TF 20: 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.
Harry Litman [00:01:12] Barb McQuade, the former United States attorney for the Eastern District of Michigan and currently a professor from practice at the University of Michigan Law School is the first to join us. Hey Barb.
Barbara McQuade [00:01:23] Hi Harry. Thanks a lot for having me.
Harry Litman [00:01:25] Thanks for coming.
Harry Litman [00:01:26] And Joyce Vance former U.S. attorney and longtime Assistant U.S. Attorney for the Northern District of Alabama who joins us from Birmingham where she is the Distinguished Professor of the practice of law at the University of Alabama School of Law. Hey Joyce.
Joyce Vance [00:01:42] Hi Harry. Glad to be with you again.
Harry Litman [00:01:45] And we're, the three of us are joined by Rich Cordray, whose Wikipedia entry runs 21 pages. But just to touch on some of the highlights, Rich was probably known to many listeners of the podcast as the first director of the Consumer Financial Protection Bureau from 2012 to 2017. Before that he was Ohio's elected attorney general and treasurer and he also was the first solicitor general of Ohio. He was the nominee of the Democratic Party for governor in 2018 and he was caught to two different Supreme Court justices, Byron White and Anthony Kennedy, the latter with me. And he has argued seven cases in the Supreme Court. And of course, we always have to mention, he's a five-time Jeopardy champion. Rich Cordray thank you very much for joining, Talking Feds today.
Richard Cordray [00:02:45] My pleasure.
Barbara McQuade [00:02:47] You know can I just interrupt? All that stuff Richard that you've done is very impressive. But five-time Jeopardy champion. Now that's a real accomplishment. I'm impressed.
Richard Cordray [00:02:56] Yeah, I didn't have to go up against James Holzhauer, I will say. [laughter]
Harry Litman [00:03:00] The whole dynamic of the last 13 weeks since the Mueller report was actually published, chock full as it was of important and damning details, has been to try to bring it home to the American people.
Harry Litman [00:03:17] But between some advanced spin by the Attorney General William Barr and just the sheer dauntingness of a four hundred forty eight page written report, it seems there are basically two kinds of people in the country: Those that have read the report and the much larger group that haven't. And many of us and people in Congress have been really trying very hard to think of how to bring home the very vivid wealth of details that it's already in the report. Even leaving aside what else is not in the report.
Harry Litman [00:03:58] That's why you saw for instance earlier this week a TV show called "The Investigation" with actors reading the report, and all kinds of efforts. And for my money it's the two charter Feds Joyce and Barb, who have given the most cogent and compact account by confronting the myths that have grown up around the Mueller Report. So hooray for Barb and Joyce, but I'd like to really dive in by way of their article in Time magazine entitled These eleven Mueller Report myths just won't die, and here's why they're wrong. And I just want to briefly read what the myths are because we won't have time to cover all of them, but then double back on what I think as the most important. But here are the myths that Barb and Joyce cover in their article in Time.
Harry Litman [00:04:52] Myth 1: Mueller found no collusion.
Harry Litman [00:04:56] Myth 2: Mueller found no obstruction.
Harry Litman [00:05:00] Myth 3: The case is closed. No do overs.
Harry Litman [00:05:05] Myth Four:The focus on obstruction detracts from the focus on Russia.
Harry Litman [00:05:11] Myth 5: If there was no underlying crime then there can be no obstruction of justice.
Harry Litman [00:05:18] Myth 6: Because Trump was unsuccessful in ending the investigation, there can be no obstruction of justice.
Harry Litman [00:05:26] Myth 7: A president cannot obstruct justice as a matter of law when he or she is exercising executive power.
Harry Litman [00:05:36] Myth 8: Mueller wanted bar to make the call on whether Trump committed obstruction.
Harry Litman [00:05:43] Myth 9: The investigation began with the Steele dossier.
Harry Litman [00:05:49] And Myth 10: Spying occurred against the Trump campaign.
Harry Litman [00:05:54] This is more or less the whole collection of talking points from the administration and Fox News and Trump champions who all who have become antagonists and will remain antagonists to the Mueller Report.
Harry Litman [00:06:09] So let's just double back to the most important ones and Barb and Joyce point to the evidence that leads you to say why these are myths. Give us some sense of how sticky a myth they are and why and what Mueller can do in this testimony to try to overcome it.
Harry Litman [00:06:27] So myth number one is that Mueller found no collusion. Barb let me start with you first, are you saying that Mueller did find collusion and and what. What exactly are you saying and calling this a myth.
