishman. He's well known to this podcast and also he's the immediate past United States attorney for the District of New Jersey. But before that Paul was the mighty PADAG, the principal associate deputy attorney general meaning he oversaw and got involved with nearly every issue at Main Justice which he managed to do by talking twice as fast as anyone else.

TED TALKS

Harry Litman: Welcome back to Talking Feds. A roundtable that brings together prominent former federal officials for a dynamic discussion of the most important legal topics of the day. Today we are privileged to be inside the Los Angeles offices of Congressman Ted Lieu. We're going to talk about the president's remarkable assertion that there's no problem receiving dirt from a foreign adversary as well as the general state of play of the House's investigation into the counter intelligence aspects of the 2016 election.


Harry Litman: We'll then turn to a discussion of where things stand with respect to Congress's efforts to bring public attention to the more incendiary conclusions of the Muller report and a clear eyed look at whether the opportunity is possibly slipping away.