TF 22: 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. 

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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. 

Harry Litman [00:01:26] And I have to say it's a phenomenal lineup of episodes and speakers without doubt among the most experienced thoughtful and authoritative commentators in the country. And we are thrilled that they've agreed to join us. Let's dive right in with our first panel of the series: Protecting the Department of Justice from Undue Political Interference. We have a remarkable panel with us today, as one who worked down the hall from all of them for several years, I can say that the panel is scary qualified and impressive. 

Harry Litman [00:02:01] First, Jamie Gorelick, a partner at WilmerHale, Jamie served as the deputy attorney general from 1994 to 1997. In her remarkable career she's also served as the general counsel of the Department of Defense, the vice chair of Fannie Mae, and a member of the 9/11 Commission. Jamie is the most impressive public servant I have ever met. And I owe her far more than she knows. Jamie, thank you very much for coming. 

Jamie Gorelick [00:02:34] Happy to be here. 

Paul Fishman [00:02:36] Now she's really happy to be here. 

Harry Litman [00:02:38] Really far more than you know. Returning to the program again, charter Fed Paul Fishman, currently a partner at Arnold & Porter. He has a huge wealth of experience at Main Justice in Washington and at U.S. Attorneys offices. He was the Principal Associate Deputy Attorney General, which basically meant he had his hands in everything at Main Justice. He then returned to New Jersey, the hometown boy, where he'd been an extremely successful AUSA before, to be the United States attorney for the District of New Jersey from 2009 to 2017. Thank you very much for coming. 

Paul Fishman [00:03:18] Always happy to be on with you Harry. 

Harry Litman [00:03:20] And finally we're pleased to welcome back to Talking Feds, Amy Jeffress, who is Paul's partner at Arnold and Porter. She too has a wealth of experience both at Main Justice, where she was the counselor to the Attorney General, and the former attache to the U.S. embassy in London. Before that, and when I was there, she was Jamie's whiz kid, which is saying something since Jamie's crew included future U.S. senators, judges, solicitors general, and U.S. attorneys. 

Amy Jeffress [00:03:49] And Paul. 

Harry Litman [00:03:50] And Paul Fishman. Well he's, he's the U.S. attorney part. [all laugh]. Thank you very much for coming, Amy. 

Amy Jeffress [00:03:55] Nice to be here. 

Harry Litman [00:03:56] All right. So not too shabby a panel here. Let's get going. We want to talk about this idea of undue political interference at DOJ but the great majority of actors at DOJ, including, in the front lines in court are so-called "career employees," with certain job protections certain insulation from political pressure. Then there's a small cadre that shifts with changes in administration that are "political employees." And we have ostensibly established rules of the road governing the interactions between the two, and also governing the interactions especially with career employees and people outside the department, such as the White House and Congress. So, wanted to talk about the source of these rules, why they matter, and whether they've been transgressed in recent years, why that matters. But let's just quickly set the stage and define the terms because it's an area not well known by people who haven't worked at DOJ. So, we have a career employees and a much smaller group of political employees. Do we have a precise definition of who these people are? How you get to be a political versus a career? Anybody? 

Jamie Gorelick [00:05:11] The career people have been appointed in the normal career process. They are employed under civil service rules. The political appointees are either confirmed by the Senate nominated by the President. So, the positions that I held, that Paul held, required that process and then those people can appoint a very few other employees who can come in and serve at the pleasure of that particular administration. So Amy Jeffress in her first job working for me at the Department of Defense, when I was general counsel and then at justice, came in in that way. 

Harry Litman [00:05:51] So she served at your pleasure, meaning you could fire her, whereas firing a career employee is no easy feat. 

Jamie Gorelick [00:05:57] That is correct. The career people are protected by civil service rules. 

Harry Litman [00:06:01] And if you're just walking around the halls and you see what things people are doing, can you identify them? Oh this guy's obviously political, that person's obviously career? 

Paul Fishman [00:06:10] So not by their clothes or anything no. [all laughter.]. 

Jamie Gorelick [00:06:15] I'm not sure about that... 

Paul Fishman [00:06:16] Maybe. 

Harry Litman [00:06:17] They don't care what they wear. 

Paul Fishman [00:06:17] You, you can't. I mean the truth, the truth is when the department is working at its best people of both, in both groups, are working together on complicated challenging hard issues, that require lots of judgment and experience that people bring from the various places they've been in their lives before. And, and in fact, what's, what's interesting about Jamie's staff when she was the deputy attorney general she was a political appointee. Amy was effectively a political appointee. I was actually a career... 

