Trump’s War on Habeas Corpus and DOJ Independence — with Harry Litman

Welcome to another episode of The Oath in the Office. I'm John Fugelsang, and I am so pleased and proud to welcome a man who does not appear in the Epstein Files, the star of our show, the author of The Oath and the Office, Brown University professor Corey Bretschneider.

Hello, sir, Hello John, And you know, in the midst of so much bleak news, I look forward to talking to you every week.

It just sort of cures.

Me of any malaise I might have and lets me see the hope and the humor. And so we'll do as we always do. We'll talk about the worrying stuff that's out there and also the hope. And of course in the second half we'll have Harry Littman, one of the best commentators on law and presidential power, So looking forward to that as well.

Well.

It's nice of you to say, Corey.

Usually people find me the most depressing person in the room.

I'm not an optimist. I'm a recovering cynic.

And as bad as all of this is right now, I can point to you a lot of other times in American history where it was even worse, even without a flamboyantly racist moron for president. But also there's so much resistance, there's so much hope, there's so much reason to hang on again. As a recovering cynic. I'm just astonished at all the good people out there who are leaking, who are struggling, who are resisting. And I really want to talk to you about the reporting from Maggie Haberman and Jonathan Swan about Epstein. That could be the story of the month. But let's start with this tidbit that this White House was considering suspending Habeas Corpus. Apparently Donald Trump weighed suspending a constitutional right because he's allowed to do that if he can't spell it or pronounce it. So Will Sharf, who's this very right wing White House staff secretary. He wrote a secret memo last spring to Susie Wilds, the chief of staff, and the New York Times got it five page memo. And the whole thing was this guy in writing, because it looks like Will Sharp is looking to cover himself for posterity in writing making sure that Susie Wiles knew that this crazy idea from Stephen Miller to suspend Habeas Corpus for unauthorized immigrants was unconstitutional, Corey for listeners who vaguely remember high school civics, what exactly is habeas corpus and why have legal scholars called it one of the most important protections for any constitutional democracy.

Yeah, that's a great set up, John, It's certainly a constitutional right, but it's really more than that. It's I would call it the kind of core of the idea of a system of the rule of law, that we don't live under a tyrant or an absolute monarch or a dictator, that we live in a system in which everybody is supposed to be subject to the same rules. And the first idea there, and this goes back to the thirteenth century to Magna carta, is that if government is going to hold you against your will, it's going to detain you, it has to have a reason for it, and it's got to be it has to be a reason that they're able to give you a legal reason in court. And so the idea of being able to appear in court, being able to hear the reasons why you're being detained, that's the presumption of liberty and the idea that if you're going to be stopped from that liberty, that there has to be a great reason, a good reason, let's say, some reason for it. And you know it's not any right, it's a fundamental right in the sense if you think about it. Once that's gone, what is to prevent absolute control by the president or by the authorities over any individual, because they could say, Stephen Miller, for instance, claimed oh, I just want to do it in regard to Venezuelan's at least in the beginning, and.

Repard to those from enemy nations.

But if you don't have a right to appear in court, how do we know that I am from Venezuela, that I am the person I'm accused of being. And so quickly we saw when this got translated into policy, and now we know exactly who it was coming from Stephen Miller.

Right, that was one of the problems. They were getting the wrong people.

They were getting people who were supposedly guilty of crimes that weren't in any way, And we know the root of it. A battle in the White House, and at least you know that we could question the motives. But at least somebody stood up and said, hey, this isn't just a violation of the law. It's a violation of the fundamental idea of the rule of law, right, the basic idea of our constitution.

Well, this guy's sharp is hardly a resistance fighter. He's the dirtiest pete. I mean, this guy's dirtier than Steve Mannen's hamper. But he clearly knew how illegal this was. And again, at the end of the day, Corey, we noticed these people are all looking out for themselves. So he writes, how you know, the Constitution provides habeas corpus can only be suspended in times of rebellion or invasion. But Stephen Miller was going around apparently saying that Trump can suspend it whenever he feels like, because he can do that. Professor, how God bless Stephen Miller. How often has habeas corpus actually been suspended in American history? What circumstances traditionally justify suspending it?

Well, you know, the Congress in our Constitution it does say that Congress has the ability in times of emergency to suspend habeas corpus, to really postpone our right to appear in court. And Lincoln during the Civil War did try to unilaterally himself suspend the writ to suspend habeas corpus. Now, the courts came back at him and said, rightly, in my opinion, no, the Constitution's clear. Only Congress can do this. You can't do it on your own. And Lincoln, being a serious constitutional thinker nothing, of course, like Donald Trump or Stephen Miller, said Okay, I'm going to abide by what the courts said here. I'm going to seek the suspension of the writ from Congress. But the fact that Lincoln did it, I think is a lot of the fuel here. That Trump sees himself as a kind of Lincoln. We've seen it from other presidents too, that Nixon himself compared himself to Lincoln, talked about his emergency powers and in ordering crimes against his political opponents. Nixon did, of course, you know, run and run around the writ of Habeas corpus. So you know, there are precedents in some of the worst moments in American history, but they really don't support in any way this unilateral suspension that Miller was arguing for.

And that's what the memo says.

It points out why that Lincoln moment was one that was corrected, why other presidents who have tried to do it, I should say too.

George Bush g W.

Bush tried to suspend the rid of habeas corpus in regard to Guantanamo, and he was corrected by the courts. And in the Comedian case they said, I don't think so. There's no such thing as a law free zone under the control of the United States, And all of these things are in that memo correcting Miller and trying to educate I.

I'm sure Trump didn't read it.

It's way too long, but at least trying to educate this president.

