MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Protestors in Ferguson, Mo. turn their attention to the county prosecutor. Raising concerns of past bias, the Department of Justice reaches a nearly $17 billion settlement with Bank of America over mortgage misconduct. And the Supreme Court blocked same-sex marriage in Virginia.

MS. DIANE REHMHere for the week's top national stories on the Friday News Roundup: Ruth Marcus of The Washington Post, Stephen Dinan of The Washington Times, and Eleanor Clift of The Daily Beast. And since it's Friday, you can watch a live video stream of the program at our website, drshow.org. Do join us. Give us a call at 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or send us a tweet. And welcome to all of you.

MS. RUTH MARCUSGood morning, Diane.

MR. STEPHEN DINANGood morning.

MS. ELEANOR CLIFTGood morning.

REHMGood to see you all. Eleanor Clift, the governor of Missouri has now ordered the withdrawal of the National Guard. Now protestors are focusing on the prosecutor. Talk about why.

CLIFTWell, the prosecutor, Mr. McCulloch, has been in place for a number of years. He's been re-elected by pretty wide margins in that county. But he does not enjoy any confidence or any trust in the black community. In part, it's historical. His father was a member of the police force and was killed in the line of duty by an African-American. Many members of his family have served on the police force over the years. And so the feeling is that he has a natural bias towards the police. And so the community would like him to recuse himself from this particular case, not walk away from his position but to recuse himself.

REHMHow likely do you think that will be?

CLIFTIt doesn't look likely. The grand jury has begun meeting. He is the lead prosecutor although he is not personally presenting the evidence. And the two people presenting the evidence, one is a 27-year veteran and prosecutor, and the other is an African-American woman, I believe. And the prosecutor, McCulloch, has basically said he will only step aside if the governor orders him to. And the governor has basically said, if he thinks he should step aside, he has to do that on his own. It's very political.

CLIFTI mean, I think there is some, you know, belief, concern that this may not end up in a conviction, and nobody wants that on their shoulders. And so it's a kind of a passing of the buck here where it seems to me if you go for jury duty and they ask you if it's any kind of a case involving violence, they ask you if any member of your family's been the victim of violence or this -- and that automatically strikes you. Seems to me that the better part of wisdom would be for him to step aside, but there's so much politics here, it doesn't look like he will.

REHMHow do you see it, Stephen?

DINANWell, you know, it's interesting. The -- he of course has said that he believes we'll be talking into October before the grand jury returns a finding one way or the other, so we'll -- we've seen a lessening of violence over the last couple of nights. And, you know, we may be now in some sort of holding pattern until the grand jury takes action.

DINANIt's interesting that the lessening did coincide with the attorney general's visit up there. And I don't know how much credit he will get, but he certainly probably deserves some credit for being a safety valve for allowing some of the, I guess, some of the anger, some of the steam to come out and seemed to have actually -- he certainly didn't make everybody happy with his visit.

DINANBut he certainly seemed to resonate with the folks that he did meet with, and that may have helped. So, you know, certainly good that the violence is lessening up there day by day. Going forward, yeah, we really are in a holding pattern. And we'll see in October, but we may be faced with another powder keg at that point, like we have been in so many of these other racially-charged situations when the indictment either comes down or doesn't come down.

REHMRuth Marcus, what did Eric Holder accomplish by going to Ferguson?

MARCUSI think what he accomplished was largely the symbolism of essentially saying to the community, everybody, calm down, take a breath. You don't only have to rely on the local prosecution and local authorities in whom, for better or for worse, you have minimum -- or some of you have minimum trust. But we here at the Justice Department are also taking our own look at it earlier in the week. Before his visit, it was announced that they would be conducting their own autopsy, but...

REHMA third autopsy.

MARCUSA third autopsy, but I very much agree with Stephen. Thank goodness this was a calmer week for the citizens of Ferguson, especially in light of the astonishing fact and this really quite horrifying video of another shooting, within 23 seconds, escalating from the police getting out of their vehicle to another man being killed. Thank goodness there was not another eruption of violence in that circumstance. Nonetheless, I think that -- I think it's a very, very hard call. Eleanor raises some interesting questions about the prosecutor.

MARCUSI do think whichever way this goes, it could be a powder keg in October. And I think the symbolism of the attorney general's presence is very important and helpful. But the reality and on the ground of what the Justice Department can accomplish is slightly limited because they can't punish this officer for using excessive force. They can only punish this officer for using excessive force if he violates somebody's civil rights by doing so. And there would need to be some element of racial animus or some other misconduct that would translate this into a federal crime.

