S1: This ad free podcast is part of your Slate plus membership.
S2: We’re just seeing the beginning of the official presidential pardon. He’s got several weeks. The president out the door needs to pardon his whole family and himself once he starts doing it. I think it’s going to be quite a cascade of pardons.
S3: Hi and welcome back to Amicus, this is Slate’s podcast about the courts and the law and the Supreme Court. I’m Dahlia Lithwick and I cover some of those things for Slate. This week has brought with it a whole lot of Whiz-Bang over the prospect of presidential pardons, future preemptive presidential pardons, friends and family, planned presidential pardons and also continued fun at the Justice Department, where every day seems to afford a little bit more post-election drama and continued drama in the post-election lawsuits continuously filed by the Trump campaign.
S1: According to Marc Elias, the current scorecard reads one and forty two today. As of this taping, we’re also continuing to be battered by the claims of fraud and hoax and election stealing that emanate from the White House. Meanwhile. covid continues to devastate the nation, surpassing all previous grim milestones, overwhelming hospitals in some regions threatening to do so in the coming weeks, almost everywhere else. This is a crisis and we ignore it at our peril. Later on in the show, we will check in with Slate’s own Mark Joseph Stern about going on at the U.S. Supreme Court, including arguments this week and a landmark religious liberty decision around covid that came while you were giving thanks on Thanksgiving. That segment is only accessible to Slate plus members. And thank you, as ever, for your support. So look to legal questions are on everyone’s mind this week, and they seem to be around presidential pardons and also what the heck is happening at the Justice Department after the big broad Michael Flynn pardoned last week, we learned that bigger, broader pardons are being floated for the entire Trump family, his adult children, Jared Kushner, Rudy Giuliani, and possibly even for Trump himself. In the meantime, Bill Barr seems to be confounding our expectations by refusing to affirm that there was widespread criminal election fraud in twenty twenty, but also by secretly appointing special counsel before the election who will probe misconduct back in the 2016 election. Generally, it seems like Bill Barr is ensuring that mischief and mayhem from the Trump Justice Department are both behind us, but also not behind us. And today’s guest is somebody who is going to help figure out what all that means. Jack Goldsmith teaches at the Harvard Law School. He is a senior fellow at the Hoover Institute and a co-founder of the Indispensable Lawfare blog. Jack was head of the Justice Department’s Office of Legal Counsel from 2003 to 2004 under George W. Bush. And together with Bob Bauer, he has co-authored an amazing new book called After Trump Reconstructing the Presidency, which serves as an extremely detailed roadmap for repairing both the ways in which this president has abused power and in which he has somehow evaded responsibility for that. Jack Goldsmith, I wanted to have you on for a very long time. Welcome to Amicus.
S4: Thank you so much for having me. I’m looking forward to this.
S1: Jack, let’s begin, if we could, with just a lightning round of stuff that is in my inbox this week and probably your inbox to questions from people about pardons. They are very, very confused right now about the scope of the president’s pardon authority. I think people no president can pardon someone for a federal, not state crimes. But beyond that, I think there is a whole world out there that needs to be explained. You wrote about this in The New York Times this week. You warned that in terms of pardons, quote, We ain’t seen nothing yet. Then you went on to speculate that, quote, Trump will likely pardon himself, friends, family members and trump business entities and employees for any crime they might have committed before or during his presidency, end quote. That seems like a lot. Can you tell us and maybe we’ll just do a straight up doctrine first what, if any, or the actual limits to the presidential pardon power?
S4: So the pardon power is found in Article two of the Constitution. It is very broadly conferred to give the president broad and with two exceptions, unqualified power to pardon the exceptions or the limitations are one is limited to pardoning federal crimes. He can’t excuse or pardon state crimes. So, for example, Trump has no ability to stop the prosecution in New York investigation into the Trump organization. He doesn’t have the power to stop that. Second, pardons cannot be used in the context of impeachment, which is no longer relevant, but you can’t avoid it. President can’t avoid an impeachment by issuing a pardon to someone other than that article two states no limits. And the Supreme Court has basically stated for hundreds of years that the pardoning power is very broad and has really countenanced very few, if any, restrictions by Congress on it. So it is and presidents have in the past used it very broadly. Trump is not the first president to potentially pardon family and friends or associates involved in criminal cases. He has been done so at a much higher rate, much more aggressively. The pardon power thus far in self-serving ways. And I think he’s going to continue to in the next three weeks, which is not to say there are no limits on the pardon power, but basically that’s the doctrine.
S1: You’ve already said this implicitly, but let’s just spell it out, there’s no problem with pardons quia pardons. Presidents have used them for good and for ill. We’ve seen very broad pardons. George Washington, the plotters of the Whiskey Rebellion, Jimmy Carter, draft dodgers, famously Gerald Ford, Richard Nixon. So the problem is not that Trump has already pardoned and will continue to pardon, it’s how he’s using them, right?
S4: Yes. I mean, well, he presents the possibility. Potentially of using a pardon in a way that may be subject to crimes, but let’s set that aside for a second. Yes, the problem here is not one of primarily of illegality. The problem is one of abuse. So the pardon power is really this extraordinarily broad, unchecked, almost unqualified power. Presidents have used it mostly for good. And the main reasons for it are for the framers thought that there should be an act of grace possible somewhere in the Constitution. And they also believe that there should be a way of using pardons for community healing amnesties and the like. So they thought it was very important that the president have this power. If there was there is debate about it, but it has been subject to abuse by past presidents. Bill Clinton famously at the end of his term pardons, his brother pardoned Marc Rich. Pardon Susan McDougal, who involved in the Whitewater matter, and he was actually investigated. Clinton was in the southern district of New York. Whether there was an investigation of these pardons to Marc Rich out of concern that they may have been secured by bribes. In any event, the pardon power has been abused by past presidents. I’ve analyzed the forty five or so pardons that Trump has issued. By my count, 40 of them are personally or politically self-serving. And that’s a rate and a percentage of self-serving pardons that no president has come close to matching. So, like most things, Trump has ramped up the presidential extremes on using these powers.
S1: And to be clear, it’s not the number of pardons, right? It’s actually been a relatively small number. It’s partly, as you say, he pardons famous people. He pardons sort of heroes of denialism or people who may have obstructed justice for him. He pardons people because Kim Kardashian pops her head into the oval and says, hey, here’s the thing. So the problem isn’t that he’s using pardons. It’s that he seems to be using them in ways that are profoundly different from what you’re describing is as healing purposes. And then I think connected to that, Jack, is the fact that the process has dropped out, right, that there is a pardons department, there is supposed to be scrutiny and clear agreement from various other entities. All that’s gone to it’s just something he’s doing. Like what you put your right.
S4: Exactly. So there’s a there’s a process that’s supposed to take place that involves the Justice Department or someone called the pardon attorney in the Justice Department. There’s an elaborate set of regulations for Trump’s forty five pardons. He has skirted the pardon attorney procedures and 40 of them, which is he’s not the first president to skirt those procedures. And again, Clinton did, too, with his controversial pardons at the end of his term. But Trump has made the exceptional case, the rule. He’s made the exceptional case, the rule both on skirting the normal processes and on issuing self-serving pardons. Again, Clinton, George H.W. Bush, George W. Bush all had a small percentage of what might be deemed self-serving pardons and a small percentage of cases where they skirted the pardon. Attorney Trump has basically flipped that and made what was the exceptional case, the rule. And I think we have we’re just seeing the beginning. He’s got several weeks in which once he starts doing it, I think it’s going to be quite a cascade of pardons.