Harry Litman [00:06:46] You say effectively? 

Amy Jeffress [00:06:47] I was a political appointee at that time. 

Paul Fishman [00:06:50] But I was a career employee. I was actually an assistant United States attorney in New Jersey, I had risen through the ranks of that office and I had been the first assistant under Mike Chertoff who was a Republican, but I was not but he never asked, and I was what's called the First Assistant U.S. Attorney and then when Mike left, I went down to Washington on a detail, "seconded" as the Brits would say, to, to work for Jamie as a career guy in her office, bringing that perspective to the work of that office and to the decisions that Jamie had to make. 

Harry Litman [00:07:18] Yeah that's my story to the marvelous world of DOJ detailing, I had to work in Los Angeles, even though I was in San Francisco, so I was detailed to Washington and then, and then trotted out to L.A. 

Amy Jeffress [00:07:30] So one important point to make though Harry, for purposes of today's discussion is almost everyone appearing as a line attorney for the Department of Justice with, there are very few exceptions, but almost everyone appearing in court and handling cases is a career person hired through the nonpolitical process and protected by the civil service protections, that Jamie mentioned. 

Harry Litman [00:07:49] Got it. Well so in this rubric who is Mueller and who is say Andrew Weissmann? Are they both career? Is Mueller political? Anybody know?

Jamie Gorelick [00:07:58] Mueller would be a career appointee in that circumstance, and... 

Harry Litman [00:08:02] Weissmann then must be. 

Jamie Gorelick [00:08:04] Yes. Weissmann... 

Paul Fishman [00:08:05] Weiss-Weissmann also. 

Jamie Gorelick [00:08:06] ...was in the department. 

Paul Fishman [00:08:07] He was. He was the head of the fraud section of the Department of Justice, which is a career position a job for which he had to compete and for which he was selected, probably, I'm going to guess now, six or seven maybe eight years ago. And he can be moved around. He's, he was in what's called the the SES the Senior Executive Service, he could be moved to a different career job in the department but he can't be told, he can't be drummed out. 

Harry Litman [00:08:30] Gotcha. So I want to delve into the rules that govern them in the abstract, but a very topical point that's happening this week is this whole brouhaha with the career attorneys who were in court, frontlines, in the census case. So we're hearing that they are being replaced. Now are those people career employees?Are they political employees? And if they are career does that mean like a career employee can just say you know I'd rather not work on this? What's involved in saying, "You know, I'm... Maybe not. Thanks anyway." 

Jamie Gorelick [00:09:06] A career attorney does not have to sign a brief that he or she believes has a false statement in it or is arguing a position of law that is not sustainable. 

Harry Litman [00:09:18] Is that an actual rule or it's just a sort of custom? 

Jamie Gorelick [00:09:22] I believe that that is a norm, but also, but... 

Harry Litman [00:09:24] You can't be fired for it? 

Jamie Gorelick [00:09:25] No, you cannot be fired for it. It's ever been thus and in, in every administration that I'm aware of Republican and Democrat. The people who run the Civil Division, let's just take that as an example, make sure that they can find someone who is comfortable arguing the position that is about to be advocated. And if you are not comfortable you can take yourself out of that group. I've never seen a situation where you know no one would sign a brief. And this, I don't know enough about this instance, but that this may be unique and I don't know. 

Harry Litman [00:10:02] We'll be learning more. 

Amy Jeffress [00:10:03] The only time I've seen it is in the U.S. Attorney's office, where there were a very few people who wouldn't agree to work on death penalty cases. 

Harry Litman [00:10:11] You probably had it, right, Paul? I did too. 

Amy Jeffress [00:10:11] And that was understood. We allowed them not to work on death penalty cases, it was a policy of the U.S. Attorney's office and it seems perfectly appropriate. I was never aware of anyone refusing to sign a brief in my other 20 years at the Department of Justice. 

Jamie Gorelick [00:10:25] I mean you could imagine though someone who says I don't want to sign anything, then they're not doing their job. If they won't do any work. But I've never, I don't think anyone would would think to do that. 

Harry Litman [00:10:38] Well what about a political actor so for instance, the Deputy Attorney General at the end of the Obama administration, said I won't sign this brief defending... the was it DACA? 

Amy Jeffress [00:10:49] It was the travel ban.

Paul Fishman [00:10:50] But by then she has by then she was actually the acting attorney general. 

Harry Litman [00:10:54] Ok. 

