TF 21: "Public Sentiment is Everything”

Printable Version

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. 

Harry Litman [00:01:10] I'm Harry Litman. I'm a former United States Attorney and Deputy Assistant Attorney General and a current Washington Post columnist. I'm joined by three well-known Feds who along with the rest of us have been thinking hard about Lincoln's idea. 

Harry Litman [00:01:28] First. Barbara McQuade returns to Talking Feds. Barb was the United States attorney for the Eastern District of Michigan and she is currently a professor from practice at the University of Michigan Law School. On July 3rd, Barb tweeted a very pertinent Abraham Lincoln quote, "America will never be destroyed from the outside if we falter and lose our freedoms. It will be because we destroyed ourselves.". 

Harry Litman [00:01:58] Welcome back Barb, we'll return to that quote and what you had in mind with it in a moment. 

Barbara McQuade [00:02:03] Thanks Harry, thanks for inviting me to the conversation. 

Harry Litman [00:02:05] We're also joined by returning Fed Frank Figliuzzi. Frank served for 25 years in the FBI. He retired as the Assistant Director of the Bureau's Counterintelligence Division in 2012. He's led teams from Atlanta to San Francisco including an office in Silicon Valley exclusively devoted to counterintelligence. Welcome back Frank. Happy holiday weekend and thanks for joining us. 

Frank Figliuzzi [00:02:33] It's my pleasure Harry, good to be back. 

Harry Litman [00:02:36] And finally, Julie Zebrak returns to Talking Feds. Julie served in the Department of Justice for some 18 years in many roles including deputy chief of staff to the Deputy Attorney General, as well as agency counsel for the Criminal Division. Very nice to have you again Julie, welcome back. 

Julie Zebrak [00:02:55] So glad to be here Harry. 

Harry Litman [00:02:57] All right. First a little background on this quote that I think is very pertinent. The quote by Lincoln came in the first debate with Stephen Douglas at Ottawa, Illinois on August 21st ,1858. In positing a national movement to promote slavery, Lincoln specifically calls out Douglas. He describes why Douglas was so important to the alleged pro-slavery conspiracy. Lincoln said, "In this and like communities public sentiment is everything. With public sentiment, nothing can fail, without it, nothing can succeed." Consequently Lincoln continues, "He who mold public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed."

Harry Litman [00:03:54] Thus the famous quote that's being bandied about these days forms the basis for an attack on a prominent senator who was proclaiming indifference to whether slavery was voted up or down in the territories and was holding to a politically expedient hands off approach to the most compelling issues of morality and national identity of the day, or even in this case in United States history. 

Harry Litman [00:04:22] Douglas attempted to shield himself from any personal responsibility for the prospective growth of slavery, Lincoln insisted on calling him out. He was not only the chair of the Senate Committee on Territories, was Douglas, but also the most powerful Democrat in the country. Immediately after pronouncing that public sentiment is everything ,Lincoln went on to state, "Judge Douglas is a man of vast influence so great that it is enough for many men to profess to believe anything when they once find out that Judge Douglas professes to believe it.". 

Harry Litman [00:05:01] If you detect echoes to the rhetorical and political stance of Mitch McConnell and the Senate Republicans' apparent indifference to questions of democratic values and of who we are as a nation you're not alone. 

Harry Litman [00:05:17] But let's think now about the state of play in the public sentiment in 2019 if Lincoln's maxim is true, what does that portend for the next month or the next year? Barb, let's start with you and an explanation of the other Lincoln quote about America's faltering only if we destroy ourselves. What did you have in mind by that and what connection to the current state of affairs were you trying to communicate?

Barbara McQuade [00:05:47] You know I think there's some parallels between those two quotes. They really talk about how the idea that there are influencers. You know today we talk about social media influencers but I think there've been influencers throughout American history that can help shape public sentiment. And as Lincoln has said, public sentiment does carry, can often carry the day in a country where we use popular elections and the democratic process. 

Barbara McQuade [00:06:14] But you know in the Federalist Papers they talked about this concern about factions leading our country astray which is why we hold so dear the idea of the rule of law and a Constitution. And so even if there is an idea that is politically unpopular, if it violates our Constitution, we have that backstop here. You can think about, I can remember a time when I was younger and there was a lot of public sentiment against flag burning, that that should be outlawed and banned because it showed such disrespect to our country and to our troops. 

