Running to the Noise, Episode 24 (Part 2)

Carmen Twillie Ambar: I am Carmen Twillie Ambar, president of Oberlin College and Conservatory. Welcome to Running to the Noise, where I speak with all sorts of folks who are tackling our toughest problems and working to spark positive change around the world. Because here at Oberlin, we don’t shy away from the challenging situations that threaten to divide us.

We run towards them.

Andrea Simakis: Hi everyone. Andrea Simakis here, executive producer of Running to the Noise. As promised, this is part two of the conversation between our host, President Carmen Twillie Ambar, and Benjamin Wittes, Oberlin alumnus, editor in chief of Lawfare, and senior fellow in Governance Studies at the Brookings Institution.

If you haven’t heard part one, we encourage you to go back and give it a listen to hear the first part of their discussion before diving in. In this second half, they continue their honest and urgent exploration of the state of our democracy and the forces shaping it today. Without further ado, happy holidays everyone, and enjoy part two of Running to the Noise.

Carmen: We ought to talk about the Justice Department, and the students and people who listen to this podcast will just be outraged. You’ve criticized the Justice Department. I think writing that the ongoing abuses of the criminal process and targeting of political foes has become a part of their animating view of the world, and we see what’s happening with Letitia James.

We’ve seen what’s happening with James Comey. I guess I’m wondering what you would say to us about how we need to think about the direction of the Justice Department at this moment. And I think for lots of people who I talk to, there are legitimate fears about a justice system now that seems to be willing to target political opponents, target people who have different political perspectives without regard to how we’ve thought about our political process and our prosecutorial process.

Ben Wittes: Or without regard to whether they actually did anything illegal.

Carmen: That’s right. It’s just the sort of basic, as my dad would say, where are we on this?

Ben: Yeah. Well, nowhere good. So this is a matter unlike the Supreme Court, where I actually don’t believe any of the justices of the United States Supreme Court are violating their oaths of office in the sense that I think they all earnestly believe the things they’re doing are the right things under the law to do.

That is not true of the people at the Justice Department. They have repeatedly lied to federal courts. They are bringing cases that they are being advised by their professional staffs are unethical and inappropriate to bring.

Carmen: Can you just stop for a moment, Ben, and help people understand? I’m not quite sure people who are not paying much attention have been reading some of the decisions from the district courts and lower courts where they’re saying things like, the government doesn’t seem to be truthful, they’re misleading the judge in the documents that they’re submitting.

Some of these district court rulings have literally called out the government and said—I mean, they’ve been nicer than I’m going to be—y’all are lying. Yeah. And some of them haven’t been that much nicer.

Ben: Yeah. Look, to people who’ve never marinated in the stew of the relationship between the federal government and the federal courts, it is very hard to explain how extraordinary this is.

So first of all, lawyers—and all lawyers—have obligations to the court. They’re officers of the court. They have duties of candor to the court. But secondly, government lawyers have some unique responsibilities because the government is the ultimate repeat litigant, right? These are lawyers who basically only practice in the courts. They bring dozens and dozens of cases a year.

And for you to walk into court representing the United States and lie is an extraordinary thing.

Carmen: Oh my God. It makes me shudder. For those people who don’t know, I practiced in New York City—not in federal court very often—but certainly representing the City of New York in the Corporation Counsel’s office.

And for those of us who regularly appear in the court system before judges, this oath that you have as an officer of the court, and the notion that you would show up with just lazy inaccuracies—it would be outrageous, right? Let alone purposely showing up misleading and doing things that were absolutely false. I can’t even—it just makes my skin crawl. It’s so shocking.

Ben: Or what they’re also doing in larger numbers is sending a lawyer because the actual Justice Department lawyer who knows the situation can’t make certain representations because they’re false—would have to lie, right?

So then you shuffle that person off to the side, and then you bring on a new lawyer. You don’t brief them on anything. They have no idea what they’re doing, and you push them out in the hearing. And so the judge can’t really blame that lawyer because they’re just a sacrificial lamb. There’s been a lot of that.

That’s one level. A second level is mass firings of people with extraordinary experience and the just amount of institutional memory that has been lost—capability that has been lost.