Paul Fishman [00:10:54] Sally [Yates], she and she issued a directive that the department that, the department wouldn't defend. That was a little, a little...

Harry Litman [00:10:59] Yeah that's not her personal feeling, then, right. 

Paul Fishman [00:11:02] That's a very different argument. And but, but in terms of... First of all what, Jamie said is right both as a matter of practice but also as an ethical rule, right? You can't actually sign a brief under certain circumstances if you, if you don't believe that what it says is correct. That's not OK. And then in someways, a management technique, you don't, I mean, I had one case in which back when I was the first assistant, so now 25 years ago, when an assistant was involved in an investigation that she just didn't didn't like being associated with that particular investigation because she was somewhat sympathetic to the, to the group that was being investigated and so she said, "I can't work on this," and we said fine, but because we didn't want her to be uncomfortable, but also it's a terrible management tool right to have people working on stuff that they don't want to work on. 

Harry Litman [00:11:46] I mean we saw the very uncomfortable career employee having to defend the notion that soap, uh, no soap and toothbrushes is, qualify as a statutory standard of sanitary last week, and it was not a pretty moment either for that person or the United States. All right. So we have one sort of norm here. Well let's let's just like double back though, what are the basic rules of the road that govern the communications and the interactions between political folks on the one hand and career folks on the other? What are the sorts of ways that you can cross the border and do something improper from either direction? Is that something one can sort of summarize? Are they too voluminous?

Jamie Gorelick [00:12:29] Well they're two different questions. One is within the department and the other is external to the department within the department, there's free communication between political appointees and career lawyers as Paul said. You, you, often can't tell who's who. And in my office, which was the office of a political appointee we had quite a few people, I don't know what proportion but quite a few who were career. So you have to work as one team and and most offices do. 

Harry Litman [00:13:00] There weren't sort of discussions, appropriate discussions, involving political considerations where you excused the career employees and talked about President Clinton's prerogatives? No? Every, everything was...? 

Jamie Gorelick [00:13:12] I don't recall ever doing that. 

Paul Fishman [00:13:13] I think you have to distinguish between investigative enforcement case related discussions and policy discussions, which are very different I think. So for example in the U.S. attorney's office I was the only political appointee, in the US Attorney's office, we had about a 140, or 150 lawyers and about 120 support staff and... 

Harry Litman [00:13:30] Gil wasn't a Schedule C? 

Paul Fishman [00:13:31] No, there are no Schedule, Schedule C being the poltiical, there are no Schedule C employees, no political employees of U.S. attorneys offices anymore, and haven't been for at least twenty years. Other than the United States Attorney him or herself. That's it. And so every discussion on every case I had with anybody in my office was a discussion with a career employee and unless I was talking to myself which I do from time to time, every discussion I had was with somebody who was a career employee of the department. Now, people can get promoted within that in, within that construct, right? The people who were my, in my front office who were supervising my, my major cases were obviously career people but people in whose judgment I had trust. But I never asked them what their political views were. I never asked them what political parties they belong to. And by and large that was not a topic of conversation in the office at all. 

Harry Litman [00:14:21] And maybe that is the general rule of the road that political views should be irrelevant. Everybody here except Jamie has been both career and political. Let's let's go at it from this ways. [00:14:32]What sort of you know you've had it on both sides, what broad sort of systemic values do the protections and norms of communication between political actors and career actors serve? Why are they there? Are they integral to the Department of Justice mission? Or kind of ancillary? You know what's the basic values we're serving here? [24.7s]

Jamie Gorelick [00:14:58] [00:14:58]Well the the basic values were articulated by Justice Jackson when he was Attorney General, revered within the department. He pointed out that, and this is a quote: The prosecutor has more control over life, liberty, and reputation than any other person in America. And then he went on to elaborate the considerations that should be brought to bear in utilizing the criminal justice function, in utilizing the power of the prosecutor. And in describing that he describes a, a value of the Department of Justice which is to be impartial, be ethical, be thoughtful in the use of the criminal sanction. And even in the, the process of investigating. [50.5s]

Harry Litman [00:15:49] [00:15:49]What do you mean by impartial exactly? [1.1s]

Jamie Gorelick [00:15:50] [00:15:50]Meaning that you do not bring political considerations, religious considerations, considerations that should not be brought to bear in the prosecution of a criminal case. And if that is your conception of the Department of Justice and what it and the values it serves, which I think is really well inculcated in, in the Department then you need to insulate that decision making from political and other considerations otherwise you have, you have mob rule that is the value that is served by the separation of the prosecution function from political considerations, whether the political influence is coming from outside the department. In other places in the executive branch from Capitol Hill or frankly from the prosecutor's own prejudices. [52.8s]

Harry Litman [00:16:44] Right. To the extent you're able to talk about it, anybody here either from the side of a career employee or from the side of a political employee can you think of any sort of examples where you felt at least the pressure of those norms? And had a genuinely vexing or challenging decision about what to do? 