S1: So put this in the bucket of speed round questions, Jack. But self pardons, I know he’s been saying from the get go he can pardon himself. Seems to me the academic literature is mixed with a I’m at least sense of some on the scale of presidents cannot self pardon. What are your thoughts?
S4: My thoughts are just what you said. It’s it’s an entirely novel unaddressed question. I will tell you one place that’s been addressed, the Justice Department, my old office, the Office of Legal Counsel, in one sentence in nineteen seventy four in an opinion. Said and this is almost a quote, because no man can be a judge in his own case, the president cannot? S part, and that was a throwaway sentence without analysis. But that’s basically the only official word we have on the pardon power. It’s never a self pardon power. It’s never been tested in court. As you say, the scholars have a mix of views. Most and most of them, I would say, think it’s not possible, but quite a few think it is. And the truth is that the Constitution is entirely silent on it. And, you know, you have to make an argument based on different kinds of principles like structure or purpose and the like, and the arguments kind of cutting both ways. It’s never been tried before.
S1: And raises a little bit of the question I want to get to at the end, which is, again, these things are not self effectuating. It would require somebody to investigate and determine and then I guess litigate. And then what the Supreme Court would at some day in 12 years determine that self pardons are either permissible or not. But this is not something that resolves itself based on a lot of academics fighting.
S4: Absolutely right. It would only be resolved, if at all, by court, probably by the Supreme Court. You might not have to wait for prosecution. Trump might be able to bring a case to resist even investigation for crimes that are covered. Possibly I’m not sure it would be premised on someone in the next administration going after Trump. For example, let me give an example. Ford gave a blanket pardon to Nixon. He didn’t even specify the crimes. He just said for every crime possibly committed during Nixon’s presidency, he was pardoned. Some scholars think that’s not specific enough. You have to be more specific, but it was never challenged. And so that now actually counts as a precedent. And so you’re right, he might do it and it might stand someone I can’t remember who speculated the other day. I think it may have been Stephen Sachs speculated the other day that a self pardon might be self-defeating because it self pardon might actually force the Biden administration’s hands to bring an investigation to test the proposition. But anyway, you’re right, it has to be it can only be tested and resolved definitively if a prosecution investigation is brought against Trump.
S1: So and this goes to the heart of what I’m going to mercilessly pick on you about the differences between you and Bob Bauer in your book in terms of the wisdom of the Biden administration really going ahead and litigating the past four years. But I think it’s a really interesting wrinkle to suggest that Trump in some sense, has some control over that, because the more crazy stuff he does in the interregnum, the more likely it is that the do something about it side prevails. Right? That’s what you’re saying. Absolutely. OK, so I think last question for speedrun purposes and then I won’t do this anymore. But you mentioned the Nixon pardon and the ways in which it was very, very broad. It didn’t specify crimes. It just said this is a blanket pardon for this entire period of the presidency. In some ways, that sounds in the key of the Flynn pardon, right where it’s very broad. Anything within the scope of the Mueller report. It’s quite broad. And I guess it leads to this question. You’ve now said Nixon becomes the predicate for doing things like Flynn. Does that all become the predicate for the inchoate future crime, preemptive pardon that is now being talked about? At least The New York Times is reporting that there’s a discussion of future pardons for things that haven’t even been investigated or charged yet.
S4: Let me try to make some distinctions there. So I don’t think that there could be a pardon for crimes committed after the pardons issue. I’m not sure. I don’t think that’s what you’re saying. You were talking about a pardon for crimes that have for investigations that haven’t even begun. Mm hmm. And with regard to that category, there are more precedents than just the Nixon precedent. And there’s dicta in the Supreme Court that suggests that you can pardon for a crime. And a lot of amnesties do this pardon for a crime, even if there hasn’t been an investigation, brought it all for the crime. The crime has to have been committed at the time of the pardon if it’s if it’s covered by it. But there need not have been an investigation, at least according to some. Some scholars will debate this, but at least according to dicta and a couple Supreme Court cases, and more importantly, for these purposes, there’s a lot of practice of presidents issuing pardons and especially amnesties covered by the pardon power for actions where the actual crime was not specified. It’s not just the Ford pardon of Nixon. There are many more presidents than that.
S1: So that’s like the draft dodgers.
S4: That’s that’s draft dodgers by Carter. Some of the Whiskey Rebellion case that you mentioned, the Iran-Contra pardons by George H.W. Bush was actually like the Flynn pardon, as I recall it was. All crimes within the jurisdiction of the special counsel or the independent counsel then. So what happened with Lin has precedent behind it. And I have to say in this context, when it gets to court, if it does, presidential practice will count a lot for constitutional meaning, which is essentially just saying that we defer, defer, defer, defer largely on these.
S1: Right. There just is a general sense that pardons are going to be OK.
S4: Well, I mean, that’s been the practice in the Supreme Court so far. This is for several reasons why, as I said at the beginning, the pardon power is very broad to the Supreme Court, is always read it to be a broad power. And three, in context like this, where the text is not it doesn’t really speak to the issue. The court tends to look at historical practice. Now, this is an historical practice that’s only by the executive branch. There hasn’t really been anything we can call acquiescence by Congress. So they might not give the practice as much weight as they normally would. But I think, in fact, they would give it weight. And in these contexts, you know, when the executive branch does something and in an area where the Constitution, meaning is unsettled, the more precedents it can support to and the further the precedents go back, the stronger the arguments end up being for good or bad. That’s the way it works.
S1: So in a weird way, this goes back to the through line in the book, which is so much of this is constrained by norms and past practices and just a general sense that the government is working to check and balance itself. And so in some sense, we are in this last great coda to the story. We’re going to be the victims of just a whole bunch of presumptions of good faith and deference to the president.
S4: I mean, in the pardon context, I do think that I’m not sure about s pardons. But on those other questions of the pardon power, I do think that the president will receive deference. I also think that, yes, I believe the main thing I have learned from the Trump presidency, and it’s a little embarrassing since I’ve been studying the presidency for twenty five years and I kind of knew this but didn’t appreciate it because it was never really called into question is the amazing extent to which many of the constraints on the presidency kind of assume good faith, reasonableness, a sense of decorum, a sense of shame, and all of those things. Trump has exploded. And really, this is what our book is about. Our book is about trying to pick up the pieces after you figure out that you can’t you can’t really assume that the president is going to have those qualities, whether it’s an Obama or a Bush or whomever. You can’t assume that the president is going to have those qualities.
S1: And just on this last point, on pardons, it’s so interesting that a lot of the reading I’ve done this week, Frank Bowman had a piece in Slate, but an awful lot of folks saying, oh, there’s so many negative inferences, you’d basically be admitting criminality. Ivanka and Eric and Rudy are not going to want to say I committed a crime. There’s questions about being forced to testify once you’ve been pardoned. But I think I’m getting the sense that your answer is none of those soft norms around shame or appearances or optics would really be operative here. I mean, the notion that this is worse for Trump than than not assumes capacity for some of those soft norms.
