The Conservative Legal Resistance

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S1: This ad free podcast is part of your Slate Plus membership.

S2: You’re never gonna get a good deal. You’re gonna be a serf you’re gonna be subjugated forever. If we trend towards an authoritarian government we want a government of the people and that’s what the framers had in mind. And it really matters it’s not just an abstraction.

S3: Going forward we need to recognize that a politics of inclusion positivity and abundance can allow a blind Iranian American to win statewide. Then there’s much more that we can do throughout the country.

S4: Hi and welcome to Amicus. This is Slate’s podcast about the law and the Supreme Court and the rule of law. I am Dahlia Lithwick. I cover those things for Slate and you would be forgiven if this weekend you are feeling a bit as though all those things are just a blur in the window of a speeding train. But that’s why we’re here. Later on in the show we will talk to Cyrus Habeeb he is the lieutenant governor of Washington state. And we’re going to hear from him about reasons believe it or not to be optimistic about the law and the constitution in October of 2019.

S5: But our first guest this week is one of several very prominent conservative lawyers who have helped form a coalition seeking to check what they deem illegal and unconstitutional behavior by the president. That group called checks and balances recently issued a statement calling for quote an expeditious impeachment probe into President Trump. This week the president obliged by calling folks like them and other never troopers quote human scum. Stewart person was also on the winning side this past month of a big lawsuit challenging the president’s authority to build a border wall. And we wanted to talk to him about that as well. Stewart served as assistant attorney general for the civil division of the Department of Justice from 1989 to 1993 and as acting attorney general for the Clinton administration in 1993 a job he took over from one William Barr. He’s a member of the firm Epstein Becker Green. He is also as I said a founding member of checks and balances. And as I noted at the top he is also one of the lawyers who obtained a court ruling just a few weeks back in which a federal judge found that President Trump’s proclamation of a national emergency along the southern border violated federal law because it illegally sought to override Congress’s decision to not fund further border wall construction. So we wanted an update from him on that litigation and to generally have a check in on the Trump resistance within the conservative legal community. So Stewart Carson Welcome back to Amazon.

S6: Well to paraphrase the president greetings from the bottom of the pond it’s nice to speak with you and I.

S7: Maybe we should start there your colleague in arms that checks and balances. Paul Rosenzweig did write a pretty bracing piece in The Atlantic celebrating having been called a scum. I wonder. This is not funny. We laugh about it but it is actually not a funny thing when the president is calling some of the foremost legal minds. You’ve all given service to this country worked so hard within the Federalist Society and within the conservative legal edifice to be called scum and to be called low lifes and I I want to give you a chance to respond because I think it’s easy to laugh it off but it’s actually not all that funny.

S6: Well to an intelligent and informed person the appellation says more about the speaker than it does about the subjects and all of us are people who I believe served with if not distinction at least general approbation. None of us is looking for a job. We we believe in the Constitution were expressing traditional and fundamentally conservative not just values but principles which were in terms of the way that we see the Constitution and we and we see the law. Unfortunately we have an administration that sees things a bit differently. When you resort to the kind of invective that we see I think it suggests to anybody who is intelligent that you have no force no intellectual force no substantive force behind any of the arguments here that you’re making and you’re just name calling.

S8: Now to satisfy the educated is one thing. There’s a mass out there that’s that’s called the president’s base that unfortunately is relatively uninformed. If this has resonance with them well that’s that’s sad. We need checks and balances and elsewhere trying to get enough out there in terms of reasoned views as to why we believe what we believe that we believe that still we’re children of the American Revolution. We are people who are against authoritarianism. We don’t have to take up arms are our arms are are the pen and the word. And as I say if you if you name call you’re suggesting that you don’t have the horsepower to confront us directly.

S5: Let’s talk about your lawsuit. We had you on when it was first filed. This is a separate suit from the California challenge to the border wall. This is a suit that it’s an amazing coalition of co counsel has come together on behalf of El Paso County and Texas and the Border Network for Human Rights. Can you remind us about what your lawsuit is and how it differs from the other litigation in California.

S8: We represent the county of El Paso Texas and a public interest group called the Border Network. They are directly affected by the President’s proclamation. Not just in terms of the fact that additions to a wall will be coming through the county itself but they’re affected right now in terms of reputational damage. People not wanting to risk doing business with them economic damage because funds are about to be diverted from Fort Bliss which is in El Paso as the economic heart of that community and the Border Network which is an organization which under normal circumstances is a lobbying group that campaigns for humane immigration policies has had to put aside its charter and it’s become a counseling group dealing with people who whose lives are disrupted now by the President’s proclamation and fear of what’s going on which of course was greatly aggravated when a nut case decided that it come from elsewhere into El Paso and commit murder. And so we were able to surmount the standing barrier with no disrespect intended to the plaintiffs in California who we’re talking about recreational injury and some other things our injury was pretty profound and Judge Briones wrote at length about it and very responsibly so he understood that we had testimony through affidavits and were prepared otherwise to present it from county and network officials talking about the immediate effect that the president’s unlawful proclamation is having on them was having on them at least until the the the the court’s order folks who were following these lawsuits noted in some dismay that in July the Supreme Court stayed a ruling from a federal court in California that was blocking the border while expressly in California Arizona expressly because of the Supreme Court at least had I think some sympathy for the standing argument.

S7: So not only is your case differentiated from that because you think you have a stronger claim to standing but I think what you’re saying and I just want to say it explicitly is that that stronger claim to standing is going to hopefully what gets you in your view passed the hurdle where the U.S. Supreme Court blocked blocked this effort in California. Is that what you’re saying.

S8: That’s largely correct but it’s not the only thing. As I noted earlier we also have different causes of action from what was abiding in California. For one thing we’ve brought a claim under the Administrative Procedure Act the claim that we that we won under with respect to the Consolidated Appropriations Act is different from what was being argued in California. Of course it has a constitutional base in Article 1 what the president has done here and what the court has found that the president has done is unlawfully diverting moneys from programs where Congress has specifically appropriated things having to do with the military military housing based development things along things that affect the well-being of of military members and their and their families in an appropriations act where Congress itself has said that funds can’t be redirected. And in the wake of the administration having asked Congress for full funding for all for a wall and a transcontinental wall and having been denied that by Congress. So our focus is a little bit different. Judge Briones practiced the wise doctrine of constitutional avoidance and noted that he didn’t have to reach a whole bunch of the issues because the violation of the CIA the Consolidated Appropriations Act was so clear that he ruled on that basis. So that along with standing is what is what distinguishes us and we’re hopeful. I mean there’s never a Gary in any case like this the Supreme Court is always resistant in matters that where there are inter branch conflicts. And we’ll see what happens. But we’re standing under the umbrella that Justice Jackson described in the Steel Seizure Case Youngstown Sheet and Tube and we believe if anybody’s presented a good case to challenge administrate administration action it’s us.

