transcript

Speaker 1:
[00:06] Welcome to Talking Feds, a roundtable that brings together prominent former federal officials and special guests for a dynamic discussion of the most important political and legal topics of the day. I'm Harry Litman. With Virginians voting to repaint up to four congressional seats blue, Trump's gerrymandering campaign seems to be ending in at best an embarrassing draw. Back in Washington, Kash Patel responded to a stunning exposition in the Atlantic with a defamation suit and a chest thumping press conference categorically denying all the allegations. Separately, Acting Attorney General Todd Blanch trumpeted an indictment against the Southern Poverty Law Center ostensibly for funding extremism, a charge that quickly collapsed on the barest scrutiny. New reporting is exposing how Trump has transformed the Department of Homeland Security. The portrait is of an agency short on skill and training and long on cowboy culture. And just an aside, you might notice we are bringing you this show early this week, having taped Thursday morning. If you enjoyed the faster turnaround, or if it didn't make much difference to you, please let us know in the comments. To analyze the series of political and legal upheavals in the electoral landscape and within the federal government, we welcome three trenchant commentators and returning guests with wide-ranging experience in the ways of Washington. And they are Emily Bazelon. Emily is a staff writer at the New York Times Magazine. She co-hosts Slate's Indispensable Political Gab Fest podcast, and she teaches at Yale Law School where she is the Truman Capote Fellow for Creative Writing and Law. Great to see you, Emily.

Speaker 2:
[02:15] Thanks for having me.

Speaker 1:
[02:17] Conor Lamb. Conor represented parts of Pittsburgh in Congress from 2018 to 2023. Before that, he served as an Assistant US. Attorney in the Western District of Pennsylvania, my old office, and spent four years on active duty in the Marine Corps. He now practices law at Klein and Specter. Conor, thank you for your service, and thank you for returning to Talking Feds.

Speaker 3:
[02:43] Thank you, Harry.

Speaker 1:
[02:44] And Charlie Sykes, a founder and former Editor-in-Chief of The Ball Wark, his substack newsletter, to the contrary where I'm really pleased and fortunate to be a regular guest, host terrific analysis and conversation in defense of democracy. Always a pleasure to welcome Charlie. Thanks for being here.

Speaker 4:
[03:07] Good to be here.

Speaker 1:
[03:08] Thank you. Okay, let's start across the Potomac from DC in Virginia, which held a closely watched election in which voters approved a midterm redistricting proposal that could wind up delivering four more Democrat seats in Congress. The measure passed, but it was closer than many expected and much closer than the November elections in Virginia. What did you make of the result?

Speaker 4:
[03:39] Look, the fact that it was closer just, I think, is a reflection of the fact that gerrymandering is a tough sell. It's always been a tough sell. This is a big victory for Democrats. I don't want to be misunderstood. If I lived in Virginia, I would have voted for it. I was glad that it passed. It was Donald Trump who launched this war. Having said that, I think we all ought to have some mixed feelings about this because it is kind of an eye for an eye, a gerrymander for a gerrymander. And there is the danger that you have a race to the bottom. But right now, once again, Donald Trump has miscalculated. He did not have a plan B. He thought that his Texas Gambit was going to be an easy, quick win. He did not anticipate the Democrats would push back so aggressively. And here we are. I hope that at some point, this will lead to some sort of fundamental gerrymander reform. My fear is that it's kind of a model for the principles are a luxury in a time of total political war. And this is where we're headed, this sort of vortex. But again, big win for the Democrats, big setback for the Republicans, whose attempt has now looks like it's spectacularly backfired.

Speaker 1:
[04:50] So what about this current lesson then, Conor, a former Dem in Congress, is it when they go low, we go low as Dems? And is that the take home point?

Speaker 3:
[05:01] Well, I think it's important for people to know that the Democrats did try to pass national gerrymandering reform multiple times. We actually did pass it in the House where I served. It just died in the Senate like everything else. And so we're pretty clearly on the record against this. And I think the Democratic efforts you see in Virginia or elsewhere are just trying to put out the fire, stop the bleeding, whatever metaphor you want to use that was started by Texas. And so I don't even think of it as going lower. It's really just trying to shut down this vicious cycle that we're in, so that we could do one rule that's fair for everybody.

Speaker 2:
[05:36] It seems like the country is back to square one. The parties have jockeyed themselves back to a similar position they were in before Trump called for Republican gerrymanders, with the possibility that Florida could try to do one. And also this question about the Supreme Court's upcoming decision in the Voting Rights Act case, which could eventually really change the composition of Congress in a number of states in the South, right? Although not clear whether that there will be time for any of that to go into effect for the 2026 election.

Speaker 1:
[06:08] I actually wanted to ask you about that, Emily. Could you follow up just a little about Calais and the issue and its possible shadow on either 2026 or 2028?

