Brett Tolman, Right on Crime Executive Director and former Utah United States Attorney, is this week’s guest on Liberty & Justice with Matt Whitaker, Episode 20. Brett and Matt discuss the Supreme Court’s term including recent opinions like Dobbs-which overturned Roe- and the New York conceal carry case plus conservative criminal justice reform. Every episode of Liberty & Justice can be watched at Whitaker.tv.
SAVE MISSOURI VALUES PAC is this week’s sponsor.
Brett L. Tolman is the executive director for Right on Crime (rightoncrime.com). He was a leading figure in the drafting and passage of the First Step Act, one of the most sweeping reforms of the federal criminal justice system in decades. Tolman continues to advise the White House and many members of Congress on such issues. He is an attorney and founder of the Tolman Group focusing on public policy and government reform. Previously, he was a shareholder at Ray Quinney and Nebeker and served as chair of the firm’s White Collar, Corporate Compliance, and Government Investigations section. For the past 10 years, Tolman has defended corporations and executives in all manner of state and federal criminal and regulatory actions across the country.
Prior to entering private practice, Tolman was appointed by President George Bush in 2006 as the United States Attorney for the District of Utah and held that office for nearly 4 years from 2006-2009. As U.S. Attorney, he was responsible for cutting-edge cases addressing such issues as international adoption fraud, mortgage fraud, international marriage fraud, sex and human trafficking, terrorism, and breaches of national security. In 2009 he handled the prosecution of Brian David Mitchell, the alleged kidnapper of Elizabeth Smart. From 2008-2009 he was selected by Attorney General Michael Mukasey to serve as special advisor to the attorney general on national and international policy issues affecting United States attorneys and the Department of Justice. Prior to his appointment as U.S. Attorney, Tolman served as chief counsel for crime and terrorism to the United States Senate Judiciary Committee.
During his career, Tolman has testified multiple times in the United States Congress and assisted in drafting and passing many pieces of legislation affecting state and federal criminal justice systems. These include the First Step Act of 2018, the Corrections Act, the Sentencing Reform Act, the Justice for All Act of 2004, Protection of Lawful Commerce in Arms Act (2005), the Violence Against Women and Department of Justice Reauthorization Act of 2005, the USA Patriot Improvement and Reauthorization Act of 2005, and the Adam Walsh Protection and Safety Act (2006). He is a frequent contributor on Fox News and No Spin News with Bill O’Reilly.
SAVE MISSOURI VALUES PAC is this week’s sponsor.
Matthew G. Whitaker was acting Attorney General of the United States (2018-2019). Prior to becoming acting Attorney General, Mr. Whitaker served as Chief of Staff to the Attorney General. He was appointed as the U.S. Attorney for the Southern District of Iowa by President George W. Bush, serving from 2004-2009. Whitaker was the managing partner of Des Moines based law firm, Whitaker Hagenow & Gustoff LLP from 2009 until rejoining DOJ in 2017. He was also the Executive Director for FACT, The Foundation for Accountability & Civic Trust, an ethics and accountability watchdog, between 2014 and 2017. Mr. Whitaker is Author of the book--Above the Law, The Inside Story of How the Justice Department Tried to Subvert President Trump.
Mr. Whitaker graduated with a Master of Business Administration, Juris Doctor, and Bachelor of Arts from the University of Iowa. While at Iowa, Mr. Whitaker was a three-year letterman on the football team where he received the prestigious Big Ten Medal of Honor.
Mr. Whitaker is now a Co-Chair of the Center for Law and Justice at America First Policy Institute and a Senior Fellow at the American Conservative Union Foundation. Matt is on the Board of Directors for America First Legal Foundation and is a Senior Advisor to IronGate Capital Advisors. He is also Of Counsel with the Graves Garrett law firm. Whitaker appears regularly to discuss legal and political issues on Fox News, Newsmax and other news outlets. He splits his time between Iowa, Florida and Washington, D.C.
Intro [00:00:00] Matt Whitaker, former US acting attorney general. This is such a great conversation about America, our future, what's going to save our republic. We have a great football player. Matt Whitaker is here, Matt. They tried to bury me. They didn't realize I was a seed them. Whitaker the acting U.S. attorney. General under President Trump is going to be an unwavering supporter of law enforcement. Welcome to Liberty and Justice with your host, Matt Whitaker. Today's episode is sponsored by Save Missouri Values PAC.