S9: Now Judge be honest didn’t craft an injunction right. He gave the plaintiffs 10 days to submit specifics. He gave the government five days to respond. I think we’re still in that window. Correct me if I’m wrong.

S8: You’re correct. We have filed the. The plaintiffs have filed we’re seeking injunctive relief that is consistent with the court’s order in other words no spending on on on the wall allowed from that couple of provisions that the administration is attempting to use to evade the congressional. The Consolidated Appropriations Act. We’ll hear from the government in a couple of days as to what its response is going to be.

S10: And in your sense so far is the government been more or less responsive or are you going to get either a bait and switch or a delay or I mean do you have some sense that they’re going to come back to help craft something that is workable or is this going to be another sand in the gears moment.

S8: Well I don’t know if it’ll be sand in the gears but I doubt that it’s going to be very cooperative either. I mean it’s no it hasn’t been up to now and I don’t blame the lawyers in the Federal Programs Branch of the civil division they’re doing what they’re being instructed to do. But it’s clear that it’s the the will of the chief executive to take a hard line position. I imagine what the government is going to come back and say is we know that we’re gonna get injunctive relief. I mean all the court has asked us to do is is tell us what what it is that we think we ought to get and give the government a chance to respond. I think the government will argue among other things that the injunction that we’re seeking is too broad that that it constitutes a nationwide injunction. But I think that will miss the point because this isn’t a question of geography. This is a question of of spending Congress’s budgetary responsibilities its power of the purse and if indeed the attempt to use various military appropriation statutes to siphon money out of out of the out of the place where Congress intended it to go. If it’s illegal in one place it’s illegal every place just by. As a matter of of logic and law so they’ll no doubt be a debate about that. But I really do think we have the better of it.

S10: It’s interesting because you mentioned this about the Ninth Circuit but when Trump was sued he said we’re going to be very successful. I think we might do very well even in the Ninth Circuit. It’s an open and closed case. Again part of a long pattern of delegitimizing the ninth. But you filed them. I mean the Fifth Circuit is is notoriously conservative. Do you have any worries that your looking down the barrel of an appellate court that is pretty fond of Donald Trump or at least more inclined to say that the kinds of executive powers that he’s asserting are palatable for the judiciary that may or may not be the case.

S11: But I’ll tell you why we’re in the Fifth Circuit. I wasn’t the only one who advocated being there but speaking for myself it is always been my view that you try a case in the place that is most affected by it with it with a client that that really has an interest in the Kennedy administration the civil rights cases were brought in in the Deep South in the places where where the action was taking place where it mattered the constitution and criminal cases of course the framers had in mind that criminal defendants would be tried by their peers where they lived. And I feel much the same way about that in every case. I’m happy to litigate at the center of things in the eye of the storm. Now that’s one reason why we’re there. I mean we have a client who’s there. It’s the client’s home ground. It’s it’s territory it’s defending itself it’s it’s it’s community values in it’s in its home but in in addition to that I’m not pessimistic about the Fifth Circuit either we’re making a very conservative argument this is not about what our immigration policy ought to be we want to have a better immigration policy but that’ll be for the Congress to decide and it will probably carry over into the election. This has to do with the structural constitution and if you follow things that many of us have done with organizations like the Federalist Society things that we’re talking about carrying out framers intent being faithful to the Constitution as it is not dealing with a constitution that we don’t have one that arguably assigns rights and benefits. That’s not our Constitution. Our constitution is one that recognized in overthrowing the rule of a king that we better divide government and in several ways. First have powers that are retained by the states. That’s not an issue here but within the federal government to deal with the questions of factions as Madison pointed out to deal with with the issues of preventing the restoration or the re-establishment of a king that powers should be separated among three branches. Checks and balances is the is the slogan by which that has has become known. But I’m one who in the first Bush administration argued for a virtually unlimited war power that the president has and I still I still believe that. But when I say virtually unlimited there is one limitation and that’s the article 1 power of Congress to spend to appropriate and spend money. Here is a case where the executive is abrogating a legislative power to itself. That’s something that a conservative court ought to understand. I know several of the conservative judges on the Fifth Circuit quite well.

S12: And I feel comfortable in our making that argument to them.

S7: One of the things that I’ve been thinking about you have been watching the different sort of prominent I know you are one of the sort of founding members of checks and balances is that you’re all self sorting kind of picking a lane. I think George Conway has very much taken it upon himself to think about the president’s mental fitness. He’s written extensively about that. Paul Rosenzweig has picked another route and you have really I think it seems to me been laser focused on very structural arguments like the one you just laid out about the boundaries between the president’s power and congressional power. And I wonder I mean I think it’s a Lean In some ways it’s so abstract Stuart and the arguments that you’re making are both incredibly compelling to somebody who went to law school. And yet I think it’s very very ephemeral to somebody who just buys into the idea that you know Donald Trump can do whatever he wants because he’s the president and you know whatever whatever valence you want to put on it that his executive power is Kinglake and I wonder how you. I also want you to conquer times what you’re saying and help folks who are struggling to understand it’s very very clear what when George Conway writes about narcissistic personality disorder what he’s trying to do. Can you explain in a very very concrete way for folks who haven’t thought about it as seriously as you’re describing what it is that you feel is at risk.

S6: Well let me let me deal with that on two levels first in the base level that you describe I’m doing exactly what you’re suggesting.

S13: I’m speaking to people who have gone to law school or or who have studied policy political science majors and whatever. It’s not just two intelligent people but it’s to educated people who can act on this and do something about it. It’s in parallel to other arguments at the same time.

S14: I’m not party to letters that deal with the the president’s toleration indeed encouragement of of racism of ethnic stereotyping of violating the rule of law a bunch of concrete ways so we’re all doing these these different things the so-called scriptural arguments that I’m making are indeed targeted to perhaps a narrower audience than things that my friend George has been doing. But that aside if you’re asking me. Let me synthesize this for the mass public who might not have taken as much civics as others and hasn’t studied the Constitution and some of these somewhat technical issues that I’m describing about and doesn’t bridle when they hear a president say that Article 2 allows me to do anything I want. This is the second one Nixon said that too.

S15: Here’s the issue and it’s the issue for people ordinary people who who are concerned about gun rights and a whole host of other issues what were the framers getting at when they put a Second Amendment in the Constitution when they separated powers and when we had our first president George Washington refused to be crowned a king which was offered to him several times and I’m now talking to the guy in West Virginia perhaps who’s who’s concerned about his job future and the like of that. I mean the response is you’re never gonna get a good deal you’re going to be a serf you’re going to be subjugated forever if we trend towards an authoritarian government we want a government of the people and that’s what the framers had in mind.

