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When Justice Becomes a Weapon: DOJ, Politics, and the Constitution · William Cooper Podcast Channel

• 0:00
  Welcome to How Our Constitution Works and Why It Doesn't.
• 0:04
  I'm your host, William Cooper, and with me as always, my co-host, Ed Larson.
• 0:10
  We are delighted to have Lori Levinson here today, and we're going to talk about,
• 0:15
  the very broad umbrella description of weaponizing the DOJ, a prominent,
• 0:21
  topic in political circles for about a decade now, and not that it wasn't important
• 0:26
  or on people's radar before then, but I think particularly heightened interest
• 0:33
  and activity there in the last decade or so.
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  And as always, Ed does a great job putting these issues into the context of
• 0:42
  our show and how the Constitution works and how it doesn't. So,
• 0:47
  Ed, why don't you give us a sense of how you'd like to proceed?
• 0:51
  Well, first, I'd like to welcome our guest. She is great. And on this topic,
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  I think she hung the moon.
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  I can't think of any better one to talk about it.
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  And how I think it fits into the program is what we've been doing is we sort of have two sides.
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  On one hand, we're sort of like a little civics lesson. And I used to know Justice
• 1:11
  O'Connor, and she was big on civics education, and people had understood,
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  and she had this vision of people understanding how the Constitution works.
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  And that's a noble, noble goal. And I hope we advance it.
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  But also, I think many people, it doesn't matter your partisan leadings,
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  right, middle or center, thinks the Constitution just isn't working today because
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  it's out of date mainly, probably.
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  I mean, it was written for a country that was an agrarian country that had less
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  people than the city of Los Angeles, less people in Oklahoma,
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  and have today, and with different issues and different concerns,
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  not a world power, one without AI, one without,
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  much modern science.
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  Expert agencies. And one concern people had right from the beginning was that
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  there was just too much power.
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  We can read that in so many of the Anti-Federalists, that there was just too
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  much power that this central government would have power, including things like
• 2:16
  to weaponize the Department of Justice.
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  Now, there wasn't much of a Department of Justice back then,
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  and there wasn't much division of it, and the central government didn't have much power.
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  They called it the general government. They never called America a nation,
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  never, never in the Constitution, never, not among the other,
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  not among the delegates.
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  So now there's this major issue that we have this enormous federal government
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  with tentacles reaching throughout, FBI created in about 100 years ago with
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  powers and now ICE with all these powers.
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  And so the question comes up is, is this an example of the way the Constitution
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  just doesn't work? Or if it does, not the way we might want it to.
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  I think it's a complaint people have.
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  So given that, given that it's not really discussed in the Constitution all
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  that much, and given the enormous powers of surveillance and prosecution that
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  exists now, we just want to ask.
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  For many people, I think that the weaponization of the Justice Department is
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  one example of how the Constitution just isn't providing the guardrails we need today.
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  So with that long windup, I toss the ball to a person who can hit it out of the court.
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  I'll add, that's an amazingly large ball that you're throwing at me,
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  and I'll try to bat it back. But here's the situation. I think you're right.
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  The system of government we have right now, I don't think was even contemplated
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  at the time of the Constitution.
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  And what we have is a lot of power in the executive branch, and people have
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  been advocating for that.
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  But that just doesn't mean the president's power. That means the people who
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  are working for him as well, and that's the Justice Department.
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  And when it comes to power, the ultimate power is to bring criminal charges against people.
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  And once you do that, it's very difficult to defend yourself.
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  Now, I want you to layer on that the intentional, I think, politicization of
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  the Justice Department.
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  When you say that you're going to go on a retribution tour by bringing criminal
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  charges against your enemies, that I don't think is what people envisioned the
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  Justice Department would be used for.
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  But indeed, as you see in the Comey indictments and some of the indictments
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  out of New York, that's exactly what it's being used for.
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  And then, later on that, what do you expect of the people who work for the Justice Department?
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  So I often think we have two Justice Departments. We have those at the head
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  of it, the Attorney General, very political.