One prominent example of this is one reason the administration is so flat-footed about dealing with Ghislaine Maxwell, the former Jeffrey Epstein crony, is that they fired the woman who prosecuted her. And they fired the woman who prosecuted her because her last name is Comey. She’s the daughter of James Comey.

There’s dozens and dozens of people who have lost their jobs.

Carmen: Or the folks who I consider thoughtful and courageous who just walked away because they weren’t willing to carry the water for what they viewed as illegal prosecutions that weren’t worthy of being filed and were in opposition.

Ben: That is a much larger number—the number of people who would be fired except that they retired or quit first.

Then there’s the FBI. I know there are probably many Oberlin students who will listen to this who do not find the FBI to be the most sympathetic organization in the world, and I appreciate that. And I just want to say that you ain’t seen nothing in the FBI as reformed by 50 years of successive efforts by administrations of both parties to bring it under the rule of law, compared to what that same organization will be like if you start systematically firing the people who know what they’re doing and who believe in rule of law, law enforcement, and intelligence under the rule of law.

And you replace them with people who do not. We are in for some very tough times with both the intelligence community, but particularly the domestic-facing law enforcement components of that. And you’ve already seen that begin. That’s going to get a lot worse.

And in the meantime, there are a lot of people with really exquisite and important expertise in everything from art authentication—which is something you’ve got to know how to do if you’re going to investigate money laundering—to linguistic skills in relatively rarefied languages. People with very specialized skills with respect to human trafficking and organized crime groups from various parts of the world.

And you’ve destroyed just an immense amount of capability, and you’ve also redeployed people with enormous capability on things like rounding up undocumented migrants.

And in DC—and I’m not making this up—there were some senior FBI agents who were giving tickets to fare evaders on buses recently.

Carmen: Oh my God.

Ben: There’s a deployment of resources issue, but this is a really disastrous set of decisions for the institutional capacity, and it is all being done in order to terrorize certain individuals, ranging from pizza delivery guys who were being tackled on scooters to the former director of the FBI.

Carmen: That’s right. I have to say that there are lots of things that make me shudder about where we are writ large, and lots of issues in this country. The politicization of the Justice Department is pretty high up there. That is one that you just go, how do we get back from that?

Ben: Well, again, without a commitment to civic virtue, you’ve got no chance. I would start with the idea that you need to have a presidential administration that doesn’t aspire to use the Justice Department publicly—aspired, right?—as a tool against its political enemies.

Carmen: Yeah. Oh yeah. Without stuttering. Very clear and open and happy about it. Right?

Ben: And then here’s the hard part. You need the opposition party to share that commitment. We did have this post-Nixon, 50-year period in which there was no argument between Republicans and Democrats about whether the Justice Department should be used in an abusive fashion.

Now sometimes it was anyway.

Carmen: Right. That’s right.

Ben: There were plenty of abuses in that period, but at least there was a shared commitment to the idea of what the Justice Department should and shouldn’t be doing. And that wasn’t to say there weren’t policy differences—particularly if you get into civil rights enforcement, which looked very different under Republican administrations than under Democratic administrations.

But if you said to any attorney general of the last 50 years, “Would you prosecute the president’s political enemies because he hates them?” the answer would be to look at you like you had grown a second head. Of course absolutely no would be the answer.

Carmen: Be outraged that you would ask.

Ben: Exactly. And now we deal with a situation where the U.S. attorney for the Eastern District of Virginia will not do these things, and the president summarily removes him because he won’t prosecute Letitia James and James Comey and replaces him with somebody whose only qualification for the job is that she will—without having seen the evidence.

Carmen: So Ben, we’ve talked a little bit about the Justice Department and this sort of prosecuting of political enemies. James Comey, the former director of the FBI—I’m wondering if you could give the audience a sense of how you know him and maybe what you think the prospects are of his prosecution. Do you believe he’ll be acquitted in this environment that has become so politicized?

Ben: In the history of the United States, there has never been a stronger motion for dismissal in any criminal case—on the basis of vindictive prosecution—than this one. And if it were to go to trial, I would be just stunned if any jury in Northern Virginia or anywhere else in the United States would convict on this record.