You had me at Trump thinks he's like Lincoln. I'm still on that except John Wilkes Booth would have been a much bigger fan. Corey, I got to ask you about the Situation Room. This place that's built for nuclear threats and terrorist attacks and military crises. This is the room where they famously tracked Osama bin Laden. Donald Trump promised, as you know, many times, to release the Epstein files, and now, according to reporting from Maggie Haberman and Jonathan Swan, Trump's top officials held repeated meetings in the Situation Room to figure out how to contain the Epstein fallout, not to contain predators, not to expose predators, not to help victims, to contain the story. Bush's senior team, including JD Vance, Susie Wilds, Pam Bondi, Cashptel, Dan Bongino, who I'm sure is one of the leaguers, Todd Blanche and others had multiple emergency in the situation room. Okay, the same room of the bin Laden raid was now being used by Trump's people to strategize around their bosses. Many many connections to a convicted child rapist and child sex trafficker Corey. I just these guys spend ten years telling us there's this secret cabal of elites covering up sex crimes, and then they get into power and immediately form a secret cabal of elites to cover up sex crimes.

The irony as sothic. Trump could use it as gravy.

I have so many questions for you about all this, But what was your reaction when you first heard about these senior officials having Again, this was not about protecting America, This was about protecting their boss from their boss's own resume.

Well, the first thing to say is I'm grateful that we have a light being shined on all of this. One of the problems with the debacle of the Epstein files, aside from the horror of Epstein's crime himself and the president's close friendship with this person who was a horrific sex trafficker.

And abuser of miners, is.

The failure of transparency, the ability to hide all of this. And of course, exactly as you say, my first instinct was, thankfully we have this reporting. At least we're getting to see what was going on behind the scenes, and we see the tension that isn't just an irony, it's something that they were aware of that. You have Bongino, you have cash Betel crying out against the supposed deep state and the idea that there's the secret cabal, and now all of a sudden, they realize in the Oval Office in these discussions, we're part of it. We're part of it, and they're calling for release of files. They're criticizing the attempt to hide.

All of it.

But increasingly, my sense is that as they learn what's in it, they realize they really are part of this deep state conspiracy that they've been railing against all the time.

And you know, I.

Think that's part of what the reporting shows. And of course I think the other horrific thing is the Pam Bondies of the world, you know, trying to cover all of this up, not thinking about the horror, not thinking about the wrongdoing, but thinking how can we protect this president at all costs? And at some point, you know, there's politics, but there's also a deep immorality, and that's of course at the heart of all of this.

Yeah, I mean, in June of last year, BAMBONDI told Trump, We've gone through the files. There's not a lot there a lot of child pornography. We can't put any of that out. There are some mentions of you, but nothing substantive. There are thousands and thousands and thousands of mentions of.

This man there.

I mean, they're in the situation room. And my favorite detailed professor could be the Rump reportedly wasn't even in these meetings. The president wasn't running the cover up. His staff was running a cover up about him. Imagine being so politically radioactive, your own administration is having emergency ops without you because you're a security risk to yourself. Now, according to the article, Vance, who again is only concerned with his becoming president someday, everything is filtered through that, and he was floating the idea of having more transparency, maybe getting Tucker Carlson to interview de Lane Maxwell in prison. By contrast, and Wiles and Blair, they just dismissed the whole thing is fringe noise. And Bongino of course comes off as the guy who knows how bad this is and says this will be Trump's Iran contra. And it's pretty clear that Bongino is one of the leakers. But wow, some of them wanted greater transparency while others favored containment. This has all been leaked, and apparently they were flipping out yesterday because they are quite convinced that Haberman and Swann have audio recordings of all of these individuals and one of the most secure your places on Earth discussing covering up child rape. I mean, what does that tell you about the internal split, that we know this much about this meeting?

Well, I think it shows you how the weakness of this president is starting to emerge, and this turns out to be his achilles heel. It's one of the hopeful things about the story that Congress did eventually push back and demand transparency.

So that's one thing we're.

Also starting to get a sense of the internal dynamics of JD. Van's trying to save himself. He wants to be president. Obviously, one way that he can become president is to have this president impeached or be forced to step down. And the scandal over these files might be part of it. And somebody who I don't see winning a primary, you know, on his own, might have a real chance if he's the sitting president of the United States, and so the incentives are there politically for him to demand transparency. It too in the sense that he knows, you know, that Trump is going to be implicated in these files. The incompetence also stands out that Pam Bondi, you know, trying to cover up for the president, also release files unknowingly perhaps that you know, showing that he was implicated, of course, and so you know, it's just a sort of cacophony of incompetence and craven selfishness and as you said, covering up child rape. One big picture thing is one of the biggest dangers of the Office of the White House is the tradition of secrecy, in which basically we can hide crimes and we can hide immorality underneath this veil of secrecy, and we're seeing it here in the extreme because it is hiding complicity in the crimes of one of the most notorious sex criminals in American history.

Yeah, it's just madness.

I mean, as Donald Trump's makeup has made me say many times, do you, professor, the cover up is worse than the crime. I mean, our history is full of scandals where the attempt to cover it up became much more damaging than the underlying conduct. I don't know that Lessons repeating here. The underlying conduct is pretty awful, But I mean, we've seen this part of the movie before, haven't we. They always create larger problems for themselves.

Yeah, I mean, you know, it's a famous line that history doesn't repeat at rhymes, and I think we see that here in the Nixon case.

Certainly, the idea that there's.

An awareness of the crimes committed, serious underlying crimes in the Nixon case, not just Watergate, but the at least the ten other crimes that were being investigated at the time of the pardon of Nixon by Ford, including an attempted assault on Daniel Elsberg and other protesters that the Special Prosecutor's office.

Was looking into.