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  And then you have the people who are down in the trenches. A lot of them left or were pushed out.
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  You always hope that they're very objective.
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  But what if you decide to have a Justice Department that is full of people who
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  are just with that like mind of using it as a weapon for what the president
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  wants as opposed to what the country needs?
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  Now, the president could argue that he was elected on that basis.
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  He said, this is what I'm running on.
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  And I want retribution. Now, I personally don't think that that was why he was
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  elected. I think it ginned up a core of his base.
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  I think he was elected on other reasons, including the border and including
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  bringing down prices on the first day and no more foreign wars.
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  But and you could go on. And, of course, the strength of the opposition.
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  You have to choose between two people. And he was one of two.
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  So all those reasons. But he did say that he was going to be their retribution
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  and he was going to bring vengeance down through the Justice Department.
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  So is this the popular will? And if so, are there any guardrails against it in the Constitution?
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  Well, I don't necessarily see it as the popular will because I don't think people
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  really did envision what happened to happen.
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  I mean, he talked about pardons, but when he parted all the January 6th insurrectionists,
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  and we now know at least a hundred of them have re-offended,
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  including with really disturbing crimes and child molestation,
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  I really doubt that the American public said, yeah, that's what we want.
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  We want people who stormed the Capitol to get a free pass.
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  Meanwhile, we want you to use our limited resources, for example,
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  in the Civil Rights Division, not to go after civil rights violations,
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  but to basically protect those you want protected.
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  Now, does the Constitution, as you well know, protect against us?
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  Not much, because we have these rough divisions of the executive branch,
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  the legislative branch, the judicial branch.
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  We know by the law that the judicial branch is not supposed to tell the executive
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  branch who they can charge.
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  They have some limited powers to sort of dismiss or not dismiss cases.
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  So ultimately, what we're seeing is our Constitution doesn't provide a check.
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  You know, the public, I think, when they voted, probably had in their mind many of the things you said.
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  Trump's going to bring back a more solid financial basis, more fairness.
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  But day in and day out, whether you look at how the immigration system's working
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  or the courts are working, I just don't think it was on people's mind.
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  And, you know, we had also seen, to be fair, the president himself being indicted.
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  That had never happened before. So people were becoming, used to the Justice
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  Department almost being used for what looked like political purposes.
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  That's a great point, Laurie, about the president himself. And,
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  you know, one of the questions that I've always wrestled with here is who,
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  you know, where do you repose the ultimate prosecutorial authority for these
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  really important cases?
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  And it seems like you've got two
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  choices. You've got the president and his appointee, the attorney general.
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  And then the alternative are the career officials at the DOJ.
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  And I'm generalizing a little bit. but.
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  Since Nixon, my sense is that a lot of people have a strong preference for the
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  career DOJ folks. Let them do their job.
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  They're the experts. Their judgment should carry the day, and the president
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  should have a big, healthy distance. And the precise contours of that are not,
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  defined, but that's the general gist.
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  But I wonder how that fits in with how the Constitution is supposed to work
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  as we focus on here on this show. Article 2, of course, says that the executive
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  branch power is all in a president, so in the president.
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  Is it a departure from that constitutional intent and design to repose too much
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  power in the career DOJ officials?
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  You know, I don't necessarily think so for the reason you started this broadcast with.
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  You know, back in the old, old days, it might have been just a few cases.
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  And even then, I'm not sure the presidents were weighing in.
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  But certainly, as we professionalize, as we would say, the Department of Justice,
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  and I confess, everybody, I worked for the U.S. Attorney's Office back in the 80s.
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  I worked for Republican and Democrat U.S. attorneys.
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  I didn't know what the political leanings were of the people I worked with.
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  And we were really pounded into us.
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  You're independent. Do an objective review. Keep the politics out of it.
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  So, is it a return to a constitutional intent to say, no, no,
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  make politics front and center?
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  Or is it better to have people who say, that's not what I'm going to do,
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  and it's not what I'm going to ask the grand jury to do. It's not what I'm going to ask juries to do.