S16: And it really matters it’s not just an abstraction. We don’t want a government that tells us what what the truth is when the facts are decidedly different. We don’t want to have a government that in the name of promoting the economic well-being of its people sponsors anti trade policies that then require subsidies within the government that could better go to things that actually would help people. This ultimately is a bread and butter issue. Yeah there’s an abstraction in between it but we’re trying to avoid dictatorship. That’s not an abstraction. That’s my answer to you. This ought to matter. We need a better informed public. There’s no question about it. But as I’m looking at the polling data that I’m seeing the public is becoming better and better informed. What we hope for on on the conservative side is that by election time there are rational choices to make that we haven’t swung too far to the left with untenable policies that involve the government in economic troll and and other matters that that are that can be just as dangerous. There’s too much of the electorate. Perhaps the majority of the electorate both to the left and right of centre that is unrepresented now. While I condemn the executive in many ways it’s also true that Congress isn’t doing its job that the Republicans in the Senate are viewing themselves as a parliamentary party. That’s not what they’re supposed to be. They’re not electing the president they’re representing their constituents the house. The same way.

S17: We just need a more productive legislature as unpopular as the president might be. The Congress is just is at least as unpopular. There is a reason for that paying attention to the Constitution is a way to come out from under that rock and ultimately the responsibility lies with the people. I mean when when the Constitutional Convention presented the Constitution Benjamin Franklin was asked what he thought what had happened and he said we’ve given you a constitution and a republic if you can keep it and we’re being challenged as never before in that area. This is just such an unusual administration and I hope that that that people understand that it matters to them. Their problems are not being solved.

S10: They should know that and there’s a reason why so I had Larry Tribe on the last show and he made two points that I’d like you to respond to if you would one was in the litigation just too slow. All these cases are just unsporting. He is the all deliberate speed locution but there. This is all happening too slow to check this president and then I think he braided that into an argument that you and the checks and balances crew have made which is that’s why impeachment. Impeachment is the only solution the courts cannot do this checking. And so I think I want you to respond Stewart if you would to a two part question which is a big win on the wall. Congratulations. In none of this is going to happen fast enough. And relatedly when you call for an impeachment because it needs to go fast. Do you sense that there is enough time for an investigation and a trial to really pre-empt what I think you and I agree could be catastrophic outcomes. Are both these processes both litigation strategy and the impeachment that has only really just begun to unspoken in an investigation too slow.

S18: Let’s look at it in a different way. Let’s step back a little short litigation is slow and it’s hard to know when you when one would get an ultimate resolution for example of our case if it goes up to the Supreme Court and hits there in the summer especially when they’re away and they don’t get to it and we roll into the into the high election season that all these things can happen. But step back from that a second. Think of this as a war and no successful war on any mass scale can exist without a number of different fronts a number of different ways to attack the enemy here the enemy is an authoritarian lawless executive the litigation is part of that.

S19: There are various other things investigations and the like of that some of them are within normal process for example. One of the potentially impeachable offenses has to do with the Ukrainian situation.

S20: I’ll come to that in a second in the context of impeachment but at the same time it’s clear that the United States attorney for the Southern District of New York that is somebody who is in the Justice Department in this administration is actively pursuing a criminal investigation not just against these Tweedle D and Tweedle dumbs who are associates of Mr. Giuliani but apparently Giuliani himself. So there is another aspect where there are criminal cases referrals from the Mueller investigation that are in court. Impeachment is a different story. And this is something that I don’t think is widely understood and I certainly hear a lot of ignorance from sadly Republican critics of what is going on in the House with regard to the investigation with regard to some of this conduct. They’re saying well this or that isn’t a crime. And so it can’t be prosecuted and so there’s a question of the Justice Department’s memorandum about prosecution. More to come on that. But the framers understood that too. And that’s what high crimes and misdemeanors are about. You alluded to that earlier high crimes and misdemeanors are not infractions that are prosecuted under the criminal law it’s conduct that’s inconsistent with the responsibilities of the office. Abuses of power and there the House is well within its prerogatives to have an investigation. The Justice Department’s memorandum the ultimate conclusion of which I agree with by the way having to do with whether a president can be tried in a case while he’s in office I think it is correct but that the memorandum itself suggests more than suggests states that the president can be investigated and indeed it suggests that he could even be indicted. Just can’t be can’t be tried while he’s in office. And so the framers very well understood this sequential matter of impeach and then the various jurisdictions could get their cases actually heard if indeed they were there. So to go back to your original question there are a number of fronts here. Ultimately it may be that there’ll be a political solution to it.

S21: Even if Trump were reelected I may recall 1968 when Nixon was re-elected by a vast majority. And yet once essentially a lame duck the fear went out of him and Republicans stepped up to the plate and did led the action. Howard Baker was a Republican and certainly no one was more responsible for the bill of impeachment. That was it was prepared and ultimately the president’s resignation. So who knows what the timeframe will be. Larry Tribe is correct that litigation is slow. It’s only one aspect of this we’re pursuing it because we believe that we’re right. He does too. Obviously he’s involved in the case. Ultimately the responsibility here is going to is going to lay with the people both at the polls and in informing their legislators now of what they think is in their best political interest.

S10: I think you just said the single most important thing that I’ve noted this week which is we’re starting to map this no quid pro quo language onto this. There was no crime language anywhere. Matt Whitaker said it this week it’s become the line of defense a lot of Republicans in the Senate are saying no crime and they just want to reference you wrote an article in July in the Atlantic arguing for seeing more of the Muller report and knowing more about the obstruction allegations there. But you made this argument I want to quote it to you quote This has been framed as a question of collusion collusion is not a term employed in federal criminal law and the fixation on it has been a diversion. End quote. I wonder if you just respond to my sense that quote no quid pro quo has become the new. No collusion. It’s something that is being imported from the criminal law into an impeachment inquiry that as you just ably pointed out has nothing to do with federal statutory crimes necessarily abuse of power is not a crime says says the defense here but we’re not looking for crimes and I just wonder if you think that we’re being jujitsu in some sense yet again by claims that if there’s no quid pro quo in the conversation around Ukraine then this whole thing goes away. Can you respond to my sense that no quid pro quo is being deployed in exactly the way no collusion once was.

S19: It is I mean a year summary is correct but there’s a fundamental problem with it that transcends this this argument and that is it’s pretty clear there was a quid pro quo and that there were crimes and let me tell you what I at least probable cause to believe that there were.