And as these crimes became apparent, and as Watergate became a parent, they dug in by trying to pay people off as hush money. And then that cover up became the real scandal that we found on the Smoking Gong tape that took down Nixon. Now, what's the difference, I said at rhymes, It doesn't repeat. Some of that pattern seems very similar here, the cover up being part of the problem.

But at least in that case Nixon was in charge, he.

Was ordering the hush money, he was at least being informed.

Also, the loyalty is remarkable to me.

In the Nixon example, where his staff or is Haldeman and Erlickman is chief of staff and high level assistance.

We're saying, you know, if you need us not.

To be here to take the blame, we'll do it. They really love this guy. In the case of Trump, that's not the case at all. A he's not in control of anything, he's not even in the room, and be no way or any of these people taking the fall for him.

It kind of makes all their attempts to steal elections seem so innocent and wholesome.

Doesn't it.

We got to take a break, but when we come back, let's talk about the latest United States Postal Service proposal to block mail ballots. Spoiler alert, it's designed to help one party.

This is the Oath in the Office. We'll be right back.

Welcome back to the Oath in the Office. I'm John Fiegel Sank Professor bretsch Us. Postal Service has proposed this new rule, and I'm not sure I understand this. I might need you to hold my hand here a bit. It would allow the Post Office to refuse to deliver mail ballots in and two states if those states refuse to turn over their voter role information to the federal government. Now, Corey, I'm old enough to remember racist talking a whole lot about states rights.

But this is crazy.

States would have to create a list of mail voters that employees of the service would review for eligibility, and the Postal Service could decide who didn't get to vote. And the Postal Service could not even send the ballots to a state if the state didn't give them private information. What is your initial constitutional reaction to this?

Wow?

You know we use this phrase self coup all the time on this show to talk about the ways that Donald Trump is trying to use the presidency to usurp and destroy our constitution. And you know, he did it during January sixth in one way, and we've been focused on trying to repair that way. There's something called the Doctoral Count Reformact that keeps the events of January sixth from repeating themselves, from using that technique to destroy democracy. So he's just gonna pivot and find another way. Our elections under the Constitution are supposed to be controlled by the states and local government, and yet you have this institution of the Post Office, and Trump is trying to commandeer it to reverse what our constitution says and to really take control. Of course, he doesn't have to eliminate all votes for Democratic candidates. He can just tram a sliver of them in order to get that difference. And that's what he's trying to do. And this really unprecedented and illegal.

Make it harder here, a little bit, make it harder there, a little bit, voter id save Act, ladies with a new last name, whatever they can do to just shave off the vote count a little bit state by state. The Constitution I thought, I seem to remember you telling me, once generally leaves election administration to the states, is that still a significant principle or do we not care about that anymore in this country?

You know that's the law.

But when Donald Trump says he wants to federalize or nationalize elections, this is what he's talking about, usurping the check of federal power by the states.

And it was kind of a brilliant thing to do in.

Some ways, to have multiple checks on power and federalism.

Although it's traditionally been used.

By racis to try to usurp the right to vote, now we're in a bizarrel world where we're seeing actually now it can be used to protect the right to vote.

And Trump sees that, and what does he want to do.

He wants to create a vulnerability to use a supposedly benign part of the federal government, the post Office, to usurp it.

There is a precedent for it.

I mean, if you go all the way back to the seventeen nineties and lead up in particular to the eighteen hundred election, Jefferson and Madison are writing to each other about the fact that they're worried that their mail is being read and really that the Federalist Party and John Adams are spying on them using the postal service. And the postal service was an enormously important part of our government. At one point it was protected from residential control who had an independence to it. That was ended in the Myers versus Nebraska case where the Supreme Court essentially put it under the control.

Of the president.

And the worry all along has been from scholars and from politicians. This gives communication control over the president, all sorts of control.

And look at this all of a.

Sudden, that fear of the abuse of national power by the post Office is being revived once again. And with this one proposal, which really is a proposal, let's say what it is to cheat in this upcoming election.

Right, I mean, could the postal Service legally determine voter eligibility? I mean that sounds crazy, Like what worries you the most about the federal government becoming involved in deciding whose ballots are allowed to travel through mail?

Well, as we know with Trump's technique, and you see this in the Save Act and the voter id push to and as Stacy Abrams explained on this podcast, so well, you know every state has some form of ID. They're trying to create requirements of ID that will exclude some voters, and that technique will be used here too.

They'll say, all we're.

Trying to do is determine a neutral, simple thing, are you an eligible voter or not? And not send you a ballot If it's fraudulent. Well, that's not what's going to go on. What's going to go on is that definition of valid or invalid voter is going to be used to big surprise, destroy Democratic Party voters. And that's why, Yes, it's not just dangerous. It could work because it sounds benign, just as voter ID sounds benign, and yet they're able to reshape it, possibly into this technique to steal an election.

We should be awfully worried about it.

Well, meanwhile, Corey, I got some bad news for the terrorists of January sixth. It looks like it's getting harder for people who beat cops for Donald Trump's lie to get paid for their labors. Once again, yet another private contractor gets stiffed for working for Trump. But Judge Leoni Brinkman of the Eastern District of Virginia just extended her injunction against this sohole slat fun and she's pretty mad that the government is refusing to admit, under penalty of perjury that the fund has actually ended. Recall, just a couple weeks ago she blocked the move, and Todd Blanche said to the House, we're not moving forward with the fund period, and they're like, yeah, you're still trying to move forward with the part where the IRS can never go after Trump and his kids for committing crimes. And then later that next day, Trump said to reporters, I don't know if the fund's ending or not. So this judge seemed really mad that this administration is saying one thing and doing another, sort of like back during the January sixth cases when Rudy Giuliani would come out and preach all manner of fraud and then go into the courthouse and actually say under oath, Oh judge, no, there's no fraud. We'll not claiming any I mean, I mean, this seems madness. The administration claimed the fund was paused while simultaneously refusing to formally terminate it. Do you agree the judge has every right to be so vexed?