REHMWhat do we know about -- all I can say is -- rumors we've heard to the effect that the officer's eye socket has been damaged, Eleanor?

CLIFTI don't think that's been confirmed. But apparently he did go to an emergency room or go to a hospital. I don't think he was admitted. And there was some -- I think what I heard the latest this morning, it's some swelling on his face. So what we don't know is the nature of the altercation that occurred in and near the car. And that's critical. I think the first shot actually was fired from within the car. And questions are, you know, we'll go to the motive of the police officer and did he feel threatened and the extent of his threat? And then was Michael Brown, you know, charging? Or was he running away?

CLIFTAnd there are mixed eyewitness reports there. So there's a lot of evidence here to go through. But I must say, grand juries -- I mean, the line about a grand jury is they will indict a ham sandwich. They basically follow the lead of the prosecutor. That's why who the prosecutor is and, you know, what they're looking for from this grand jury is so important. And of course an indictment is not a conviction. It's only the beginning of a long legal process.

REHMExactly. Sure.

CLIFTAnd I think Eric Holder, the attorney general, did emphasize patience. You know, civil justice, criminal justice especially, takes forever. And it has to be done very carefully. And I think that has to be repeated over and over. And I credit the attorney general for starting that conversation.

REHMAnd what about President Obama's reaction to what has gone on in Ferguson, Stephen?

DINANI think it was obviously a very stark and interesting choice to have Eric Holder go and President Obama to, you know, return to his vacation. Holder turns out to have been an interesting choice for a whole bunch of different reasons. Remember, he is -- I guess the president is technically the chief chief law enforcement officer. But Holder is the chief law enforcement officer for the federal government.

DINANHe has a responsibility to tens of thousands of law enforcement officers who obviously, you know, may have some affinity or a solidarity with, you know, the line, the blue line. At the same time, he was very clear he's a black man who was meeting with protestors who felt aggrieved because of their race in Ferguson, so a very interesting balance.

DINANI have to say I thought he pulled it off fairly well in terms of leaving the situation certainly more calm and, well, I said earlier, allowing the steam to come off of there. But, you know, going forward, he does have to be -- whatever does happen, he does have to be aware of the law enforcement side of this. And we started hearing more about the officer's side, and, you know, the officers' take certainly differs from the earlier accounts. And that'll be really interesting to see how they figure it out going forward.

REHMWhat about the president's behavior?

MARCUSYes. Well, first of all, I have minimum patience with the and then Obama returns to play golf attack on the president. Look, all presidents take their office and their job with them wherever they go. They're perfectly capable of doing it. And this president has not vacationed any more or played -- he may have played golf more. But he has not vacationed any more than his predecessors.

MARCUSSo let's put that aside, and let's concentrate on what he's done and what's appropriate. And I think it is appropriate for the president in a situation that fundamentally involves a local law enforcement situation to make sure that he is there trying to calm -- not there physically, but present with people, trying to calm things down, but not putting his finger too far on the scale one way or the other. We still have investigation that unfolds.

MARCUSYou see the president opened himself up to criticism in some previous issues involving police officers when Henry Louis Gates, the Harvard professor, was stopped by a Cambridge police officer. And the president got grief for calling the police officer's conduct stupid. And, you know, so he is playing a very careful role. I think he's been very judicious -- if you don't mind my using that word -- in his handling of this situation and delegating much of it to Eric Holder.

REHMEleanor, what do you think?

CLIFTI would agree with that. And I think the president himself said, there is an investigation going on, and I don't want to put my thumb on the scale of justice one way or another. I mean, he said it very directly. I mean, clearly, he feels, you know, the burden of being the first black president and maybe feels an extra responsibility with these kinds of issues. He really stayed clear of any emotional involvement really in his first term, except for the one time he stumbled into that incident that Ruth spoke about. He now has, you know, My Brother's Keeper. He's invited, you know, the African heads of state here. He's more directly embracing his heritage, but he's played this right.

REHMEleanor Clift of The Daily Beast. Short break here. And when we come back, we'll talk about Gov. Perry and take your calls. Stay with us.

REHMAnd continuing for a moment on the Michael Brown shooting, Ruth Marcus mentioned the Tuesday shooting in Missouri. Why hasn't there been more reaction to it, especially when there's video footage of the shooting? Unlike in the Michael Brown case, police came out of their vehicle with guns in hand clearly planning to shoot. Ruth?