S22: I mean I think everybody is entitled to a trial ultimately and the president if impeached will get one and if not an out of office and is indicted well we’ll get a trial. But here’s here’s the issue. I mean I think in the interviews that have been leaked this week but in the transcript of the call itself it is very clear that it was transmitted to the leader of the Ukraine both by the president and otherwise by by agents of of the president that military aid was it was going to be withheld unless an investigation was undertaken into the president’s political opponents. That’s a quid pro quo. Now what does that mean besides the fact that it arguably is an impeachable offense but if proved it shows that the president has received that emoluments because that’s something of value which the Emoluments Clause speaks about. It’s a violation of the federal election campaign law because something of value has been received that is a benefit to the campaign but is unreported. And so those are criminal matters. Now whether they’re ultimately provable that goes way beyond this conflation of no quid pro quo and no criminal offense. That’s wrong too. But you’re right that the fundamental issue that the Congress is considering is an abuse of power or whether the president’s provable actions whether there’s probable cause to believe that the president’s provable actions violate the Take Care Clause of the Constitution violate the Emoluments Clause of the constitution and violate the president’s office to see that the laws of the nation are carried out and before we leave impeachment Stuart I wonder if you could talk for a moment about the other line of attack which seems to be that this impeachment effort is unfair because it’s you know not affording the president due process because it hasn’t yet turned into a formal vote proceeding with impeachment.

S23: Barring everything we know about how the Starr report triggered impeachment against Bill Clinton. But I wonder if your sense is that all of these process arguments about how the process isn’t fair to the president are rooted in something that is there’s some principle here that is compelling and interesting or if this is kind of more of what I’ve characterized as sand in the gears.

S24: These are the same kinds of arguments that many Democrats were making when the Clinton impeachment process was was underway and to step back from that. It’s an argument that’s directed to people who watch a lot of television and who watch crime shows that they ought to be explained and I’ll explain now as my colleague Charles Freeh did very persuasively and a very fine letter that he wrote to the Washington Post in the wake of that unfortunate spill only letter which which really is a screed that has very little to do with the law. But the framers understood this and the way the law is carried out in the way the constitutional provisions are carried out is much the same as I think you pointed out earlier as it was a long history of an English law.

S12: I’m going back hundreds of years before the creation of the American republic the House of Representatives was intended to act like a grand jury.

S21: Now crime shows on TV don’t show grand juries Law and Order doesn’t deal with grand juries. They just deal with with with trials where you get due process. But in a grand jury proceeding and in law state law and and federal law you don’t get access to materials you don’t get to sit in with the grand jury.

S19: You don’t get to cross-examine witnesses the grand jury is a fact finding body that brings charges if it thinks charges are merited. It’s at the trial stage where you have the right of confrontation where you have the right to introduce evidence to call witnesses of your own to get the kind of process that supporters of the president are yelling about. It’s a dual process it parallels what actually exists in federal criminal law but you don’t look at that at the house as a as a thing unto itself as a crime as a completed matter all the House does is if it chooses to do so to bring to bring charges under which a president will be tried.

S25: It’s up to the Senate to decide to sit as a jury if you will under the command of the chief justice who presides over the impeachment trial. And there’s where due process obtains. That’s well understood. It’s this by party process the House serving as a grand jury. The Senate serving as a trial court that people need to understand and know about the argument that’s being made about due process is a diversion. It was a diversion when it was made by Democrats.

S5: It’s a diversion when it’s being made by Republicans now I think we have to turn to what I think is the most alarming news that came at the end of the week which is reporting from NBC that the attorney general’s probe into the origins of the Russia investigation has somehow morphed from clean administrative review into a criminal investigation. And I think I should be clear that we don’t know who has leaked this and maybe I don’t know the contours of of how truthful that is.

S23: But I would I find that sort of DEF CON level terrifying and I wondered if you’d help explain if that is in fact correct. What that means.

S26: Well I don’t know anything for sure because like you I know what I’ve read in the paper either A not authorized leak or a controlled leak suggests that there’s been some escalation in the review of the conduct of the FBI in particular but other aspects of the government with respect to how this whole thing got going. And I also note that in a brief that has been filed in the last couple of days by General Flynn in the district court setting forth any number of allegations with respect to the conduct of the FBI and the government with regard to how the investigation began there is either direct or constructive coordination of arguments I don’t know anything beyond that.

S27: The whole thing is very troubling. It will be what it will be. I mean there’s just too much that obtains that we don’t know about.

S26: But it is also clear to me that there was a substantial basis to undertake an inquiry into the activities of Russia and the intention of the the leadership of Russia to manipulate not just election results but public opinion.

S27: And those are facts. And however the investigation started. We now know of things that we really need to know about and react to. You raised an alarm to me the alarm would be. However the investigation comes out and I don’t express an opinion about it because I just don’t have the factual knowledge to do so. But however that comes about it should not obscure the fact that there is ample evidence of entirely unacceptable cybersecurity warfare being conducted against the American electoral process and American policy by not only Russia but other countries as well. I mean we have to deal with China and state sponsored organizations Iran North Korea but Russia in particular if we lose sight of that.

S19: We are in a tremendous trap where responsibility for our government will be seized from our hands and placed in the in the hands of a foreign adversary. So that to me is the alarming issue about this I don’t know where this investigation will go. There certainly was some some conduct that I wouldn’t approve of. But whether that rises to a criminal level or not I can’t say.

S5: And I just want to read from that the pleading you just referenced in the Michael Flynn case there is language just to put meat on the bones here quote In this case high ranking FBI officials orchestrated an ambush interview of the new president’s national security adviser not for the purpose of discovering any evidence of criminal activity. They already had tapes of all the relevant conversations about which they had questioned Mr. Flynn. But for the purpose of trapping him into making statements they could alleges false end quote.

S23: And and the document you’re referencing is replete with this language of the real conspiracy the real crime here is the massive corruption in the department itself and in our national security apparatus. And I think that the point you’re making is this feels a lot like the Ukraine ask itself which is we’re gonna throw into shadow you know that the that the real corruption that is happening is elsewhere. And the fact here of attacking the Justice Department attacking investigators is not simply to try to clear Michael Flynn or to try to clear Rudy Giuliani or the president but it’s to sort of deflect the actual harms here which are Oh my goodness this is happening and to try to copy others. But I worry so much about what it means as you say in the fact of unequivocal evidence that foreigners are tampering with the next election that instead throwing dirt around and seeing if you can somehow destabilize the very forces that are meant to protect against that.

S24: I’m not prepared to go quite as far as you are. I’m not going to imply intentionality on the part of Bill Barr and the Justice Department that will take its own pace and I don’t know what the U.S. attorney in Connecticut who is leading this investigation is going to is going to do so I won’t attribute intentionality to government. And I’ll also note that the arguments that you’re describing are made by Michael Flynn to try to get himself exonerated in this issue of the perjury trap. Is something that we hear in every single investigation and in the interests of full disclosure I’m sure that I’ve raised it on behalf of clients and in the past.