Jamie Gorelick [00:17:09] Well, Amy, you must have seen that. 

Amy Jeffress [00:17:09] Yes I can give you a good example from the early years of the Obama administration, and I was in the Attorney General's office, and the Attorney General's office and the deputy Attorney General's office were grappling with quite a few civil suits relating to events that had taken place during the Bush administration. So one example... 

Harry Litman [00:17:26] Suits against the Department. 

Amy Jeffress [00:17:27] Suits against the department and what one good example, that comes to mind is the suits against John Yoo, relating to his publication and authorship of the OLC  memos relating to torture. So there were a number of lawsuits which the Department of Justice's Civil Division was defending and had been defending in the later years of the Bush administration. So, there was some controversy over that because there were people who were very critical of John Yoo and there was an I.G. report that was critical. And a number of people thought that the department should no longer defend John Yoo, but the career people, who didn't necessarily like what he had written in those memos, took the position that it was very important for the department to stand by and defend him because he had been a department employee and it was the right thing to do, it was the right position to take. And I was completely convinced by that and to be honest once we talked it through even with the political people, most agreed that the department should continue to defend those lawsuits but the civil division line attorneys came under tremendous criticism for, for handling those cases and I was reminded of that when I read about what happened in the census case. I mean it has never been the case where people are simply refusing to handle cases because of controversial matters involved in those cases. I think what's happened in the census case is extraordinarily unusual, and a break from the past. 

Harry Litman [00:18:41] Something really interesting happened in the John Yoo case involving exactly this distinction. This is just public reporting, so correct me if I'm wrong, but Jamie had in her office an extremely respected senior career employee who at the end of the day made the final call. David Margolis and his stature was such that it was respected and accepted in a way, possibly anyway, arguably, that a, the decision of a political employee would not have been. It was taken as really driven by impartial Department of Justice considerations rather than some kind of whatever political calculus it might have been. 

Jamie Gorelick [00:19:24] David Margolis was extraordinary but the department has also been blessed forever with very, very senior career employees, who in essence embody what it means to be a career Justice Department employee and as Amy said those people are listened to. They have enormous credibility from one administration to the other. And sometimes when I had hard decisions that I thought might not be well-received or might not be given the credibility they deserved if I made them, or if my staff made them, I asked David, who was on my staff, but who was this revered career attorney to look at it himself and make the decision. And that's a that's a wonderful thing for someone who is in my position to, to have. Let me go back, Harry to your question about where there can be a tension between the policy role, as Paul points out, you know the Justice Department is purely fully able to engage with the rest of the administration on policy issues, and the law enforcement role where it should be hived off. Where the Department is thinking about doing something that could implicate our national security or our foreign policy, there, the most senior people in the Department of Justice should in my personal view engage with the rest of the administration to understand what the equities are. So in the Bush administration, there was a U.S. attorney who decided to prosecute Manuel Noriega. Now, having a lone prosecutor make a decision to investigate and prosecute the head of a foreign government with which we have relationships, it is wrong. It should not be done by an, by some individual. It should be done after full consideration of all of the aspects of the case and that happened time and again. We, we were, our government was part of a change in administration in Haiti at a time when one of the contenders favored by the U.S. government was also under investigation in a, in a drug case. And making sure that that decision was made by the career people in the Drug Enforcement Administration and within the Department of Justice was really important to make sure that we, we got it right. We've had many circumstances where both civil enforcement actions and criminal enforcement actions have been affected by our national security and foreign policy views as a, as a nation. 

Harry Litman [00:22:08] Yeah. 

Paul Fishman [00:22:08] And some of this, look some of them are even are, or, in some ways, happening in real time, right? So, for example I was, I was on Jamie's staff with Amy when the Oklahoma City Federal Building was bombed by Timothy McVeigh and there was obviously a government wide response to that. Under those circumstances you can understand why by people in the White House, would want to know are you making any progress in the investigation, right? They're not necessarily given the leads. They're not told what but what they want to know are people safe? And there's, so there has to be a channel of communication, a well-established, what I would call, normal, both in the sense of the word "norm" and otherwise, a normal chain of communication that enables people who need information in the White House about a certain thing, to get that information without putting their hands into the department to intrude on the investigative prerogatives of the career men and women who were making those decisions. 