MARCUSWell, one explanation that I heard that might be convincing or at least relevant is that this is a different jurisdiction. And the police captain in that jurisdiction came out right away and provided information about what had happened. And so the issues that relate to the Michael Brown shooting where it was not known for days and days how many shots had been fired, where the body was allowed to stay there, I think, had some relevance.

MARCUSI also think in the situation with Michael Brown, you had somebody who had grieving parents who were very understandably upset and went public with their concern. And that ramped up people's feelings also understandably. As well, the man who was killed in this Tuesday shooting appears to have had some issues of emotional disturbance, was acting erratically.

REHMI see.

MARCUSAnd that might've affected people's sense of whether the police officer's conduct was somehow justifiable (unintelligible)...

REHMAll right. And the comment on our website, "So Eric Holder met with Michael Brown's family to assure them there will be a full and fair investigation. I'm wondering if he also met with Officer Darren Wilson to assure him of the same full and fair investigation and to assure him his side of the story would also be told." Eleanor.

CLIFTWell, I think FBI agents met with Patrolman Wilson and for, like, four hours.

REHMBut we don't know that Eric Holder did?

CLIFTAnd I don't know whether Eric Holder was part of that.

REHMAll right.

CLIFTAnd on the other shooting, the larger issue that emerged from there is that the man that was killed had emotional problems and that if the policeman had been community-based, they would've known that he had a reputation in the neighborhood, and everybody sort of forgave his erratic behavior.

REHMOh, I see.

CLIFTThat was kind of the larger issue that came out of there.

MARCUSThat's a fair point. And I have to say, when I heard about the shooting, watched the video of the shooting, saw it unfold so rapidly, I was both surprised and relieved that there wasn't more of a public outcry there.

REHMAll right. Let's talk about Gov. Perry who was booked this week on charges of abusive power. He took a beautiful mug shot. What did you think, Stephen?

DINANOh yeah. I've never taken a photo that good in my life. I was at the speech that the governor delivered at the Heritage Foundation yesterday, and he was introduced by Rich Lowry of National Review. And Rich Lowry said that when he needs to get a photo taken in the future, he's going to go down to the Travis County Courthouse to have them do it because, you know, they did such a great -- look, you know, the Tom DeLay sort of -- maybe not pioneered but certainly showed this way for politicians to do this back when he was indicted on corruption charges in Texas.

DINANAnd Rick Perry took it one step further, not only having a beautiful mug shot but conducting basically victory rallies going into and coming out of the courthouse.

REHMRemind us of what he is accused of.

DINANOf Perry. Perry's accused of using his -- so the case is a local prosecutor, the Travis County district attorney, who runs a public integrity unit -- Travis County being the county that has Austin -- so the seat of Texas government, that public integrity unit is the one that investigates Texas State officials. She had a -- I believe she pleaded guilty to it eventually, but she was arrested for driving while intoxicated nearly three times the legal limit for driving alcohol -- blood alcohol to content.

DINANShe refused to resign. Perry wanted her to resign and withheld $7.5 million in state funding. And he said, if you resign, I'll allow the $7.5 million to go to your public integrity unit. If you don't resign, I'm going to veto it. And there are some accusations that his administration offered her another job to try and get her out of there -- out of that job. And so that's the question about, is it fair, is it correct, is it legal to offer -- basically offer money, public money and then withhold public money based on an action of somebody else?

REHMWhat was she investigating, Eleanor?

CLIFTOh, there are a couple of issues having to do with the state hospitals and contributions that were exchanged and possibly kickbacks. And the incentive -- I mean, I think she had a number of things going on. His incentive is, if he gets rid of her, he gets to appoint a Republican. What's been fascinating about this is the support that Gov. Perry is getting, I mean, from The Washington Post...

REHMNew York Times.

CLIFT...the New York Times. Various pundits suggest that this is politically inspired. But if you read the Texas newspapers, I mean, they -- this is now a suit that is being pursued by a judge who is Republican appointed. This is not strictly a witch hunt on the part of Democrats. And there is some genuine abuse apparently involved here in terms of using these funds as coercion. So I don't -- you know, I think this could play out a little differently than maybe some of the national people...

REHMHe's planning to run for president.