Barbara McQuade [00:06:44] I hear from many people who heard William Barr's summary of the report as, Mueller found no collusion, which is very different from what he actually said in his report. He said that the evidence did not establish a crime of conspiracy. He also said that a statement that the investigation did not establish particular facts does not mean there was no evidence of those facts. So collusion is kind of a mushy word. But if by that you just mean mutual assistance between Trump and Russia then yeah I think there was a lot of collusion. But what Mueller said is you know I'm not going to use that word because it's not really a legal term. It's kind of confusing.
Barbara McQuade [00:07:24] But so what he does, you know let's just discuss the substance of it. He spends about two hundred pages describing what he calls quote numerous links between the Russian government and the Trump campaign. He found that a Russian entity carried out a social media campaign that favored Donald Trump and disparaged Hillary Clinton. He found that a Russian Intelligence Service conducted computer intrusion operations against the Clinton campaign and released stolen documents. And that the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome.
Harry Litman [00:08:01] And that all on the Russian side. Now what about findings, if there was no conspiracy, what about findings. And we're talking just about facts that the investigation establishes. What about findings that the Trump campaign happily profited from these efforts and specific tangible steps it took to try to leverage and exploit them.
Barbara McQuade [00:08:24] Well he he documents a number of these incidents. One is campaign chair Paul Manafort sharing polling data with Konstantin Kilimick, who the FBI assesses has connections to Russian intelligence. And they gave him polling data about the states of Michigan, Wisconsin, and Pennsylvania. Three states where Trump won upset victories.
Harry Litman [00:08:48] And by the way, I mean just that encounter, right that was about one of the more vivid details in the report. He didn't it just give it to him. He gives it at this meeting where they come and go by separate entrances and are obviously very sort of cloak and dagger. There is an awareness that this is not innocent activity isn't that fair?
Barbara McQuade [00:09:08] Yes it is. And that was also one of the areas where Paul Manafort persisted in lying to Robert Mueller and his team even after he agreed to cooperate. And Mueller says he never really quite got his arms around what the purpose was in sharing that polling data.
Harry Litman [00:09:23] One of many right key details is another big point that you guys bring home. There's a lot of gaps because there was a lot of non-cooperation and it would be ironic, not to say wrong, to use those gaps to actually exonerate the campaign and even the president.
Richard Cordray [00:09:41] Can I add one thing about that. The meeting with Kilimnick, obviously Manafort was not going to meet with Putin. Some things are too obvious. But if he's meeting with someone who could be an interlocutor and he shares polling data on Michigan, Wisconsin, and Pennsylvania at a minimum that sends a message that any outside interests who are going to intervene in any way in the campaign: This is the place that you should focus. Is on these three states that enough could be a significant message to send.
Harry Litman [00:10:12] That's really true and of course prescient. OK. Big myth number two and I have some thoughts about this. Mueller found no obstruction. What- Who's saying this myth? Where's it come from? How wrong is it? How persistent is it? What are your thoughts about this number two myth.
Joyce Vance [00:10:33] So this one again started with William Barr when he released his summary of the Mueller Report but withheld it, the report itself, for an additional three weeks. So by the time we actually had the report and could read it and saw that it in fact did not exonerate the president, explicitly didn't exonerate, and contained 10 possible charges that Mueller had considered, the stamp that had been left in the minds of most people in the public was no obstruction.
Joyce Vance [00:11:03] They heard it on the news it was the talk, you know Trump tweeted it every place, repeated it at every gaggle. And it's just not true. And this I think is something that's disappointing to see in a sitting Attorney General. So-.
Harry Litman [00:11:18] Do we have any idea by the way what Barr is even saying? He's asserted this. We have no written opinion on his part. What's even his basis for so flatly contradicting Mueller and saying you know no obstruction.
Joyce Vance [00:11:32] He looks at the evidence and and he gives Rod Rosenstein the former deputy attorney general a pretty hard hug in on this decision, and says we looked at the evidence and we decided that there was no obstruction. But you know over a thousand former federal prosecutors, Republicans and Democrats alike have now reviewed the evidence and said just based on what's in the report you know we're not seeing the underlying documents or any of the other evidence. Just based on what's in the report itself we'd be comfortable charging some of these instances as obstruction.
Harry Litman [00:12:08] And by the way a thousand. I mean there aren't that many- you know it's not like state prof- I've never seen a letter of a thousand federal prosecutors. And it does, that's just that's an important document too, it it's just straight up on the evidence. In fact that's sort of what you and Barb testified to Congress about no?
Joyce Vance [00:12:28] It's a lot like what we testified to Congress about yeah.
Harry Litman [00:12:32] OK. I want to take this even farther and ask what what you think. I actually would be ready to argue not only that it's not the case that he found no obstruction but that it is the case that he found obstruction.