Oh?

Absolutely, And you know, just to kind of big picture think about all of the themes that we've been talking about. The sunlight that's ing the abuses and all of these cases is transparency.

It's actually just learning about what's happening.

And the more things come out, the more the American people have it explained to them what's happening, they react, and then that causes the president to react back. You saw that in the Epstein files case. And the more we learned about the cover up, the more we learned about what's in there that was being hit, the more we demanded Congress act, which it did.

In this case, it's a little different.

It's really the judiciary that's telling the main that's driving this, I think in a lot of ways, and there is an amazing group Democracy Forward.

Shout out to them.

I worked with them, of course on the brief that I filed along with other scholars saying that the tariffs were unconstitutional, and that case, of course did bring down the tariffs. And what they did here was so important is they challenged this Department of Justice supposedly anti weaponization of government fund that was a weaponization of government fund, and they just through pushing in court revealed what's happening, which is an attempt to reward Trump's political allies. Where is the legal authority to do that? Now, the statements of Trump and the Department of Justice have basically backed off, and yet the court is still considering this case. They haven't the Department of Justice hasn't given up and trying to defend as supposed anti weaponization fund. And so in the midst of all this, you have a judge who's like, what is going on. You're making these public statements that you're no longer doing this, and yet you're fighting this lawsuit. That must be incredibly frustrating for this judge, who, after all, is supposed to be considering a real lawsuit, hearing arguments about what's really happening on the ground, and instead is getting this mishmash. And not just frustrated, but the judge is now demanding, you know, either a clear statement that this is continuing this drive towards this anti weaponization fund or if that's not going to happen, then we're done, and basically an injunction to stop it. So we've been talking about hope transparency. It's not just transparency here, it's also the judiciary, not the Supreme Court, but the lower courts, lower federal courts have really been heroic in all of this, and this is a great example of it.

We do have to hit a break, but before we go, Corey, it really does seem like, once again with Trump, the ambiguity itself is a political strategy, right. He's just hitting a snooze alarm, kicking the can, trying to see how much he can wiggle out by not committing too hard to one definitive promise.

Yeah, and I would say it's some mix of incompetence and you see this in the chaos of the aftermath of the ft scene files and the internal debate amongst it and incompetence, and you know, also just not caring at we talked about transparency is the cure to abuse.

For Trump, it's.

All about lying at any cost, bsing in order to just get your way with a total indifference to what the truth is.

And you know what, that doesn't work so well in court.

We got to take a quick break. But when we come back, we're joined by a very special guest, Harry Livin will be here.

This is the Oath in the Office. Don't go Welcome back to the Oath in the Office.

I'm John Fiegel, saying, Professor, I'm so excited about this guest. This is someone that I've never actually gotten to meet in person before.

What a pleasure. Our guest today is Harry Littman. He's a former Deputy Assistant Attorney General at the Department of Justice.

He's a veteran federal prosecutor. He's played a lot of roles in the DOJ and knows it well.

He's also the host of the terrific Talking Feds podcast.

We can trying to recommend to you all.

You've seen him on MS now, and he really knows the DOJ from the inside. He knows how it's supposed to function, and why it's independence is supposed to matter, and how we're failing so badly at this moment. And we wanted to bring him on, among other things, to talk about what's going on with the destruction of the Department of Justice and its use as a tool to go after political opponents.

So, Harry, welcome to the oath.

In the welcome sir, thank you very much.

Corey John good to be here, longtime fan, first time caller.

I love thank you so much.

I wanted to just start off by talking to you about this anti weaponization fund, and we just talked about this judge's frustration with what's going on the Department of Justice not withdrawing the suit, but also at the same time all of these statements that look like they are pulling back. I mean, so, what's your sounds of where things stand with this supposed anti weaponization fund and just your thoughts in general about what's going on here in the creation of the fund to reward political allies, including those who participated in the attempted coup of January sixth.

Yeah, well, so on that second question, I'll come to it after. It's a surpassing stinkpile. It's really about as bad as anything I think since the wholesale pardons on January sixth.

But where it stands legally, I think is kind of murky.

So to me, there's a basic legal question that they just can't answer well, and the question is whether the courts are going to force them to it, And that is what's the damn basis for. And I think you're really right to emphasize not just the fund but the whole amnesty provision. It's just a sort of taxpayer funded bounty directly to Trump of nine figures anyway, either that was an exchange, a regular old senttlement agreement. Oh, he will voluntarily dismiss his case, which was worthless literally for several reasons, meritless it already one case is exactly the same. It was probably unconstitutional because it was colluded. So literally, this zero thing is being exchanged for billions of dollars for Trump and his allies.

That doesn't fly.

And that and sort of narrow legal grounds because you can't use the money the Congress appropriated if it's not a real dispute. So that's the first than on the other hand, they could just try to say, okay, we're not relying on that. Instead, it's it's what it's Todd Blanche giving, you know, a few billion dollars to the well even if they leave the fund to sign one hundred million to the president he's professed to love, and just a raw kind of Attorney general gift that's even sort of worse. So legally, it's I think completely untenable, and they're going to try to straddle. Politically, I think it's pretty interesting, and I wonder what you guys think. But the Republicans and Senate initially balked, and there was just enough to sort of push back on the fund. But this other real stink part of an appendage here, the amnesty provision, which I think the American people would be equally repulse by.

Seems to be just kind of hanging around.

And the Republicans, who initially had gotten a little steel in their spine like corn In or till Us or you know, have not been falling through with the same kind of Hell, no, this isn't going anywhere. So it's one of these cases where I think the politics in a good way have driven the overall challenges, but it's to my mind not clear whether the follow through will get at both parts, and they're both independently, you know, complete outrages.