Barbara McQuade [00:06:50] But of course the First Amendment allows even that which we deem despicable if it is an exercise of free speech. And so I think you know, [00:07:00]today the debate really is focused on President Trump's behavior. Should we let him get away with violating the rule of law with some of the behavior that Robert Mueller has uncovered. And if everybody just says, you know, so what, then we just move on. But I think that those who care about the shared values of America ought to take a moment to step back and say if we let this president run over our values then what happens with the next president. And is it ever possible to restore those values if we don't put a stop to the attack on them now and concretely. [35.4s]

Harry Litman [00:07:36] Is that where we are? Is public sentiment now basically, well is it frozen at an impasse or are people as public sentiment largely indifferent, Julie where do you think things do stand and what would be the implications for what's happening now of Lincoln's idea?

Julie Zebrak [00:07:58] I mean I would argue we're at an impasse because unless we are able to continue the momentum with having folks like Barb and Joyce and John Dean testify, having Bob Mueller testify, continuing to push out the facts and the notion that this is just unacceptable for anyone in our government let alone a president and administration. I think that what happens is people go back to their daily lives. And so the trick will be to continue to keep the conversation going across the country not just on TV not just in the news but among everyday Americans. 

Julie Zebrak [00:08:40] You know Barb, the example that you just gave reminds me of,  you were talking about the flag burning, and even something else that is less on the constitutional side, but equally as compelling was the whole movement about AIDS awareness. Remember how they brought the AIDS quilt to Washington D.C. and literally laid it on the mall? Coming up with ways to keep that conversation going to make sure that the public didn't forget about a whole piece of America and an issue that was so important and showing us the impact that something like that was having on our country. And I think that we're at a time now where public sentiment is swayable. And we do have the ability to make that impact. But it has, we've just got to keep that conversation going. 

Harry Litman [00:09:32] Well I mean you say like keep it going. But that suggests there's a certain momentum that we just have to harness and not let leak out. But others could see it, I think I would kind of see it, that the conversation to date hasn't really made much of a dent, that some kind of new ground has to be staked out. But wellt let me just start with that notion Frank. Well you know where are we now? You know, are we half the way there and have to keep pushing or in fact is public sentiment right now basically indifferent?

Frank Figliuzzi [00:10:10] Julie's point is a good one which is that this thing called public sentiment is not a fixed or static thing but rather is dynamic and subject to being shaped, and some would say manipulated and I think the context in which Lincoln made his quote is important because it adds a moral imperative to the shaping–. 

Harry Litman [00:10:33] Yes. 

Frank Figliuzzi [00:10:33] –the shaping of public sentiment. So this was in the context of slavery that Lincoln said this and I think we have a moral imperative to continue to shape and influence the public sentiment because sometimes the public sentiment is misguided. That's a polite way of saying sometimes the public sentiment is wrong because of who's done the shaping and the influence. 

Harry Litman [00:10:56] Yeah, let me follow up with right that. So what is your, what's everybody's diagnosis here. To the extent there is a general indifference is it, you know people are busy with their lives, they have jobs they care about etc. Or do you actually point to certain actors Mitch McConnell, Bill Barr, Lindsey Graham as having effectively hijacked the discussion. What brings us to this place of apparent polarization?

Julie Zebrak [00:11:24] The fact that we have so much choice now and how we process our news and process information. I mean the world that we live in on MSNBC is very different than the world that we live in on Fox News and I don't think we can underestimate the value of those conversations and how they feed into all of our collective ability to process where things are and how bad they are. If you don't know about children in cages because no one's telling you about children in cages then you can't have a reaction, you can't be horrified by it if it's just not part of the discussion. Everybody that you follow on social media unless you really diversify who you listen to, what you read ,really can place you in a bubble of not understanding what is actually happening in parts of the country. 