Speaker 2:
[06:19] Yeah. In this case, Louisiana versus Calais is about the state map, the congressional map in Louisiana. It's basically this ongoing fight about whether there will be one minority opportunity district in Louisiana in Congress, so one district where black voters would have a high chance of electing their candidate of choice versus two districts. I think the state is about 30 percent black voters, so you can see why the one to two would be contested. Louisiana is no longer defending its map with two congressional minority opportunity districts, and a bunch of white plaintiffs have challenged it. And if the Supreme Court really eliminates this provision of the Voting Rights Act, Section 2, then you could see a number of southern states that have these congressional black caucus mostly held seats gerrymander in a way that there's no more safe seat for minority voters. And there's a larger question about the Voting Rights Act. The court's conservatives are skeptical of its continuing relevance. Liberals will push back and say, the reason that racial discrimination has been reduced in these races is because of the safeguard of the Voting Rights Act. And then I think there's this obvious overlap between the preferences of black voters in these states and preferences of democratic voters. But there is no way for federal courts to address political gerrymandering because the Supreme Court ended the possibility of that remedy. And so anyway, that could be a really consequential decision about the composition of Congress in the future.

Speaker 1:
[07:58] Yeah. Let me just round it out and say, so at the court level, we have this really anomalous and sort of unstable current situation in which the Supreme Court has just said, they said for years and years, political gerrymandering can go too far. You have these bizarre kinds of shapes. The one in Virginia is a good example. But then a couple of years ago, they said, there's nothing we can say about it, nothing we can do about it. The most raw political nasty stuff, that's fine. But there is the remaining important provision of the Voting Rights Act that's the engine for a couple of dozen seats, I think, where that provision still says, you can't draw maps that have the effect of really disenfranchising minorities. And so you have to, as a consequence, make the so-called majority minority districts. The court seems possibly hostile to it. And that would be a seismic change, though I agree with you, Emily, the chances of it coming into operative effect in the mid-terms anyway are slim, but it would have real repercussions going forward. Charlie, let me go to your point. So on a deeper level, I think no one from a good government standpoint is happy about gerrymandering. It's ugly, it's anti-democratic. But is there any sort of comprehensive bipartisan solution in the offing when government overall returns to sanity?

Speaker 4:
[09:35] Well, not immediately. We can't necessarily see that. But there's a long history of reform movements arising after a complete fiasco. I mean, given how extreme all of this is, it is possible that both political parties will see it in their interest to back away from mutually assured destruction when it comes to this. On the other hand, look, maybe Virginia Democrats will like the idea of having, what would it be, like 10 to 1 in terms of the congressional delegation? So whatever it is, one would hope we had the post-Watergate reforms. We've gone through those periods where people are willing to look at fundamental reform. Whether that's going to be the case, I don't know, because it feels as if the arc of history is bending toward more polarization rather than less polarization, more total warfare rather than more compromise. I wish I could be more optimistic about that.

Speaker 2:
[10:29] I mean, there's also a cost to how we think about regional power sharing, right? If you have a lot of states, more and more states and regions of the country that are almost entirely dominated in Congress by one party or the other, there just is going to be more and more polarization, right? Like you have all of New England represented by Democrats. You could imagine wide parts of the South that are all represented by Republicans, and I would say, I mean, Conor, you can tell me if I'm wrong, but the already shrinking reasons for people to cooperate across party lines must be even reduced further when you start to have that kind of regional factionalization to such a strong degree.

Speaker 3:
[11:12] That's right. Yeah. I mean, this whole thing is complicated by the fact that the American people are sorting themselves into more and more homogenous communities. But I am aware that there's some bipartisan interest in the House, at least banning the mid-decade practice of redistricting, so that as terrible as this whole thing is, we only would at least have to deal with it once every 10 years, which would be a start. That may be all we can really hope for coming out of this, is that the pain of the every year thing affects everyone enough that they just agree to only do it once a decade.

Speaker 2:
[11:43] That would be lame as a remedy though, because it would just be taking us back to where we were before this year, as opposed to the broader kinds of reforms that Charlie's talking about. Which, you know, are pretty evident. I mean, Neat Silver had a good, the political data analyst had a good thread about this this week where he was saying that, you know, Democrats often favor non-partisan commissions, and his analysis shows that actually those treat both parties in a pretty even-handed way. And then also he was arguing that if you really give prominence to compactness of districts as the way that you limit gerrymandering, that that actually could work out fine, too, for both parties. That tends to be the solution that Republicans favor and Democrats disfavor. But Nate was basically saying, like, you could just pick one of the remedies. Any of them would work. Do them both. It doesn't matter, but do something.

Speaker 3:
[12:36] Yeah, that's right. One more point on this that I think is useful is, in Pennsylvania, the workaround ended up being that the state supreme court has been drawing on all our maps, and they're mostly elected Democrats, but they kind of perform like an independent commission because what they did was enlist expert witnesses, and they just handed them criteria and had them start having computers draw maps on the basis of that. And the way it came out was like even evenly divided seats between Democrats and Republicans. You can't really argue that it was a partisan effort. And so that's something that maybe more states will try to push toward is like a state level constitutional case about how they want their districts to work.

Speaker 4:
[13:17] Best case scenario.

Speaker 1:
[13:18] You know, and just to add to that, in Pennsylvania, there was nominally political representation, but it was really stewarded by independent good government forces. It's clearly the way to go, but what prevents a race to the bottom, but presumably national legislation could prevent a race to the bottom. I wonder if the Supreme Court majority would say somehow that's an infringement on free speech. But again, can you imagine, right?

Speaker 2:
[13:49] Not yet.

Speaker 1:
[13:50] Totally plausible.