MARCUSHe's heading to New Hampshire and then to Iowa. And I've never seen a more impressive case of turning political lemons into lemonade, starting with the mug shot and victory rally. However, I think I need to agree and disagree simultaneously with Eleanor. I think we don't know yet. I think there is no reason to think that this special prosecutor who was appointed, who is a former federal prosecutor who doesn't seem to have direct partisan leanings, that he's some kind of partisan cowboy simply out to get Rick Perry because he wants to get a Republican.

MARCUSAt the same time, the information that he presented in his indictment is troublingly thin. The word that David Axelrod, the Democratic consultant, used is sketchy. And I thought that was an appropriate word because Perry does, as governor, have the right. And I think it's a legitimate use of his authority to say, this woman disgraced her office.

MARCUSAnybody who watches the videotape really would have serious questions about somebody in that role running a public integrity unit. But we don't know -- if there's not more information that the prosecutor has than is already available on the public record and contained in this indictment, I think it was a bad move to turn this into a criminal violation.

CLIFTWell, the Texas...

MARCUSIf there's more, I will stand corrected.

CLIFTWell, the Texas papers are really looking into everything. And they point out that the two Republican prosecutors were arrested on drunk driving charges while Perry was governor, and he never said boo. So wasn't just that he was offended by her behavior, that he had other (unintelligible).

REHMInteresting. What do you think, Stephen?

DINANYou -- well, so Perry was asked specifically about, you know, whether the -- why he's saying this is just politics and asked about issues such as the Republican prosecutor and whatnot. His response yesterday was flat out, look, I agree with all these Democrats who've said that this is a sham. So, you know, the Democrats have certainly given him political cover on this.

DINANI suspect that you'll find a lot of -- going forward in the Republican primaries, this -- it does nothing but help Rick Perry going forward as a Republican candidate. It is interesting that you have Scott Walker, Chris Christy and Rick Perry, all with potential legal trouble, dodging them right now -- dogging them right now, all three Republican -- sitting Republican governors who are considering White House bids.

REHMAnd speaking of governors, you have one in Virginia, a former Republican governor.

CLIFTRight. Well, this has turned into one of the great legal soap operas of all time, slightly sad though. Republican Gov. Bob -- the former Virginia Republican Gov. Bob McDonnell...

REHMRight.

CLIFT...who easily could have been somebody who was talked about as a potential presidential candidate or vice-presidential candidate, instead finds himself -- and I think once again with good reason this time -- on trial along with his now-estranged wife for taking $170,000 or so in gifts and other benefits from a businessman named Johnny Williams who was trying to get state help in marketing and selling and promoting his nutraceutical product.

CLIFTAnd the list of benefits that he gave to the McDonnells is astonishing. But what was even more astonishing this week was the flowering of the governor's defense. We had heard it foreshadowed by his defense attorneys. But basically he got on the stand, and his defense was, I couldn't have conspired with her -- pointing not physically, but referring to his wife -- because our marriage was in too sorry a state.

CLIFTWe weren't communicating enough to conspire together. And, by the way, she is just a whacko and did all these -- was terrorizing the gubernatorial staff and the household staff and doing all these crazy things, and I knew nothing about them.

REHMStephen.

DINANYeah, and went further and said, you know, part of the reason he didn't understand the value of the gifts that had been given to him through his wife from the businessman. So a very interesting defense. It'll be fascinating to see if it's successful. You know, I've got to imagine you're sort of left with the question of, which is worse, going through this public spectacle and having to admit all of this about your marriage, you know, taking a lesser plea and keeping all this under wraps? It's such an interesting -- as you said, it's an interesting soap opera playing out there.

REHMEugene Robinson had an interesting column this morning talking about what a cad McDonnell seems to be.

CLIFTYes, but he does have corroborating evidence. He has an email that he wrote trying to get her to spend the weekend with him, so they could try to recover the marriage. And she blows that off. He does say the Rolodex was gaudy. He didn't really like it, which is a little bizarre. But, listen, she's part of this defense. These are two people who are arguing their defense. They've got some high-powered criminal defense lawyers. They want to stay out of jail.

REHMSo this is a strategy?

CLIFTYes. She -- this is a strategy, but I believe it's probably grounded in a great deal of reality.

REHMWhat do you mean?

CLIFTI think the marriage really was coming apart, came apart.

REHMRight.

CLIFTI think that she was a very difficult person, that she was not comfortable as first lady. She...

REHMBut where after the 170-some-thousand dollars in gifts...

CLIFTWell, that's right.