S4: Yeah, but I’m really talking about the president. I don’t have a sense about the extent to which Ivanka and her husband have the calculus bears out for them and the kind of social norms and reputation and things like that. It’s completely clear that Trump doesn’t care. And in fact, he thrives off of the reaction to him breaking those things and as do his followers. So he’s kind of hacked the system in a way and kind of benefits from attacking institutions and violating norms. I’m not at all sure that his daughter and son in law do. I just don’t know. But also, I mean, if the calculus is reputational harms and, you know, admissions of guilt versus years of criminal litigation and the possibility of going to jail, again, I don’t know what the underlying criminality may be. They might opt for the part if there’s just no way to know.
S1: Do you want to talk a little bit about the chapter in the book where you talk about specifically reforming the pardon power?
S4: Sure. So, I mean, as we’ve just been talking about for a while, the pardon power is extremely broad and the Supreme Court has given it a very broad construction. But Bob and I argue in the book that that doesn’t mean that some of the extreme abuses of the pardon power can’t be regulated. And in particular, we think and even someone like, believe it or not, Bill Barr, who has an expansive view of Article two, even he and someone like Lauren Silverman and who also has a broad view of Article two, wrote an opinion in the Justice Department on this. They believe that in theory, a president who issues a pardon in exchange for a bribe or in order to obstruct justice, that that can implicate criminal statutes and the Congress can regulate that. And moreover, the person who receives the pardon in exchange for a bribe, he can’t be prosecuted for the thing he was pardoned for, but he can be prosecuted for bribing a separate crime. So that’s a theoretical possibility, Bob. And I feel very strongly there’s some complicated doctrines about the plain statement rule and whether the president is actually covered by the obstruction of justice statute in the bribery statute. One extremely easy reform to clean up the abuses at the margins. It’s just to extend the bribery prohibition and the obstruction of justice statute to the issuance of pardons. We think it’s constitutional. We think it can be done fairly easily. And I actually think that will have not just an impact on actual obstruction of justice, pardons and actual pardons for bribes, but anything in the general area. It will give future presidents pause and also the people involved in issuing those things pause. So that’s that’s the main reform. You can’t have a statutory reform that, for example, says you can’t pardon your family members or you can’t pardon people after the transition that would require constitutional change. The other reform we propose is that Congress simply ban s pardons and say that they’re illegal and not effective. And Congress cannot directly resolve that question because it’s a constitutional question ultimately. But we think that when the courts finally get around to addressing it, if Congress in a serious way weighs in, backed by its own constitutional analysis about why self pardons are not valid, that would play a role in the court’s assessment of the validity of the s pardon. So those are the two main reforms. They’re actually fairly modest when you when you look at the abuses that are possible. But those, I think we think, get at the most extreme abuses and those happen to be the ones that we think can be done by statute.
S1: Jack, I was trying to think when I was preparing for this interview about a scenario in which one would want the president to have the power to self pardon. So can you like in your capacity as law professor, inventing a hypo? Think of a reason why. I mean, it just seems so completely noxious and corrosive, but nothing is what it seems anymore. And so I guess I’m trying to think of why one might want to preserve the ability for a president to self pardon or does it just assume nihilism and chaos?
S4: I thought about this. I think it’s very hard to come up with a good reason why the president should be able to pardon himself. I’m sure if I spent enough time thinking about it, I could come up with something. But the truth is, the Constitution contemplates prosecution of a president after impeachment, the constitution. There’s already a rule that says the president can be indicted while he’s in office. And it’s going to be very hard to prosecute a president under any circumstances for a whole bunch of legal and pragmatic reasons. And I think that any reason we could think of about why a president should be pardoned would have to be a strong enough reason for the next president to pardon him. It would have to be some kind of community based, reconciliation based argument. And the president who’s subject to the pardon, shouldn’t be making that decision. No, I’m not saying that’s a constitutional argument. I’m just saying it’s kind of a policy or, you know, conceptual argument. It’s hard for me to see why, if you put it this way, if we were designing a constitution and addressing this question and we we wanted to we wanted to resolve the question one way or another, you would not allow soft pardons. You would prohibit them. And I just don’t it seems like the arguments cut all in that direction and very few in the other.
S1: So the other thing I wanted to to raise is that we have seen some news this past week that the Justice Department is investigating schemes that are political contributions for pardons and bribe for clemency schemes. And Trump Associates are possibly implicated, a hugely redacted filing. But does this all go under? Your sort of presidents should not generally be allowed to either profit off the pardon power or to pardon folks for self-serving reasons. I mean, this is addressed in some sense by your folks.
S4: Well, I think, yes, our fix aims to get it just what was floated in the news this week and the ultimate facts are still kind of unclear, but it seems that there was at least contemplation or the possibility of a wealthy person providing political support in the form of campaign contributions in exchange for a pardon or maybe influencing a pardon or something like that. That’s exactly the kind of thing that we think should be made expressly legal. And it might even be actionable under current law. But it’s it’s not at all clear. And so we really think it’s important. There’s no reason that should not be made crystal clear that that’s not allowed. And let me say, by the way, that’s just one little sliver you can just imagine, given Trump’s proclivity to make deals and his transactional attitude towards everything and his promiscuous use of pardons to pardon friends and also his circumvention of the Justice Department and basically just have a free for all at the White House on pardons, it’s easy to imagine that there’s lots of stuff like that going on. Pardons are extremely valuable things that gets people out of jail. It wipes off your criminal record. And there are a lot of wealthy people out there who, you know, would like to get those pardons. It’s not the first time we saw it, as we discussed earlier, with Marc Rich. But one can just imagine that in the end, the kind of moral world of Donald Trump and given his past performance, that that’s just the tip of the iceberg. I wouldn’t be surprised if there’s a lot more like that going on.
S1: I want to turn, if we could, to the Justice Department. I was remembering that you and I co-wrote a piece, The Caerphilly in years ago about this sort of some of the magical thinking around the independence of a Justice Department and the need for the Justice Department, particularly post Watergate, to be walled off from the executive. And interestingly, when Joe Biden now says, I have no taste for going after Trump and his confederates, he uses that. Very aspirational view of an independent Justice Department to bolster it. So I think I want to talk about. Both the sort of general sense that the Justice Department has largely been weaponized to help Trump’s allies, to hurt his enemies, but also very specifically about the weirdness of what Bill Barr has done in the last few days, I think you called it diabolical and one of your tweets. But this sort of push me pull you off of having said that, the Justice Department had found no evidence of widespread election fraud and criminality. BA secretly also somehow installing John Durham as special counsel to keep investigating 2016. It feels as though something is happening on the way out for Bill Barr. And I wonder if you have some insight into it.
S4: Sure, so my views on bar are a little contrarian. I’ve defended him in some instances. I’ve been extremely critical of him in some instances, including with regard to Durham, or I’ll just start off by saying before I answer your question, I don’t think that bar has been, quote unquote, in the can for Trump at all. I think everything that bar has done that supports Trump or seems to carry out Trump’s wishes has been entirely driven by his view of Article two and his view that it’s clear that he thinks that there was wrongdoing that went on in the 2016 investigation of the Trump campaign and in the Mueller investigation. But my own view is that all of that is driven by a view, almost all that is driven by a view of Article two and not by of carrying Trump’s water. And in fact, Barr has hasn’t been noticed as much, but he’s pushed back against the president several times saying, look, pal, you’re making my job impossible. I’m trying to do the right thing here. Sometimes doing the right thing is going to mean doing what you want. But if you’re going to tweet about it, it’s going to undermine my credibility. So that’s just a that’s just a background point. That said, Barr has violated department norms and does some things that I think show bad judgment. But I just want to say that I don’t think that the standard characterization of him is right.