Harry Litman [00:12:46] There are four instances if you sort of chart them where there's no doubt of the first two elements of an obstructive act and a nexus and these questions, all of these questions turn on Trump's intent which is why it was so significant that he didn't get any questions. You know I would want to make even a stronger claim though I know it's a little bit farther than most have been willing to go. But as I read the report it's not just the case that you can't say he found no obstruction.
Harry Litman [00:13:25] I think really the only reasonable reading is that he found obstruction. There were four instances where he laid out the different elements of obstruction. It all turns on Trump's intent, which is why of course it's so significant that Trump wasn't subpoenaed or otherwise questioned. But look this leads, all everybody on Mueller's team, they spend their whole career going up to the line and deciding whether whether something constitutes a chargeable crime or not. And when they say, we couldn't say it didn't charge a crime I think there's no way for them to say that they got there, other than by making the analysis of whether it went up to the line. And it's very implausible that they sort of got in the neighborhood and then stopped. And we also know that's not right because Mueller explaining the failure to go after certain evidence like Trump's, said repeatedly we thought we had enough already. And I can't construe that any way other than saying as to these incidents we believed we had sufficient circumstantial evidence to prove corrupt intent. So I actually think the only fair reading of the report is that they did find it. And Mueller might not say that come the 17th, but it'll be interesting whether some of his deputies who will be interviewed behind closed doors will.
Barbara McQuade [00:14:54] Well I think we've all seen this this report looks a lot like a prosecution memo. I mean it is sort of a prosecution memo, and we've all -.
Harry Litman [00:15:01] What is a prosecution memo, set that out.
Barbara McQuade [00:15:03] And we've all written them and we've all reviewed them. And usually what a prosecutor does is he summarizes his factual findings and then analyzes it under the law and then reaches a conclusion. Either, therefore I recommend charges or therefore I recommend we decline charges because the evidence isn't there. And he he describes 10 of these episodes. And with regard to four of them he finds substantial evidence to satisfy each and every element of the offense. So if I were reading that report from any other prosecutor I would fully expect that the conclusion would be, therefore I am recommending charges as to these four incidents.
Joyce Vance [00:15:40] You know I think that that's absolutely right. The difference here, the reason Mueller doesn't make that judgment, is only because Trump's status as the President of the United States protects him and that's because there is an Office of Legal Counsel memo that we've all discussed a lot and are familiar with, that says it's Justice Department policy not to indict a sitting president.
Joyce Vance [00:16:04] And Mueller chose to follow that precedent, as I think he was obligated to do so. That's why we have this funny disconnect where we look at the memo we looked at the Mueller Report and the evidence I think is clear I'd be willing to charge four of these instances as obstruction of justice, and I would feel very good about obtaining and sustaining a conviction on them. Mueller is just saying, I can't do it because he's the president.
Harry Litman [00:16:31] Yeah and just to underscore with the thousand people said, you're not allowed as a federal prosecutor to bring charges even if you think they're righteous. Unless you think it is probable that you can get a conviction. So each and every people of these thousand, and I think the Mueller team because this is what they do in their whole career, is saying you know, we not only see it ourselves but we think that that a jury would see it that way.
Joyce Vance [00:16:57] Well and even more than that Harry, it's it's both obtain the conviction and sustain it. And even if they felt that there was evidence to obtain a conviction which I think that they did believe, they clearly had concern about sustaining it on appeal because Mueller doesn't mentioned just the OLC memo, he says he also believes that there are Constitutional issues involved in indicting a president. And why put the country through this long trauma of prosecution only to lose on appeal when there's another mechanism sitting right there. Congress which it's with its impeachment power which in many ways is much broader than Mueller's power as a federal prosecutor.
Harry Litman [00:17:38] Yeah. And I'll just say for my money this is the most important and most sticky of myths if you could wave a wand or just have the Republicans wake up from their slumber and understand this. It would really be- it matters in part because of what side you're on, but it just matters and for the for the public for understanding what happened here.
Harry Litman [00:18:02] Now I think by the way he was obligated maybe to follow the policy whether he therefore had to actually forbear making a judgment as something that one could discuss and maybe we will later that you know maybe it didn't require him to go to these you know what's what's really aggravated the situation and making no judgment at all. Barr has said, hey he could have still bottom lined, but that's a different topic.
Harry Litman [00:18:29] All right. I do think those are the two most important but there are others that are vital that really have been persistent myths, and there are a couple of them are pure legal claims but we have a claim by Barr, by Trump, bipartisan saying and this is your myth number five, Barb, if there was no underlying crime then there can be no obstruction of justice. What's even the argument there and what makes it a myth?