Matt Whitaker [00:00:34] Welcome to Liberty and Justice. I'm your host, Matt Whitaker. You can catch our premiere every Friday 7 p.m. on CPAC NOW. You can watch every episode. Whitaker.TV. Make sure you sign up for our daily newsletter and we're available and where the good podcasts are distributed. But I'm joined with my friend Brett Tolman today. Brett, how are you?
Brett Tolman [00:01:00] I'm doing great, Matt. Thanks for having me on.
Matt Whitaker [00:01:03] Brett and I were U.S. attorneys together in the Bush administration. We've worked we battled side by side on a lot of things. The first time we ever met, I called you on the phone looking for your help with some immigration and fought multistate immigration enforcement. I think it was like Monday Night football. And we had great conversation and became fast friends. So, you know, you keep getting better with age and I don't that's just that's the real challenge.
Brett Tolman [00:01:28] I know I have a little more hair than I used to. And you you went more streamlined.
Matt Whitaker [00:01:34] Yeah, well, it does reduce wind, drag and so on faster than I ever had. And what I found out today is I'm not necessarily as fast in the airport as I anticipated. So thanks for being patient. We're starting a few minutes late and I want to jump into it, but I think since it premieres on Friday, you know, we this week we're seeing some Supreme Court rulings today, which is Thursday. We had the New York City gun and pistol club case come out. I saw you were on Twitter talking about that. And so why don't you tell us a little bit about that case and what it means for, you know, sort of Second Amendment rights?
Brett Tolman [00:02:17] Yeah. You know, the Bruin case is an important case and it's surprising that it's lasted as long as it did. You know, the New York passed a law in 1913 where they indicated that if you wanted to carry in in in New York City, you were going to have to show that you had more than just the, you know, reason to defend yourself. You had to have an additional reason that justified you having a concealed carry. And, you know, pretty outrageous given that the Constitution is its it grants an affirmative right in the Second Amendment. This flips that the New York law flipped that on its head and required the burden to be on the citizen to show that there was extra reason why they, you know, required it. And so I was not shocked by the decision 6 to 3. I was a little, I guess, amused by President Biden's statement on it. And I'll never forget,
Matt Whitaker [00:03:11] I want you to tell me a little bit.
Brett Tolman [00:03:13] I don't think I'll ever forget seeing a sitting president say about a Supreme Court decision that it was inconsistent with common sense and the Constitution when this was, in fact, the most common sense decision you could come up to it up with and and the most consistent with an amendment that grants rights to the Constitution. So, I mean, Biden's out of touch for sure. But Matt, I, I saw that and I thought, you know, the left doesn't care about any of the merits or the law or the the, you know, the logic of the argument. They only care about winning on a gun rights issue. They want to ban a gun or they want to, you know, pass a law that regulates that. Right. And that's just, you know, troubling to me. And it should be that too many conservatives across the country.
Matt Whitaker [00:04:03] Right. And and I, I keep saying and I'm certain you are going to agree with me, but I keep saying that this design of the of the Constitution, you know, they can change it if they want to put, you know, some further firearms restrictions, they could go do the hard work of passing a constitutional amendment, getting it ratified. Same thing with, you know, abortion, same thing with many issues that they just disagree with the Constitution. But what they can't do is this executive order or these kind of, you know, this, you know, kind of legislative actions that are inconsistent with the Constitution. And, you know, I really think, you know, this is where I'm proud of conservative legal thought. And you and I kind of have been part of that movement. You know, I think Justice Scalia is sort of was on the on the forefront of that as well. You know, that that kind of put it back in the constitutional box. And I think, you know, one of the cases I'm excited about that's still on the docket, I believe, is the West Virginia versus EPA case, which could be the opinion that I think gets to the major issues doctrine, which is, you know, essentially says these bureaucrats can't regulate everything. You know, OSHA case mentioned Gorsuch, mentioned it in concurrence. I got excited about that. I think this EPA case I was talking to. Attorney General Morrissey about it. I think, you know, that is going to be at the heart of this case. And, you know, we're going to get to the point where Congress and the president can only do so much. You know, if you want to actually regulate an area, you need to pass a specific law that, you know, gives that power instead of just these broad grants of power that that, you know, are used for vaccine mandates and everything else.