Jamie Gorelick [00:23:02] Right. And in that circumstance, what I did, was I said to the White House, to the President, to his chief of staff, let me come over... 

Harry Litman [00:23:12] Who called you? 

 [00:23:13] ...let me come over and brief you. Do not... They asked for briefings by the FBI and I said look let's let them do their job. And this was in part not wanting them to, as Paul said, stick their hands into the department. There's also an issue of management and time. But I tried to protect the investigation from external influence, external demands, so that they could do their job. 

Paul Fishman [00:23:42] And the reason I think that's an important example, is because it's not a political case, right? It's not one that involves considerations of you know, the President states asking his Attorney General to investigate the candidate he defeated, or to stop an investigation of the White House, as we're seeing in this administration which is sort of at its worst, though, these norms are created for cases that are not that, that, in that realm they're, they're designed to cover the waterfront of cases in which the White House might have an interest. For some reason and to make sure that there are people whose jobs it is, jobs it is, to stop that influence. And so the reason Oklahoma City is, is, is I think a good example, is because it's not like the White House wanted anybody targeted in particular, they just wanted somebody caught, right? And but they wanted to make sure that somebody got caught in the right way. But they also had a need to be able to, when the President or the Vice President or somebody else, stood up in front of a camera and got asked, "What's going on in the investigation?" It's hard for the President of the United States under those circumstances, saying, "I have no idea." That's a bad that's a bad thing for the country. 

Harry Litman [00:24:45] Right. Yeah. They want to be able to say, Look we're doing our job. Well, let's move to there now, although I just want to mark as a coda, what what your comments, Jamie and Paul have basically underscored, which is when these rules are stable and working well and accepted, they actually provide real comfort to both sides, both the career folks and to political folks, they can point to the routinized operation of these rules to, in fact be able to give public assurance that things are being done in the right way. I don't think we want this to be a sort of indictment of specific individuals, but I think Paul's point just can't be eluded. Let's talk a little bit about the basic rules of the road as they concern the White House, you know, raw political actors on the on the one hand and the Department of Justice as a whole, hopefully working through political actors. What are they, basically if you're able to give the the overriding principles, and what values are they designed to serve? I think we have to go with Madam Deputy Attorney General for this. 

Jamie Gorelick [00:25:52] Let me change the nomenclature some. 

Harry Litman [00:25:55] Ok. 

Jamie Gorelick [00:25:56] Because there are not hard and fast rules. The letter agreements if you will, the exchange of letters that has taken place between every White House until now and the Justice Department for decades... 

Harry Litman [00:26:06] There haven't been the letters in this administration? 

Paul Fishman [00:26:09] I don't think so. 

Jamie Gorelick [00:26:12] I don't think so, but the letters themselves do not set out rules. They simply say, all of our communications about enforcement matters will be restricted to the White House counsel and his or her deputy on the one hand, and the Attorney General and his or her deputy on the other. And occasionally you add some additional people, which I can describe if you wish. It is for the purpose of ensuring that enforcement decisions are made on proper grounds. But there are no hard and fast rules no one says you're going to go to jail if you have X or Y or Z communications. And when you think about this gem that we have at the Department of Justice... 

Paul Fishman [00:27:01] Today. 

Jamie Gorelick [00:27:02] Today. When you think about this institution and and how important it is to protect it you realize that those protections are norms. They are not rules. You cannot find a statute which says you may not have this or that communication. And if the norms go by the board then you are in lawless position really. 

Harry Litman [00:27:28] Wow. First of all, all three of you agree, have the norms gone by the board these last three years? Is it controversial? 

Amy Jeffress [00:27:36] To have the President tweeting about prosecuting individuals, and targeting individuals, and criticizing the FBI. That's a violation. 

Paul Fishman [00:27:47] It's beyond stunning, right? 

Amy Jeffress [00:27:47] It's just, it's and it's not anything that the system is, sort of, historically capable of protecting against. It's just a new problem.

Harry Litman [00:27:56] You know, my head early on, used to go 360 degrees, every week but then you just get used to it. 

Paul Fishman [00:28:01] Well there are two, but there so, I think there are two different things that are wrong with it. So one is that... 