Barbara McQuade [00:19:01] Yeah. So you know you hear people say well if there was no conspiracy then how can there possibly be any obstruction of justice. And that really misses the point of the law. The law charges even attempts to obstruct justice and that's because the crime, the wrongfulness that the law seeks to prevent, is the effort to prevent investigators from learning the truth. And so just your efforts to prevent them from finding the truth is the harm, and it is the crime. You know and it makes sense, because otherwise successful obstructors could conceal their crime and then get off scot free just because they were really good at obstructing a crime. And also, let's not forget that even though Trump wasn't charged with anything, thirty-seven individuals and entities were charged in this case. And so in you know one of the things that Trump attempted to obstruct was Mueller's ability to investigate obstruction in this investigation. You remember in the report Mueller talks about the fact that Trump had directed Corey Lewandowski to ask Jeff Sessions when he was the attorney general to reverse his recusal decision and then announce publicly that the special counsel's investigation would focus only on future elections. And so that would have precluded Mueller from learning about how to prevent attacks like the one that happened in 2016.
Harry Litman [00:20:23] Yeah. And that was maybe the most powerful little snippet. And it went beyond the four corners in his 9 minute statement right. How did he put it. You know, when a subject, which is of course in legal parlance exactly what we know Trump was a subject not a target.
Joyce Vance [00:20:38] I think what you're talking about is this notion because Mueller goes to some trouble to explain why obstruction is important and when a subject tries to keep its government from getting to the truth of the matter under investigation then the system, the criminal justice system is the loser.
Harry Litman [00:20:58] Yes.
Joyce Vance [00:20:59] The people are the loser.
Harry Litman [00:21:00] Right. And that seems so pretentious. I mean obviously he was talking about the president there as a subject. Sorry. Go ahead.
Joyce Vance [00:21:07] No I think that that's right. I mean Mueller to me is saying in the very understated language that prosecutors use, which I think has been difficult for some people to put their arms around, but he's saying the president interfered in this investigation and that's a serious matter and we should consider that as we move forward whether he's charged or not at least that's what I read into it.
Harry Litman [00:21:32] So there is this abiding myth that somehow Mueller was just kind of doing sort of staff work to serve it up to the Attorney General, Barr and that he wanted Barr to make the call on whether Trump committed obstruction. Why Joyce do you identify that as a myth?
Joyce Vance [00:21:54] You know that's clearly not what Mueller had in mind here.
[00:21:58] And without walking all the way down the road with this messy legal argument that Mueller offers as the reason that he can't make a decision on obstruction, I think it's important to understand that he explicitly said that no decision should be made that that would be unfair to the president. It might even impair possible future prosecutions or other actions. So far from giving Barr an invitation to make the decision that he made, he, I think pretty strictly said no one in the Justice Department should make this. So it's sort of stunning that we have Barr doing this after just a couple days quick perusal of the report.
Harry Litman [00:22:40] And this is something that could come up on the 17th it seems to me if they ask him that question. I think he's hard pressed just to just you know deflect it.
Joyce Vance [00:22:49] You know I'm of two minds about that Harry Mueller was pretty clear that the report was his testimony and that he wouldn't go beyond it. And I've got to say that as a prosecutor I would strenuously resist answering any sort of questions that sought to look inside of a criminal prosecution and decisions that were made inside of the department. I think that their work product in that sense there are good prudential reasons for for protecting them. But as an American citizen I'm curious as hell.
Harry Litman [00:23:20] Yeah I you know I thought about this some and I actually think the claims he could make probably don't prevail. But as a practical matter it doesn't it doesn't make that big a difference because I think if he stands on it, Congress will not want to push him, hold him in contempt go through that whole rigamaole at all. So yeah that will be an interesting battle of wills.
Harry Litman [00:23:42] OK one final myth I just want to serve up to everyone and ask why you identified it and how abiding and important do you think it is. And that's this notion that a president cannot obstruct justice as a matter of law when he is exercising executive power. Where do you see that kind of bubbling up Barb, and and what impact do you see it is having?
Barbara McQuade [00:24:11] This was the theory that William Barr himself espoused when he submitted that 19 page memo before he was the attorney general to the Department of Justice he wrote in great detail about this theory and when Joyce and I testified there was a witness from the Heritage Foundation who also testified about this theory. It's you know part of this sort of strong unitary executive theory that if the president is directing someone in the Justice Department to do something then legally he can't obstruct justice. But Robert Muller actually rejects that theory in a very detailed analysis that I'm sure was done by Michael Dreeban, a longtime lawyer in the Department of Justice's Solicitor General's office, who's argued you know 100 cases or more before the Supreme Court.