S1: Just amplify what you just said about Barr’s views of Article two. I know we did a show with Don er where he talked about it, but I think it’s important to understand what the scope is of what it is that he’s pressing.
S4: Yes. Good. So Barr has a very broad view of what he calls the unitary executive. Now, the unitary executive. Barr gave a speech on the unitary executive earlier this year, I believe it was the unitary executive. Is not this, in my judgment, this horrible, evil thing that’s often made out to be it’s actually kind of a standard view of Article two. And all it really means is that the president sits atop an executive that is unitary. The president has the authority under the Constitution to supervise. The administration, including law enforcement, the president has the power to fire people under him. That’s really what the unitary executive is. And Barr has a broad conception about that and he feels very, very strongly about it. So when Barr comes in and when he sees it, the whole idea of a special counsel investigation to him, even one under regulations as opposed to the independent counsel statute, that’s just anathema to him, even though he just appointed one, which is interesting. And we’ll get to and we’ll get to that. It’s just anathema to him or at least it just bristles to have the chief executive being investigated by a semi-independent prosecutor. And as you know, he wrote a memorandum before he even became attorney general, may have been why he became attorney general questioning. And I actually agree with him on this, what he thought was Mueller’s obstruction of justice theory about the president, because Barr thinks that that would impinge upon the president’s Article two power. So Barr comes in and by the way, he comes in with a 1980s mindset, 1980s, early 1990s mindset. And boy, have things changed since then. And he and he looks around. This is my interpretation of it. He looks around and things aren’t working like they’re supposed to. And he also thinks, it seems clear to me that that the investigation of Flynn was corrupt and was didn’t follow the book. And so anyway, so that’s the background, how I view Barr. And again, we can get to the things I think he’s done wrong, because I think he’s made a lot of mistakes that have been hugely harmful to him. And that gets to Durham will get there in a second. But what happened this week was I actually I’m not sure these things are connected, except that Barr connected them in a way that kind of buried the lead of what was important. So I actually said on a show several weeks ago and Barr kind of expanded the jurisdiction of the U.S. attorneys to look into election fraud. I said then that this seems problematic. But if Barr ends up saying that there was no fraud in the election, it’s going to enhance the credibility of that claim. And people are going to appreciate the fact that they looked even harder than normal and they found nothing. That’s exactly what he said. And so there hasn’t been a more definitive refutation of the president’s claim about fraud in the election than the supposed crony. Bill Barr with this with this expanded investigatory report concluding that there was no systematic fraud in a way that would change the election. So that happened. And that was the highest headline and the headline below that. And some some papers didn’t even make it the headline below that New York Times had to be the sub headline was that Barr appointed Durham John Durham as a special counsel to continue the investigation that he began last year. And that is the real story here. I mean, that is that that is that is the story with a long tail consequence. You mean explain what it’s about? Yes. Yes. OK, first of all, who is John Durham? John Durham’s a really interesting guy. He’s the U.S. attorney in Connecticut. He has a decades long reputation for bipartisan integrity. He was chosen by Eric Holder, the attorney general, for President Obama to do the look back on some a sliver of the alleged criminality related to the Bush interrogation and black site program. And he was then described as someone with credibility on both sides. He conducted that investigation. Everyone gave him plaudits for it. So Barr chooses the same guy and he’s got other bipartisan cred. Durham does and is a very below the radar screen guy and he does not have a public persona. And Barchas Durham building on the inspector general, early inspector general report to investigate it started off. It’s grown and grown over time, but it started off as an investigation of the FBI, DOJ investigation of the two thousand sixteen Trump campaign and the Russian involvement. It started off as I forget the term, but it wasn’t a criminal investigation. It was just a review, I think is what it was called. Then it transformed into a criminal investigation that was in part because of that guy and the inspector general Broad, who had, in the FISA context, changed FISA documents. So that came in terms a writ and but suddenly now it’s a criminal investigation. We don’t actually know what the scope of the investigation is, but he wasn’t a special counsel. He was just like kind of an appointee of the attorney general to carry this out. Now, he’s been made into this official status, although in a kind of a weird way into a special counsel. And the reason I called it diabolically clever in that tweet you referred to is not only that, does he do it the same day that he wins all this public cred for standing up to the president, but he appointed Durham on almost exactly the same terms and exactly the same jurisdictional basis as Mueller was appointed. And so what that means is that. We’re going to see now a dramatic shift when the Biden attorney general comes in and asked Durham what he’s doing in Durham tells them, is the Biden attorney general going to allow that investigation to continue because the argument was, well, special counsel appointed on these terms is sacrosanct and can’t be fired or they can be fired. But it’s going to be politically very fraught to do that bar someone who doesn’t like special counsel. So him doing this is a real poke in the eye to the next administration. Now, I’m someone who thinks that it’s perfectly legitimate to have an investigation of the 2016 2017 investigation. We’ve already know that there were a lot of problems in that from the inspector general. There’s a lot of things we don’t know. I think that having a full blown assessment of what happened is actually vitally important to reform. This is one of my main criticisms of Bar. He’s blown this. He’s blown this because it’s nothing really that Durham has done. But Bar has for a year and a half prejudged the case. He has consistently and in a way that he knows he’s not supposed to be doing, you know, basically in really conclusory terms, said people under investigation are traitors, maybe not in a legal sense, he said, but either bad people, that there’s malfeasance done. I just don’t know if it rose to the level of criminality. There was wrongdoing, all this stuff that he knows well, attorney generals aren’t supposed to be doing in ongoing investigations. So in my judgment, he’s damaged the credibility of the whole investigation, regardless of what Durham is doing. So it’s going to be a tricky issue for the next attorney general, what to do about Durham. And in part, it depends on why is this investigation taken so long. The newspaper report suggested that he hasn’t been, at least up until recently, hasn’t been speaking to the high level people that we here may be involved, like Brennan and Comey and the like. So it’s not at all clear what’s going on in that investigation. And yet it’s gone on for a hell of a long time. And now it’s going to go into the next administration and it’s going to be a pain for them.
S1: And I guess the natural follow up is, can Biden’s AG just end this? Can I mean, you’ve now described the optics of how truly, spectacularly awful it would look. But is there something formally that Biden could do to make it just stop?
S4: Yes, well, this gets into some technical legal stuff, and I’ll try to make it generally understandable, so. Durham was not actually appointed pursuant to the special counsel regulations, nor was Muehler, both of them were appointed pursuant to the attorney general’s general powers to appoint an attorney for a special purpose bar, basically copied what Rosenstein did to the Mueller investigation. In both cases, the regulations applied by reference. So there’s a question whether there’s a standard in the regulations for firing the special counsel. It’s not clear if those if those standards apply to the next attorney general’s ability to fire the special counsel because of since the appointment was not done through the special counsel regulations. Let me just say two things. There’s going to be a technical legal question about that, about what the right standard is. But let’s just cut through that. I have no doubt that if the next attorney general wants to take the political heat that he or she can stop the investigation. Now, is that a good idea? Is that going to enhance the conspiracy theories? Is that going? Is that going to or is it better to let it play out? It might well be the case, just like all of Durham’s past investigations, that he finds nothing. He’s just a thorough guy and he believes in investigating everything. That’s a tough question, I think, because it’s going to be political dynamite if they shut it down and especially if they don’t let him say what he has discovered today.