Harry Litman [00:28:06] Let's define terms what's the it, like. What would be a core paradigm. 

Paul Fishman [00:28:10] [00:28:10]So let's... the core paradigm is that the President of the United States, people in the White House, should not attempt to influence who the Department of Justice does or does not investigate. Let's start right there. OK? And you, what, you have this President criticizing the Attorney General United States Jeff Sessions, now resigned under, under, under fire from president who was asked not only to, who the President clearly wanted to have stop the Mueller investigation, but also wanted to have him affirmatively investigate Hillary Clinton, so you have both the sword and shield problem, right? The goal of this policy is to prevent the President and political actors from using the enforcement mechanisms as a sword. And from also using them, as a shield for them, for themselves. Without that you don't have public confidence in the decisions that are being made by the Attorney General because now what happens is, it's very difficult to look at the decisions that are being made by the political actors in the department in high profile sensitive cases, through anything other than the prism that they're going to get criticized, by their own boss for not making the decision that he wants. That's first. The second is on the line, and Amy just talked about this, the criticism of the FBI. Sarah Huckabee Sanders claimed that that she'd heard that FBI morale was terrible under Jim Comey and that she'd been hearing from... [72.6s]

Amy Jeffress [00:29:23] [00:29:23]"Many agents."[0.0s]

Paul Fishman [00:29:23] [00:29:23]Many, many agents about how awful he was... [2.7s]

Harry Litman [00:29:25] [00:29:25]"Many agents.". [0.0s]

Paul Fishman [00:29:26] [00:29:26]...and later admitted to Bob Mueller that that was a "misstatement." Her word. [2.9s]

Amy Jeffress [00:29:29] [00:29:29]Slip of the tongue. [0.5s]

Paul Fishman [00:29:30] [00:29:30]Slip of the tongue. That's it. Exactly. Exactly. I actually know a lot of FBI agents, I probably know a lot more FBI agents than Sarah Huckabee Sanders does. I know. Current agents and former agents. And lots of them are very upset, not, not so much with that communication across the across the transom from the president to the attorney general cause that's not their lives, but for career men and women who have decided that what they want to do with their lives is protect us, right from evil, from bad people who are doing all sorts of terrible things whether they're terrorists or people who are stealing your money or spying whatever it is, to have them grouped together and criticized by the president not states who is you know five or six levels up, their boss and basically saying, "They're terrible," is hugely destructive to their morale in a way that actually is true because I have talked to lots of them and they really hate that. [47.6s]

Harry Litman [00:30:18] And understandly. And this is a norm we haven't spoken about, but isn't part and parcel of the whole system of rules, that we've discussed, a notion that the Sessions, the Barrs, the deputy Attorney Generals, in fact will protect their soldiers when they are under this kind of public attack and will defend them. And really because of, well you can analyze why, but certainly because of something to do with Trump's political aggressiveness and overreach, that to so many people's astonishment just hasn't happened in the administration. 

Jamie Gorelick [00:30:54] It is the the job of the senior leadership, the senior political leadership, to protect the Department from interference. Now that's not to say that just hypothetically that the FBI could be doing something it shouldn't be doing, and the appropriate thing to do is to have the inspector general look at that, which is what occurred originally when there was this thought that the, that the Department and particularly the bureau had improperly begun an investigation into a campaign. I mean that does raise, if, if the FBI were to investigate one campaign in a political contest that would be worrying so you could imagine somebody saying, "Did this really happen? We would like to know." Very hard to get underneath and know that... 

Harry Litman [00:31:47] But a fact finding exercise. 

Jamie Gorelick [00:31:49] Yes and I think that as far as I know maybe this is not the case anymore. But as far as I know the inspector general is, is doing that. 

Harry Litman [00:31:58] Already. I want to go, go to the sort of consequences here and return to your point, Paul, about morale but I hadn't realized what strikes me as a really big point. So it is the case that this administration uniquely did not exchange letters between White House counsel and DOJ? And can actually argue it's not bound even by the normal kind of soft bonds that... 

Jamie Gorelick [00:32:22] I'm unaware of a letter but you know that is something one could look for. 

Harry Litman [00:32:30] Would Bill Barr defendant himself, and say, "Look, you know those were the norms then but we don't have any letters. So you know we do what we want."

Jamie Gorelick [00:32:36] Well he would, Bill Barr would acknowledge that it, that has been a norm. 

Paul Fishman [00:32:41] He was, he was the Attorney General before. When letters existed. Right?