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  We'll have more credibility if we try to stay independent.
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  Well, going back to history, you mentioned the past. Going back right to the beginning.
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  We did have, under the Sedition Acts, under John Adams, we had a very politicized
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  weaponizing of the judiciary and the Justice Department, such as it was.
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  And they went after every Jeffersonian editor around the country.
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  They'd literally systematic, and the Supreme Court justices,
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  some of them especially Chase, rode circuit.
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  And they'd try the cases. and they'd go town to town and they'd arrest the local.
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  Jeffersonian newspaper editor, throw him in jail, take away his printing press,
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  and the justices of the Supreme Court would sit,
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  they impeached the guy for this basis after the Jeffersonians took over.
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  And that was just total weaponizing with the total political purpose of shaping the 1800 elections.
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  And it made Adams later comment that actually at the time, he commented at the
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  time to the Massachusetts militia that avarice, ambition and revenge would break
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  the strongest cords of our Constitution.
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  As a whale goes through our net, our Constitution was made only for a moral
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  and religious people and is inadequate for any other.
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  And yet he was doing it or his team was doing it.
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  And just, boy, they threw one guy in jail because he said at a bar that John
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  Adams had a fat ass, which was demonstrably true. It's something he did have.
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  So we have it going all the way back.
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  I think it's one reason that the only check I know of is when they put in the
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  amendments to the original Bill of Rights and required a jury indictment for a criminal conviction.
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  The only prediction was not the courts against a president like John Adams going
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  after his enemies, but that you had to get an indictment by the jury.
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  And the way they dealt with it back then is rather than a random jury,
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  they allowed—this is actually true—the federal government, the federal prosecutors.
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  Could pit the jury members themselves.
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  And they'd be in these Jeffersonian towns and they'd find that only 12 federalists
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  in the whole town and then panel them to the jury.
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  Fortunately, we've gotten away from that. But we have seen how the jury has
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  stood in the way against some weaponizing indictments of, I think,
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  Comey, maybe Comey, certainly the guy who threw the submarine sandwich at a
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  ICE official, I think it was an ICE official.
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  And so we got anything other than the jury on our side?
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  No, but, you know, the jury's really important. I think maybe that's the evolution
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  to focus on, which is what do we think about democracy in the courtroom?
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  And the way we do our juries today. You know, it's true going way back to the
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  compurgator system, not only did the jurors not have to know the defendant,
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  they had to be friends of the defendant because that's where,
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  as you know, jury of your peers come from.
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  It's because these are people who could weigh in and say, yeah,
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  I think this guy would have done it if he wouldn't have.
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  And we moved all the way to the other direction that if you know the defendant,
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  if you know what happen. You shouldn't be involved.
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  To try to sanitize, I would say, make it more objective.
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  And I think that's because people weighed in and said, who would I want deciding
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  my case if I were on trial?
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  Now, you know, is this a perfect system? No, but it's certainly been tested
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  in the current administration.
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  You pointed out that the Subway sandwich person who was acquitted and cheered
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  by people, you know, as an example of the government feeling they should go after this person and.
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  You know, average citizen saying, don't use my government to do that.
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  And to be honest with you, that's happening across the country with these ICE raids.
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  What we've seen in districts across the country is the Justice Department brings
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  all these charges. They just bring felony charges of assault against individuals.
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  And then it gets to the jury phase and there are acquittals or there are plea
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  deals down to a slap on the wrist.
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  So it's almost like we see a Justice Department that says, we're going to go hardcore.
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  We have the power to do that under the Constitution.
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  And if anything's going to stop it, it's going to have to be these other institutions
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  that are not governed necessarily by us and are under the power of the court, but in a limited way.
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  So you do think that, I guess, just to make sure we all get it straight,
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  you do think that under our flawed constitution, and this show,
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  we found many flaws in our constitution.
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  We had Sandy Levinson on who wanted to get up the whole thing,
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  and we got very sympathetic with him.
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  So under our Florida Constitution, the Justice Department does have the power.
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  Rightfully, has the power to weaponize the Justice Department.