Brett Tolman [00:05:55] Well, I think what you raise is not spoken about often enough. The fact that the Democrats, the left, have decided they're no longer going to try to do that heavy, you know, labor that that work that you have to put into it if you want to change a fundamental core, you know, part of this country, the Constitution or our laws instead, then they'd rather apply, you know, the pressure of the mob against justices of the Supreme Court or the pressure of the mob against police, the pressure of the mob against, you know, local leaders, school boards. And you see that pattern happening over and over. And because they figure it out, that's a that's a way for them to get what they want without having the support of the majority in this country. And I don't think I've ever heard anyone sort of capture it like you did. I like that a lot. And I'll be looking to maybe, you know, share that with, you know, and I will give you I'll give you credit.
Matt Whitaker [00:06:50] Lines, repurpose. You know, I've been often accused of a lot of things, but never being a legal giant by any means. But I am a common sense Iowan that sort of sometimes, you know, like you've got to start with first principles. And, you know, it's the constitutional structure that we have. It's the powers, you know, enumerated powers, the rights that were, you know, that are protected. And I think we're finally getting back into that where it makes sense that because you and I are about the same age, we went to law school and many of these cases that are kind of being reversed or being trimmed up and rationalized to make it coherent, we used to scratch our heads. I mean, I remember I spent, you know, we spent a week in con law doing Roe v Wade and it never made any sense as to the logic and reason. It really, I think, convinced me that these judges can do whatever they want at the end. And as long as they make it convoluted enough, there's really nothing anybody can do about it.
Brett Tolman [00:07:48] Yeah, and that's an important point, is the fact that, you know, the decisions come out and if they have manipulated and wordsmith their way into, you know, reversing or taking, you know, more authority than they really have, you know, we have to deal with that. But now you have a Supreme Court that is really giving a lot of credibility to states rights. And I'm fascinated to see the turn in this country to allow the states and and, quite frankly, it's it's frustrating and discouraging to see that we're going to have riots, you know, before the Dobbs, you know, decision and after the Dobbs decision. And and that's going to be their answer to what, you know, to try to change the law again. And sadly, they still don't acknowledge the basic premise of that decision and what the Supreme Court's going to decide, which is the states get to be the ones who pass law, you know, in this area. And, you know, if you if you are in a liberal area and that state wants to allow for, you know, abortion rights, then they'll be able to do it. It's just not a nationally recognized right. And that should should be a safeguard, you know, from from the court making rights that are not enumerated in the Constitution. So I yeah, I hear you on that. I hope that, you know, we don't have too much civil unrest. But, you know, I have family and friends in other cities that are saying they're seeing the warning signs all over.
Matt Whitaker [00:09:14] Yeah. And, you know, I don't want to take this discussion off the rails already, but I mean, I guarantee you the Congress is not going to have hearings about that violence decision. And you know what? You know what the purpose of that violence and and the intent of the of the rioters. And nor did they do anything in the summer of 2020 when you had, you know, so many police officers in so many cities injured, hurt and just, you know, chaos and anarchy. But but you're right. I mean, the the left has really done a good job of having a small, violent, vocal minority that's menacing that that menace. You know, if you remember when I was at the Department of Justice this last time, you had, you know, MAXINE Waters, a member of Congress, saying, you know, go up and get in their faces, make them uncomfortable talking about Trump's cabinet. And, you know, that is just that's you know, we had to return to a place of civility where we actually don't shout each other down when we have discussions. We agree that some of these issues have to be resolved at the ballot box by the people. And, you know, politicians maybe need to start leading and expressing what they stand for. But this is the other. Saying that, you know, this is a great discussion. You're just motivating me to sort of get deep in the recesses of, you know, my thoughts. But, you know, I think this is what the most scared of is actually having to compete on the issues for so long, including eight years of Obama. You know, they presented themselves as centrists and moderates and people that, you know, didn't really have this radical left wing agenda, but then they kind of governed from that place. Now, I think that's all been stripped away. You see it for exactly what it is, which is, you know, these big city elites that are left leaning, that are completely not with the kind of mainstream of American culture and society and, you know, the things they believe in, whether, you know, it's abortion up to the time of birth or whether it's, you know, kind of nameless, faceless bureaucrats in Washington, D.C., being able to mandate vaccines or regulate every ditch and, you know, sometimes creek, you know, in Washington, D.C., it's it's you know, I think we're really getting back to a restoration of the power to the people and acting by and through the representatives.