Speaker 4:
[13:53] Well, two quick points here. With the Voting Rights Act, republicans ought to be careful what they wish for, because I know that a lot of republicans kind of like the idea of designated minority majority districts because it tends to wall off democratic votes. They're not competitive districts. I know that republicans in a lot of swing states have had no problem with that kind of a map. So that is not necessarily a win for republicans if the court throws those out. The second is, to kind of almost change the subject here, on an optimistic note, one of the lessons of Hungary, the Hungarian election, was that no matter how badly you rig the system, if there is a tsunami of public opposition, it might not matter. And I think that given the fact that we basically have a draw with the gerrymandering, in 2026, it may not actually matter because the overall political environment has become so hostile to the Republicans. So that we're focusing on this, I think, legitimately. But when you look at that, what will the political impact be? I think it's going to be very muted compared to the shifts in public opinion we're seeing on the economy, on Iran, on immigration, on all of these issues that certainly would suggest that, even in biased district lines, many of these races are going to be competitive nevertheless.

Speaker 1:
[15:13] You know, it's a great point. And to illustrate it, the very first effort here in Texas, they draw five new seats, thinking that now they can count on greater Hispanic support. And when push comes to shove, they may not win all those seats.

Speaker 4:
[15:30] Perfect example.

Speaker 1:
[15:31] Let's just end with a kind of then back to down and dirty politics. Charlie, you characterize it as another Trump blunder. It really was their effort, and the Dems really have now parried it. You know, even if Florida goes through, which I think a lot of people think, DeSantis doesn't have the juice to force how the mighty have fallen, right? It would be a more or less parody. Was it a mistake for Trump to try to force this issue in Texas?

Speaker 4:
[16:03] Huge, huge, huge mistake. The fact that it's backfiring. And once again, we find out that Trump miscalculates. This may seem kind of like a leap, but it feels like that was a war that he started with no Plan B, just like he started the war in Iran with no Plan B. Thinks these things are going to be easy and quick. Doesn't think the other side's going to fight back. And here we are.

Speaker 1:
[16:22] I see head nods. Okay, we leave it there, as I say, sort of future markers on the Calais case. And Virginia could face a court challenge. We'll see what happens in Florida. But all in all, it's been basically a tie. All right, crossing back over the Potomac. We had another week of scandal and outrage in the executive branch. Let's start with the continuing fallout from the blistering expose on Kash Patel in the Atlantic magazine. So based on interviews with dozens of sources, mostly anonymous, everyone's scared of Patel's wrath. But the article alleges Patel was frequently absent from his post, engaged in really heavy drinking that sometimes left him incapacitated and displayed erratic unprofessional conduct. He responded with a $250 million defamation suit against the magazine. I'm happy to speak to the legal side, but I wanted to serve up where you think this is headed on a political axis. Can Patel, who at the press conference this week, sure struck me as nervous, but can he keep his job so long as Trump likes his sort of what plays maybe as a swaggering Trumpian response? Or do you see a train wreck around the corner for him?

Speaker 2:
[17:53] I was writing about the FBI months ago and talking to lots of former FBI agents and officials and current ones, and the whole time I was working on the piece, it was like, well, Kash Patel is never going to outlast the amount of time you're working on this piece, and now it's months later and there's Kash Patel, and guess what? He's still FBI director. I thought his significant moves over the weekend, in addition to the defamation suit, were to go on television and say, oh, we're about to arrest people over the rigging of the 2020 election. Just wait. This is a cause very near and dear to the president's heart. And then there was this aggressive indictment against the Southern Poverty Law Center, which seemed very politically driven. And also the Times reports that the FBI was investigating my colleague Elizabeth Williamson for writing about Kash Patel's girlfriend. Just like normal reporter stuff, she was making a lot of phone calls, and Patel's girlfriend said she felt stocked. And so there was a preliminary probe into whether Elizabeth was stocking her, which I can't even believe I'm uttering that sentence. So I feel like Patel's play is always just to try to be such a pleaser of Donald Trump, so much in his mold that Trump will spare him. It seems like it can't go on forever, but until it's over, I'm not predicting the end of it.

Speaker 3:
[19:14] Yeah, I'm with Emily. I think that what the body firing kind of showed us was that Trump has one criteria, which is that he wants these people going after his enemies, and that has been Kash's cause for years now, and it almost doesn't seem to matter how incompetent he is, as long as the president is convinced that he's willing to do what it takes to go after these people. So I wouldn't be shocked if we see some ridiculous investigation of someone related to the 2020 election very soon because that's kind of why he was put there in the first place.

Speaker 4:
[19:42] I agree with that. On the other hand, Trump has broken the glass. He has fired other members of the cabinet. They happen to all be women at the moment. Trump is said to not be a big fan of excessive drinking, doesn't drink himself. And I think some of the details of this report on Kash Patel are cringe-worthy, might be cringe-worthy even in the Oval Office. So there is some reporting in Politico, people are saying that we need to have a cabinet shakeup and it ought to be sooner rather than later. We want to go into the midterms with all of this. But both Kash Patel and Todd Blanch have just basically figured out that our job security is to be as extreme as possible, to throw as much stuff up against the wall as possible. So anyone that thought that the firing of Pam Bondi would lead to better things, I think was incredibly naive. These folks are doing everything possible for that audience of one, but Kash Patel never should have been in this position in the first place. And so there is a world in which Kash Patel has just crossed too many red lines, but we'll find out because as we've seen, Donald Trump is known for erasing those red lines, isn't he?