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  Under the Constitution, without looking at anything else, one could make that argument.
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  But then you have to pause and say, well, the Justice Department itself adopted its own standards.
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  They have a justice manual that says, this is how we use our constitutional power.
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  The courts themselves have done interpretation. So it's really,
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  I think, a bit misleading to say, is there the power?
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  There is the power, but without, I think, the countenance of what we've been
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  using the Justice Department for, what it's been interpreted,
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  and indeed what people's expectations are.
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  To me, one of the hard parts is the tension between politics and democracy, right?
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  Because the president is elected by the one time all the people come together
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  and vote on something is the presidency.
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  And so he's got incredible democratic legitimacy from that compared to somebody
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  who doesn't run for election and is hired.
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  And that's not a criticism of the career officials. It's just a looking at it from that perspective.
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  But on the other hand, the president's a politician and has political rivals and grievances.
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  And so it's really hard to, you know, say, well, you got to get politics completely
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  out of it, because when you do that, in some ways, you're also taking the Democratic,
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  underpinnings out of it as well. So how do you strike that balance, Laurie? Yeah.
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  Well, I think one of the things that was very interesting, we recently had in
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  the confirmation hearing for our new attorney general.
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  And one of the key moments in that is when he was asked, are you a president?
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  I mean, are you the attorney general for the people or for the president?
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  And he very much seemed to suggest, although it could have been a slip of the
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  time, that he was the president's lawyer.
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  Now, that raises something really fundamental.
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  When you use the Justice Department, do they represent one person?
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  Is that the nature of the executive branch?
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  Or do they represent the United States and what people's overall interests are?
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  So I don't know if I'm answering your question, but I would say that we can
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  recognize that the president has a lot of help under the Constitution when it
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  comes to all aspects of the executive branch.
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  But how that's been interpreted by the Justice Department itself and the expectation
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  of the people, I think, is quite different.
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  Now, on that one, I'm older than you are, Laurie. And I do remember when John
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  Kennedy was elected president and he wanted his brother, his brother to be attorney general.
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  And his brother, whose sole goal out of law school was that he wanted to be
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  the attorney for MacArthur and that MacArthur here at McCarthy hearings for against the communist.
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  And we all know as attorney general, he authorized all sorts of tapings of civil
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  rights leaders and everything else.
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  And then Nixon wanted to do the same thing and brought in John Mitchell, his own hack.
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  And so we do have a history. And then it was really Jerry Ford,
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  in response to all that, who brought in a very neutral and respected attorney general.
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  So we do have this long hand. Reagan then brought in his personal lawyer,
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  William French Schmidt.
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  Well, I think he did a good job, but still he was brought in as a personal lawyer.
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  And you get the current president saying he wanted his own Roy Cohen in there.
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  So I do think you get, I think the attorney general, the new attorney general
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  spoke rightly that he is the president's lawyer.
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  That's how he views himself. That's how Robert Kennedy, the other Robert Kennedy,
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  the father, viewed his role with John F. Kennedy and how Mitchell viewed his role.
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  You know, again, we talked about juries. It seems like the only possible check of the president,
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  under the Constitution, weaponizing the Justice Department to serve his own
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  ends, sort of like Jefferson did when he went after Aaron Burr, his rival.
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  And Aaron Burr, the former vice president, was prosecuted not for shooting Hamilton,
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  but for trying to set up a separate government on the frontier.
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  It's the voters. But, you know, they have four years.
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  But I just want to set you up by saying when he was asked this point,
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  when James Madison, the so-called founder, father of our Constitution,
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  I don't think he was that, but he did have a major role.
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  When Madison was asked at the Virginia Ratifying Convention by Patrick Henry,
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  who was a libertarian and a opponent, anti-federalist, he said,
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  you know, this is just going to be a political hack job.
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  Matt Madison said back to him and I'm quoting here so that's why I'm looking
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  down I go on this great Republican principle that the people will have the virtue
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  and intelligence to select men of virtue and wisdom,
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  Is there no virtue among us? If there is not, we are in a wretched situation.