I think we've talked a lot on the show about this so called lawsuit where Trump is settling with the irs supposedly, and the idea of it as a fraud on the court.

I mean, have you ever seen anything like this? I was trying to think of examples.

I president creates a sort of fake lawsuit in order to give leverage to himself to then settle with himself, in order to then create a fun to reward as political.

And might not be able to get any American examples, but there must be some historical accesses.

Yeah, yeah, maybe Putin did something like this. No, look, it's really straightforward. But again, the lawsuit that he brought, he brought it too late. It was time bard he brought it against the wrong person, and the irs had already established that it is collusive because he controls both sides, and even if it were meritorious.

His damages would be capped at one thousand dollars.

Using that as the vehicle for these fights, it's completely beyond the pale. And so it's a flat out vehicle for self dealing and enrichment of the insurrection.

It's an addition everything else. It's got this legal veneer for that.

People may be accept for things that are really odious, just as conduct for Trump to do. So, the sure to answer your question is, you know, I've been focused on this a lot, and there are other cases where they've clearly been both the same side has been controlled by one guy, as Trump does here, And every single time the Supreme Court says that's not a real case. The federal courts can't hear that kind of case. We can only hear a real controversy. So this just doesn't fly in any way. But the question now becomes what court can There have been many suits against it, but there are going to be standing questions. That's always their sort of you know, hobby horse. Oh maybe it's wrong, but nobody can challenge it. There's this interesting case down in the Southern District of Florida where they judge said, I think you may have defrauded me. I would like this reopen. And just on Friday, Trump came in with a with a totally kind of aggressive but also psychotic saying, no, there wasn't any kind of collusion, No, there wasn't any of course we were adverse. Of course this was a you know, just essentially propagating the same lie. And what court can actually pull the plug on it, or whether the rs in Congress will pull the plug on it. It's right now, as outrageous as it is, to my mind, a little bit unsettled whether what obviously should happen, which is to have this thing, you know, dean and buried and never never see the light of day, Whether that will happen, or whether he'll somehow or be able to rest some kind of compromise.

But it does seem like the danger primarily at this point is maybe not the actual prosecutions, but how the threat of investigation itself becomes the political weapon. That certainly seems the case with Komi and many others. I mean, in a way, he doesn't need to know he's got enough of a case to get a conviction. He's here to bankrupt people with legal costs.

As puttive vengeance.

Yeah, and you know, we just saw this yesterday with Newsom, and don't discount you know they're able, both Komy Knewsom were able to say bring it on. But the pain, the expense, the anxiety for the whole family. You know, we know that they were going around talking to anyone who knew Newsom's wife, say yesterday. So Komy has very unusually right. Normally the subject investigation, you keep your head down, but they've really confronted him.

But you're totally right.

We've had a record of failure in these cases that is breathtaking. Or you know, if when I was in the Department of Justice in my entire career, I saw one case where the grand jury didn't return the charges. It wasn't even mine, but I worked on it. And that's because you choose them very carefully. Here, they're chosen simply as you say to Harris, and make trouble and mean and Todd Blanch. You know, Pam BONDI had the impression she wasn't exactly sure even what she was doing, but she did it. Todd Blanch knows the difference. And he's literally come out and defended the right of Trump to bring these cases, these meritless cases. And it's just we're really grinding into both DNA. When you're talking about abusing the awesomeness of the federal prescatory power just to make trouble for political enemies. That just does not happen in democracies. That happens then.

Some guys want to get disparked. Some guys just want to get disparred. Sometimes yeah, yeah, we'll see.

I mean, it's a good way to put it too, to recognize that, you know, they're not necessarily trying to get convictions in court at this point. They might realize that some of these cases are going to be tossed, but that's not the idea. Of the idea is to threaten your political opponents. And although you are seeing bravery from James Comey and Letitia James, and they do have the resources to back and the knowledge to know that they're going to win in court not to give in. My worry is, of course, that you know, it sends a chilling effect to the wider public, and it lets people know, you know, if you really are good at criticizing Trump, you might find yourself under indictment. And when you're weighing that cost of speaking out and taking the risk of being prosecuted or not doing so, at least for some people, it's going to tilt the difference. I mean, what are your thoughts about that, Harry, about the chilling effect? And I also did want to ask you John brought up your time at the Department of Justice. I mean, I just don't have to imagine that the government lawyers that you were working with would never have signed their names to these indictments. So what's going on that there are people who are willing to not just Todd Blanche, but the lawyers and the Department that are willing to go along with all of this. It seems like just a complete abandonment of legal ethics and their obligation as lawyers.

Let's start there, never ever, ever, ever, Look, there's a absolute bedrock Bible principles of federal prosecution. Two things you must do, and if you haven't done them, your supervisors will put you through the ringer. You must believe or have the proof that the person has committed a crime, and it must be likely that you're going to be able to get a conviction. Two different standards, and if you don't have those, it is as elementary as it comes that get the hell out of here until you do.

So.

You're certainly right, Corey that there's a chilling effect. I know of people who you know are are flinching, And it seems evident to me that there are media stories that are have sort of false whataboutism, But that kind of impact is just secondary to like the what the f are.

You talking about?

You're going after people yet you know, oh, are not guilty, justsa Harris. It's so fundamental, a violation of everything the DOJ stands for. I feel sometimes like I'm a little nerdier. It pains to try to explain how completely you know, down to the absolute foundation of what the whole place is about, right to make that point, But yeah, anyone who has anything to do, and you see many many people leave the department at this kind of point, starting with say the Mayor Adams case would have been I did know the Department of Justice, and it's not any kind of nuanced thing. This is like, are you kidding me? Why don't you just go into court with like no clothes or whatever. It's just don't doesn't happen. So, yeah, the deep corruption that that could happen once, not to mention twice, three, four times. There's so much in place, including the mindset of all the people who show up for work for this very reason, that makes that not a possibility until you have the very guy on top saying do it. And yeah, I think he also has some allies there.