Speaker 1:
[21:02] Hey, everyone, Harry here. You know, I don't do many ads, but I made an exception a while back for Quince clothing. And I'm here to tell you, I'm still wearing my Quince Organic Cotton Crude Neck sweater all the time, and it and the Quince Comfort Stretch Traveler Five Pocket Pants are the first things I reach for when I'm packing a suitcase. They're durable, they fit great, they look good, and they are inexpensive to boot. It's been a major addition to my closet, and now that it's getting warmer, I'm really looking forward to checking out the Quince Pima Cotton T-Shirts. Refresh your wardrobe at quince.com/talkingfeds for free shipping and 365 day returns, now available in Canada too. quince.com/talkingfeds. Talk to you later. Let's leave it at that because, Emily, you raised a couple other points that really were mind-blowing, I thought. The investigation of your colleagues, it really strikes me as a textbook abuse of power. That's how things work in totalitarian societies. You're doing an investigation and all of a sudden, the FBI is investigating you and for what? I just wonder how everyone feels about what it says about how far off the deep end the Bureau has gone under Patel.

Speaker 2:
[22:37] Before Trump took office, I was interviewing lots of former Justice Department officials about their predictions, and I talked to people who had been high up in the FBI and previous administrations, and they were the most sanguine. They said, look, there's only one political appointee at the FBI, it's the director. There is such an atrenched ethos of investigation without fear or favor, learning the lessons of the Hoover era and of Watergate and reform and this idea of tens of thousands of people, they've been trained in this particular way, they have this incredible professional dedication, and they are going to push back. And look, some of them have pushed back, but the thing is, it has not been just one political appointee at the top because for a long time, Jan Bongino was the deputy director, also a right-wing conspiracy theorist. And also, the message was so clear from the initial firings of these high-up career executives at the FBI that you had to get on board if you wanted to have your job be safe in the Bureau. And so I think what has happened is that there are probably a relatively small number, but some agents who are totally willing to go along with the new regime and some who are excited about it. And they're the ones who are empowered. And so when I called back my formerly sanguine former officials, they were like, this has turned out to be possible to create these kind of channels of agents who are really breaking with the independent ethos of the Bureau. And like, yeah, there are people who are willing to carry this water and they're doing it. And I think we keep seeing that. We see instance of that over and over and over again in this administration.

Speaker 1:
[24:25] And with really hardball tactics, you know, the FBI, like others care about their jobs and in particular, they don't want to be anywhere else. But we're talking about Todd Blanch got up at the conservative political conference where he shouldn't have been in the first place and boasted that they've gotten rid of everybody in the FBI who worked on the January 6th investigation. So it's not simply just talking tough, but really a kind of reign of terror. So at a minimum, there's a cadre of folks, as you say, Emily, who are certainly ready to do a really seamy kind of operation, like trying to harass a reporter who's doing a story about Patel's girlfriend, which is a very valid story, I should add.

Speaker 3:
[25:23] It's scary for me, Harry, to think about where all this is going because I think we all know, Emily touched on it, the FBI has this very special culture that's been built up over a long period of time. It doesn't mean they're perfect, but I think if you've worked with a lot of federal law enforcement agencies, you can see a lot of times they're the best and they're the most professional. For sure. And when the Trump years are over and there is a Democratic president again, the challenge of having to just, in order to stock the place with competent people again, maybe rehire some of the people that have been fired, particularly from January 6th, it starts to look like the patronage of the old days, that the new boss comes in and hires his people, the old boss's people get fired, and that's not what you want either. And so it's just yet another way in which Trump has forced us into this downward terrible cycle that's attacking our institutions. And I think for the Democratic Party, the task of rebuilding sort of the respect for the rule of law within our institutions in a nonpartisan way is going to be one of the hardest things we have to face because we're going to have a political base that wants retribution and it doesn't want to hear about these kinds of norms. But they have, like we have to have those in our society. So I just flagging that for a few years down the road, it's going to be a hard job for someone.

Speaker 2:
[26:38] Hercules and many conversations to be had about rebuilding. I mean, Harry, you know better than any of us since you worked in the Justice Department. But man, it's going to be tough.

Speaker 1:
[26:48] Man, Hercules, Charlie, you and I have even talked about this. We should have such problems. But I've thought about it a lot. A lot of people are thinking about it a lot. I'm happy to report. But I just think he's he's ruined things in a way that you just can't try to go back to as it was. Which itself was the product of some 50 years of cultural aggregation of integrity and doing the right thing. But also, Conor, your point, I wonder if either you have thoughts about that. There really is going to be, I think, a very strong stress point within the party if they are in power between those who are insisting on accountability for very strong reasons and those who say that's the road to a short tenure in power because it will alienate the American people.