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  No theoretical checks, no form of government can render us secure.
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  To suppose that any form of government will secure liberty or happiness without
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  virtue in the people, in the people, not the leaders, the people, is a fanciful idea.
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  If there be sufficient virtue and intelligence in the community,
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  there will be exercised in the selection of those men, that is, virtuous men,
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  so that we do not depend on their virtue, that is the leaders,
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  but on confidence or put confidence in our rulers, but in the people who are to choose them.
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  So is that really that and the jury and the voters our only protection against tyranny?
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  You know, and I think you've hit something terribly important,
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  but I sure wish all the people who are out there voting are thinking about virtue.
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  And maybe I'm too cynical to say that's not what people were voting for.
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  That's not even what campaigns tend to be about.
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  It certainly wasn't about what our recent elections were about.
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  And so I think that sometimes people are just in these culture camps or what
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  gets me more power, what gets me more in my pocketbook.
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  But we don't have a society anymore, frankly, where people even know their neighbors,
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  talk to their neighbors, worry about their neighbors.
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  And it's almost a power grab. So I do think on one level, and I've been watching
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  trials, as you know, I do think jurors take their jobs very seriously,
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  but they have limited ability.
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  Only about 2% of all cases are going to trial or 5%.
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  So for 95% of those cases, there's no public input.
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  There's no jury saying what should happen. The Justice Department brings the,
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  the charges. They have to use a grand jury, but as you well know,
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  the grand jury is just a tool of the prosecutors. There's no defense in there.
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  There's no judge in there.
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  And the standard is so low. So for 95% of the cases, not much public input into
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  what's happening there.
• 22:44
  Great point. Another area that's interesting to look at is we've got,
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  on the one hand, the president going after his rivals, and we've talked about that.
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  But then we also have seen the rivals of the president going after the president,
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  going the other way, and the president's people. You mentioned,
• 23:06
  Laurie, that Trump was indicted.
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  My personal view is that of all Trump's criminal cases against him,
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  some were justified and some weren't.
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  But while he was president, The first time Roger Stone, his key political advisor,
• 23:25
  was prosecuted very aggressively, so were a number of other people.
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  The Mueller team, one of the leads was Andrew Weissman, a very outspoken critic
• 23:36
  of Trump who was prosecuting him very aggressively.
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  How do we think of that from the weaponization standpoint in terms of protecting
• 23:46
  the president from the DOJ?
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  And number one, I'd love to hear
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  your practical views that are so wise and well-versed in your experience.
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  But then also, what does the Constitution, if anything, say?
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  I mean, how do you square Article II's grant of executive power to a president
• 24:07
  with a member of the executive branch prosecuting a president?
• 24:12
  Well, I think the two answers contribute to each other. Strategically,
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  I remember when they brought that indictment and saying, oh, my goodness.
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  This could change everything and really be something that we look back and say,
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  should we have done this?
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  And that ordinarily the impeachment process would be the process that you use,
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  but they went outside of it to use the Justice Department, which theoretically
• 24:37
  is governed by the executive branch.
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  But the most important thing is, I think that, frankly, it led to the Trump
• 24:45
  decision out of the Supreme Court that gave the president immunity.
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  And that's going to have a far lasting effect beyond President Trump.
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  It's going to basically change the nature of the office.
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  So when you say to me, what does the Constitution say? The Constitution says
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  there's an executive branch.
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  What does the Constitution say about prosecutions? Well, the Supreme Court had
• 25:09
  to sort of construe the Constitution to give this broad immunity.
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  And it really, I think, empowered the executive branch. If you like the president, you say, terrific.
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  If you think the president is off on the wrong courts, this is really a scary
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  proposition. And I think right now people are wondering how much that emboldened
• 25:31
  the current administration.
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  The current administration is much more aggressive in using the Justice Department
• 25:39
  for political reasons than they were in the first term.
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  The attorney general now is much more the president's lawyer than Barr was then.
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  So we can almost see that not only does the Constitution allow it,
• 25:53
  but if people misread what's going to happen, it's sort of boosting.