MARCUSIt is -- and I'd just like to say it's possible both that she's a piece of work and he's a cad. And they both, to me, appear to be true because, as a parent, the notion that -- he was offered a plea by the prosecutors. He could've pleaded to a pretty minor felony, one that didn't involve public corruption allegations. And he could have spared not just his wife but his children from this public spectacle. And anybody who thinks so highly of himself and his reputation that he's not willing to do that does not get high marks in my book.

REHMAll right. And you're listening to "The Diane Rehm Show." The question is, do you think this kind of strategy can work to keep them both out of jail, Stephen?

DINANI guess so. I -- well, it's really conflicting, but I guess so. I mean, I was talking with one columnist who has followed this to some extent and who said, you know, you can see how a jury -- you're sitting there looking at them saying, this resembled my marriage at times. You know, there are very human elements in here. The question is whether it's too unbelievable for them. And I've got to imagine there's a lot of...

REHMThat he knew nothing about this money, that he gave nothing?

CLIFTOh, he doesn't say he knew nothing. He basically kind of looked the other way. And he feels that he didn't do anything wrong because he didn't provide any real benefit for Johnny Williams. And I think he seems to be on safe ground doing that. Plus there are eight male jurors and four females. And I think there is a bit of a gender gap on this. And I think perhaps more men would be sympathetic to him. Anyway, I think this is a roll of the dice, and I think the two of them could succeed.

MARCUSI'm...

CLIFTAnd she has signed off on this defense. Let's keep remembering that.

REHMWhoa.

MARCUSI'm going to differ a little bit and say that I think the prosecution has a significant chance of winning this case because we've just heard this testimony elicited by McDonnell's defense lawyers. We have not watched what happens under cross examination.

MARCUSBut there has been testimony and evidence about a number of things, about false statements that were filed to banks in order to obtain loans where he, you know, left out. And then once there were questions from law enforcement officials' race to add the information that had been omitted where there were steps that he took, maybe not granting government contracts but certainly helping hook up and arrange and hurry up, I want to see this meeting happen, arrange meetings for Johnny Williams the businessman.

MARCUSAnd so I think that his argument that he was simply an innocent bystander, staying out late so he didn't have to deal with this (word?) really comes up against some very uncomfortable facts for him.

REHMAll right. Let's talk about Bank of America and the Justice Department announcement of a major settlement of nearly $17 billion. Where is that money going to go, Eleanor?

CLIFTI think 10 million (sic) of it is -- it's 10 and 7, and I think the bulk of it is going to go in sort of loan recovery or reparations to people who've been damaged. And then 7 million, I think, goes into the U.S. Treasury. But I think they can deduct it from their taxes, so...

REHMI think it's the other way around.

CLIFTMaybe it's the other way around, OK.

REHMTen million to the Department of Justice...

MARCUSBillion. Billion.

REHMSorry, billion.

MARCUSI don't usually deal in these numbers.

REHMAnd 7 billion worth of aid for struggling consumers.

CLIFTRight.

REHMBut, you know, are we ever going to see an individual prosecuted for these losses, Stephen?

DINANWell, I do believe there's some movement in -- I think it's California -- to actually go ahead where they are pursuing cases against individuals.

REHMCountrywide.

DINANI believe that's correct. So there's a possibility, but, I mean, that's the main issue here is, yes, we've seen financial settlements. But, you know, everybody believes, has a feeling that there was criminal activity by individuals who did this. And none of this money's coming out of their pockets. So at some point, that pressure will -- well, the administration's obviously felt that pressure, and right now, as you said, they can only point to financial. They can't point to anything criminal.

CLIFTTalk about the wheels of justice moving slowly. And I think a lot of people initially, after the meltdown happened, would've liked to see some perp walks, would've like to see some faces attached to this. It's now so many years past. I mean, I think they're recovering some of the money, but, again, the bank can take this as a tax deduction. How much -- it's really not that big a penalty.

REHMYeah, and in fact, Bank of America's stock went up by 4 percent yesterday.

MARCUSIt went up, but -- the stock did go up, but even if you discount it by money that they might've already spent or tax deductions or other things, it's still a whopping big number. That doesn't mean that it...

CLIFTIt's the biggest ever, that's true.

REHMBut how much is it going to hurt Bank of America is the question. All right. Short break here, and, when we come back, we'll open the phones for your comments, questions. Stay with us.