So I have every confidence that Jim Comey—and Letitia James, by the way, you asked me about Jim because we’re friends, but I don’t know Letitia James, but she is not differently situated from him in this regard.

So how do we know each other? Jim and I know each other because he was deputy attorney general when I was an editorial writer at The Washington Post, and he came over in that capacity to speak to us about a particular counterterrorism matter. I was the principal editorial writer on that set of matters.

And so we ended up having a pretty protracted conversation, after which he asked if he could talk to me privately, which surprised me. But it turned out he wanted to thank me for some work that I had done on an innocence case in Richmond, Virginia, in which an air conditioning repair guy named Jeff Cox had been sentenced to—I don’t know—120 years in prison for a murder that he clearly did not commit.

And I had gotten a little bee in my bonnet about it, and the U.S. attorney’s office that Jim had been working in in Richmond had also gotten a bee in its bonnet about this case. I wrote a bunch of stuff about it for The Washington Post editorial page, and I was unaware actually that Jim was particularly involved in it or interested in it, because he was sort of the head of that office.

But he pulled me aside and just thanked me for caring about the case and for the work that I’d done on it. And that’s how we know each other.

Carmen: It’s heartening to hear your view about what you think will happen with that case. The part that’s so painful is watching what seems, at least to me, to be clear, kind of politically motivated prosecutions. It’s not something that we are used to in this country, and I hope we never get used to it.

Ben: Could not agree more with that. It is one of the luxuries of the last eras that we have lived in. We can say things like “a grand jury will indict a ham sandwich,” and we treat a grand jury as though it’s not a real civil liberties protection.

And that’s because we have not seen governments that actually are systematically committed to political prosecutions and to the systematic violation of people’s civil liberties. And once you have that, it actually matters that, one, the grand jury will not bring one of the three cases against Jim, and it matters that no prosecutor other than Lindsay Halligan is willing to walk in and ask for an indictment of James, because there are rules about how you behave in front of a grand jury.

We’re seeing—and going to see more—the wisdom of a lot of civil liberties protections that we kind of thought had faded away and were no longer of great use. And really the reason they were no longer of great use is that we all thought we were past that.

Carmen: Yes.

Ben: And we’re not.

Carmen: But let me ask you, Ben, because you said something that stopped me for a moment. You said that the opposition party has to agree with these principles that we have come to value, which made me think that you were suggesting that the Democrats are not as committed to those principles as you would want them to be.

Ben: Oh, no. I mean, we had four years of an administration that was a Democratic administration. So you ended up in a situation where if you voted for Kamala Harris, you were voting for the normal bipartisan understanding of what the Justice Department is—normal course of business.

And on the other side, you had no commitment to it at all. Donald Trump, to be fair to him, was completely candid that he was going to go after his political enemies. He wasn’t lying about it. He wasn’t hiding the ball.

Carmen: This is great. When have we ever had a moment where you say, “well, to be completely fair to President Trump”—like, he was really clear. He was about where you know…

Ben: He lies all the time, but he never lies about his emotional state. And I love it. I love it.

And he told you exactly what he was going to do. On the one hand, you have a commitment to these pre-political commitments. That right needs to be entirely bipartisan. Now, on the other hand, you have a commitment to shredding them.

Carmen: So it’s the acquiescence of the party in power to Trump’s perspective that is the real challenge—that we don’t have bipartisan—

Ben: It is not enough to have a party in power that is respecting these norms. You have to have a party out of power also that says, “Yeah, we’re going to change tax policy. We’re going to change civil rights enforcement policy. Yes, we’re going to go after blah, blah, blah. But of course we share these pre-political commitments.”

And that is one thing we have lost in a big way.

Carmen: But I guess I want to make sure—because one of the hopeful things that we’ve discussed is your, I think, admonishment slash encouragement to the work of citizens, your civic and social commitment to what you believe this country should be and how you execute on that commitment.

I sit here at Oberlin with lots of passionate Oberlin students who I believe at their core want to change the world for good. They want to meet the world as it is, so they’re not naïve about what the world is. And I’m wondering what you might say to that 18-, 19-, 20-, 21-year-old student at Oberlin about this admonishment of their role in committing to a type of citizen engagement that might result in a different outcome than we see at this moment.