• 25:58
  Great answer. I agree. Go ahead. You have a Senate.
• 26:03
  I mean, the Constitution puts
• 26:05
  a prediction in that officers like Attorney General have to be confirmed.
• 26:10
  But they had no one. The drafters of the Constitution, as we talked about before
• 26:14
  on this program, had no conception of political parties.
• 26:18
  And back then, the Senate was appointed by the state legislatures. They weren't elected.
• 26:26
  And so they were viewed as a repository of states' rights.
• 26:30
  And so they were going to look at nominations.
• 26:34
  And as we know, many of Washington's nominations to the Supreme Court and other
• 26:39
  places were struck down by the Senate because there truly was an independent body.
• 26:44
  And if the party of the president controls the Senate, partisanship is so strong
• 26:51
  that they're just a rubber stamp.
• 26:53
  So they may go through a charade of trying to hold, it's going to hold the Supreme
• 27:01
  Court nominee up to some.
• 27:03
  The attorney general nominee up to something, but it was all a charade.
• 27:07
  They were going to confirm him no matter what.
• 27:10
  The deal had been struck. They only let Susan Collins out, in my opinion.
• 27:14
  And again, this is just my opinion, because she had to vote no with the hope
• 27:18
  of being reelected. But they had the votes lined up and hers was just part,
• 27:22
  in my opinion, was just part of the partisan serene.
• 27:25
  So if we got this situation, we don't have a check anymore if the Senate's controlled
• 27:31
  by the same party, which it is now.
• 27:35
  And so the result is,
• 27:37
  just what you're talking about. And I'd love to go back to your earlier comment,
• 27:42
  which I thought was great. Most things don't go to trial.
• 27:45
  So you don't have the check of a jury in most cases.
• 27:49
  A great example of that is since most lawsuits are settled and.
• 27:59
  The attorney general has the power to settle them.
• 28:02
  So someone like a president could bring a lawsuit for.
• 28:08
  Billions of dollars claiming that his tax returns were wrongfully released by,
• 28:16
  in that case, by an independent contractor.
• 28:19
  And the settlement could be payments to all the people who attacked the Capitol
• 28:25
  building, plus immunity from IRS review for not only the president,
• 28:30
  but all the president's companies and his family.
• 28:33
  And so if that power is entrusted in a settlement agreement,
• 28:39
  well, you don't even have the check anymore of the jury.
• 28:41
  No, I agree. And I want to layer onto this because I've been thinking about it a lot.
• 28:46
  The way that President Trump uses the pardon power, I don't think jurors matter anymore aren't either.
• 28:52
  Don't forget, all of those January 6th defendants were convicted,
• 28:57
  either pled guilty or were convicted by juries, held on appeal, and none of it mattered.
• 29:02
  Because we have in the Constitution a separate manner for the president to affect
• 29:09
  the justice system that doesn't involve or doesn't really care much about the jury.
• 29:15
  And the pardon powers, again, that might be another aspect of how the Constitution doesn't work.
• 29:20
  I mean, it's there. The pardon power is there. But by in this case,
• 29:24
  doesn't work in the sense that it's a flaw in the Constitution,
• 29:28
  because if the president can unilaterally make that pardon,
• 29:32
  He can, heck.
• 29:36
  He could make people required to make a donation to him personally or buy his own Bitcoin.
• 29:42
  And now, and since the pardon power is squarely within.
• 29:46
  His constitutional rights, the immunity decision would definitely protect him
• 29:52
  from a lawsuit that he was enriching himself through selling pardons.
• 29:58
  Yeah, you're the historian, but I know you know Melissa Murray.
• 30:01
  She has a book out on the Constitution.
• 30:04
  And I was looking at the section on the pardon power, and basically the drafters
• 30:08
  knew of the risks of this pardon power.
• 30:11
  But they said, it's George Washington. Good George would never do anything like
• 30:16
  this. Now, I don't know if that's true or not. He didn't.