S27: So these are these are Flynn’s arguments. I’ll just leave it at this. The fundamental point that that you’re making and I hope is clear to me is that whatever is involved in this it shouldn’t be allowed to be a diversion from the fact that there’s a real problem here that has nothing to do with it that we have interference by a foreign power in our public policy in our elections and that cannot go unaddressed. That is a fundamental problem that threatens our democracy the people have to be changed at the FBI or there’s some issue there.

S19: That’s an action that will take its own course. I can’t comment on it. I don’t know the evidence on the other hand. I certainly know what the evidence is about lenience and encouragement. The role of Russia in dealing with questions in the subcontinent in Turkey in Syria and how that seems to have influence the administration and how Russia and not only Russia attempts to influence American public policy and American election behavior and however that investigation got started there’s plenty of evidence that we’ve got a problem that needs to be addressed and it’s a far more important problem than whatever the outcome is of the investigation of how the inquiry got started.

S5: Stewart Curson served as assistant attorney general for the civil division of the Justice Department from 1989 to 1993 and as acting attorney general for the Clinton administration in 1993. He is a member of the firm of Epstein Becker Green. He is a founding member of checks and balances and he’s become a really I think a singularly important voice in the conservative effort to talk about the need for checks and balances on this executive at this time Stuart. It is a pleasure to have you back on the show. You’re welcome anytime.

S9: Thank you Dalia Cyrus Habeeb is the lieutenant governor of Washington state elected in November 2016 at the age of 35. He had previously been elected to the state House of Representatives in 2012 and the state Senate in 2014 where he was Democratic whip and a member of the Democratic leadership team since 20 19. He served as co-chair of the Democratic Lieutenant Governors Association a three time cancer survivor. Lieutenant Governor Habeeb has been fully blind since age 8. His parents immigrated to the U.S. from Iran before he was born and he is the first and only Iranian American to hold statewide elected office in the U.S.. Cyrus is a graduate of Columbia University Oxford University as a Rhodes Scholar and Yale Law School where he was editor of The Yale Law Journal. He practiced law at Perkins QE and served as distinguished lawmaker in residence at Seattle University Law School. He is a Truman scholar a Soros fellow a member of the Council on Foreign Relations and has been named a Young Global Leader by the World Economic Forum. It is I suspect the most impressive resume on anyone who has ever appeared on this show. But that’s not why I wanted to talk to Cyrus. He is also almost freakishly optimistic about the law and the rule of law and the Constitution and civility and the threads that bind us together even when they feel like they’re coming apart. And this show sometimes makes people sad. I felt like I wanted to have Cyrus on to help remind us and maybe just me of something that we sometimes forget which is the law can be and is a powerful and beautiful thing that binds us together and makes us better. Slate Plus members will hear an extended version of this interview and if you’re not a Slate Plus member stay tuned for details on how you can join our membership program. But now for an interview that I’ve wanted you to hear for a long time. Cyrus Harvey welcome to Amicus.

S28: I’ll be as close to freakishly optimistic as I can be.

S29: So I want you to start by telling us I think the important thing at least to sort of look at us in this moment is that you get elected in the state of Washington on the same day that Donald Trump is elected president of the United States and I wanted to just sort of start by saying it seems as though these two narratives are hard to hold in our mind right on the one hand you’re the kid of Iranian immigrants you’re you know blind for much of your life. You are a person who has thought so hard and worked so hard to advance progressive values. Oh and also we just elected somebody who paid hush money to a porn star. So how do you hold in your mind the ascendancy of both. I think all that is great about America and opportunity in this country and where we are in terms of this president.

S28: Yeah I. I will always treasure the like 45 minutes in between when I found out that I had won. And when Pennsylvania came in and the night took a decidedly dark turn. But you know for me it was I think to answer your question I guess I would say that I took a lot of inspiration. I first ran for office in 2012 and I ran and served in the state house and then the state Senate starting in 2014 and I was really motivated by Barack Obama when I was in law school. I have to admit I was one of those people who didn’t really believe it was possible for someone with that name with a name that literally rhymes with Iraq. Hussein Osama to to be the first president elected after the 9/11 presidency of George W. Bush. I just I I guess I wasn’t freakishly optimistic at that point. And the fact that he did and the fact that he won primaries in places that aren’t known for being interested in Kenyan ancestry or an Indonesian upbringing in the primary and then in the general was really a source of confidence for me as I went into elected office. But there’s no question that when I ran statewide it posed a different set of challenges than when I just ran for a legislative race because now all of a sudden you’re running not just in the really diverse Seattle suburbs and the City of Seattle but also in eastern Washington and I guess what I would say is that by focusing on how my life story my biography allows me to connect with everybody blind and sighted Iranian American and Irish American I was able to do really well statewide and not only win but to to win with a really comfortable margin. I think what we need to do throughout the country is put that kind of politics forward and I think you know what we saw. You know there’s a whole bunch of ways to look at the Trump election. So I don’t want to pin it on just one thing. And again keeping in mind that that Hillary Clinton did win the popular vote by millions. But at the same time I think going forward we need to recognize that a politics of inclusion positivity and abundance can allow for can’t allow a blind Iranian American to win statewide. Then there’s much more that we can do throughout the country.

S30: And so I think I’m hearing you say and I think you’re putting the finger on one of the challenges.

S29: I even have hosting this show which is we need to keep talking to each other. We need to keep engaging with each other and the othering of one another is what ripping us apart and at the same time all the ways that that feels like appeasement and feels like you know how many times do we have to concede that you know coal miners in West Virginia count. And I think what you’re saying it sounds it sounds like something I want to believe it’s a story I want to tell. It also feels like at some point. How much are you giving up sort of the dignity and nobility of your own core values.

S28: Well I think our core values are. I mean if you think about what I said so I’m talking about inclusion I’m talking about generosity. I’m talking about positivity and I think these are our values. So let me give you I’ll give you an example of what I’m talking about. We had this challenge when I ran for office which was that I wear sunglasses. And so we had to explain why is this guy wearing sunglasses. You can imagine why in the sometimes rainy Pacific Northwest it’s particularly odd to be wearing sunglasses and so you know we had explained that I’m blind but at the same time we didn’t want to come across you know like we’re pandering. And we also had to you know communicate ability and strength. Right. So how do we do all these things at the same time. And you know my my TV commercial still up on YouTube so people can see it but I’ll tell you from the script what we said was something like You know I lost my eyesight as a child and that taught me how to listen. So what we did there was we made it very clear that look I’m blind. That’s who I am. But then rather than saying that makes you know you privileged as a sighted person and you’re not privileged or rather than saying like you know I’m running to advance the cause of people with disabilities instead what we said was look being heard is probably really important to you if you’re a voter whether you’ve ever met a blind person or not. And here’s how my lived experience gives me access to you know what. What you go through. And I think like you know and look another way that I do that is to talk about I know what it’s like to be left out. I remember what it’s like to not be allowed to play with my friends on the playground because I’m blind as a kid. I remember what it’s like to have people say well you know college isn’t for everyone and try to limit my possibilities. So that allows me some insight into what other folks may feel when they feel excluded and I think that we need to recognize that every American has felt both privilege at times in their lives and have also as also felt obstacles.