Jamie Gorelick [00:32:43] Yes.

Harry Litman [00:32:44] So, what would Bill Barr say. It does seem like there have been several things have been politically motivated. How would he defend? 

Paul Fishman [00:32:49] My guess is what Bill Barr would say is, "I know the, I know what the practice is and I don't need a letter." That's my guess is how he would defend himself. 

Harry Litman [00:32:54] Oh and then, "I'm following it no matter what you Trump antagonists say.". 

Paul Fishman [00:32:57] I think so. That's my guess as to what he would say. 

Harry Litman [00:32:59] Yeah. 

Paul Fishman [00:32:59] But, but...

Amy Jeffress [00:32:59] They haven't been revoked. 

Harry Litman [00:33:01] Right. 

Amy Jeffress [00:33:02]  The prior letters. 

Harry Litman [00:33:04]  That's a good point. 

Paul Fishman [00:33:06] Yeah, I mean what's what's what's interesting about this too, though isn't, and I think you can't lose sight of this point, which is, that if the political actors in the department are doing their jobs, as Jamie said it happens, she was consulting with David Margolis one of the reasons she told me she wanted me to come work for her, and invited me to do that was because I had been an assistant U.S. Attorney for 11 years, I'd been a supervisor for a long time. I knew what the norms were in the field. I understood what the relationship was between a big U.S. attorney's office and Main Justice, and could give her the benefit of that experience and advice. But even when I was the U.S. attorney, when I was the political appointee I never made a decision in a major case without consulting with the Special Agent in Charge of the FBI, if it was an FBI case, or the DEA or, or whichever agency we were working with to make sure that I wasn't going in a direction that the career men and women... 

Harry Litman [00:33:53] Consulting. I'd have to plead my case to them, sometimes. 

Paul Fishman [00:33:55] Well no but I, but, but, it was, it was a, it was a...The truth is consulting is actually, you're right, it's an understatement. That, we were involved on, in these conversations on, an ongoing basis throughout an investigation. It wasn't just at the end if anything was a, was a serious matter, and then sometimes I would often, I would check in with people in Main Justice. Career people in the department who might have experience and views to bring the bear on that. 

Jamie Gorelick [00:34:20] But all three of you know this, the career people and frankly everywhere in the Department of Justice, know that you could in the, given the breadth of our laws you could indict many more cases than one does indict, and there becomes a set of rules that govern the exercise of prosecutorial discretion. If you don't know those rules you are blind. And so you have to as a, as a supervisor rely upon the judgments that have been made before. You know, then that's why I had career folks in my office because they could inform me of that. Otherwise you know, even choosing among, among cases is hard. 

Harry Litman [00:35:06] Yeah, I mean if other considerations are seeping in or they look like they're seeping in now because of what's happened there, it's going to be very hard whatever the I.G. says. Whatever Dunham [TK] says you know for people to take it as as a sort of straight up assessment. 

Jamie Gorelick [00:35:22] No I'm not sure that that's right. I mean it seems to me if the Attorney General, U.S. Attorney Durham or the Inspector General, lay out the facts, I think people will be able to make their judgments from those. 

Harry Litman [00:35:34] Well that's in some ways the big question of these six panels: What do we think is the overall erosion going forward? I think everyone here agrees it's been an abomination, some of the things that have happened and and sort of stunning in many ways, but OK it's been what it's been. When this slate is cleaned, do we, do we think we're back to where we were before? Or especially since the norms that we've described are kind of cultural, do we see long term consequences either in the erosion of the understanding of them, within the department? Or in the public confidence that they bring of impartial administration of justice?

Amy Jeffress [00:36:17] [00:36:17]It's always been understood that, at least within the Department of Justice, that you should not have political influence over prosecution decisions. And so that's something that at the U.S. Attorney's office, we took very seriously and we did not expect to have political interference in the cases we brought. And there have always been very tricky cases in the Public Integrity area, where those prosecutors are looking at politicians, by definition of what they do, and they really needed the protection of all of these norms at the Department of Justice, so that there would not be political interference. And the people that I worked with took that very seriously. And I'm, I'm not seeing that right now. You're hearing stories about the President saying, "Go easy on Flynn," and near hearing, you know his tweets about who should be investigated and prosecuted and there's rumors that he's still talking about investigating Clinton Foundation and Hillary Clinton... [51.1s]

Harry Litman [00:37:09] [00:37:09]"The real crook.". [0.1s]

Amy Jeffress [00:37:09] [00:37:09]And that's not, that's not, we don't want to be one of those countries. I work now in international law in a number of my cases. And there are countries around the world that where every time a new regime comes to power, they prosecute the prior regime and you don't want to be a country like that those countries don't have the same rule of law protections that we have always had. So, I worry about that, that those norms are being eroded in a way that makes us a less powerful and less strong and less healthy country. [28.6s]

Harry Litman [00:37:38] I mean, they are the jewels in the crown and they are as described here, you know partly law but partly institutional momentum or understanding or culture. Any thoughts. I mean we're just speculating but five years from now when we're when we're clearly in a different administration... 