You know. I think there's no doubt there's.

A lot of you know, how will we try to correct the situation if and when things change, But this aspect of things will you know, I think there's no doubt that he will blanche and Bonny will go down in infamy.

This is all you have to know.

They brought merritless cases against political enemies of the president because the president wanted to. There's no possible defense of that. This is just revolting boom.

Absolutely, I mean and again like the topic, but it's just it's just I keep thinking, like we have to move on, you know, what happens to the long term institutional damage of the institutions, Like even if these investigations never result in convictions, the fact is that the founders didn't foresee this. Our system is available for rich people to use as a harassment tool for punitive vengeance, like that.

We've crossed the room coon or maybe it's the River Styx, right that this could actually happen, and you really do you know, we should have such problems, But what does it take to because basically this was all inculcated in a more powerful way even than law, through culture and norms that were just from the time of Watergate, when the you know, revered Attorney General Edward Leevy came back to write the Ship. And then what I'm telling you is it's true, it's in Princevill's veneral consecution, but it's an ethos that is so completely baked in. I'm just trying to think about how it would work if a politically minded person for half a second decides to try to gin up a case, you know, they would be I think drun down the department. And conversely, by the way you have this mantra about the Biden weaponization, there's a way to confirm or deny that were these cases that fit the principles? Was there probable costa believe they've come in a crime, probably cost to believe conviction. There's not a case. There's not a freakin' single case in which those principles weren't satisfied, meaning there was no weaponization in the Biden Justice Department. The difference is the conduct of what people did and didn't and that's something that I do think it's been really hard to kind of uphill battle for just DOOJ types, not you know, pro Biden or pro Trump, but people to just sort of explain. I fear that the mantras kind of caught on. Oh both sides.

Did it, they didn't.

The DOJ was a righteous place, and the ultimate pain here is born by the people. You know, if you don't have the presumption of regularity and you can't get convictions, or you're doing it for political reasons, it's public safety and all the good things that DOJ is able to effectuate. That is ultimately in sacrifice.

I want to ask you, Harry, I'm eager to talk about more about Todd Blanche and his potential future as Attorney General, but you did mention something that I'd be remiss if I didn't focus on, which is the period after Nixon in which you had Attorney General Levy trying to reshape the Department of Justice.

And as I understand.

That history, and I'm wondering if what your take is on it, that you had Nixon who really did try to weaponize certainly the IRS and the Department of Justice to use He had plans to use special prosecutors as weapons against his political opponents, including Daniel Ellsberg and others. And in the aftermath of that, part of the idea of the Ford Whitehouse was bringing in this University of Chicago president who had very serious integrity, not a partisan in.

The you know, certainly not in the Nixonian.

Sense, and reshaping the Department through as as you said several times, through norms. But one of the things I guess I wonder about is there was the possibility at that time and now we have to think about it about more serious reforms about what we did have an independent council for instance, who could investigate the president without being fired Outside the contoys of the DOJ, there could be legal reshaping of the Department of Justice. That would have been another way of doing it, not relying on norms. So I guess my temptation in this second Trump term as we see the total destruction of norms and the taking of what's supposed to be an independent Department of Justice and turning it into a weapon of the president. You know, what do you think about what a future reform after we're done with this nightmare might be? Like, I mean, is it a matter of getting the right people back in the Department.

Of Justice or more serious legal reforms?

Well?

Both, And that is the thing, the kind of purging that people have documented, and every time I talk to someone who really reports on this, it's worse than we know. It's just complete fear and loathing of the people who are left there. But that really the part of the point that it's a cultural as well as legal kind of ballast, is that there are a sort of subset of people who really were that go to people of judgment and respect. They are disproportioned, they've just been completely hollowed out, and so there's literally talk I have, you know, some glancing involvement in people thinking about just this. And one of the things is, well, certain people come back, at least for a time to try to establish things on the legal front. And lev and you know, you mentioned Corey the Independent Council that had a whole kind of legal odyssey where the Ris eventually did not approve it.

As a separate point, but.

It's the paradigm for a series of possible moves that essentially would legislate these norms into I make them congressional enactments. And I'll just say generally this Supreme Court and its overall kind of enthusiasm for executive power, each and every one of those would have some kind of potential child. Oh you can't do that. You can't tell the DOJ what to do. Oh if you can't tell the president what he can say with the DOJ, in fact, it's immune. So that's part of the challenge. But people are really really aware of the challenge. I'll just say that of the two pieces, you know, when I think of the really vibrant and look, DOJ not perfect. On the other hand, more than people really recognize it was an idealistic place where people gave up a lot of money believe to go in and feel they were doing the right thing. And of the two elements the law and the requirements which people knew and the norms and culture, it's this one that is the stronger one. And it's a very hard general problem. How do you reconstruct culture? How do you have generations? And I think everyone seems to agree you can't just pretend it's twenty fifteen. It is more complicated than that. There will be holdover folks, but you know, they'll certainly be will and good faith to do exactly that. And at least the main borderlines that we talked about, like are you kidding me going reprizal prosecutions or are you kidding me? Just the converse of just letting political friends go, et cetera. Those will be understood. But when and how exactly it will be a flourishing place dedicated to service of the interests of the American peace people. That's like Hercules cleaning out the stables of the right. That's going to be really friggin' you know.

Yeah, God bless our tattern freight and warned guardrails held together tenaciously by duct tape. God bless these judges. I have to ask you, sir, as long as we have you here, what concerns you the most about Todd Blanche's tenure so far.