Barbara McQuade [00:12:21] [00:12:21]Well I agree with you that to a great extent the way we get our news influences the way we see the world and that's a big part of what's going on right now. But I also add that I think Attorney General William Barr and President Trump himself have worked very hard to shape the narrative to suggest that Robert Mueller found no collusion no obstruction when William Barr got Robert Mueller's report. He sat on it for more than three weeks and he pushed out his own, he won't call it a summary, but top line findings and it said the evidence did not establish conspiracy or collusion and he said that he concluded that there was no obstruction of justice. And so for 24 days President Trump was able to say Mueller found no collusion, no obstruction. And most people ran with that. He's the president, he's got the bully pulpit. He's on television. He's on Twitter, he's pounding his message every day, he is a master promoter of himself and his message. And I think that really seeps into the public consciousness. And by the time the report came along, 448 wonky pages, people had mostly moved on and the message was you know in McConnell's words, cased closed [75.7s]

Harry Litman [00:13:38] Yeah. Well that suggests by the way that Mueller's upcoming testimony on the 17th actually could have a real impact in breaking through. Do you think there's a real prospect of changing the dynamic there or between Fox News and Trump and the other things we've mentioned, are we pretty much fated to a continued kind of impasse until the at least the election?

Frank Figliuzzi [00:14:04] There are increasing indicators unfortunately that we've reached a point where the public sentiment may become solidified and that people have basically attached themselves to their person, their candidate, their notion of what's right and wrong and that we're really not going to see a large movement away from that. But I, [00:14:24]I want to really emphasize back to this issue of a moral imperative, when it comes to public sentiment, that Congress throwing up their hands and saying, well the public sentiment is not there for impeachment, therefore we're not going to move forward with it, I think is an acquiescence that's really unfortunate because I think there is an opportunity and again even a moral imperative to engage in an effort to shape the public sentiment when you believe that the person who's doing the manipulating and perhaps even winning the hearts and minds is doing so with ill intent or has his own interests and not the national interest at heart. So one way of saying, I'm glad that we finally are going to see Mueller on the Hill, I don't think it's going to hugely cause a dynamic shift in thought, but I think it's imperative that it happen. And I think that this kind of fatalistic attitude I see from some members of Congress that well, if the public's not not really behind this we're not going to pursue it. I think there are times in the history of a country where morality dictates that you got to fight. You got to fight for the hearts and minds of the people. [69.0s]

Harry Litman [00:15:34] So I couldn't agree more, I think you put it beautifully as did Lincoln. One of the, we're gonna be talking about the series of tapings we're gonna be doing in Washington, but one of them is with prominent Republicans Bill Kristol, Peter Keisler, and Carrie Cordero who got off the Trump train early and it's for just this reason. We have this incommensurate weighing...from their point of view they're fine with tax cuts and Brett Kavanaugh and Neil Gorsuch But it's just so incommensurate with the attack on U.S. values, democratic institutions, national identity and to ignore one in favor of the other is just profoundly almost faithless to the American project. That sounds grand but it's so. 

Harry Litman [00:16:25] And just in analyzing this dynamic, so we have the apparent either acquiescence of the Republican Party, of course there's the administration and the attorney general as Barb noted. What are sort of components do you perceive for the war as you put it Frank, for the hearts and minds? Who else has to be sort of fought through and confronted to really make the case?

Frank Figliuzzi [00:16:57] [00:16:57]Well no one is proving Lincoln's quote more than the Russian intelligence services. [4.6s]

Harry Litman [00:17:02] [00:17:02]Great point. [0.2s]

Frank Figliuzzi [00:17:03] [00:17:03]Yeah our adversaries know full well the importance of winning the hearts and minds of the American people. The Russians did it on steroids and the Mueller report details in great, great investigative detail including the names, locations of foreign and Russian intelligence officers, efforts by Russia to win the public sentiment and shape it and it's a perfect example Harry of where the public sentiment might be strong, but strongly misguided and shaped by an adversary. Because what you think you're seeing in social media is not reality and so I think there's no better example than the Russian social media propaganda campaign to warn us that we've got to filter what we're taking in from all sources whether it's the White House, whether it's the Kremlin, or whether it's where we get our news. [56.3s]

 [00:18:01] [00:18:01]And boy is that a great point. I mean what I just said before made it seem like a moral imperative and it is, but it's also a geopolitical one. I mean if we again play the saps as it were, to foreign adversaries, you know that itself just imperils our constitutional values. [19.8s]

 [00:18:22] Well you know this is a short episode and so we won't do the kind of five words or less, but I'd be interested in everybody's views about whether there is a reasonable prospect of breaking through before the election, whether we're fated to essentially have the same dynamic as we now have and the, what seems to many of us, almost a bewildering indifference to a bill of particulars about this president and the administration that seems to exceed that of Richard Nixon, Andrew Johnson, any other administrations in the past. I'll cede my normal cleanup role and start here and just say that pessimistically I think the answer is yes. 