Speaker 4:
[27:44] Well, you can't repeat the, I think, one of the fundamental errors of the Biden era, which was to think that the fever had broken and let's immediately return to all of that. I mean, that needs to be a model. I mean, to Emily's point about all of the folks who were saying that the norms would hold, that the structures would hold, I mean, how many discussions did we have in Trump 1.0 where people were talking about the Department of Justice? Because of the culture was so strong and the traditions of independence were so strong. And what we've discovered is that many of those guardrails, which we had complacently relied upon, turned out to be paper thin, much, much more vulnerable. So one of the things that I think has to be done is then, and this was a failure, I think of the Biden years, that they did not fireproof these institutions. They did not actually say, okay, how can we prevent the kinds of abuses that are happening right now? Whatever happens, and I do agree, there's going to be a big fight between those who want to restore norms versus the Retribution Party, is at least figure out a way, if you really want an independent Department of Justice and non-political FBI, what structures do you need to put in place that will survive the election? Otherwise, you're going to go back to what Conor was talking about, where it's simply a spoils system. So again, we need to harden the targets, find a way to do that. Now, don't ask me specifically what that entails, because I don't know, I would turn that over to others. But I mean, over and over again, I think that people just simply relied upon these institutions, they would be able to resist this and we find out that no, when you have somebody like Donald Trump, he can just roll right over like our political imaginal lines that we just completely relied upon and Donald Trump just went around them and crushed them.

Speaker 2:
[29:29] I kind of would like to not hear the word norms ever again. It just turned out, I mean, I'm not saying like, we're going to be talking to them forever, but like it just turned out to just be like, poof, didn't matter. I could like write it 50 times. I was like.

Speaker 1:
[29:42] Norns, what norns? Except Eisen and Orenstein. But look, I agree with everything you said, Charlie, except they weren't paper thin, they were steel, but the administration just brought a tank and mowed them down ruthlessly. And there you have it.

Speaker 2:
[30:00] But Harry, if some of those norms have been codified, if they'd been in statutes, wouldn't that have been a different conversation?

Speaker 1:
[30:07] No, I don't think so.

Speaker 2:
[30:08] You don't think so?

Speaker 1:
[30:10] Look, the principles of federal prosecution, I think Conor will back me up on this, have the canonical status even more than a statute in all US attorney's offices, or they did, and every single one of these reprisal prosecutions violate them, I mean, you know, to the DNA, that you must have probable cause, you must believe the case is righteous, that it's probable that you're going to get a conviction. That's the Bible, and they've shredded the Bible. Will you back me on that former AUSA lamb?

Speaker 3:
[30:45] Yeah. Well, and then, you know, to look at statutes, I mean, one statute that is on the books and is violated almost every day, it seems, is the Hatch Act. You know, Harry mentioned, like, Todd Blanch being at CPAC. There's an example of not just a norm, it's reflected in federal law, and when I was in uniform in the military and then in DOJ, the Hatch Act was like a major thing. Like, you'd be trained on it every year, you'd be thinking about different events you got invited to if it was gonna violate it. And then, I think it was in 2020, Trump had the Republican National Convention at the White House. So, I mean, it is a good example. There's a lot of statutes out there as well that have no remedy for their violation.

Speaker 2:
[31:23] Okay, I'm pretty much smushed, but I'm gonna try one more thing before I give up. What about figuring out some way to codify the separation that used to exist between the White House and the Justice Department, right? Like, there were some...

Speaker 3:
[31:36] Yes.

Speaker 2:
[31:36] Okay, thank you. I'll just stop there.

Speaker 3:
[31:39] Well, so, you're talking on something that I was interested in.

Speaker 1:
[31:41] That's what I was getting at. It is so fundamental. It was so the third rail. When I was there, Whitewater started it, and I mean, nobody could talk to anybody. You just can't talk about an individual case. But the specter I raised before that kind of gobsmacked you, think of the statute, think of the challenge, at least by the Trump administration, that it's unconstitutional, like the Presidential Records Act, and see how that would play out. But that would be such a salutary, just that alone would do so much, I agree.

Speaker 2:
[32:15] I mean, I would like to at least try. Like, you know, maybe you lose at the Supreme Court, but maybe not. I mean, the Presidential Records Act argument the Trump administration is making is ludicrous.

Speaker 1:
[32:26] And dangerous, yeah.

Speaker 3:
[32:27] No, I agree. I keep wondering whether we're gonna notice in Congress. So like, let's say that Congress wants to prevent the abuses of another president like Trump. The one institution that seems to have a little more protection and be able to hold out is the Fed, right? The Supreme Court looks at it differently. Trump is trying to mess with the Fed chair every day and he's got Republicans trying to get in the way of it. And so you almost wonder, like, would a future senator figure out a way to redesign some other federal agencies so that they're treated more like the Fed under presidents, which obviously is gonna raise some constitutional issues. But I would love to see if something like that is possible for DOJ. I would love to see if it's possible on the issue of budgeting and spending. Like one thing I can't figure out is why if Congress has the power of the purse, it's someone in treasury that has to click the mouse to make sure the money actually goes out. Like why can't a congressional staffer do that? I mean, there's like a bunch of interesting things I never would have thought of before that Trump has confronted us with.

Speaker 1:
[33:32] All right, it is now time for a Spirited Debate brought to you by our sponsor Total Wine and More. Each episode, you'll be hearing an expert talk about the pros and cons of a particular issue in the world of wine, spirit and beverages.