S31: And one of the things I think that sometimes we do on the left is we we don’t like it understandably when people call us snowflakes but then we revel in referring to quote white fragility and discounting the fragility of our of our counterparts or interlocutors across the aisle. And I think we can we can proceed in a much more generous and understanding way by recognizing that we’ve all felt exclusion at some point or another we’ve all sometimes felt that we’re not being heard.

S29: I love what you’re saying because it it actually clarifies for me why some of the language even words like mansplaining which have some utility but I think they’re silencing tropes that we use on the left when any man starts to talk and I like what you’re saying because you’re saying first and foremost and maybe this this dovetails with so many things we talk about in terms of the First Amendment. People are talking. Everybody is talking and everybody right now that we’re weaponized the First Amendment so all speeches is vital but nobody’s listening. And that is the corollary right. You need the second without the first in any language of silencing is not going to get us there. Yeah.

S31: I also think that look you know I as you mentioned I studied in England I went to Oxford for graduate school and I remember when I went there. You know it’s it’s like it’s they filmed Harry Potter they’re like you know the dining halls are quite formal and there’s all these kind of rituals and things and and there’s I remember the first time I eat in at the high table and there were like you know five four six and six knives and a bunch of spoons and it was like very you know kind of intimidating and. And. And to me what that represented was etiquette that serves as a kind of a a socioeconomic signal. Right. Like if you know what fork to use if you know what spoon to use like you’re signaling that you’re in the in group and you’ve you’ve obtained a certain social class. I think that right now sometimes what we do when we use certain types of terms or judge others for not being up on the most work vocabulary is is you know we’re signaling to others at a meeting or a conference or in our workplace or in our schools that like you know we’re we get it we’re on the inside you know we speak this kind of rarefied language and that if you don’t then then you’re not you know there’s there’s some kind of lesser about Look people come back and say this is just white fragility or this is whatever. But I think the point is do we want to have as large a coalition of support as possible or not do we want to turn people off who are of goodwill and want to work with us towards a more equitable society or do we want to insist on certain coded language and and gestures as a way of kind of indicating social hierarchies and I think that’s a real concern of mine as as we go into the 2020 election.

S29: I want to ask you to just briefly tell us the biographical bit because I think we might have started in the middle there but I also to me there’s this amazing period because you lose sight in one eye too and then the other eye at eight who have six years to kind of prepare for the loss of all your eyesight except you’re a little kid. So can you can you walk us through. That’s an astounding.

S28: It was it was you know I just marvel at my parents and you know for them to be in their 20s when I was first diagnosed with cancer their only child you know living thousands of miles away from the home where they grew up. We were living Maryland at the time no extended family living there. And to get that diagnosis and then to to kind of power through and they really it was very important to them that that I be able to see as long as I could because they knew that I would probably be relying on that archive of visual memories for the rest of my life. So they wanted to extend my eyesight as long as they could without risking the cancer spreading to my brain. So it was a very delicate thing and I and I often joke that because I was born in 1981 and I became blind in 89 all eight years that I could see took place in the 80s.

S31: So all my visual memories are still from the 80s so everyone still looks like Cyndi Lauper and Boy George and they’re wearing that Don Johnson that Pina dodgy idea about Miami. But you know but joking aside I mean that sort of visual memories you know has has really populated my sense of place. And it’s one of the reasons why I I’m very clear that I can’t speak for all blind people. One of the reasons is that you know I wasn’t born blind and I can only imagine what it must be like for someone who has to understand concepts of colors and so on. I think it’s it’s fascinating without having the memory of those colors. But for me the having become blind at that age. What ended up being really important was the role that my mother went on to play in my early childhood. You started law school same week that I started kindergarten. And so as an Iranian American woman. And then when I was in third grade when my school didn’t want me to play on the playground with the other kids for fear that I might fall and I think for fear that my mother knowing that my mother was a litigator you know she went to the school and stuck up for me and said that you know my son may slip and fall and break his arm but I’m going to teach him how to get around the jungle gym the playground and you know it may may happen that he may slip and fall and even break an arm but I can fix a broken arm I can never fix a broken spirit. That moment became foundational for me and my belief and my that both that I belong and I deserve to be included and that everyone deserves to be out there on the playground of life but also taught me the importance of advocacy which is what really drew me to go to law school and drew me into public service later you know that experience of going with her to the principal’s office and hearing her say because you know when you’re school it’s like nobody can say anything to the principal right. Principals the principal. But to have my mom go and and could apply our case and to plead our case and to tell that story of why I deserve to be included and to persuade the principal was really powerful.

S30: When your folks left Iran were they coming to the United States because they wanted to come to the United States or were they fleeing Iran or came.

S1: No they were more my dad came in 1970 to go to go to college here in the US and then he went back for a couple of years after getting his graduate degree. They got engaged. They were actually childhood friends and they got engaged and then he had a green card and came back and was working in the U.S. while the my mom moved to Europe during the revolution and was waiting to get her permission to come to the U.S. because it was during the hostage crisis and so they weren’t letting folks in.

S31: But I I often mentioned to people that you know when my dad came here in the early 70s like he would not have been able to do that and we wouldn’t have ended up here had the executive order that President Trump has put in place where that in effect back then and there’s the you know there’s just countless stories of American families that are being hurt right now not just potential American families but but actual current American families divided by this this ghastly executive order.

S29: I was gonna ask you about that. That that that travel ban must have been a gut punch to you both because of your own biography but also because of the ways you think and talk about what it is to be an American. What are we getting wrong right now we’re having I think a pretty cartoonish immigration debate and we’re you know declaring emergencies at the border and I guess we’re building a wall. How are we framing this wrong or are we framing it correctly and it’s just nobody is persuadable.