Ben: The first thing is don’t lose heart. America’s been in worse situations—even recently. I was born in 1969. Nineteen sixty-eight was a really bad year. We have some political violence now. It’s nothing compared to what we had then. And we will go through rough times again.

So that’s thing number one.

Thing number two: we like to focus—and rightly so—on all of the liberty that is being lost, all of the terrible things that are happening. But I want to stress, you still have the right to go out and make your voice heard.

I’ve had some pretty difficult interactions with police recently, but nobody’s stopping me from speaking. Nobody prevents me from doing some fairly flamboyant stuff to make my voice heard.

And it’s easy to let the fact that the space for political engagement is contracting make you think that there is no space at all. But there is. And I see every day a lot of people doing a lot of beautiful things that make a difference.

Some of them are at the level of political organizing, and some of them are at the level of housing people who need homes. There are a lot of people in my neighborhood, this area of Washington, who are afraid to take their kids to school because they’re afraid of ICE.

There are neighbors who pick people up at school and make sure that kids of undocumented migrants can get to school. And so the levels at which you can be helpful—and be useful—

And by the way, putting on a dinosaur costume and dancing and wiggling a dinosaur in front of ICE turns out to be super effective.

Carmen: Oh my gosh.

Ben: I would not have predicted that.

Carmen: That’s right.

Ben: And so the idea that my imagination is the limiting factor of what works turns out to be wrong. I love to flatter myself that it’s all up here, but it’s not.

There’s some idea that you’re thinking of that might be the next big thing. The instinct to be intimidated out of being engaged is one of the scariest things—and you need to get over that.

Carmen: So perfect. For me personally, and for our students in particular, at the end of our podcast we oftentimes ask what it means to run to the noise. Given the name of this podcast, what does it mean to you to run to the noise?

Ben: It’s such a wonderful name for a podcast. I was actually thinking about it this morning before we were talking.

In many ways, over the last 30 years, I have lost touch with the most Oberlin sides of me. And in the last two or three years, I have gotten back in touch with my inner disruptive troublemaker—and I found that I had missed him quite a bit.

Carmen: Oh, that’s fantastic. That is fantastic.

Ben: The other day I was down at the No Kings protest, and I was in back of these two inflatable Tyrannosaurus rexes, and I did not feel like they weren’t my people. Oh, I love it.

There’s a picture of me in my office briefing President Obama, and hanging next to it is a picture of me from my freshman year with my hair down to here, climbing out of the reflecting pool in front of the Capitol, which I had just waded across, dripping, with a big grin on my face.

And there was a time when I separated those two people. And now I’m just like, they are one. We live in ridiculous times. And I would still walk into the reflecting pool, and I would want President Obama to know that.

I love it. I love it.

For many years, I was the model think tank scholar in Washington. I did not register to vote on the basis of party in Washington, because even though not being registered as a Democrat effectively deprives you of the right to vote, I didn’t want to be associated—to have a political valence. I’ve never given a political contribution. I religiously stayed away from demonstrations.

And my job was to give nonpartisan expertise and guidance to administrations and members of Congress and other policymakers irrespective of party. And I took that—I still take that—very seriously.

And then one day it stopped working for me. For two reasons.

One was the whole premise of that way of being was that there were two great political movements in this country: one of the center right, one of the center left. Both were going to be in power at different times. Both were recognizably democratic actors in the small-d sense. And both would need assistance. And so my job was to be the assistance.

And yeah, sometimes I would agree with one politician more than others about all kinds of things. But I just don’t believe that anymore.

Now there is one movement in the country that is solidly democratic—pro-democracy. And it, by the way, includes conservatives and includes liberals. And there’s another movement that is frankly authoritarian.

And I never signed up to be nonpartisan between authoritarianism and democracy. That was not the game. Like, I have a big tent. My tent covers a huge range of views. But authoritarianism isn’t in it.

And so once it occurred to me that that was the environment that we were living in—and that was in 2016, 2017—it started really breaking down my sense that I wasn’t allowed to be politically involved.