Speaker 3:
[33:50] Thank you, Harry. In today's Spirited Debate, we dig up the dirt on the agave plant to find out the difference between tequila and mezcal. So, first things first, tequila is a type of mezcal, much like bourbon is a type of whiskey. In general, tequilas are mezcals, but not all mezcals are tequilas. Allow me to explain. Tequila can only come from the blue agave plant in specific regions of Mexico, like the region of Jalisco, where the city of tequila is located. No coincidence there. Mezcal, however, can be made from many varieties of agave, specifically from the heart of the agave, known as the piña. The distillery process for tequila and mezcal is also different. Tequila is produced by steaming the blue agave and then distilling it in copper stills for a toasty, clean taste. On the other hand, mezcal, which appropriately means oven-cooked agave, is cooked in earthen pits with wood and charcoal before being distilled in clay pots. No wonder mezcal, which is typically consumed straight, has more of a smoky, earthy taste. Of course, the best way to get to know the differences between tequila and mezcal is to pick up a bottle of each from your Total Wine & More and pour hundreds of years of tradition right into your glass. Cheers!

Speaker 1:
[35:09] Thanks to our friends at Total Wine & More for today's A Spirited Debate. I really wanted to spend some time talking about the case you raised in passing against the Southern Poverty Law Center, Emily, one of the nation's premier anti-hate groups, a long time foe of far-right organizations like the KKK. I've got a sub stack out that really trashes it on the legal merits. It's a total...

Speaker 2:
[35:37] The case, not the Southern Poverty Law Center.

Speaker 1:
[35:40] That's right. But it seems like such a patently political, more than a legal document. And in some ways, we've talked about, and I've also written about how Blanche has taken the department, who to thunk it, to new lows. And it just seems to be... Well, I'll shut up. What did you make of that indictment?

Speaker 2:
[36:05] I mean, I agree, it seems like 90% political. They're being accused of using paid informants in a way that supposedly defrauded their donors. But first of all, that was like an old time tactic that they used. And they were infiltrating some of the right wing groups that they were trying to understand and expose. And the idea that like their donors didn't understand that they were doing that seems implausible. I mean, look, I think that this is not going to be the last time that we see a kind of left or liberal coded organization come under legal fire like this from this Justice Department. Like no matter what, you've made this kind of seem really partisan. You make some people wonder what is the Southern Poverty Law Center doing? And their hate watch list, which is somewhat controversial among liberals and moderates. It's not always clear how people end up on that list and whether that's entirely justified. Conservatives hate this list, right? Because the word hate is really powerful. And so there are lots of completely non-legal reasons to want to smear them.

Speaker 1:
[37:12] Well, yeah, but you don't think of that as the business of DOJ. Again, my sub-stack takes it down on the merits. Like it's supposedly a fraud, but there's no specific lie. But Conor, let me back to you as an AUSA. What it really seems to me is a horrendous use of prosecutorial discretion. Can they possibly make out? I don't think so, but even if they could, some banking malfeasance that they didn't give the exact names of the groups that they were writing the checks and they'd created. But come on, someone comes to you and says, we want to bring this case because the Southern Poverty Law Center is actually, it turns out, we never knew, funding extremists. And you look at it, right? And you say, I'm sorry, give me an F and break. That's not right. And if this just wouldn't be in the interests of justice, I think no self-respecting prosecutor would greenlight that case as a valid exercise of discretion.

Speaker 3:
[38:18] That's right. I mean, at least you'd have a lot of questions you'd want to ask. Like one is, I'm aware of the Southern Poverty Law Center was sharing the results of their investigations with the FBI for many years. So it's not like this was a big secret. So you'd want to know like, well, what became of that? How could we possibly prosecute them if we knew it was happening? Secondly, I would love to know who are the victims. Like, do you have victims of this that are going to sit in there and testify under both that they were told X and then Y was done with their money, which isn't even itself necessarily a crime, depending on how it was done with the understandings of the organization's purpose. But I really would be surprised if they have good witnesses here because I just think that a lot of the supporters of the Southern Poverty Law Center.

Speaker 1:
[39:01] They would be in the indictment.

Speaker 3:
[39:02] Yeah, right. Exactly.

Speaker 1:
[39:03] There's not even a mention of them. Yeah.

Speaker 3:
[39:05] Exactly. So yeah, you've got those two couple of issues. And then the third that I've seen someone raised is a lot of the organizations that the center was targeting, like the Klan and some of the other ones, are almost completely out of business as a result of their work. So the allegation that they were propping them up to justify their own existence seems really hard to substantiate if they helped bring them down, which is not what they would have done if it was as Todd Blanche says. So there's just a lot of holes on it from a surface level. And then if you zoom out and say like, well, what are the biggest fraud challenges to our society? I would say crypto has to be one of them, right? And that is exactly what this government has dismantled within DOJ. So then you start to go, oh, why are we targeting this really arcane, random, implausible theory of fraud when there's probably billions of dollars of fraud being committed every day that our government's paying no attention to?

Speaker 1:
[39:58] Hmm, I wonder why, Charlie, any thoughts?