Barbara McQuade [00:24:54] And what he points to is that to to make that argument that the president can execute the law in any way he wants to even if it's done corruptly, really ignores an important word in the text of the Constitution. And that is not just that the president execute the law but that he do so faithfully. And so to say that the president can execute the law in a way that is not in the best interests of the people, but is in his own personal self-interest, would violate that duty to execute the law faithfully. And so Robert Mueller rejected that theory, that anytime the president executes his power in a way that favors himself over the best interests of the country could very well amount to obstruction of justice and Congress could write a statute as it did, that could apply to the president in this scenario.
Harry Litman [00:25:38] Rich Cordray, you've argued from the court a lot. Does that seem like the winning counter argument here and does the Trump theory seem you know all wet or plausible or what to you?
Richard Cordray [00:25:51] I do think the word faithfully makes a difference. But I also would say that the theory, the Barr theory is so incredibly broad it would suggest that. I think it would suggest that if you're exercising executive power, you cannot violate the law. I mean it seems to me that what it is amounted to.
Harry Litman [00:26:12] You're giving a pardon for racially discriminatory reasons, or whatever.
Richard Cordray [00:26:16] Or you're conducting an official act and taking a bribe to do so. You know I just it seems to me incredibly broad and it's not consistent with anything that I think the founding fathers thought about how the government would operate. Quite an abstract theory. It doesn't seem to have much real practical grounding.
Joyce Vance [00:26:37] So I agree 100 percent with everything that Rich just said. But even if you were to give the folks who believe in this broad executive power the benefit of that argument, there is still one obstructive act that Mueller identifies that's outside of Trump's executive power. And that's this incredible series of conversations he has where he tries to convince Don McGahn to rebut the story that Trump himself tried to get McGahn to fire Mueller and he actually asked McGahn to create some sort of a document to back that up. That's beyond the scope of his executive power. So even if this convoluted argument that William Barr put forward in his 19 page memo is accepted by the court, there's still this one act of obstruction for which the president would be responsible, if he weren't the president anymore and could be indicted.
Harry Litman [00:27:30] Boy I think that just has to be right. OK. Let's let's sort of let's close this out in transition looking forward with one question I'll serve it up to Barb but if anyone has thoughts. We now know that Mueller, It looks as if, unless unless Barr, the department tries to countermand it, will be there on the 17th. Mueller, American hero prosecutors prosecutor. Marine, dutiful, Man of Steel. Trump comes out of the box yesterday calling him a criminal, that for deleting emails that had already been published. Do we actually think that the Republican strategy here is going to be, to you know as it's been with other sort of generic witnesses to dirty Muller up and to try to call him a corrupt biased criminal. Can that dog possibly hunt? And is that the way they'll be going? Any any thoughts on that?
Barbara McQuade [00:28:35] I don't know. I heard Representative Mark Meadows say words that would be consistent with that. Like you know that, Muleer, better be ready we're ready for him, as if they're planning a very antagonistic kind of confrontation. I'd be surprised if I were giving them advice on how to handle that, I would advise against it. I think that you can try to just get Robert Mueller to you know he's not going to be there to volunteer anything beyond what's in the report. And so I'd be surprised and I don't think that's going to fly with the American people. I don't think that that concept that Robert Mueller is you know some rogue has really taken hold in the American psyche. And so, I hope not. I think he deserves better. He's a lifelong public servant who did a job and came up with results, but you never know and based on those early statements it appears they may be on the attack.
Harry Litman [00:29:37] They did it to other lifelong public servants like McCabe etc. But somehow I agree. Mueller just seems different.
Richard Cordray [00:29:44] Well I wouldn't hazard a guess as to what approach President Trump would take in his tweets. I do think that it would be misplaced to try to malign Mueller at this point. He has a longstanding reputation and if anything the concern people have had about him through this episode is that he's been altogether too genteel in the way he's conducted himself. And I don't think that it would apply for the American people to suddenly see him as some sort of rogue criminal. If anything he's been damaged too much at times by procedures from getting at some of the truth that people would have liked to have seen exposed.
Harry Litman [00:30:21] Yeah I think that's an excellent point. You know there are a series of things that as as respected and estimable as he is he could arguably be taken to task for erring on the side of being you know a gentleman using Marquis of Queensbury rules against against cage fighters.
Harry Litman [00:30:43] OK. Well we're going to learn a lot and see whether some of these myths will be dispelled at least for a chunk of the American public come the 17th.
Harry Litman [00:30:56] Let's turn to the other huge drop the banner headline news of this week, the much anticipated end of the Supreme Court term and the two final opinions one dealing with gerrymandering and one dealing with the census. So starting with gerrymandering and Rich let me ask you about it. I know that you've actually had an interest throughout your time in public service in different aspects of the right to vote. And it does seem like the courts here sort of finally closing the door on any judicial review.