Brett Tolman [00:11:41] I hope so. I kind of marvel at the disdain that the elite sort of clubs in each of these large cities that they hold the rest of the country in. And yet when you peel away their you know, their indignation and when you peel away and look at their arguments and, you know, the basis for for what they they are pursuing, it falls apart. And I think you're right to acknowledge that they don't want to actually have a discussion on on the merits. You know, you look at what happened in Uvalde, Texas, and the discussion is all centered on the left, on things that they want to do with gun rights and not necessarily with protecting children. We're not having a meaningful discussion about what we can do as a country to protect our children, because none of those measures in that bill that the compromise gun bill, none of the measures the Democrats have been pushing, would actually provide safety to those children. And that's what is alarming, is that they're willing to, you know, go a direction because politics is raging within them rather than be on the substance or the merits of an issue. And I don't know when that change occurred, but somehow in the last 15, 20 years, they abandoned the and maybe it's because they knew they were on the losing side on so many issues. Yeah.
Matt Whitaker [00:13:10] Yeah. You might be right. I just got back from I've been campaigning in Iowa, I guess, I don't know. Campaign for what? Giving speeches. I had Rick Grenell come out for a couple of days.
Brett Tolman [00:13:21] And that's great.
Matt Whitaker [00:13:23] To speak.
Brett Tolman [00:13:23] Yeah. What are you campaigning for?
Matt Whitaker [00:13:25] I'm not you know, it looks like that's going to be misconstrued by the people that, you know, that wants to show. I'm not campaigning for anything. I was just going and helping some counties raise some money. Frankly, Dallas County did a couple of events for them, and.
Brett Tolman [00:13:39] That's where it's at the local level.
Matt Whitaker [00:13:41] It was so good to not only see so many friends and but to get around the state and hear what's on people's minds. And, you know, I would say what is being reported nationally is exactly what they're concerned about. You know, it's inflation, including the price of gas, is is crushing a lot of families right now. It's, you know, things like baby formula shortages and, you know, things that, you know, not having the empty store shelves. I mean, that's that's a that's a that's a very concerning thing and creeping socialism. I mean, they're they're worried that, you know, every one of these sort of emergencies or, you know, laws that are passed are encroaching on their rights and their and their freedoms. And that's.
Brett Tolman [00:14:22] Yeah.
Matt Whitaker [00:14:22] I think that's very well.
Brett Tolman [00:14:23] I hope the Democrats are suffering, you know, suicide by bad policy. I mean, I can I mean, you look at every policy that they are rolling out right now from, you know, what they're doing to gas prices, to the baby formula, to the immigration issues, the fact and all that's coming across. You know, the terrorism terrorists that are coming across our borders. And there isn't a policy right now that they've weighed in on that they have a good idea or that they're pursuing a solid, you know, ability to to resolve the issue. I can't think of a single issue.
Matt Whitaker [00:14:57] Yeah. I went to one event last night where my former law partner, Jack Whittaker, who's the Senate majority leader, had the governor, Kim Reynolds. And Jack said, you know, we have followed a fairly simple plan, which is we see what they're doing in Washington, D.C., and we do the exact opposite. So what, you know, is probably not a bad idea.
Brett Tolman [00:15:21] It's a good idea, actually.
Matt Whitaker [00:15:23] Yeah. So I. Yeah.
Brett Tolman [00:15:25] Go ahead. I just I would just quickly add to that. I do have some hope that a lot of people ask me, is there hope? And I think it is from leaders like that across the country. And there are some great, you know, you know, leaders, local leaders and state leaders that I think are going to be going to save this country and it's not going to come out of Washington, D.C..