S1: I wonder if you can just broaden out. A larger question about the Justice Department and independence having having I think both agree that it can only be so independent. What is your thought about? And maybe these are entirely optics questions, Jack, but what is the first thing that an A.G. under Biden can do to at least reinstate the sense that you and I can differ about how much Bar was carrying water for Trump, but at least reinstate the appearance of the Justice Department isn’t kind of going around emptying the president’s ashtrays?
S4: Yeah, so it’s a great question. We’ve got some suggestions in the book, but I’ll just say right off that the most important thing, and this is not something you instantiate by law, is how the president of the United States behaves and how the attorney general behaves. How does the attorney general comport him or herself? Are they going to be talking about ongoing investigations? Is the president going to be offering public advice? I just think that the first and most important thing is a return to right action, so to speak. Second thing I’ll say is I actually think that. The Durham problem and the problem of investigating Trump makes this especially hard for the next attorney general, because if Durham is fired and or if Trump is investigated, that is going to look like inevitably to a lot of people in this country, politicized law enforcement. For some people in the country, that’s going to seem like justice. Law enforcement vindicated. That in a nutshell, by the way, is the problem. The country is so deeply split on its interpretations of the meaning of Justice Department actions that I just think it’s hugely difficult to really square the circle and go back to a kind of Ed Levy regime. We just don’t live in the world of the mid 1970s where Ed Levy regime is possible. Even if we could find another Ed Levy and plop him down in twenty, twenty one. I just don’t think that our politics allows for kind of reconciliation, that the Justice Department is actually back on a rigorous law enforcement path with integrity. Bob and I have a whole bunch of suggestions about how to fix a special counsel, about how to enhance independence, dorms and the like. I think that a statutory obstruction of justice rule against the president is hugely important, a whole bunch of things that can buck the system up and really give more confidence that it’s harder to actually have corrupt law enforcement. But I actually think that in this political environment, weather will be impressed by how the ag acts or not. I think it’s very hard given that law enforcement. It’s so central to our politics. I mean, think about, for example, the DACA and DAPA immigration stuff that was hugely controversial for Obama. That was a Justice Department legal opinion that made that possible. This is what you and I wrote about 12 years ago. I mean, that politics properly conceived and a president pursuing a political agenda, properly conceived. It just gets tied up in law enforcement because they’re so closely related and the Justice Department is so intricately tied into politics that it’s very hard for it not to look political, even if it’s not acting that way.
S1: So then this brings me to the big meta question, and I know it is the one place where you and Bob Bauer part company in the book and he says, look, there have to be consequences even if it means prosecuting the president. And your argument is essentially the one you just made, which is you can’t keep politicizing. Or criminalizing politics or politicizing crime, I don’t know quite which way to craft that, but it does raise a question, I think, especially for someone like you, Jack, who lives in fear of the smart president coming along and doing all this stuff instead of doing it artlessly and lying about it and just completely bungling it. I think your fear is the president the norm breaking president who does it? Well, and I guess I just want you to connect the sense that I think a lot of my listeners have conveyed to me that the original sin is the Ford pardon of Nixon and the original sin is Obama not holding people to account for the torture program and that the more you say we can’t do this, the more you construct a world in which everyone gets away with everything with complete impunity. So I know it’s not a fair question because I think it it’s it’s holding you responsible for something that it just is what it is. But I wonder if you can mollify the fear that every time we say it’s time for healing, we’re drawing a line and ignoring what happened in some way. We embolden the next wave.
S4: Right to that is a perfectly fair and terrific argument. It’s a version of the argument that Bob made in the book. It’s a powerful argument and part of me agrees with it. I think the argument assumes, first of all. But if if it’s if it’s clear, crystal clear that Trump has committed a prosecutable crime and I don’t believe it is crystal clear that he’s committed a prosecutable crime, I mean, a crime for which he can be successfully prosecuted. If it’s crystal clear that he’s committed a prosecutable crime, then some of my concerns dissipate. But your story assumes a successful prosecution. It assumes that we’re actually going to put the bad guys in jail. It is assumes that Nixon would have gone to jail or that the CIA folks or maybe the Justice Department folks would have gone to jail or the Trump would go to jail. And I think that is extremely unlikely. I think that it’s not at all clear what crimes he committed. Even if you find some crimes that are obstruction of justice is the main one. There’s plenty of evidence that he tried to obstruct justice. But even Mueller himself pointed out the problems with an obstruction of justice prosecution. And that was just the beginning. It’s very hard under the current statute, which is why we want to fix them to to prosecute the president for obstructing justice. So I begin from the premise that I think it’s very hard to make do this successfully. Then I ask myself and I acknowledge the costs that you just that you just of not going down this path that you just mentioned. I just think that the consequences of going down the path are worst. So if if if it’s not likely you’re going to have a prosecution, the costs are going to be enormous. It is going to keep Trump in the spotlight. It’s probably going to raise his standing. It’s going to be a huge distraction for the Biden administration for whatever his agenda is. It’s going to make it impossible for the Justice Department to try to go back to this somewhat detached law enforcement agency. And it’s going to set this precedent. And I guarantee you it will come back the other way that we just started investigating. One administration starts investigating the prior administration for crimes committed by the president in office. Now, interestingly, that’s kind of what Barr is doing with Durham. And so I think that in many ways, I think it makes it worse if we follow up on that, because it’s really going to instantiate this is just the way we do business. But the basic argument is, is that despite the points you make, which I kind of agree with, I one thing I disagree with let me just say is I’m not sure that has much of a deterrent effect on the next president. There’s so many factors that will check or not check the current president, for example, the torture stuff. There was no prosecution for that. But it’s quite clear that that’s off the table now for a whole bunch of reasons. And it’s not clear whether we’ll have a Trump like actor again. So I’m skeptical of the deterrence argument except everything else. I just think the costs are worse if we go forward.
S1: And I guess the corollary meta question, Jack, is, you know, the book is absolutely correct, that soft norms are too easy to Tramel. And we can say Hatch Act, Hatch Act, emoluments, emoluments until our faces are blue. Clearly more law, less norms. But it is interesting that you’re also saying to me right now, less law like this is a political problem. And so there is this paradox, a little bit of, you know, because I think if you have a president who’s hell bent on breaking the law and we can say he’s shattering norms or breaking the law or talk about right. Action or just. Emotively ill will, all of those things I think we’ve learned can’t necessarily be cabined by more law.