Speaker 4:
[40:01] Well, no, I mean, Emily's point, look, this is gonna be a part of a much larger pattern. People should not be surprised. In the right-wing ecosystem, yes, number one priority is going after the people that went after Donald Trump, but there's also going to be a very concerted effort to go after what they regard as the progressive infrastructure of the nonprofits, the various groups, and they will target them. They will go after their tax-exempt status. This is something that they made very clear. By the way, the Southern Poverty Center has done a lot of good work, but let's also understand why there is tremendous animus on the right, why this is not surprising at all. A few years ago, I mean, it's one thing to go after the Nazis and the Ku Klux Klan. They designated the Family Research Center as a hate group, and then a guy shows up, starts, shoots the place up, and on the right, among conservatives, they felt that that designation, calling the Family Research Center a hate group, which was a rather creative use of the term in this context, led to that kind of violence. So, if you've been paying attention to this kind of no discourse going back to 2017, it's not a surprise that the Trump administration would target this particular group, and this is, I think, a direct relationship to when they crossed that particular line a few years ago.

Speaker 1:
[41:22] It's right and a fair point, but of course, that's not the indictment.

Speaker 4:
[41:27] No, and it's not.

Speaker 1:
[41:28] The indictment is rather pretty close to a bald lie.

Speaker 4:
[41:32] But this is why they're doing it.

Speaker 2:
[41:33] Totally.

Speaker 1:
[41:34] Yeah. Oh, they really are funding extremists. It's Orwellian, right?

Speaker 2:
[41:39] I mean, right. This is also something we see over and over with the Trump administration's way of dealing with the left. There can be a problem. They can be a real thing that is troubling to conservatives. They have their finger on a real flaw, but then the remedy is like Orwellian, like Harry just said.

Speaker 4:
[41:59] Exactly.

Speaker 1:
[42:00] Okay, I want to go back to something you, Charlie, touched on in passing. So another top administration official whose misconduct was not in doubt, former Labor Secretary, now former Laurie Chavez de Remer, was out this week. But she is now the third cabinet official showing the door and the third woman. You know, meanwhile, you have male cabinet officers like Hegsteth, Lutnick, Kennedy, not to mention Patel, virtually urinating in public and keeping their jobs. What does this tell us about Trump, basically?

Speaker 4:
[42:42] Well, you know, I mean, it does seem like there's a pattern here. Look, I don't play the sexism card that strongly here because, of course, you know, all three of the people that were fired, you know, Noam Nbandi and the secretary of labor were uniquely unqualified and unsuited for their jobs. In fact, they were magnets for scandals. And I do think that somewhere they're sitting, you know, in their darkened room thinking, you know, what the fuck? How did I get fired and Kash Patel still has his job? I mean, they must really be wondering that no matter what they have done. But I do think that you read some of the stories and you think, why did they think they were going to get away with this? And this is maybe a little bit more pulling the camera back. Why did Kristi Noem think that she could get away with some of the personal conduct, the corrupt conduct? Why did the Secretary of Labor think that she could get away with what she was doing? And again, it goes back to this. We work for Donald Trump. And in this administration, obviously, character is not destiny. The mistake they made is that they think that, well, if Donald Trump can do X, Y and Z, maybe I can do something similar when, in fact, the rules don't quite work that way. But why they thought they could get away with this? Why some of these members of Congress behaved the way they did? It's just kind of a reminder that hubris can be politically fatal occasionally.

Speaker 1:
[44:02] There you have it. Yeah. So look, it's really true. It doesn't in any way suggest that they were unfairly victimized, though their male colleagues have gotten away with the equivalent of murder, you might say. But even more stuff is coming out about Nome and it's just so abusive, just seeing the government as a place to give you goodies and travel and all kinds of stuff like that. All right, enough for now because I wanted to leave time for Emily. You and a couple of colleagues at The Times had a really magnificent story. Kudos out this month. A new installment in your oral history, the administration series, this time about DHS. So many jaw-dropping details, but I'd like to ask first what you learned about Homeland Security Investigations because it just seems to encapsulate the Trump transformation of the department. Can you give us that side of the story?

Speaker 2:
[45:08] Yeah. So these folks, HSI, they were the part of the Department of Homeland Security that went after big criminal enterprises that cross borders. So they're like the most FBI like of the DHS segments of which there are many, but I won't go on about that. What happened to them after Trump's election is they all got rerouted to immigration enforcement on the streets with ICE. That's why you see their vests out there a lot when you see the pictures of the ICE agents. That is if people actually are identifying themselves. That's super frustrating to these HSI agents. It's like not their job, not what they're trained to do, a waste of them as resources, and when we did interviews, we had a couple of them talking and a couple of ICE agents, and look, these are the people who are interested in talking to the New York Times, but they were all enormously frustrated. Also, just talking about how the Trump administration keeps saying that immigration enforcement inside the country is about going after the worst of the worst, like the criminals, but actually, almost everyone they were scooping up are people who don't have records. Often, they wind up arresting and detaining the wrong target just because the person looks Latino, might have an accent, all the racial profiling we've been hearing about and seeing in video footage they were testifying to.

Speaker 1:
[46:31] Yeah, one of the startling data in the piece, about 5% of people booked into CUSSE last year have been convicted of a violent crime. That's increased somewhat marginally, but the number of arrests of those with no conviction of any kind has risen by 770%. We're really not talking about the murders, rapists and pet eaters that have been touted. Another aspect of the story, the training has just seemed to go out the window. So there's no grading, there's shooting exercises, but you don't get graded on them. Conor, you have a sense of how agents in the government are trained before they can carry a gun and how stringent it is and how easy to fail and how seriously it's taken. I don't know of any precedent for this kind of slapdash, you know, like crackerjack training that seems to gotta be part of what's going on with ICE, no?