REHMAnd welcome back. We're going to go right to the phones, 800-4433-8850. But, remember, you can see all of our guests on our live streaming video. They all are here with me, and you can be here with us as well. Go to drshow.org, and you're there. OK, let me see if I can go to Cecil in Graham, Ky. Hi. You're on the air.

CECILYes. Hello, Diane. Thank you for taking my call.

REHMCertainly.

CECILIn reference to the Ferguson, Mo. incident, it seems everyone's calling for the local prosecutor to excuse himself from the case because I don't feel he can be unbiased in this investigating or possible prosecution. It's come to my attention that, I believe, Attorney Holder -- Atty. Gen. Holder and one of his messages to the public a day before yesterday, he talked of an incident that he had with law enforcement in his younger days to where he felt he was treated unfairly.

CECILAnd why wouldn't his bias come into question also in his investigating the case and possible prosecution? Everyone seems to just be looking at this for fairness in one direction, not both sides.

REHMAll right, sir. Thanks for your call. Should any doubts be cast on Eric Holder, Ruth Marcus?

MARCUSWell, I'm not sure exactly what comments the caller is referring to. But I think that there is a line for fair commentary and fair reflection by a law enforcement officer that he understands the issues that the community might face. I think -- and I'm a little bit reluctant to join the calls for the prosecutor to recuse himself. But I think the questions about this prosecutor are much more senior questions than issues of some calming rhetoric or understanding rhetoric that Eric Holder used.

MARCUSThe main -- the one that concerns me the most is the decision that he made not to bring charges against two undercover officers who shot and killed two black men in a parking lot of Jack in the Box restaurant in 2001. There were 21 shots fired into the vehicle, killing both men. And the prosecutor was quoted when he declined to press charges against these officers as saying of the men, "these guys were bums." And so I don't know enough of the facts of that case to know whether prosecution was called for or not, but I can understand that a community is concerned about a prosecutor in this situation being aggressive enough.

REHMAll right. Let's go to St. Louis, Mo. Hi there, Martin. You're on the air.

MARTINGood morning, Diane. Thank you for letting me put in my little five cents of commentary on...

REHMSure.

MARTIN...the Ferguson and the Michael Brown case. I know a little bit about the prosecuting attorney for St. Louis County. I grew up in St. Louis. I'm 60 years old. So I know a little bit about his background. I don't know whether you guys mentioned that his father was a police officer killed by a black...

REHMYes, we did. Yes.

MARTINOK. Well, here's what I understand about the grand jury proceedings. He could, on his own, bring charges, but he decided to go to a grand jury. I think this case is so highly charged that it requires a lot more transparency. Now, I may be mistaken, but I think the governor could still ask for him to, you know, recuse himself and to appoint a special prosecutor. Now, as I understand how grand jury proceedings are, they're done semi in the dark.

MARTINHe presents the case the way he -- you know, he would want to present it. If he's got any kind of, you know, leaning towards whatever, he's going to color the facts, he's going to provide the evidence, you know, that he wants them to see to try to help them along with their, you know, their decision. Now, I think, if it goes like that and there is no indictment at all, and I almost can guarantee knowing his past, you know, history that there probably won't be.

REHMAll right.

MARTINThis situation will heat right back up. And we also know that, you know, the federal investigation, well, that's going to go on for months, if not years.

REHMAll right. Stephen?

DINANI actually want to go back to the previous caller real quick and the difference between Holder and the local prosecutor and whether questions should be raised about Holder. You know, first of all, of course, as the caller makes clear, there are questions that are being raised about Holder. There's a huge difference between Holder's rhetoric and evaluating what the prosecutor's record is in this case.

DINANBut, having said that, I mean, Eric Holder did oversee the Justice Department that had charges -- a case the New Black Panther Party in Philadelphia dropped, which raised a lot of questions on Capitol Hill about whether he was going lenient on a case where there was -- where black men were intimidating voters from going to the polls, at the same time, when he was pursuing other voter suppression cases by states elsewhere.

DINANSo, you know, Holder's approach to this absolutely is -- it's a fair question to ask about Holder's approach to this. The comments, I think, the caller was talking about were Holder told a number of stories when he was out there about his encounters with police in particular, one, he said, when he was jogging in Georgetown here in Washington, D.C. and got pulled over and felt targeted because of his race.