S4: Some of it can and some of it can’t. I agree. Look, you can buy more law. You can, I think, take care of the problem of presidential tax disclosure. You can take care of the problem of presidential conflict, of interest and not disclosing business interests and using the public office to serve private business ends. I think you can, as I suggested, clean up the worst aspects of the pardon power. I think you can do things to enhance Justice Department independence. What you can’t do through law or through norms is to stop a president like Trump. And there will be future presidents like Trump. And as we said in the book. Trump was not a terribly effective at wielding executive power, the next Trump could be much worse because because much more clever and patient and and cognizant of how the executive branch works, you can’t stop a president from attacking institutions. If he wants to give the American people want to elect someone like that. You can’t stop that through law or norms. You just can’t do it. All you can do is try to establish practices and laws that control the consequences of that. And my view about about the post-election investigation of Trump is simply a pragmatic judgment that the it’s going to end up being much worse for the rule of law, not better. Now, let’s just let me just say this. I think that there will be an investigation of Trump. I think that the pressures on the next attorney general to do something are going to be enormous, despite what Biden, by the way, breaking norms, has already said, what he thinks the attorney general should do if he didn’t say what he should do. So with his own preferences, I think we’re going to see whether my predictions are right or wrong. So we’ll see whether you’re right or I’m right. I think because I think there will be an investigation. I think it will be very hard to. I think it’s going to disappoint everyone because I think it’s going to be not enough for the people who want him to be prosecuted and way too much for all the reasons I’m talking about. So I predict that everyone will be disappointed in it and it will not back up rule of law norms.
S1: So I’m going to let you go in a minute. But first, I want to welcome you to the segment that I informally called Welcome to Deluce Nervous Breakdown. And this is the one where I say we have talked incredibly calmly about a lot of things that have to do with the rule of law. But what we haven’t talked about much is the fact that four weeks after the election, the president gave a I don’t know, I think the formal legal world word is batshit crazy. Forty six minute rant about how he won the election. And, you know, I feel like in all the time I’ve known you, you’ve sort of been the Oscar the Grouch to my wild handed Grover. So I find this like 10 scale alarming in terms of illiberal impulses, in terms of fomenting distrust, not just in this election, but we’re seeing in Georgia now voting itself. I really think this is a serious, serious moment. I will not use the word crisis or tyranny or any of the other words that get people upset. Am I overreading how profoundly, profoundly damaging it is to the rule of law to have a president refusing to concede and most of the GOP somehow pandering to that for weeks after an election? Give me give me a number one to 10 how panicked Jack Goldsmith is.
S4: I’m not very panicked, but but let me just qualify that. I agree with you. It is the worst thing of a very long list of terrible things. It’s the most despicable thing he’s done. It’s deeply unpatriotic, I don’t know any other word for it, it’s just it’s just the it’s like Trump the extreme, put himself in his interests over our country and our democracy. And I don’t admire the Republicans, although I understand why they did it, because they’re political creatures and all they care about is winning the Georgia Senate and re-election. I don’t admire them at all for for not at least at some point more recently than they should have. And some still haven’t coming out and acknowledging that Biden won the presidency. But I am a glass half full person. One way of looking at this is in the face of what you and I both think is this unprecedented, awful, profoundly anti-democratic on our institutions. Lo and behold, the institutions held and by the way, with the help of a lot of Republicans in the states. So, you know, you can view this as the end of the world or terrible thing. But you can also say and again, I’ve written a four hundred and twenty page book that says, don’t be complacent going forward. But you can also say, just like you can say from the fact that Mueller was able to get this report out, that Berman was not able to be replaced with a Trump crony in the southern district of New York, that Hillary Clinton wasn’t prosecuted. You can also say, you know, the institutions while they were damaged and didn’t do terribly well all the time, they actually and in the face of this really unimaginable onslaught from the most powerful person in the world, they kind of held up. How’s that for an optimistic ending?
S1: Your optimism infuriates me, but also inspires me in equal measure. Jack Goldsmith teaches at Harvard Law School. He’s a senior fellow at the Hoover Institution, co-founder of Lawfare, which I hope all of you consume voraciously. Jack was head of the Justice Department’s Office of Legal Counsel from 2003 to 2004, and his book, Four Hundred and Twenty Pages, together with Bob Bauer, is called After Trump Reconstructing the Presidency. And it really is, I think, going to be the Bible for repair going forward. Jack, I cannot thank you enough. I know you’re crazy busy for spending this time with us.
S4: It was super fun. Thank you so much. It’s great to see you.
S1: So Hyslop plus listeners, welcome back to everyone’s favorite part of the show, which is our secret stuff, we only tell you only conversation, only you with me and Mark Joseph Stern and what, two weeks it’s been since we last talked. Mark, welcome back.
S5: I believe it’s been two weeks. That is just stunning to me.
S1: Well, that’s because we started doing a weekly show because the wheels were coming off of democracy and then we decided that wasn’t. But it still is. So let’s let’s let’s talk. I wonder if we can go all the way back to last week and talk briefly, Mark, about the diocese case and about the Supreme Court wading in on religious liberty. And I think the only thing I want you to answer is people just want to know how big a deal this is. And if you read Ian Millhiser at Fox, you know, it’s like the worst possible thing in the world. I think there are a lot of other folks who say, look, you know, the court didn’t actually do anything and it was very preliminary. So maybe let’s talk just for a minute about what in fact happened, because I think folks don’t entirely know what happened. And then we can talk about what a difference and Amy Bear makes.
S5: Right. So I guess I would say the decision itself is somewhat narrow because it didn’t actually do anything, at least not right away. Right. The Supreme Court’s decision in the dioceses case lifted covid restrictions on houses of worship that were not in effect. Right. So you can’t say, oh, this was a total disaster for public health as it did not actually do anything. As Andrew Cuomo said, it says more about the Supreme Court than anything else. What does it say about the Supreme Court? A whole lot, in my view, and I think that is what’s so important about this case is not the immediate impact, but the philosophy that the lead opinion and the concurring opinions reflect, which is a sense that religion is under attack and that the Supreme Court has to step in and shield religion from evil, malign lawmakers who are trying to suppress it, and that the First Amendment’s free exercise clause means something that we didn’t think it means, which is apparently that any time there is a law or a regulation that grants any kind of exceptions to anyone, then it also has to grant those exceptions to houses of worship. Because this was a case where, you know, theaters, movie theaters, other areas where people would congregate and sing and sit around together. They were also closed. Right. Churches were allowed to stay open. They just couldn’t have that many people in them. But places like Target bike shops, liquor stores, they were allowed to stay fully open. And what the court basically said was, look, we see that you’re you know, you’re allowing churches to stay open to some degree, but you’re letting these other secular businesses stay open even more so and invite even more people in. And that means you have to give those exact same benefits to houses of worship in churches because otherwise you’re basically targeting religion for discrimination. You may even be expressing animus toward religious exercise and you are violating the First Amendment. And that is a radical idea that the Supreme Court has not adopted, at least right now or until now maybe. And we’re going to see, I think, over the next couple of months and years just how far the courts are willing to take this philosophy.
S1: And let’s be clear on two things. One is, as you said, this was only in so-called red zones. It was already, by the time the court weighed in on this, that nobody was being affected by it as such. And also this was a preliminary. So this was kind of the court reaching out very, very early. This case still needs to be litigated. And I think those are the things that raise some red flags. Is that added to all that the court has already in Nevada and California looked at this issue? The reason for alarm is not anything the court did. It was that it wasn’t necessary for all of these reasons for the court to jump in now, right? That’s right. That’s the concern.
S5: Yeah. And and that the way it jumped in on the basis of this theory is just very confusing because it seems like the majority is trying to retcon these older decisions to mean something that they just don’t mean, which is basically if you allow a bike shop to stay open during a pandemic, you have to let a thousand member church stay open as well.