Harry Litman [00:31:34] Well well give us the basic ruling of the court and why many people are kind of tearing their hair out this week as the Supreme Court so-called rises as they put it for the summer.
Richard Cordray [00:31:51] Well gerrymandering, as many people have seen is one of the sort of checkmate political provisions that can occur in the political process where people can benefit themselves and nobody is able to protect democracy against their self-interested movements against it. It was a similar process that led eventually to the court taking the case of Baker versus Carr and deciding that the apportionment which also has very little textual basis in the Constitution for evaluating it, should in fact lead to a decision that has become widely embraced and it's been law of the land ever since.
Harry Litman [00:32:34] And that's like1964. I want to say Baker v. Carr, yes or it's quite hoary decision.
Richard Cordray [00:32:40] It was more than 50 years ago and that the principle of one person one vote has been enshrined in the law ever since. And I think the court has given enough signals in the last few years that it was interested in considering whether to use the Constitution to cut back on how gerrymandering is disfiguring our democracy that it came I think as a surprise to many people it might not have been such a surprise five years ago but it was a surprise this week when they finally decided there was nothing really that they could say that would be useful here.
Richard Cordray [00:33:15] They could not find a test in the Constitution they could apply to an outlandish gerrymander, and the federal courts are now ordered effectively to withdraw from this area altogether and many lower courts that have decided cases and have ordered redrawn maps and some elections have been conducted under redrawn maps and the court has at times permitted it at times overruled it.All of that will will be swept aside by this ruling. It's a surprising result at this moment in time.
Harry Litman [00:33:46] I mean it really is a remarkable sort of throwing in the towel, as as Justice Kagan says in dissent and actual everyone agrees that there are constitutional violations here, not minor ones. Sort of the disenfranchisement of huge swaths of a population just by the raw partisan manipulation of entrenched interests that sort of thing that you know drove much to the Framers motivation for setting up the government in the first place. And as you say there had been decision after decision where they had seemed to tiptoe in the last several years. Kennedy being a key proponent of this, to the effect of well most for the most part we've got to let it go but there are obviously these extreme situations where you know maybe there's a remedy. There should be a remedy, we might hold there's a remedy. And and they had done that repeatedly up to the line. And so then for the whole, that whole chapter to end with this kind of defeatist, you know, sorry America, sorry Republicans of Maryland or Democrats of is of was it what was the other North Carolina.
Harry Litman [00:34:59] There's just you guys are screwed and that's what the political process means. Joyce you mentioned you had a you've had a role in some of these related cases. Is that right?
Joyce Vance [00:35:10] Well you know it's interesting in Alabama we've had a lot of litigation over gerrymandering and I participated in some of it in the Alabama redistricting case that went to the Supreme Court while we were at the Justice Department. We actually filed an amicus brief in that case and Don Verrilli who was the solicitor general at the time argued during that case. Subsequently, after reentering private practice, I participated in in representing one of the parties in the Alabama Democratic Conference, in another stage of that litigation. But the result of this case will impact Alabama just like it will any other state. There will no longer be any challenge to the political nature of gerrymandering.
Harry Litman [00:35:54] Or if it really of any, I mean even if it did we call it political, but if it seems like a rank- whatever reason is used it's just hands off. Well so let me ask this--
Joyce Vance [00:36:06] I disagree with that I don't think that that's true. If there was for instance-
Harry Litman [00:36:10] Race.
Joyce Vance [00:36:11] -evidence of explicit racial animus I think you'd still be in business. But the problem will be separating anything impermissible out from this newly permissible factor of political gerrymanders.
Harry Litman [00:36:23] Yeah. But but I mean do said that that's only because that's a separate constitutional violation. That would adhere in the intentional racial discrimination not in the gerrymandering itself.
[00:36:36] And you know Kagan reads from the bench. It's you know it seems like the closing of a door on such an important-
Richard Cordray [00:36:44] Actually, there's a couple of peculiarities about this decision that are interesting. The first is that it applies only to political gerrymandering. Now the North Carolina case was a very brutal instance of political gerrymandering. There's testimony in the records that the lines were drawn very specifically to favor Republicans. Some of the testimony made no bones about that made it clear that the people who drew the lines saw electing Republicans as a good thing for the country and they were looking to maximize it. That was political gerrymandering at its most extreme. But it is still the case as this was noted that if there is efforts to gerrymander on a racial basis which would violate equal protection law, perhaps it was it was gender bias. The court would continue to take up such an impact if you can make that clear. But there will be incentive for anyone engaged in the map drawing exercise to disclaim that that's what they're doing. And so often is difficult to understand what people's motives are and things can be couched in different ways which is every reason it does everything in the race context.