DINANYou know, he's -- clearly, he's approaching this more so than President Obama. Eric Holder views a lot of these things through race. He's the top Obama administration official who's been critical of Obama critics, saying that many of them oppose President Obama because of his race. So he absolutely approaches this from that standpoint. Whether that's right or wrong, whether it colors what he's doing, I don't know. But it's worthy of discussion.

REHMEleanor.

CLIFTWell, as well he should be framing it that way given the history of this country. And the tension between local enforcement and federal enforcement for decades now, the federal government has been -- has stepped in in various cases of racial incidents. And black communities, you can see in Ferguson, they look to the federal government as an entity that's kind of come in and help them. Whereas many other people, the people perhaps who were worried about that Blank Panther case, would look at the federal government and an oppressive incident, the instrument that can't -- that can't carry out their values.

DINANWhich is why I think it was a good idea to have Holder be the person to go out there.

CLIFTAbsolutely, and it's...

DINANBut it is both...

CLIFTIt's the role of the federal government in this country. And in terms of the grand jury, you know, grand juries always meet in secret. And the grand jury in St. Louis meets once a week. And the caller was right, that the prosecutor could have brought charges on his own. He was not going to do that in this explosive situation. And he has promised to make all the evidence public.

REHMAll right.

CLIFTNow, whether he delivers on that promise, we don't know.

REHMAbsolutely. Let's go to Roger in Utopia, Texas. Tell us where Utopia is, Roger.

ROGERUtopia is -- Utopia is about an hour and a half west of San Antonio. We're in the hill country. It's very beautiful out here.

REHMGood. Now, your point.

ROGERWell, I'll just kind of leap for the cherries. A lot of people are speculating about why is the investigation of Rick Perry headed down this path and what are the motivations? And you have to ask, who would benefit by this the most? I mean, obviously, you know, the Democratic Party would like nothing more than for Rick Perry to be the presidential nominee in any debate situation, OK?

ROGERSo I have to imagine that Rick Perry is facing one of two problems. You either have a prosecutor who is either a Republican that's trying to kneecap a presidential candidate that the GOP would like to get out of the way, or you've got a prosecutor who's a very good lawyer, who is nonpartisan, who has no acts to grind against Perry but nonetheless makes these charges have enough merit to turn over to a grand jury who also doesn't have enough merit to hand out an indictment. So either way, you know, he's got a problem.

REHMStephen?

DINANWell, so Eleanor said earlier -- I believe in relation to Ferguson -- you can indict a ham sandwich. And that's, you know, the -- we should remember that in this case as well. Indictments, in the American justice system, indictments are, I guess, relatively easy, especially compare it with some of the European systems. So an indictment is just the beginning of this process. Having said that, look, we've talked about this earlier, and I think it's true.

DINANThere are valid questions in this. We -- a lot of -- a lot of folks in Washington, a lot of Democratic consultants in Washington seem intent on saying, yeah, you know, it's sketchy, and the details we know right now -- we're beginning to learn a lot more, beginning to delve into a lot more. But there are very real legal questions. And it may come down -- it will come down to a judgment call about how much coercion -- if you offer a job as an enticement to get somebody out of a position and also threaten them with withholding money, does that rise to the level of untoward coercion?

REHMRuth Marcus?

MARCUSWell, a few things. First of all, I've heard a lot of conspiracy theories in my life. But, with all due respect to the caller, the notion that the Perry indictment is part of a Republican conspiracy to make sure he's not the nominee is a little bit farfetched. And I think it's important to say that, as much as Rick Perry has been promoting himself -- but before and after this indictment on the campaign trail as the new improved Rick Perry and the potential 2016 Republican nominee -- don't think that's going to happen with or without the indictment.

REHMAll right. Eleanor, explain for us the U.S. Supreme Court's decision to act on Virginia same-sex marriage ban this week.

CLIFTWell, the Supreme Court basically granted a stay. And you have, you know, several cases. Most notably, there's another one in Utah...

REHMAnd one this morning in Florida.

CLIFTOK, so another one. I mean, the pressure is increasing on the Supreme Court to act. And I think, in Virginia, it's a Democratic attorney general who actually supports same-sex marriage who nevertheless supports the stay and said that they're really asking the Supreme Court to put this on an expedited calendar. Of course, expedited for the Supreme Court still means many months, if not a year, away.

REHMBut a stay in order to avoid multiple confusion.

CLIFTWell, yes, if you have people starting to get married, then it gets withdrawn and it can't...

REHMOr adopt children.