And then the second thing that happened was that Russia invaded Ukraine. And in a way that is an entirely different conversation, I came to care about that very deeply, partly because I mentor a bunch of Ukrainians ranging from teenagers to young adults and activists. And I’ve spent a lot of time with the Ukrainian community.

And one day I was going by the Russian Embassy, which is just a prominent building on Wisconsin Avenue, and I was driving by it and I saw it. And it’s big and looks like a movie screen.

And I tweeted that somebody needed to project a Ukrainian flag on that building. And it got a lot of retweets and everybody seemed to think it was a good idea—and nobody did it.

A few weeks later, it just occurred to me: if someone was going to do this, it was going to be me.

So I did. And I have been, ever since then, doing projection operations in support mostly of Ukraine, in different parts of Washington and in 11 capitals around the world where there are Russian embassies that I don’t think I’m going to get arrested for projecting on—although I’ve gotten close a few times.

And I’ve done some other projection operations as well, including trying to get people to vote. Including some non-projection operations involving things like planting sunflowers—which are a Ukrainian symbol—in front of the Russian Embassy. Things to taunt.

And I have been increasingly doing stuff that is not directed at the Russian Embassy, but is directed at the U.S. government about Ukraine. Since our policy has changed so much.

I feel like my fundamental run to the noise instinct is back. When I was an Oberlin student, the idea of not getting involved would have been unthinkable to me.

Ben: Then I let myself be convinced—by the way Washington worked, and worked for many years—that it was better for me to make a point of being uninvolved. And I did.

I had to learn to unlearn that. If people want to think less of my think tank scholarship for that, that is fine. They’re entitled to do that. But I am not interested anymore in pretending—not that I was pretending—but I am not interested in not being involved in both the domestic and international struggles of democratic polities against authoritarianism.

Carmen: And if we take your admonition to be the truth, which I agree that it is, this is what is going to be required.

Ben: If I didn’t think so, I would be doing something else. Yeah. But everybody’s got to get a little bit out of their comfort zone.

I don’t believe in political violence, right, of course. But I do, of course, think we all need to be thinking about: what is the thing that I would admire somebody else for doing that I would never dream of doing?

And then ask yourself, why is it that you would never dream of doing that?

And for me, one of those things was being a flamboyant protester and drawing attention to something not by something that I said about it—not by an analytical point—but by a more demonstrative exercise. Something that I did about it, exactly. Or something that I did to dramatize it.

I actually can’t do anything about Russia in Ukraine. But I can do something to make the ambassadorial staff know that we in Washington—my community—judge them, and we want them to know that they are responsible.

The other thing for me goes back to Thoreau and Emerson, and has more modern articulators in Gandhi and Martin Luther King: that good men cannot obey the law too well.

And there are things that you might want to do that don’t have a negative moral valence, but are against the law.

And so the last time I did a projection operation, it was not against the Russian Embassy—it was on the Washington Monument. And a large number of park police showed up, and they confiscated all my lights and they confiscated my camera gear.

I’m not going to pretend to be a victim of that. I walked in clear-eyed. If they charge me, I’m comfortable with being charged. If they don’t give me my stuff back, I’ll replace it.

And I don’t think everybody should be doing civil disobedience stuff, because some people have more to lose than other people, and I’m very respectful of that. I can live with a misdemeanor on my record for having done that.

These are things that seven-years-ago me would have never said. And I think that’s how I run to the noise.

Carmen: I love it. I think that’s so powerful, and I think we’ve found a way to end on a hopeful note, Ben. There you go. That’s it. That’s as hopeful as we can get—and powerful.

Thanks for listening to Running to the Noise, a podcast produced by Oberlin College and Conservatory. Our music is composed by Professor of Jazz Guitar Bobby Ranza and performed by the Oberlin Sonny Rollins Jazz Ensemble, a student group, created through the support of the legendary jazz musician.

If you enjoyed the show, be sure to hit that subscribe button, leave us a review, and share this episode online so OBies and other folks can find it too.

I’m Carmen Twillie Ambar, and I’ll be back soon with more great conversations from thought leaders on and off our campus.