Harry Litman [00:19:11] I mean I I'd love to be proven wrong or even discuss other views but I think a little bit as Frank was saying things are now either frozen or for many people there they have taken the McConnell mantra of moving ahead and that's going to accelerate with the elections coming up and their prospects for really holding to account in real time over the next year or two I think are quickly fading. There's my July 4th optimistic prognosis.

Harry Litman [00:19:50] Julie you want to you have any thoughts, bottom line thoughts about that? 

Julie Zebrak [00:19:54] So I'm going to try to remain optimistic. And I wish I could say I mean look, the numbers only go up for the number of Congressfolks who are open to impeachment. I wish there was some mechanism other than a phone that folks could be calling their Congressmen and Congresswomen and Senators and expressing their concern because the issue is that people are just moving on. But if you catch them and you ask them if they care, I think that they do. I really do think a lot of people care. But how is that message getting communicated and how is it changing the sentiment of their elected officials such that Nancy Pelosi is getting the message. I'm gotta remain optimistic because it's still quite a ways to 2020. 

Harry Litman [00:20:43] Yes moms can! Frank? 

Frank Figliuzzi [00:20:46] Let's see what happens with public sentiment after the Mueller testimony and and then what comes out of the closed door sessions. I know that closed door by definition is not supposed to leak out but we know that his team, the Mueller team, is going to be speaking with the Intel Committees and inevitably we're going to get some kind of generic summaries that come out of that. My takeaway from this conversation and my emphasis is look even when you think the public sentiment is locked in that does not excuse those with differing opinions to walk away from the table and give up on reshaping or causing a rethinking of that sentiment here here. 

Harry Litman [00:21:29] Barb? 

Barbara McQuade [00:21:30] [00:21:30]I think Robert Mueller's testimony can play a very important role in shaping public sentiment and I think we need to think about it not so much as looking backwards and about punishing wrongdoing but about looking forward and understanding how best to protect our country. I think there are still many people who do not know the content of Robert Mueller's report and just hearing him explain some of these episodes is going to be shocking to people. Like sharing polling data for Michigan, Pennsylvania and Wisconsin with Russians knowing that they had a social media propaganda campaign and then knowing that President Trump won upset victories and all of those states. I think that and many other details will be shocking to people. [38.8s]

Barbara McQuade [00:22:09] [00:22:09]And again not so much to rehash the past, but how do we protect our country going forward and to realize that President Trump tried to stop and curtail the investigation so that it would focus only on future investigations to shield himself and his campaign from investigation, I think really demonstrates the way he undermined his own responsibility to protect the national security of our country. And so I'm hopeful that when those things get exposed as we learn about lessons that Robert Mueller learned in his investigations so that Congress can consider whether it needs to enact new laws or do things to protect our election in the future I think that some of those really sobering details are going to hit home in the American public and could very well change public sentiment. [41.6s]

Harry Litman [00:22:51] Those are very fair points and I'd just say in counterpoint to what I first offered that if you believe, and this goes back to the Lincoln quote, that really the sort of political ostrich head in the sand behavior of the Republicans in the Senate is a huge concomitant. That and I'd say that kind of Fox News culture are really the huge contributors to the overall indifference of at least the Trump base. It would only take as it did with Nixon, one, two, three, four senators to get off the train and say we're talking about serious things if only looking forward to maybe dislodge the over all kind of frozen state we're in. 

Harry Litman [00:23:37] So certainly the testimony on the 17th you can imagine how how it could be a really important part of that. Fingers crossed. All right thank you very much to Frank Julie Barb for joining us on a holiday and a look back to Lincoln and forward to the 2020 election and hope that the ideas about public sentiment actually can be can bear fruit in our current day. 

Julie Zebrak [00:24:07] Hear hear! 