Speaker 3:
[47:38] Well, there are some German precedents from the 1930s, but not American precedents, unfortunately. It's interesting to me because it's part of the Trump pattern where my impression of HSI in like 2015, 2016, when I was working with them, was that they were the weakest of the federal law enforcement agencies as far as the capacity of their agents. And that seemed to mostly be because no one was really sure what their job was or their jurisdiction was. They were very, it was all very undefined, overlapping with other agencies. It almost felt like they had just been created as a political response to 9-11 and no one really knew what to do with them after that. And so they didn't really attract the best and the brightest. You know, most people who want to be a federal agent want to be in the FBI because of how prestigious it is. And then HSI is like someone's third or fourth choice. And so that's the kind of thing that Trump figured out he could exploit along the way, is weak parts of the bureaucracy with no identity. And so ICE, HSI, whatever it is, he finds these people. And actually he's done the same thing among prosecutors as well. Like Harry and I probably both know people who were really weak at their jobs, who were elevated under Trump. I mean, there's one that I think we both definitely know who became an actual US attorney who was widely considered the weakest line prosecutor in his office. There's some guy out in California now who's handling all their most important cases and he was a nobody for years. And so it's just all kind of goes to show you that there is a political objective being defined in the White House. Like we want to hit this quota of deportations and then we'll just shape the entire bureaucratic response around how to get there, which is really the opposite of doing things according to norms and traditions and laws and values. So yeah, he finds these unappreciated people because they're not that good at what they do and then they become the lead effort.

Speaker 2:
[49:27] Underlying all this enforcement is the idea of just sowing a lot of fear and distress in immigrant communities so that people will leave on their own. Because if you are Stephen Miller and you really want millions and millions of people to leave, that's how you go about it and that is just causing enormous suffering across the country among people who, you know, were mostly working for a living, doing jobs that a lot of people born in the United States are not so interested in doing, etc.

Speaker 1:
[49:54] Speaking of Stephen Miller, one of the searing episodes in the story is his just totally dressing down people and viciously, you know, cracking the whip for more and more and more deportations. You know, a quote that really stuck with me from Emily's piece, they had let all this expertise leave, and then they're pissed that they don't have it. It just sounds, and it's really the point you were just making in a way, Conor, that it's like a defining theme of Trump 2.0.

Speaker 3:
[50:32] Yeah, I guess my only thought is like we, in some ways we're society that's rebelling against expertise. And so I think if your natural thought is the remedy to this is like, let's get these experts back in the future. I think it's going to be hard to do some of that or to even define what an expert is. So it's, I think he's going to leave us with a bigger mess than I think even a lot of people realize.

Speaker 4:
[50:55] This is actually, there's a silver lining here. I think it was one of the former officials who work with Pam Bondi describing why they had failed on so many other prosecutions. And he candidly admitted, it's just we don't have that many competent people. We have a lot of MAGA people, but that intersection of MAGA and actually smart and competent is actually relatively small. So to a certain extent, the fact that they have so many people who really don't know what they're doing, might be a saving grace because imagine if all of these people were as competent as they are zealous, which they clearly are not. And that's one of the big stories of the Department of Justice to date, I think.

Speaker 1:
[51:37] It's really true. The Venn diagram is just not such a big slice. Conor and I were talking about our old office and how it used to be such a sought after job, just stacks of resumes. And now, you know, it's not in there. You're having like Twitter messages, please come apply. It's really such a sort of tangible indication of the degradations. Okay. We're just about out of time. Only a minute for our five words or fewer feature. This week, here's the question. War secretary, as he likes to call himself, Pete Hegseth, forced out the secretary of the Navy, John Phelan. You'd have thought the man who came up with the new Trump class battleship would be on safe ground, but apparently not. What could Phelan have done to save his job?

Speaker 2:
[52:37] Golf courses on aircraft carriers. Very good.

Speaker 3:
[52:42] Get out of the way. That seems like all they care about. He must have been in the way on something and we don't know what it is.

Speaker 4:
[52:48] There's only one formula for saving your job. It applies even to billionaires. Suck up harder.

Speaker 1:
[52:55] Perfect. I'm going to go with mandatory chest tattoos for midshipmen. Thank you so much, Emily, Conor, and Charlie, 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 podcast, and please take a moment to rate and review the show. Check us out on substack at harrylitman.substack.com, where I'll be posting two or three bulletins a week, breaking down the various threats to constitutional norms and the rule of law. Paid substack subscribers can now get Talking Feds episodes completely ad free. You can also subscribe to us on YouTube, where we are posting full episodes and my daily takes on top legal stories. Talking Feds has joined forces with The Contrarian. I'm a founding contributor to this bold new media venture, committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Find out more at contrarian.substack.com. Thanks for tuning in, and don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Luke Cregan and Katie Upshaw, associate producer, Becca Havian, sound engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hamsa Mahadranathan, Emma Maynard, and Halle Necker are our contributing writers, and production assistants by Akshaj Turbailu. Our music, as ever, is by the amazing Philip Glass. Talking Feds is a production of Delito LLC. I'm Harry Litman. Talk to you later.