S1: And I think that’s the essential thing that folks are confused about, is that this is. All argument by analogy, right, we have Sonia Sotomayor saying, hey, dude, nobody goes into a bike shop and sings for two hours at the top of their lungs. And then you have this sense, I think, on the part of some of the concurring opinions that it’s insulting even to compare a church to a bike shop and that this is this is in some ways litigation by way of what is the most apt comparison. We remember this from the casinos in Nevada, but it’s a really, really tricky thing, I think, to do litigation by analogy, because it entirely depends on what you think is inappropriate or appropriate metaphor.
S5: Right. Or your own understanding of science or the lack thereof, which is what we saw with Gorsuch, right. Where he seemed to suggest that spending a few minutes in a bike store or a liquor store is scientifically the exact same as spending hours singing in a church for the purposes of coded infection, which is simply not true. And Justice Sotomayor is extraordinary. Dissent says basically that justices of this court are playing a deadly game when they try to overrule public health experts through these bizarro analogies. And I think we should pause for a moment just to talk about why it’s litigation by analogy. And this is the point I was trying to make earlier. Right. So we have this decision. Employment Division vs. Smith says a neutral, generally applicable law that happens to burden religion is still constitutional, right? A law that burdens religion is only unconstitutional if it targets religious exercise for special disfavor. And the court has since expanded that to religious institutions as well. And so the plaintiffs in this case, the churches, can’t come in and say, we want to worship, but you’re not letting us. And that’s our claim. What they have to do is come in and say we want to worship and they’re not letting us because they are discriminating against us on the basis of religion. And that’s where these analogies and exceptions come into play, because that forces the court to say, well, what is similar to a church with regard to covid risk? And that is a dangerous question to ask because it opens the door to the kind of pseudoscience that Neil Gorsuch was peddling in this opinion. So we have these justices who I think would really like to just strike down these covid restrictions point blank and say, you know, you’re burdening too much religion, period, but they have to work around these precedents. And so they’re trying to shoehorn these cases into religious discrimination through all of these analogies and exceptions, saying, oh, you’re favoring Safeway and Kroger over the Catholic Church and the temple that don’t make a whole lot of scientific sense, but get them to where they need to go in order to do what they want to do.
S1: And maybe it’s just for saying that we’re now at this paradoxical moment, Mark, where if you’re alleging race discrimination, you have to show intentional, deliberate, mindful race discrimination. If you are alleging any infringement on religious liberty, it doesn’t even seem to require any intent. It’s just if the impact is that religious entities are suffering, then by implication there’s religious animus like that’s the world we now inhabit.
S5: I think I think with one footnote, it doesn’t apply to discrimination against Muslims. Right. And this is something that Justice Sotomayor points out. So the lead opinion in in the dioceses case has this strange section where it says, you know, some have noted that the governor, Andrew Cuomo, may have targeted religion because he pointed out that covid is spreading rampantly and Hasidic Jewish communities in New York City. Well, A, that is simply true, right? It is just true that it is out of control. And a lot of ultra-Orthodox Hasidic communities and there is some evidence that these communities have not been complying with the rules. We saw the images of that multi hundred person indoor wedding and then Hasidic community. But B, as Justice Sotomayor points out, Donald Trump said that he was going to pass a Muslim ban calling for the total and complete shutdown of Muslims entering the United States. And that was not enough for the court to block the eventual Muslim ban that Trump did enact. And so it seems like there’s two standards here. If a religious burden falls on Christians or maybe Jews, then it’s bad and it cannot stand. But if it falls on Muslims, well, we’ve really got to give our elected lawmakers a lot of leeway to craft policy and not impute bad faith to them, to completely different standards that just apply to different religions, I think.
S1: So we talked about Amy CONI Berrett. It’s clear this case went differently when Justice Ginsburg was on the. John Roberts continues to vote with the liberal wing, although now ineffectually adding a fourth vote to the dissenters, Justice Barrett did not. Right. We have no independent sort of idea of where her head is on this, but we know how she voted. How clear is it to you that this is just going to be a five vote juggernaut for what Linda Greenhouse, I think, is calling the grievance conservatives very clear.
S6: And I love that phrase and I’ve already adopted it with all credit to Linda. It’s a brilliant phrase. And I think it’s absolutely true of Amy Barrett so far because this was a grievance conservative ruling. Right? This was months and months of pent up anger at New York and Andrew Cuomo that finally the justices had the votes to unleash. And Amy, Connie Barrett gladly provided that fifth vote. We don’t know who wrote that opinion, but I will tell you, it doesn’t read like it was written by any of the four men who joined it. I don’t know Barrett’s writing style that well yet, but it would not surprise me if she wrote it herself. And it certainly looks like she is adopting this position that Alito and covid on Gorsuch have adopted. And Thomas kind of pioneered this being perpetually angry and enraged and aggrieved and viewing America as a kind of endless battle between these evil progressive forces who want to suppress religion and these saintly do gooders who just want to, you know, help the poor and knit clothes for homeless people and, you know, do all of this great stuff that America is really all about. And I think that helps to explain Gore’s judge’s opinion in this case, which was totally gratuitous. He writes separately, just to take aim at the chief justice for basically betraying the other conservatives and goes on this really absurd rant against the chief for betraying religious liberty, in essence. And so I think, you know, there was a big question with Barrett, is she going to be a little more institutionalised, a little more moderate once she gets on the court? The pull of I think Roberts and Kagan toward the center is strong and has occasionally brought Cavnar into that orbit, not Barrett. It just doesn’t seem like she’s got it all.
S1: So. So then let’s talk about the census. Our friend Dale Ho arguing it seems like one hundred and seventy five days ago, but I guess it was this week. It was this allegedly. Allegedly. Can you fill us in on that? Because it seems as though the spiraling implications of what that could mean going forward are unknown right now.
S6: Yeah. So first, you know, Dale did an amazing job, and I think people should go and listen to his arguments, which were relatively brief. But it’s like you can listen to that and pretty much master the case. So strong was Dales, you know, domination of these arguments. And I think the justices kind of got that like, you know, I was expecting this argument to go really poorly because some of these justices can have hackish instincts, we will say, and they tend to come out when there’s a case involving Donald Trump trying to entrench Republican power in the political system. But this was a case where I think all of the originalist evidence was on Dale side. It’s on the side of the voting rights advocates and civil liberties advocates who are telling Donald Trump, you cannot exclude undocumented immigrants from the census count in any way, shape or form. And you certainly cannot exclude them from the total number that’s used to divide up seats in the House of Representatives between the states, because that’s what this case is about. Right? Donald Trump wants to take seats away from states like California that have large undocumented immigrant populations. And we should note that when you take away a House seat from a state, you also take away an electoral vote and the Electoral College and every one of those votes is really important. So what we saw in these arguments, I think, was several justices, including Amy CONI Barrett and Brett Kavanaugh, saying, hey, we get that the originalist evidence is against Trump. In this case. We see that two hundred and twenty years of practice going back to the earliest days of the republic shows you can’t exclude immigrants in any way. But we also would like to not rule on this case because we are somewhat craven and we do not want to stick our thumb in the eye of our benefactor on his way out the door. So maybe we can put our heads together and find a way to avoid issuing any decision on this case and just hope that Joe Biden does away with it and takes it off our hands. And I think that’s probably what’s going to happen. I can’t pinpoint exactly what method they will use, but it does look like the majority is going to say it’s too early for this. We’ll wait and see if Trump actually tries it. But for.