Matt Whitaker [00:15:49] I couldn't agree with you more. And you look at states like your home state of Utah, my home state of Iowa, places that are a long way from Washington, D.C. And I think, you know, the people get it. You know, there's more common sense and just a belief in the individual's, you know, ability to take care of themselves and, you know, but not ignoring when people have needs. And so it's it's pretty simple, you know. Let's go back. We mentioned the Dobbs case, which is the you know, the abortion case that's pending could come out any day. You know, the draft opinion was leaked. I expect it'll be different from the final draft. But you know, where I for me, the whole question is, where's Roberts going to come out on this? I think, you know, and in these this recent gun case that came out, he was in the majority and but he didn't write the opinion. What we I guess we know from the leaked opinion that Alito wrote the majority opinion. And. DOBBS Where do you what do you think Roberts does in such a hot button, kind of, you know, passionate partizan issue?
Brett Tolman [00:17:01] Yeah, you know, great question. I, I don't think that Roberts will be with Alito. You know, if he was before the leak, I don't think he will after. And that's sort of, you know, bad to say, but I've never seen him as a profile in courage. I was actually working in the Senate Judiciary Committee when his nomination came through.
Matt Whitaker [00:17:22] Yeah, we.
Brett Tolman [00:17:22] Remember.
Matt Whitaker [00:17:23] That. He was a conservative.
Brett Tolman [00:17:25] I remember joking with Gerberding. I was joking with Reed O'Connor at the time, who's now a federal judge in Texas. And I said, you know, I kind of got a feeling that that this guy is way too smooth. He was just untouchable in his hearing. And he had an answer that satisfied everyone. And I said, that doesn't seem to me that, you know, a hardcore conservative is getting put on the court. If he's you know, if he's not upset, upsetting or riling up the left. And Reed agreed. And it turns out it was it was true. Every tough issue Roberts has disappointed.
Matt Whitaker [00:18:04] Yeah.
Brett Tolman [00:18:05] You know, so we'll see we'll see what he does. But, you know, there's there's hope that it's more than a54. But, you know, I doubt it.
Matt Whitaker [00:18:14] Yeah, I would agree. I share your pessimism for where Roberts can come out, hopeful that maybe he joins in the outcome. But, you know, sort.
Brett Tolman [00:18:24] Of concurrent.
Matt Whitaker [00:18:26] Work. But, you know, I thought I thought Alito's opinion and quite frankly, Thomas's opinion in this in this Second Amendment case were very phenomenal. I would encourage even non-lawyers to go read these opinions when they're available, because, you know, I like to say I'm a lawyer because I can read. But I mean, you know, obviously I know how it fits together and understand how the system works. However, I think every citizen should read these important Supreme Court cases because they'll understand, you know, the reasoning and logic behind it.
Brett Tolman [00:18:57] Yeah. And I wish more that our on the left would actually read them. Yeah, I would venture a guess nine out of ten that are going to be rioting or picketing or doing. I will not read the decision.
Matt Whitaker [00:19:10] Yeah, you're right. You're right. So what? What keeps you busy right now? Brad, what are you. What are you up to? I know you have your ranch that you like to spend a lot of time on.
Brett Tolman [00:19:21] Yeah. Yeah, I do. And I haven't ever been spending as much time as I'd like to with the horses. You know, man, I guess I never thought I loved my time in DOJ and, you know, spent over a decade as an AOC and then four years as a U.S. attorney and love that. I never really thought, though, I would have a job that I enjoyed more. And I think I do now. I'm executive director of Right on Crime, which is a conservative organization that that really wants to change the criminal justice system, but not like the left has been doing. Instead, you know, I think there are adjustments and changes that can be made where we preserve public safety. And and that's that's been fun for me, too, to work with governors like Governor Stitt in Oklahoma and Governor Reeves in Mississippi. And, you know, Governor DeSantis and Governor Abbott, these are well-meaning conservatives who know that the criminal justice system needs accountability. We certainly need to punish bad and violent criminals. But every American in this country has had a touch with the criminal justice system or someone close to them has. And so I think we all know that we can't continue down this path of, you know, such high incarceration without an emphasis on reducing the crime rate and recidivism. And so that's our focus. And, you know, I'll continue to do it until I guess I'm more gray and, you know, something else comes. Yeah. Yeah. A little furrier there.
Matt Whitaker [00:20:49] I just. I wonder if, like, criminal justice reform is the right term for the projects that you work on. You know, because, you know, I think.
Brett Tolman [00:20:58] Yeah, I think we're straight away from it. Yeah.