• 30:19
  But, you know, looking at just who you have as your executive branch at the
• 30:24
  time you're adopting the Constitution isn't really a necessary protection against
• 30:29
  who's going to be in that office 250 years later.
• 30:33
  One of the key delegates from South Carolina after it was over said that we
• 30:38
  never would have given the president this much power except that we looked at
• 30:42
  George Washington, the first person that would hold it, and we trusted him.
• 30:46
  Right. And so we're now dealing with a system, I think, where nobody trusts
• 30:50
  anybody, right? And the public feels that as well.
• 30:54
  And yet we're dealing with old institutions. We're based upon a totally different
• 30:59
  culture, right, maybe not totally different, but quite a different culture and
• 31:03
  a different understanding by the public even as to what its role or the role
• 31:07
  of its representatives is.
• 31:09
  One of the things that has completely baffled people is today's Congress. What do they do?
• 31:16
  And are they checked on anyone? Do they have anything affirmative they're doing?
• 31:20
  Does anything matter other than the midterms and whether they'll be reelected?
• 31:25
  Those aren't necessarily noble causes for people to say, I want to support our
• 31:30
  Constitution and our government.
• 31:33
  You're depressing me. And just to summarize, because you touched on this,
• 31:38
  overall, given the context, I know you don't like it, but overall,
• 31:45
  given the context, given what had happened, you mentioned it,
• 31:50
  about Trump being indicted,
• 31:52
  there's nothing in the Constitution about presidential immunity, absolutely nothing.
• 31:58
  And there's a lot of conversation at the time by the delegates that nobody's
• 32:03
  above the law and the president can be held accountable for what he does as
• 32:07
  president under the law.
• 32:09
  There's a lot of that commentary. Yet, given what you said,
• 32:13
  do you think that the Supreme Court was right in creating this immunity basically
• 32:21
  out of whole cloth, but that it was a necessary sort of contextual addition that they needed to.
• 32:29
  Add the constitutional law?
• 32:31
  I'm among those who are fairly skeptical that even if you want to uphold Article
• 32:38
  2 in the presidential power, that in fact, you would have it this broad,
• 32:44
  that this immunity would go that broad.
• 32:46
  And there'd be so many open questions of what is an appropriate executive act.
• 32:51
  So I wasn't surprised that they would give the president some immunity,
• 32:56
  that fell into what I saw as the movement to have a stronger executive branch. Fair enough.
• 33:03
  But this decision is really broad and in some ways unclear.
• 33:07
  And because it hasn't been tested, it'll lead to what I call challenges or shenanigans along the way.
• 33:16
  Will, you think a lot about that. What's your view on that?
• 33:20
  Well, I share Lori's concerns, and I think they're very good ones.
• 33:25
  But I think this is an area where we have really strong competing considerations,
• 33:30
  and striking the right balance is quite hard.
• 33:33
  The competing considerations I see is the president being such an important
• 33:39
  figure in our government.
• 33:40
  Again, I do think the legitimacy of being the only national election we have
• 33:46
  being the president is very important.
• 33:48
  And I don't think it's healthy for the day-to-day functioning of our government
• 33:55
  for the president to be worried about getting prosecuted.
• 33:58
  The president's got plenty to worry about. And so if you leave open,
• 34:03
  and this could go in any direction, but if you leave open too much room and
• 34:08
  you don't have immunity, then the president's going to,
• 34:12
  one little voice in the president's head when he's trying, and let's picture
• 34:17
  not Donald Trump, but somebody with great character and really strong morals
• 34:24
  as commander-in-chief.
• 34:26
  Some little voice in his head, if we don't strike the right balance on immunity
• 34:30
  and give he or she enough immunity as president, is going to think,
• 34:34
  well, maybe some Republican prosecutor in Louisiana is going to think this.
• 34:40
  Missile strike that I'm ordering is a war crime and somehow tie it into a domestic
• 34:46
  prosecution or some version of that.
• 34:49
  I don't think that's healthy. I don't think that's good. So I think granting
• 34:53
  robust but not overly broad immunity is actually important.