Harry Litman [00:37:49] You would need to find real intent and.
Richard Cordray [00:37:52] That will be, that will create some interesting factual fights. Now, but the separate point is that today's decision only applies to the federal courts. It doesn't apply to the federal Congress, which could act, although this was a Congress that is so gridlocked it's difficult to imagine it acting on anything that would have political overtones. You'd probably have to have big majorities in both houses to ever go in that direction. But also the states can act. The states can continue to act through amending their constitutions or through legislation. Now the downside of that is very often the people who control the levers of legislation are also the people who control the levers of gerrymandering but they're not always the same. In addition of state courts interpreting state constitutions and upset their own electoral maps even for federal offices. That happened in Pennsylvania very recently those maps were redrawn and it led to significant changes in the Pennsylvania congressional delegation in 2018. There could be more of that. It's only the federal courts that are now disabled although they have been playing a muscular role and that role is now completely exterminated.
Harry Litman [00:39:02] Right. I mean and I'll just say look, I I see why the court was flailing and struggling with it for years. I don't think it's necessarily nefarious or Republican-loving on the- from the majorities- five person majority in part to say boy, we just can't get our fingers around any real test. But Kagan I think is very persuasive in dissent. I'd put it this way if nothing else it is a sad day.
[00:39:29] I mean, it is a defeatist point that there is what everyone sees as really fundamental constitutional violations fundamental in the sense that they are generative of either Constitutional rights and there is not a darn thing to be done. That's not that's not a happy day I think.
[00:39:50] It's only a happy day for someone who considers the court's proper role to be very modest, as it appears perhaps Chief Justice Roberts does and wants to separate it as much as possible from political controversy. The irony is today's decision is a very political decision with grave political consequences. But the intention here clearly is to try to take the court out of further political action on this subject for all time to come.
Harry Litman [00:40:18] That's actually a very good segueway to the other one because you're right that would that's Roberts' instinct. And yet he and the court did a pretty remarkable thing in the census case, which is they actually second guess the executives assertion that the extra question about citizenship had been- the White House wanted to say that's just there to help enforce voting rights. Now that seemed like a spurious defense. But in general in these matters you give the executive a lot of deference a lot of running room. It seemed to me here at the court in saying no we're not, this may have been a pretext, this is now in the District Court, was doing something pretty extraordinary. I wonder if you agree and if you do agree what what you think is the explanation for their, you know, not just second guessing but sort of demeaning as pretextual the administration's proffered reasoning.
Richard Cordray [00:41:22] The census case is a very interesting case decision and set of opinions. It reminds me a lot of the health care ruling from from the recent term where the court rejected various arguments and then settled on one that was quite unexpected.
Richard Cordray [00:41:42] Here, the court goes out of its way to say that it is possible and would be permissible to include a census question on citizenship which is what most people thought the case was all about. It also says that he had there was some substantial evidence that could be cited for it. But then it says that in this case, however, based on this record, in this instance, we find that the secretary's decision here was based on a pretext and it doesn't really pass a straight face test in terms of the evidence that was before the court on what the grounding was for adding the census question that seemed pretty clearly done for nakedly political purposes and not for the pieces that were cobbled together after the fact. Now the interesting point is this does not seem to preclude the citizenship question from being included on the census in the future.
Harry Litman [00:42:37] But probably not enough time for 2020. Do you agree.
Richard Cordray [00:42:40] That's right. It may not even.
[00:42:42] It does not preclude it for 2020 necessarily except the practicalities are now that there is very little time available. The census probably will have to be conducted and they have said at least they'll have to go to print on documents by the end of this month. Maybe they'll back that up now and try to put together a different rationale. But if they come up with a different rationale they're going to be hard pressed because it will be a changing rationale. It will certainly seem like a post hoc rationalization and even more arbitrary and capricious than the court found the pre declination to be. It's also the case.
Harry Litman [00:43:19] And they're back of course in the district court which is which is always skeptical.
Richard Cordray [00:43:22] And the district court is already taking up a new issue around all of this which is the additional evidence that was found. About how this was done right, by the by the gerrymander expert who passed away and his records became available through the state, to the plaintiffs here and the District Court has already said that's a further problem and one that we're going to need to look into.
Richard Cordray [00:43:47] So I would agree with you it seems unlikely to me they'll be able to wade through that whole morass and put the census question on citizenship this time. Whether they could do it 10 years from now or 20 years from now it's an open question. It's also a question whether, if the district court continues to hold to its guns whether the Supreme Court would come up with some belated intervention down the road and stuff the district court's decision from taking effect if the census tries to do more to get a citizenship question on. I think it's unlikely that the court would do that.