If you had to pin it down to one thing.

I would say the sort of crystalline moment for me with Todd Blance, even though it wasn't the most damaging, was when he goes down and talks with Elaine Maxwell, and that it is absolutely breathtaking lee without any possible public purpose, any possible taking care to do the people's business plainly and solely.

Giving a rapist a cushy club fed prison doesn't help us, sir?

Is that what you're saying?

Even the Deputy Attorney General himself going down with no you know, to try to elicit this information that announced I am Donald Trump's lawyer, and if it comes to a choice between Donald Trump and the people, see a people, I am Donald Trump's lawyer. So in a word, I mean I should say that Todd Blantz has a special place of contempt in the sort of scorecard lineup of the people former d O jayers like me, because he knows.

What the hell he's doing. He was accolutely clear.

But if I have to capture in a heartbeat the worst thing about him, it's absolutely that just I love you, mister president, I'm your lawyer, and this whole department.

Is here to serve you.

That you know, that's not just a like a violation of norms. That's like, you know why we fought the revolution. I mean, that is so fundamentally corrupt of the basic job to do take care that the people's interests in the last be faithfully executed.

So that would be in that word, yeah, it really is the opposite of the idea that the Department of Justice is there to defend the law, to defend the people. And he I mean, he hasn't said these words exactly, but his actions have more than showed it that, as you say, he takes his role as the president's personal lawyer and his role as Attorney General to be exactly the same.

And you know he is more or less said it, Corey.

He actually defended the president's baraga to bring these reprisal prosecutions. Bondy just did it or talked about how guilty Kobe was, but he's basically said, yeah, that's Article two. That's his read of article.

Somewhere on a tarmac, Loretta Lynch is scratching her head.

Yeah, I mean you mentioned the Supreme Court, Harry too, and I wonder if you you agree with this. But to me, you know, the idea of the unitary executive. You know, one alternative to the unitary executive course of the founding would be to go the way of New York and have an independently elected attorney general. The Framers decided not to do that.

They put the.

Chief prosecutor of the United States essentially in the cabinet and under the control of the president. But the danger of the defenders of the constitution said, well, you have these norms, you have this Washington would never order the prosecution of his political opponents. And I guess now we're starting to pull these themes together to see the danger of that that what do you do, we're the norms when the person in charge of the Department of Justice, when the Attorney general is just willing to say, no, I am the president's personal lawyer. I really was struck by that point, and I just want listeners to absorb it that he was essentially willing to say it doesn't matter if you're guilty, we are willing to try you anyway. We talked before on the episode about the memos, talking about Stephen Miller's proposal essentially to get rid of habeas corpus through presidential action at least, you know, in the case of enem nations, in the case of Venezuela. But we're really talking about now too, is the getting rid of habeas corpus, getting rid of any fundamental idea, at least as concerns the Attorney general when it comes to prosecutions. Of course, we still have courts, we still have the ability of judges to push back. But the idea that the Attorney General would think that you can prosecute political opponents even if they're not guilty is about as fundamental and undermining of the rule of law as I can think of.

So I totally agree, and that will be true this one thing. But tomorrow, twenty years, forty years, et cetera. On your point, though, like the Habeas corpus memo, that was pretty interesting because the administration has bound only there's just a bunch of people in their sort of hot house there.

What can we do to screw them? You know? Anything? Any idea comes up.

But it was interesting that a pretty conservative lawyer there, you know, wrote the memo back saying.

Guys, you can't do that.

Kill yourselves if you try to get rid of habeas corbas. But the notion that it just arose, and it's pretty much it's of a piece. It seems to me that kind of contemplation with what they've done with the Alien Enemies Act, or it's just if I Donald Trump say there's an emergency, nobody can question it, and that just can't be true, and the habeas is the is the best example, because you know there must be an insurrection or rebellion.

That goes to the broader point.

I think of what you're saying about the unitary executive if I could, because look, I understand the sort of syllogistic appeal of all executive power resides, but that kind of begs the question of once the executive power, there are things built into the constitution. Here's a very good example. You know, appropriations are with Congress, So how can you if you back to the slush fund, it's not just up to the executive to take this pot of money and say you can do with it. And there are many ways in which things are designed for Congress to be a counterpoint, and the Court has again and again kind of seen a without precedent, kind of robust role for the executive. But it just won't do to say unitary executive because the notion is okay, But what are the checks and balances that the judicial power supplies or that the legislative power supplies.

And what's really been the.

Engine of this administration is to just steamroll legislative power and have cowed the Republicans in Congress from doing anything. When the history of this all is written, you know, I think there'll be so much lame to focus on. Totally indolent and seeing Republican Congress.

We've talked about Todd blanche and how dangerous he is in the midst of this administration which is hell bent on destroying the rule of law.

I would say, as a whole you.

See any way of pushing back against him a role for Congress.

So I do, And in particular, you know, the sort of conventional wisdom in Washington I did my time there with nominees and controversial nominees is if somebody is in an acting position, you don't nominate them because they have to answer for so much. Todd Blanche we know from Pam Bondi basically was running the show, has his fingerprints on everything from the first week in March when he shows up, the whole thing with Sea Coat, prison and Al Salvadar all the way through.

So that is going to be a bruising.

I think you have an unusual opportunity because typically, through procedural maneuvers, both houses are able to keep really sort of strong rip Hofs from being raised. But not in a confirmation and he starts. I think, right, it looks as if, you know, it's getting probably two in the weeds, but it looks as if his best hope for a Democratic vote is gone. And there are four now Republicans who you know Trump three of them is you know, decapitated personally. So yes, I think the things that he's done are a frustration for.

Me as a commentator. I don't know if you feel this.