• 34:57
  I agree with you, actually, but I do think that given how it's being applied for the first time and,
• 35:04
  you know, among what context this decision got made, I do think that the chief
• 35:08
  justice and the other justices had in mind exactly that, the big picture.
• 35:13
  But, you know, now you have claims that in E. Jean Carroll's case,
• 35:18
  the introduction of evidence in a case that involves sexual assault somehow
• 35:23
  could be immunized, make people shake their head and say, really?
• 35:26
  We need presidents sort of not worrying about their involvement in these activities
• 35:32
  in order to have a strong executive branch?
• 35:35
  Because we have to answer those questions, I really think that they challenge
• 35:39
  the basis of this broad decision.
• 35:42
  I agree. I think the arguments that litigators make, I'm an active practicing litigator.
• 35:49
  And the arguments made in litigation can be really absurd. And if that great
• 35:55
  example, Lori, that you just gave was enshrined in a Supreme Court decision,
• 35:59
  we would be in a lot of trouble.
• 36:01
  Hopefully over time we get clarity. I agree completely that the ambiguity is
• 36:06
  very difficult because you just don't know.
• 36:09
  And part of giving comfort to a president, even in the chief justice's motivation
• 36:15
  that you and I agree was behind his decision would be clarity, right?
• 36:20
  Without having that clarity, the president still doesn't know.
• 36:23
  They know there's some protection, but they don't know exactly where those lines are drawn.
• 36:27
  So I don't want a bunch of presidential prosecutions creating tremendous amounts
• 36:33
  of case law here, but I do think clarity going forward is really essential.
• 36:39
  And I hope we find ways to get some without plunging into the abyss of nonstop,
• 36:45
  presidential prosecution.
• 36:47
  I agree with you, but I also note that we're actually, in my opinion,
• 36:52
  getting somewhat less clarity by the Supreme Court by the way cases are being
• 36:57
  rushed up to them on the emergency docket.
• 37:00
  And then you'll get a one-line response with no explanation, not signed opinion.
• 37:05
  But fairly major issues are just the power of the president,
• 37:08
  the ballroom or no ballroom.
• 37:10
  You know, procedural grounds are what the court runs to, to try to justify its opinion.
• 37:15
  But the public is asking the question, is it his say? Is it his ballroom?
• 37:20
  So we have big questions.
• 37:22
  And in my mind, a court that's very reluctant to answer that.
• 37:27
  Well, on the ballroom, there's a great example of our thesis.
• 37:31
  The Constitution is crystal clear that Congress and only Congress has control
• 37:38
  over all the property of the United States, not the president.
• 37:41
  The Constitution says it exactly.
• 37:44
  And yet, and yet, the president just does something with the property.
• 37:51
  Which totally violates the words of the Constitution. Everybody and somebody
• 37:55
  sits there and it ends up happening.
• 37:58
  And so that would be to me, just a crystal clear example of how the constitution doesn't work.
• 38:05
  And I think that most people think that based upon both the property clause
• 38:10
  in the constitution and on statutes, but our Supreme Court when offered the
• 38:14
  opportunity to sort of give some definitive guidance has not.
• 38:19
  And that's true maybe in some of the voting cases and the like.
• 38:24
  We have, I think, an approach to simplify a not very simple issue throughout the system. Yeah.
• 38:34
  Great point and great, great show.
• 38:37
  Thanks to both of you for the wonderful conversation. I think a model for how
• 38:42
  to talk through these issues.
• 38:44
  It's all too rare in my view that you can delve into such politically charged
• 38:48
  issues with such respect and informed judgment. So I thank both of you.
• 38:52
  And Lori, really appreciate your time coming on the show. It's been a great episode.
• 38:58
  Thank you. It's been a complete honor and delight to work with such great minds,
• 39:03
  scholars, committed people to our justice system and our Constitution.
• 39:08
  Good luck to all of us.
• 39:10
  Thank you. And I look forward to getting together soon since we don't live far apart. That's right.
• 39:16
  Treats on me. Lunch on me.