S1: Now, this just isn’t our problem, and what does that mean concretely in terms of the census going forward?
S6: So what it means in theory is that Donald Trump may produce these numbers that exclude undocumented immigrants and send them over to the House of Representatives, which is then supposed to send them on to state governors. And then the apportionment is supposed to begin. But maybe depending on how SCOTUS writes the opinion, if they decide to kick the can down the road, what they’ll say is come back to us after Trump does this, but before it actually takes effect. And that’s not going to be a very big window of time because this is all done by statute. It’s supposed to happen really quickly. But Trump is behind on this because he has tasked the Census Bureau with doing really an impossible task. There is no reliable count of undocumented immigrants anywhere. There was no citizenship question on the census because SCOTUS blocked it. And so the bureau is working with these kind of dubious numbers, trying to throw together some kind of Excel spreadsheet for Trump by January 20th. And it’s just not clear they’ll be able to. So there is a chance, I think, that Census Bureau ends up saying we just can’t do this and maybe stonewall until Trump’s out of office.
S1: And is there a fix for Joe Biden administration if these hackish. I feel like the word hack has come out a lot today, but if these are hackish spreadsheets, get repurposed into actual actual numbers.
S6: So that’s the big question that nobody is totally sure about. I mean, if if SCOTUS steps in and says, OK, you’ve done it and we’re going to tell you you can’t, then that is a whole other ballgame. But if Trump creates these spreadsheets and tries to put them into law and then Joe Biden takes office, but they’ve already been passed along to the states and apportionment has already putatively happened, it’s not really clear what Joe Biden can do. He might need like the Congress behind him to, I don’t know, do a new census, which would be great anyway, or take back the numbers. But it’s a lot of unknowns here. And I think that’s part of what’s freaking out the justices, that it’s totally uncharted waters. And so they don’t want to be the first ones rowing their boat into the abyss.
S1: So speaking of justices and rowing boats into the abyss, I can’t leave you without asking about the what is it, one in forty three when record of the Donald Trump campaign wins and losses. We have to talk a little bit about the Supreme Court managed to dodge the bullet of this complete nightmare that is now, you know, crazed crack force. What are they called? They’re not the crack for crack in the crack cracking force, the just absolute reinke insanity of Janet Ellis and Rudy Giuliani and sometimes Sidney pal. But not. And just. There’s a way. In which the just sheer comedy of these lawsuits and these hearings has almost over shadowed the fact that these are, in fact legal proceedings and they are tilting at getting to the Supreme Court by hook or by crook, there is zero chance you’ve been saying this for weeks. The Supreme Court wades into this, right?
S6: Absolutely. Any of these so-called cracken lawsuits, anything produced by the Giuliani team, by Sidney Powell, Janet Ellis, none of that stuff is going to find any purchase at the Supreme Court. Maybe they’ll appeal to the court. Know the court’s going to take some kind of action, maybe delay these appeals, whatever. They’re never going to take a case. They’re never going to rule for these crazy people on the merits. That’s not going to happen. I will say one thing. There was one Supreme Court case and it’s still pending, although it can’t actually change anything. There was there is this one Supreme Court case that could have really screwed up this election. And we’ve talked about it before. It was the case about late arriving mail ballots in Pennsylvania. Right. So the Pennsylvania legislature wanted to throw out every mail ballot that arrives after Election Day. The Pennsylvania Supreme Court came in and said, no, you can’t do that. It’s not fair. It’s unconstitutional. You have to accept ballots that are mailed by Election Day that arrive up to three days after. Right. There were four votes on the Supreme Court to block that and throw away all those ballots that came in in Pennsylvania after Election Day. And that was before Barrett joined the bench. So we don’t know where she would fall on this, but the conservatives minus Roberts were ready to throw out those ballots. And then Alito stepped in and and made sure that all of those ballots were segregated so that they could still be thrown out weeks or months after the election if the election came down to Pennsylvania. Right. It it turned out that Pennsylvania went pretty decidedly for Bidart and that most people got their ballots in on time or early. So those ballots that arrived late didn’t end up mattering. But if they had if the Pennsylvania election had come down to those ballots that arrived late and the entire 20, 20 race had come down to Pennsylvania, I have really little doubt that the Supreme Court would have thrown out those ballots and given the election to Donald Trump, that case is still pending at the court. There’s all kinds of procedural nonsense. Again, there were too few ballots for it to matter now. But as we laugh at Rudy Giuliani and John Ellis, as we cackle at these ridiculous lawsuits, we should remember that there was a earlier, somewhat less ridiculous but still really foolish lawsuit that got four votes on the Supreme Court that could have given the Supreme Court a chance to steal the election for Donald Trump. And that that was no joke. And so, yes, all of this post-election litigation is now really funny. But there was a case that could have just dropped a bomb on this election and the Supreme Court was almost ready to do that.
S1: And I guess just parenthetically, right, Justice Alito asked Pennsylvania officials to file a response Thursday night in in another case where it doesn’t matter, it’s just too late. And so it is worth, I guess, saying that Justice Alito still seems to want to use capital to kind of wave the flag of. I could be interested. I could be tempted into this.
S6: Yeah, absolutely. I mean, look at his Federalist Society speech, right? The man is all in for Trump and Trump ism, much like the entire Federalist Society. And I don’t think that he minds blowing his own political capital, as you said, on kind of entertaining some of these ridiculous lawsuits. And I think the overarching goal is at this stage, not to elect Trump. It’s not going to happen, but to plant a flag for the next election and say the next time around. If state courts and state election boards come in and try to protect voting rights, as they did in Pennsylvania and North Carolina and elsewhere, we’re not going to let them. We are going to prevent states from expanding voting rights because we don’t really like the franchise and we don’t think that state courts should be allowed to protect your right to vote. That is the theory that Alito and covid on Gorsuch and Thomas laid down in this election. And I now have very little doubt that Barrett will join them and in two and four years.
S1: And I think that’s a really important place to end because I think lost in the comedy stylings of Rudy Giuliani, we forget that actual law has been made this election, actual law has been made. And whether it’s under the rubric of the Purcell principle or under the rubric of suddenly questioning whether state supreme courts can rule on their own state election procedures, the bar has really moved and it seems imperceptibly. Because, as you say, it didn’t end up. Effecting a change, but it’s quite perceptible if you think about election lawyers in the future and what they will be able to weaponize going forward. That stuff is not comedy.
S6: No, it’s not funny at all. It’s deadly serious and it really scares me. And so I just I hope that we leave this whole phase of crack and litigation with at least a footnote in our minds that next time around it will be much worse, 80 percent less crack and the percent more five votes.
S1: Mark Joseph Stern covers all the things for Slate, and he is an indispensable person to be following right now if you are trying to follow the cracken. Mark, thank you so, so, so much for being with us again this week.
S3: Always a pleasure to talk to you soon. That is a wrap for this episode of Amicus. Thank you so much for listening in. Thank you so much for your letters and your questions. We are trying devilishly hard to keep on top of them. You can always keep in touch with us at Amicus, at Slate, Dotcom, or you can find us at Facebook dotcom slash amicus podcast. Today’s show was produced by Sara Burnham. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. And we will be back with another episode of Amicus in two short weeks.