S31: I think one of the things that we do on the left is that you know for very good reason we form coalitions right and so we come together and we say look racial justice is environmental justice is a reproductive justice is economic justice and so we do these things and it makes us a really powerful force we all show up to each other’s events and rallies and marches and so on and so forth. But one of the challenges that comes with that is being able to talk about different issues in ways that are specific to that challenge. So it could be the case. I think it’s likely the case that for President Trump keeping Iranian Americans out is like keeping Guatemalans out right or keeping Iranians like even one. It could be the same for him. But we know that these are fundamentally different issues it doesn’t mean that we need to take a different position on them but it makes it so that our analysis is not as crisp. And I’d like to remind people that the framework for the travel ban was actually laid under President Obama when Congress created a carve out from the visa waiver program that we enjoy with Europe and Japan and said that if you were born in one of these countries but you’re coming here from France or the U.K. or something you can’t take advantage of the visa waiver. And that happened in a bill that President Obama signed. Now you know he had a gun to his head from Congress because there’s a budget bill but it was signed then and that gave President Trump in court the kind of basis right for it for why these this particular set of countries. And I think we just weren’t on our game early enough in talking about national security in a smart way and saying you know here’s actually what we ought to do here’s what we’re already doing right. And here’s what we ought to do differently. If there are those things around keeping our country safe. But instead what we do is we just lump it in and say this is all anti-immigrant sentiment. And then what happens is folks out there who may have some issues around the dynamic displacement. Start to see them all as as intermingled.

S32: So tell me what the sentences but you know if you’re writing the ad for here’s why Donald Trump is wrong about the new asylum laws or family separation or whatever the correct statement of the case isn’t because immigrants get the job done Hamilton.

S31: But what’s the correct statement of the case the statement the case is that the United States has become a great country because people who have the courage and the grit to make it here from all different types of life circumstances in their home country come here and then love this country with a passion on matched by anyone else. I mean the love of America that you find from people who come here and who are brought in because of our humanitarian policies including especially our asylum policies is just astonishing and will I think melt even the kind of most frozen heart if you will when it comes to this issue. And so we have the opportunity to bring amazing human beings here not only to spare them violence but also to create a pathway for a generation of Americans who will be phenomenal contributors public servants members of our military etc. And by the way doing that does not preclude and I would argue necessitates having a smarter set of policies around investing in Central America and bringing stability and so we need to absolutely reverse President Trump’s cuts to the State Department and foreign aid and these kinds of things and take a much smarter approach towards that region.

S29: You met more than a century now that was I am a politician I am a lawyer. That’s that commercial. We should go straight to air. I heard you say that you had been told somewhere along the line that maybe not everybody should go to college. I want you to tell us what that and then tell me how it shapes the way you’re thinking about access to education now.

S1: Yeah and you know this has really become the hallmark of what my office does in Washington state which is access to higher education and it comes in large part from my own biography but it’s also you know getting back to our earlier discussion about you know how Democrats can create a political platform that is inclusive and that meets everybody where they’re at. I think access to education is that way. It addresses all forms of privilege deficit an obstacle.

S31: Here’s what happened when I was running in 2016 I was on the campaign trail and I kept hearing the sentence over and over again from other politicians running for various positions and I would hear from Democrats and from Republicans in the sentence that I kept hearing was quote you know college isn’t for everyone. And I always clarify like it’s not said with malice or kind of prejudice and people’s tone is often said with compassion and kind of a sense of you know this is just common sense. The problem is that you know it turns out that the person saying that pretty much always went to college themselves. And if you ask them well OK maybe you went to college and hated it. And so you know now you think it’s not a great idea for everyone you know you say what are your kids doing is like oh you know my daughter is going to university of washington and my son’s going to Whitman OK. So colleges for you was for year colleges for your kids but college isn’t for everyone who’s the everyone. Right. Like how do we decide you know they might say someone’s 15 this 15 year old kid doesn’t want to go to college he didn’t see himself as quote unquote college material which I think is one of the grossest expressions you could imagine. And so so then I asked Well do you think they were born that way because you know if they were you know and we’re here in New York City so I’ll do my best at trying to create a new york analogue. You know what. What a shocker that everyone with the college going DNA happens to live on the Upper East Side and everyone with the other DNA lives in like the South Bronx. Right. Like like how crazy is that. We know that’s not the case we know that by the time someone’s 15 years old the world has told him or her what they’re good for what they can do. How how big they can dream and if they don’t know anyone who’s ever gone to college no one in their family’s gone or people who might look like them or live near them have never gone or have overwhelmingly not gone then they’re probably not going to have the self-confidence or the preparation to really think that college is for them and so it’s even then it’s made even worse when you have politicians coming and saying you know college isn’t for everyone and this isn’t just though it is largely communities of color people with disabilities but it’s also rural communities that you know that are overwhelmingly white where you don’t have a lot of access to college and so that doesn’t mean that everyone needs to go and you know study Greek philosophy in an ivy covered quad somewhere right. Although I like doing that but doesn’t mean that I think there’s a lot of of college degrees that we need more that can be based on more more applied learning. But it does mean that we can’t just say let’s create two classes of American one that goes and gets a broad college degree and has a lot of mobility in the labor market. And another one that goes and gets a hyper specific technical training vocational training that then may become obsolete in five or 10 years because we’ve seen what happens to those folks. They they’re told Oh you should go and work in timber. Like in my state don’t worry about going to college. What happens in a few years in a few years when those timber jobs now are no longer there in the same way they were before.

S1: Those folks don’t find it that easy to just move to a new area get a new degree because now they have a family they have pride in what they’ve learned and it’s extremely disheartening even humiliating. And so you see these levels of depression from folks who have spiraled right out of being kind of in the middle class without a college degree because they don’t have that flexibility to move to something new they might end up depressed they may end up even in some cases addicted to opioids et cetera. So so that’s why it’s so important that we make an investment in creating a college going culture for everybody and that’s not just tuition that is a huge part of it but it’s also creating ways for folks to work and get a college degree at the same time. It’s also working with colleges universities and making sure that they are counting prior learning from a job or an apprenticeship towards a degree.

S30: What is it about the study of law the practice of law that you think most made you apt to.

S32: First of all I guess to go into life as a politician and not a lawyer and I guess this is a roundabout way of saying so much legal training feels like it goes to becoming a professional lawyer. And I’m wondering what you got out of law school or the practice that makes you a better politician.

S31: I think there’s there’s two things that I didn’t necessarily get them all from law school. I got a lot of them from my mom who’s now a superior court judge in Washington state who’s really been a huge influence on me. I would say the two things and they’re kind of in a way in tension with one another. The first is the ability to be an advocate to have the tools to be able to make an argument you know that’s the lesson of the playground that I mentioned earlier.

S1: So that’s one that I just found it and I’ve always found it so attractive to be able to say you know I imagine the way the world should be and I’m going to use all the tools that are out there to try to get to that point to try to get to that more just outcome. The other one is the ability to see both sides of an issue. And I think that’s one that we really really are are is in peril across the political spectrum right now.