There's certain things that he's done that are so outrageous, but their basic strategies just smush them under the carpet. Not Now, there's going to be so much with Epstein, so much with this slush fund, so much with the amnesty part, of the slush fund, and so much going all the way back even to March, that he's going to be on the hot seat as the midterms approach, and individual Republicans, if they actually succumbed to White House pressure and vote for him, could get it on the other side from their constituents. And then in general I perceive a dynamic where little by little there are Republicans who are pushing back, and Trump's numbers are historically low. So yeah, it's not as terrible as it was. And in particular the nomination and conform hearing some lance, I think raises a real opportunity not just to go after him, but to highlight, as you say, the general lawlessness and degradation of the department.

I just think of the ghost of Hary admirers watching all of this. You know, it's just insane, the corruption. I mean, Professor Rhino, we got to run. But do you agree with mister Liman. Do you think that you're going to have enough Republicans to go ahead and approve this henchman goon. It does seem that they are already looking at the numbers and they realize that, you know, supporting Todd blanch ain't going to help them with the midterms.

I think it's a historic opportunity because they're vulnerable, they know it, and I think to kind of put a cap on this whole conversation, we can point to the prosecution of political.

Opponents, the supposed.

Anti weaponization fund, but they all have a common element, which is that this guy thinks he's the personal lawyer of the president, Tomma Deer the Department of Justice.

So if they could show that and.

This president says the state.

Yeah, I just think it's a historic opportunity, and yeah, I'm excited for it's I want to see it called out in real time, and I think that might be a moment I was saying too, Harry. You know, in the confirmation of Elliott Richardson, you know, Congress was able to extract all sorts of promises to really use it as a way of focusing on Nixon's abuses.

And I don't know if he's going to get through.

I hope he doesn't, but if he does, at minimum, I would hope that's what the Congressional Republicans who are going to vote for him do do. What was done during Elliot Richardson's confirmation, which is get some promises to behave according to the rule of law, and then you can, of course very well might violate them.

At least that's on the record.

I mean, I know we're out of time on a one end, on a downer, because this is a sort of buoyant moment, it feels to me. But Cash Mattel made some promises, will never do you know? So that hasn't been the most honest of administrations.

Well, I'd rather be honest than just hopeful. So well, hopefully keep getting some of both.

Thanks so much Harry Littman for joining us. John, any final words of it.

I just like to ask mister Lemon how our listeners can follow you and keep track of your brilliance on the regular.

Oh, that's really kind of you. It's all talking fans, talking fans, talking fans. We have a substack and a YouTube at a rag table. Put in fans you'll find me, and I should say, especially on what the fun we were talking about. I've been doing a lot of writing in the substack and that's the best place to fallow.

That's great, so we'll link to it.

We'll link our substack to yours, and thanks so much, Harry Littman for this amazing discussion. It was brutally honest about how far things have fallen the Department of Justice, but at the same time, which we're always trying to do, hopeful about what the future might look like. So thanks so much for joining us on the oath in the Office.

Thanks man, Let's do it again.

Peace Well, Professor. I got to say this has been a great one. I think when historians look back on this period, it's either going to be a central story about this lawless administration trying to push boundaries, or it's going to be a story about how these American institutions proved strong enough to with stand us. We don't know how it's going to end yet, but man, it's pretty amazing washing and play out.

Well.

The stakes couldn't be higher, John, And that's why I'm glad to be doing this podcast with you, to have amazing guests like Harry Littman, because it really is a crossroads, and you know, there is a version of this that goes wrong, that the people don't fight back, that we don't have the journalism and the lawyers and the protests that really stop this thing in which we crumble and which democracy ends.

I don't think that's going to happen.

I am an optimist, not a recovering cynic, a continual optimist, and I believe we're going to prevail. But you know, I don't want to be naive about it. It's going to only happen if we push back against the vision of people like Todd Blanche, if we push back against those who are trying to cover up for Trump's association and complicity with this disgusting sex criminal trafficker, a person who just cravingly attacks. We could keep going, and that's how bad things are. But you know, I am, as you know, a deeply hopeful person. And when you think about the past, you think of those norms of the nineteen seventies. You heard mention of a brilliant attorney general, a former president of the University of Chicago, Attorney General Levy. You know, we really did come back after a disastrous criminal presidency in Richard Nixon. And that's why talking to Harry Littman talking about these issues gives me faith that we can do it again.

We came back from a criminal presidency with Donald Trump, and then the American people decided they wanted another criminal president. So you know I'm well beat cops for a lie. Huhase sign me up for more, Professor. Thank you so much for everything on this show. We crammed a lot of information in here. I want to thank Wendy and Beowolf and everyone who puts the show together. Corey, what is the best way for our evil army of the night to follow you and keep up with your brilliance?

You can find me on Blue Sky at Democracy prof There on Twitter at Bret Schneider. See we have the Oath in the office Substack, so look for our links there to Harry's subsac as well. You can find us on YouTube as well. Is listen to us wherever you get your podcasts. The amazing reviews keep coming in, John, people love this dynamic. We were number three last week, which I think is.

Our record on Apple Government.

And you know, keep telling people, spread the word, tell a friend, That's how we grow and get the message out.

And I just want to let everyone know I'm on series six, five nights a week on Substack as well. My book is Separation of Church and Hate and I have a new piece Scory. You inspired me. I have my first ever article.

In the Nation magazine.

They asked me to write a piece for their Big America two hundred and fiftieth anniversary edition, and my piece is called Separation of Church and State America's best idea, and it's all about how these Christian nationalists keep on forgetting what our country's founders kept on writing down more than once. So please check that out, and Corey, I can't wait till our next episode next week on the Oath in the Office.

Thanks so much, John, We'll see you next time. Peace,