CLIFTRight, exactly. Exactly. So the Supreme Court does have to step in here and make a ruling that is more national. They've ruled very narrowly, as narrowly as they can, but I think we're getting to the point where the momentum behind this is pretty great, and they're going to have to sort it out.

REHMStephen?

DINANTwo things about the Virginia case, ne is of course the reason they had that was because marriages were going to start in Virginia this week.

REHMRight.

DINANAnd as you said, you would have that situation -- I think it did happen maybe with California initially.

CLIFTIt happened to California. Yes.

DINANRight, where you did have a period of marriages, and then a -- the other thing that's interesting about this is that, in Utah, state officials are -- they support the law. As Eleanor said here, the attorney general says that he feels that the Virginia law is unconstitutional. He did go ahead and support the stay because of the confusion that would have resulted. But it's a local, I believe, a clerk, a court clerk in Prince William County, a former state delegate who is pursuing this case.

DINANAnd it's one who actually filed for the -- for the stay. So it's one of these -- in some way similar to the White House and the -- the Obama administration in the way that it handled the DOMA law.

REHMStephen Dinan, he's congressional bureau chief of The Washington Times. And you're listening to "The Diane Rehm Show." Let's go to -- let's see -- Hannah in Casselberry, Fla. Hi. You're on the air.

HANNAHGood morning, Ms. Diane. Thank you for taking my call.

REHMSurely.

HANNAHThere's a security video that seems to show Michal Brown participating in a robbery shortly before he was confronted by Officer Wilson. And although, if he committed that crime, Mr. Brown was aware of it, Officer Wilson was not. Mr. Brown would have been coming into that confrontation with a heightened reaction, heightened response if he had committed the robbery. But Officer Wilson was only responding to what he saw there. And I would like to know if your panelists think that has an impact on how any of these factors should be looked at.

REHMRuth?

MARCUSWell, a few things. First of all, the release of the video definitely had an impact on the public reaction because, even as the local police department was being very sparing -- and I'm using a nice word -- in the information that they were providing about the actual shooting incident itself, they seemed happy to release the video that did show Michael Brown in a not-attractive confrontation with the store owner, where he and a friend -- the friend who he was with at the time, he was shot -- apparently took a box of cigarillos.

MARCUSAnd the caller is exactly right. The police captain has said that the officer who shot Michael Brown was not aware of that report. It may have affected Michael Brown's reaction to the officer. I've heard a friend of the officer's describe not -- I don't believe in eyewitness -- but somebody who spoke to the officer describe how Michael Brown was allegedly charging headlong at the officer, and he might have been concerned about that.

MARCUSSo it could well be relevant. This is why we need an investigation -- a grand jury investigation to Michael Brown's state of mind in terms of whether he was about to be arrested or something. I don't know certainly stealing a box of cigars does not justify deadly force.

REHM(unintelligible).

CLIFTThe facts...

MARCUSAnd we need to keep that in mind.

CLIFTYes. And the facts are confused...

REHMOf course.

CLIFT...because they later said that Officer Wilson saw the cigarillos in the hands of Michael Brown and his friend and put two and two together. That's a piece of information that came out. And if you take the caller's view that Brown, knowing he had committed a minor crime, would be avoiding the police -- he was walking down the middle of the street. The cops told him to get off -- get away. Why didn't they just get away? So, I mean, there just -- there's endless, endless questions here as you try to put this puzzle together.

REHMAnd my question will be forever, I don't understand why a Taser couldn't have been used?

CLIFTYeah, why six gunshots.

MARCUSYou know, I -- yeah, I don't understand that.

CLIFTThat's excessive force in the face of it, it seems to me.

MARCUSI am not here to justify the officer's firing of shots. But I did hear -- I think it was the police captain from the jurisdiction -- or maybe it was just an outside expert involving the more recent shooting -- who talked about how Tasers often malfunction. And so you can't absolutely, if somebody is charging at you, for example, in this case with a knife allegedly, in the case of the gentleman who was shot on Tuesday, you can't be absolutely confident as a police officer that your Taser is going to work.

REHMWell, I think they ought to get these Tasers to work.

CLIFTThey ought to get the Tasers to work.

REHMFor heaven's sake. All right. We'll have to leave it at that. Ruth Marcus, Stephen Dinan, Eleanor Clift, thank you all. Have a great weekend.

MARCUSYou too, Diane. Thank you.

CLIFTThank you. You too.

REHMThanks for listening and watching. I'm Diane Rehm.

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