Paul Fishman [00:37:57] We've made clear, I hope we're clearly [a new] administration, we may, we might... 

Harry Litman [00:38:00] In five years? Oh, I see. That would be the ultimate Banana Republic move, right? [Laughter]

Paul Fishman [00:38:07] [00:38:07]So look, I think the next President and the next Attorney General have to announce at the beginning of the administration, an adherence to the norms that Jamie has so articulately described. And that really matters. But I do think, and I think it's gonna be true because there are a lot of people in the country who have heard the President of the United States tear down law enforcement now for so long. I mean you know two and a half years he's been President and even before that, that I think there's lasting damage there. I do think that there are people who have heard that message who have heard those words and they've resonated with them. [35.3s]

Harry Litman [00:38:42] [00:38:42][cross talk] Extol non-cooperation. [1.1s]

Paul Fishman [00:38:45] [00:38:45]And by the way a lot of those people are on juries right. And a lot and a lot of those people are, um, could be victims of crime and a lot of them could be witnesses of, to crimes and to the extent that they pull out of participating in civic life in a meaningful way, to the extent that they think that the way the government does behave is the way that it's been described. I think that's a bad thing. I'm not suggesting that people on the outside can't criticize the way law enforcement does its job. I was in law enforcement for 22 years and I took that criticism, sometimes I expected it. We dealt with it. You have to have a thick skin to do what we do. But at the same time I do think that having it come from the sources from which it's coming now, from the President of the United States and people who are around him, I think that makes a real difference and there will be lasting impact from that. [44.6s]

Harry Litman [00:39:30] And by the way that's true. If you're a Trump champion or antagonist, you have to think that, you know, 90 percent plus of the country thinks that certain decisions are going to be politically driven in a good way, bad way, whatever. 

Paul Fishman [00:39:43] I hope it's not, I hope it's not 90. 

Jamie Gorelick [00:39:44] [00:39:44]Yeah. I would just make a couple of comments here. We've had paroxysms in this system before. In the aftermath of the revelations about the investigation Martin Luther King and others on the left by the FBI. In the mid 90s in the aftermath of Waco, where law enforcement was regularly referred to as "jackbooted thugs." I spent much of my time as deputy Attorney General defending law enforcement against charges like that. And we recovered. So I, I, I, think there is a desire in this country, broadly, not among everyone but broadly, not to be a republic of the sort that Amy describes. I think there is, I think the words of of Justice Jackson, even if people don't know who Justice Jackson was, when when he was either a Justice or Attorney General, resonate. And I think that the institution is, is strong. I do, you know... [71.2s]

Harry Litman [00:40:56] [00:40:56]The instituion of DOJ or of justice in general? [2.2s]

Jamie Gorelick [00:40:59] [00:40:59]Both. I think that people do not respect prosecutors whom they think are motivated by politics or animus. I don't I think it is ingrained in our, in our public culture. I am more a glass half full on this. We'll see. But I think we should not be a-historical. We've had issues with the pendulum swinging between security and privacy between reverence for law enforcement and denigration of it, for a very long time. And we have come back to center. It won't, if, it won't be without effort. But I think I think that the Department and its culture are strong and and that that culture has support in the public. [50.1s]

Harry Litman [00:41:50] [00:41:50]Well there's an end, I think. [0.9s]

Harry Litman [00:41:53] Thank you very much to Jamie, Paul, and Amy. And thank you very much listeners for tuning in to Talking Feds. 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. 

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Harry Litman [00:42:40] Submit your questions to questions@TalkingFeds.Com, whether it's for "Five Words or Fewer," are 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 [00:43:08] 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, Michelle Bo Liu, and Courtney Columbus. [Transcripts by Kassandra Sundt.] Thanks to the incredible Philip Glass who graciously lets us use his music. Talking Feds is a production of Dalito LLC. 

Harry Litman [00:43:38] I'm Harry Litman. See you next time.