Julie Zebrak [00:24:09] Thanks Harry. 

Barbara McQuade [00:24:10] Thanks Harry. 

Frank Figliuzzi [00:24:10] Always a pleasure. Thanks. 

Harry Litman [00:24:16] Before we go. We've got a very special announcement, so listen up! Talking Feds is coming to Washington D.C. July 8th through 11th ,Monday through Thursday, for a four-day series of six podcast tapings. We'll be at the Georgetown University Law Center's Institute for Constitutional Advocacy and Protection for a series entitled, "After Mueller: Challenges and Prospects for U.S. Democratic Institutions." The series is also being co-sponsored by the American Constitution Society. Head over the talking Feds dot com slash news to reserve your seat. 

Harry Litman [00:25:02] But let me also tell you about the lineup of episodes we're going to be taping because we are extremely excited about it. We lead off Monday at 10 a.m. with an episode with my personal idol and hero Jamie Gorelick, the former deputy attorney general. This one is about protecting the department from political interference. It also features Paul Fishman who had very high uprolls in the department and was the United States attorney for the District of New Jersey, and Amy Jeffress who likewise had important roles in the department and then as an assistant U.S. attorney, both of whom you know from this podcast. 

Harry Litman [00:25:48] Next is the pardon power. This one's co-sponsored by the American Constitution Society. It features Bob Bauer, the former White House counsel as well as Margaret Love, the former pardon attorney and Rachel Barkow, the vice dean of NYU Law School and a longtime scholar of the pardon power and related concepts. So it goes to the heart of the importance of the power and what has happened to it and the way it's been used for the last few presidencies with a focus of course on President Trump. 

Harry Litman [00:26:26] Next we have a panel with Republicans for the rule of law. Also the checks and balances group that includes Bill Kristol, Peter Keisler the former acting attorney general and Carrie Cordero, professor at Georgetown. They will be talking about the important tug of war that these last two years have presented between basic democratic values and Republican interests and why that group has very strongly cast its vote and not against what it sees as some of the aberrations even abominations of the Trump presidency. 

Harry Litman [00:27:10] We'll next have a panel focusing on the Institute for Constitutional Advocacy and Protection and some of its important work that steps into the breach of the inaction of the current administration. And then we'll close out with two episodes specifically pointing towards Mueller's testimony on the 17th the first with Ron Klain, Matt Miller, and Tim Lynch generally discussing what Congress should be doing, the tactics here how it needs to go about questioning Mueller in general and what it can hope to achieve. And then an even more nuts and bolts episode with trial lawyers Glenn Kirschner of Feds fame as well as William Jeffress, Jr., the, one of the premier trial lawyers in the country, and Elliott Williams, which will be a very specific small gauge discussion of particular lines of questioning that the House might choose to proffer with Bob Mueller. 

Harry Litman [00:28:22] If all of this sounds interesting, and really how can it not, and you're in or near Washington D.C. next week, you can go to our website talking feds dot com slash news and click on the links to reserve your seat. 

Harry Litman [00:28:38] It's free and anyone from the public can attend. If you're not in D.C., don't worry all of the episodes will end up right here throughout the summer. 

Harry Litman [00:28:50] OK. Thank you very much to Barb, Frank and Julie and thank you very much listeners for tuning in to Talking Feds today. 

Harry Litman [00:28:58] If you like what you've heard please subscribe to us on Apple Podcasts or wherever you get your podcasts and please take a moment to rate and review this podcast or even tell a friend about us. You can follow us on Twitter @talkingfedpod to find out about future episodes and other Feds-related content including first and foremost the six episodes from DC that will be taped live next week. And you can also check us out on the web at talking feds dot com. 

Harry Litman [00:29:33] We want to know what you want to know, so submit your questions to questions at talking Feds dot com whether it's four 5 words or fewer or general questions about the inner workings of the legal system for our sidebar segment. Thanks for tuning in. Happy Fourth of July. And don't worry, so long as you need answers, the feds will keep talking. 

Harry Litman [00:29:59] Talking Feds is produced by Jennie Josephson and Dave Moldovan, Anthony Lemos and Rebecca Lopatin. David Lieberman is our contributing writer production assistance by Sarah Philipoom and Michelle Bo Liu. 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 in Washington.