Joyce Vance [00:44:20] I think it's really interesting. Everything that Rich is saying it is so on the money. And when you think about the Justice Department's reason, the reason that the Supreme Court finds is is likely pretextual for adding this citizenship question to the census they said it was in order to make it possible for the Justice Department to enforce the Voting Rights Act. And this is not a Justice Department that's made any effort to enforce the Voting Rights Act. In fact on the occasions where they went into court as regards the Voting Rights Act it was to reverse positions taken during the Obama administration. It would have protected people's right to vote.
Joyce Vance [00:45:01] So that has always sounded wrong and it never made sense that they were willing to spend what's estimated to be one hundred and twenty one million dollars to add that question so that this administration could protect the Voting Rights Act. And that's why this new evidence is so interesting it really connects the dots because if it proves to be true what it indicates is that there was an effort by an analyst who worked for the Republican Party to figure out what they could do to hold on to the vote. As as areas like Texas as the demographics changed and they realized that they needed some data that they didn't have to make those districts work out in their favor. As that shift went forward and amazingly enough the information, the data that they need, is data it would be collected by asking the citizenship question. So as courts consider this. I think the government's rationale gets even weaker and not only is there this case that was tried in New York and had this very unusual process of going straight straight to the Supreme Court. There is also a Maryland case that's been to the 4th Circuit which, where the court in the 4th Circuit could additionally enjoin asking this question on the census. So even if something crazy happens back in the district court in New York there's this additional vehicle where now this new clear evidence will be considered separately.
Harry Litman [00:46:28] That's a great point. I just say I agree with everything here but even so, I can think of, I can count on one hand the cases in which you know that at least occurred to me where the court is second guessing and dismissing this pretextual proffered reasons by a coordinate branch. And I just wonder if part of what's going on isn't there, you now saying look we're no fools here, don't think don't think we're we're just automatons or political allies. We understand that this administration you know has been extraordinarily mendacious and these are sort of the wages of the lies coming home to roost. Maybe that's maybe that plays a part, maybe it doesn't.
Joyce Vance [00:47:13] Or at least one of the Republican justices.
Barbara McQuade [00:47:16] And Harry we may we may find out very quickly just how pretextual and mendacious the government wants to be on this. You may recall that what they had said before is that they needed to skip review and the Second Circuit and go straight to the Supreme court. My my colleague Richard Primus reminded me of this fact because they had they have a decision no later than June in time for the 2020 census. If they were to go back now and come up with a new reason and say here's the real reason and have this go before the courts and say well we are able to do it I think that really will expose the pretextual nature of the reason as well as the mendacious nature of their procedural posturing.
Harry Litman [00:48:00] Yeah. Great. All really true and of course we're just digesting it now in our talking fed now special episodes we typically don't include a sidebar, but we can and I maybe today we will close out as we normally do with a five words or fewer. And that's the final segment where we take a question from a listener and each of the feds has to answer in five words or fewer.
Joyce Vance [00:48:27] Now Joyce Vance I think made Twitter history, I don't know, made where made a big impact on Twitter announcing her number one rule and I think that came up with respect to Duncan Hunter, the congressman out here. But that is, "Behind every criminal is a woman he is wronged, who is going to cooperate with the government when she finds out." And that definitely captured everyone's attention and leads to our question of the week for five words or fewer and that is: What is Vance rule number two. Or maybe I'll say, what is a big rule of the road for each of us that you could express in five words or fewer. So well they've asked what is means rule number two. So let's start with you.
Joyce Vance [00:49:24] You know it's hard to do these rules in five words or less. But my shortest one is, "Everybody lies about something."
Harry Litman [00:49:32] It's true!
Barbara McQuade [00:49:34] "The truth is always revealed."
Harry Litman [00:49:37] Nice. Rich?
Richard Cordray [00:49:38] I would say based on the events of this week with the mentoring decision a good rule of thumb is, "Don't expect a court rescue."
Harry Litman [00:49:49] That's really good. Yeah. All I can think of is outside of the general court and prosecutor role, but I try to think of it as a rule anyway which is, "Never complain, explain or apologize."
Harry Litman [00:50:04] All right. Thank you very much. Joyce, Barb and Rich Cordray. And thank you very much listeners for tuning in to Talking Feds.
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Harry Litman [00:50:36] And you can also check us out on the web at talking feds dot com where we have full episode transcripts. Thanks to those who recently submitted new questions to questions at talking feds dot com. Please feel free to keep them coming 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.
Harry Litman [00:51:12] 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, transcripts by Cassandra Sundt. 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 Littman. See you next time.