Matt Whitaker [00:21:00] I think we've seen what sort of these Soros prosecutors in places like San Francisco, Los Angeles, New York, Washington, D.C.. How they have really perverted the banner of criminal justice reform into something that is really anti public safety more than. Yeah, criminal justice for me. It is putting, you know, demoralizing the police. You know, you have the New York prosecutor just as one example, you know, detaining, ah, not prosecuting 80% of the gun crimes and yet they have, you know, shooting problem. Well, I mean, that I, you know, I, I the logic makes no sense. If you want to, you know, get trigger pullers off the streets, you should prosecute people that have guns illegally.
Brett Tolman [00:21:48] Yeah. I mean, you look at Gascon and L.A., you look at New York and San Francisco, they're this isn't reform. What it is is it is an overtaking of those positions by individuals who have a fundamental, core problem with the fabric of this country. And and so they go into the job and they decide, you know, hey, here's a cross-section of the population that's been picked on historically by the police and by prosecutors. So now we'll cut them slack and we're not going to prosecute anything. And what you see is a lot of those are, you know, communities of color where they're actually asking for more police presence and better prosecutions in these communities because crime rises so fast and they become victims of those crimes. And it's an ignorant and and offensive position, I think, to for you and me, who who value what we did as prosecutors. It's it's very offensive to watch them sort of tout this as enlightened, you know, efforts on their part when we know if you can't keep your community safe, the basic function of government has failed. Right.
Matt Whitaker [00:22:57] Right. I agree. So we're right on crimes in national organization. You've been running it for, I think a couple of years now almost.
Brett Tolman [00:23:04] Yeah, we are. You know, we're in 11 states. When I started, we were in five. We hoped to be in over 20 states. And our goal is to be in all of the conservative states. We want to be there first because we think conservatives ought to be the ones that take control of, you know, making any change or holding the justice system accountable. And, you know, a lot of people don't realize you can you can reduce crime and reduce recidivism through listening and learning from all the other states that are working on these issues. I mean, the first step act that you and I were part of working on that came as a result of some changes in Texas where they incentivized inmates to work some of their time off by, you know, bettering themselves and, you know, getting job training and education. And and that was, you know, brilliant. And I think, you know, President Trump was right to try to do that on a national scale.
Matt Whitaker [00:23:57] Yeah. And we know I mean, this is the nice thing about the federal Department of Justice is you have, you know, the Bureau of Justice Statistics and you have data and you can see outcomes after you put people through programs. And that's, you know, I think one of the most important things and one of the things that, you know, I, I think I was a voice for is, you know, we you know, I agree. Let's let's let people get, you know, better themselves, teach them skills. So, you know, we know that the way to reduce recidivism is, you know, obviously job training, which is a huge emphasis right now in the conservative version of criminal justice reform and drug treatment and, you know, kind of life skills. I mean, those are so important. You know, a lot of these people don't have, you know, the ability to function in society because they never learned, you know, how to take care of themselves, how to resolve conflict, those kind of things. So.
Brett Tolman [00:24:54] Yeah, you know, we just started a program where we're, you know, we've done it in Mississippi. We're going to do it in Florida here soon. We've done it in Kentucky and in Texas. And it's very simple. We we we pull together leaders of companies in the area, large and small companies, and we bring them in and we have them meeting with folks that are in corrections, folks that are in, you know, groups that are involved in, you know, reentry reform. And that and their whole focus is just how do we employ more of those that are getting out of out of prison? And they have just exploded with enthusiasm. I see these leaders of massive companies that have been participating with us on this and saying, hey, we have a huge, you know, a workforce shortage. And this is going to answer a lot of our problems. And and so it's things like that that can be done. And you're not compromising. You're increasing public safety.
Matt Whitaker [00:25:50] Right. Well, I mean, that's you know, you're doing it. You're doing great work. I'm proud to call you my friend. I look forward to.
Brett Tolman [00:25:56] My boss.
Matt Whitaker [00:25:58] Being at your ranch sometime soon. Last time I was out, we just weren't able to connect, but we will.
Brett Tolman [00:26:02] Look forward.
Matt Whitaker [00:26:02] To do it again soon. I love the mountains in the summer especially, and I look forward to it. All right. Well, thanks for being on the show. And Liberty Justice, you can catch us Fridays 7 p.m. speak now. Otherwise it would aggregate TV or anywhere. Podcasts can't be found until next time. Oh. Oh. Oh.