S31: The inability I think among many to recognize the validity of another argument or position even if one doesn’t agree with it is is really problematic for a representative democracy because as much as people want to blame us you know we are extremely politicians are extremely simple creatures right. We respond to the stimulus which is like your votes right or the polling or you know the kind of outrage outrage or approbation of our voters. And so to the extent to which the public is not willing to understand what what others where others are coming from we then ape that behavior in elected office. And I’ve always loved that almost exclusively when I sit down with folks who are legally trained both attorneys but also even like paralegals and people that work in administrative roles in and around the law that there’s this decent see and a kind of intellectual generosity that says look let me just kind of moot this case if you will write for in my own mind at least if for no other reason than to figure out a defeat that other argument you have to do that.

S1: So I’m just drawn to both of those things and I think that with regard to you know law school graduates you know I tell I’ve had the privilege of teaching at a law school. And I I tell my law students all the time I say you know the demand for discovery and doc review may come and go and get automated et cetera. But I’ll tell you like government is not going anywhere. And you know you may think that you know you have to go where. Look I worked at a law firm for a few years I love the firm that I worked at. It’s a very public service oriented firm pro bono oriented but. But there’s only so many of those jobs. I think a lot of young lawyers out there think that if they don’t go and work at a firm then they’ve got to maybe start their own practice but they never think to themselves. You know this same passion that I had when I started law school around policy and what the law to be really means that I could go work in politics right now. You know I could maybe run for office. And you know I do think it’s true that basically most men with a law degree think they can run for office. And women often are not encouraged to do that. And I think while I don’t know that we necessarily need a lot of people running for office straight to law school I think that people should go and work in politics if they’re passionate about these issues. You know we need we need smart lawyers to be able to go and do that and it can out coming out of a firm but you can also go work in any of a number of legal aid organizations et cetera. So it’s tough because they make it so easy to go to a firm right. You know the infrastructure’s is right there for you.

S32: You’ve twice now talked about listening and both as a function of you know your own blindness but also what law teaches you to do and I keep going back to the central problem we have right now which is we don’t have shared facts. And and the law is unique and to me really precious because for the most part we’re triangulating off the same documents in the same case books in the same constitution it’s hard to make stuff up in a court of law right now and I wonder what part of that the regaining of trust and the you know not talking immediately to the claim that the other side is lying and that it’s fake news and everything is untrue and that there’s a cabal that’s distorting things. But that generosity you talk about that lawyers at least as an opening gambit think you know we feign that’s not existent in politics as I see it.

S1: So I think what what people sometimes get wrong about this in my view is that that people talk about this as though what happens is we get you know we kind of get a certain set of facts from our own political tribe and then that makes us hostile to the other side.

S31: And and I I’ve actually seen that causal relationship work the other way right where basically you feel a sense of zero sum competition right you feel that your political tribe and your principles or values are being threatened and then you kind of like are willing to accept whatever facts you need in order to bolster your position. Right.

S1: And so I don’t think it’s that I mean I give the American people more credit than to believe that like you know they just believe the things that Trump says when when he says things that are just like patently not true or shares videos with content that’s just not accurate. I think maybe many times they understand that for lack of a better term it’s B.S.. Right. But what they’re concerned with is that their political tribe as they see it with all its accompanying a could all is being threatened in is and isn’t a zero sum competition when other people try. And so here’s that kind of artillery that they have to work with. So I think what we need to do is not play into that ourselves right. Not concede that we’re in a time of 0 0 some kind of scarcity where if we advance the cause of diversity inclusion and equity then you know fragile white people are going to lose or men are going to lose or sighted people are going to lose right.

S31: Like we need instead to say no like we know that when the blind kid plays on the playground like everyone has more fun. I’d like to think so. I don’t know. I may I may get an email from my third grade classmates but we didn’t have more fun ones. You know that like the come from a place of abundance and generosity that like this is not a threat but I think what we liked what we are selves do on the left is we kind of concede Steve Bannon’s point like we agree with him that we’re in this battle and then that further kind of re entrenches this political tribalism and then those and then yeah. And then there’s there’s obviously once that happens then you know for profit media corporations will serve up the artillery for those respective tribal positions.

S29: So actually that that leads me to almost perfectly because I want to talk about religion for a minute because I think you’re a practicing Catholic that’s important to you. And so often religion now is using the courts as a sort of proxy war. We can’t talk about you know we can’t talk about exactly the zero sum thinking you’re talking about we have cake bakers you know we have civil rights laws that presumably allow same sex couples to get a cake and suddenly it seems like it’s all a big proxy war for fighting about this zero sum thinking around religion and more and more particularly on this show we keep backing into conversations whether it’s about the death penalty or whether it’s about Roe or whether it’s about exemptions for religious objectors. We’re using the courts to really pound each other on the kind of zero sum religious thinking that you’ve just described in terms of how we think about immigration and I wonder. I mean part of me wants to ask about re appropriating faith on the left and talking about it from there. But I think I also just want to say isn’t religion unlike so many the other things where we can celebrate abundance. Religion is kind of zero sum.

S1: No I don’t I I think that the answer to that or the response to that is ecumenism and dialogue. And so that work that I’m talking about needs to be done in the context of communities of faith and those without faith as well. But if it were Look if if religion were a prime contributor to this then one would think that the the the share of Americans who are observant would have gone up. Given the political divisiveness. Right. But actually the political divisiveness at all time high. But actually the so-called nones like non affiliated religiously group of those Americans has also gone up massively and so I think that what you see and you know you see this like internal you see this within the Catholic Church for example is that like within the American Catholic Church there is also that level of divisiveness. So a lot of this you know will filter or will kind of infiltrate other parts of society. But you know I think that there is a rich tradition both in religious communities and clearly in a kind of liberal secular society of listening to one another hearing where others come from. Of course there are times when there is a winner and a loser right litigation is zero sum right. Like there’s no question. And so I’m not saying let’s stop suing. And like you know clearly there are many situations that are zero sum and we have those battles. But I would say hasn’t the bigger political outrage not been based on litigation but rather based on legislation in this arena. Right you look at the outrage among pro-life Americans at laws like the one passed here in New York State or the one contemplated in Virginia Illinois Maine other places and then the outrage from the pro-choice community and particularly Alabama. But you know other states Georgia and Missouri is right. And so I have not seen that level of outrage in precisely those zero sum litigation context you’re talking about. I think it’s seen more in the political arena or the more explicitly political arena. And I think that’s a shame too because I think that you know I have very close friends and colleagues and family members who fit firmly in both sides if you will and all along the spectrum on abortion rights. And I got to tell you I think that it is neither the case that the lion’s share of pro-choice Americans want to kill babies nor is it true that the lion’s share of pro-life Americans want to control a woman’s body. I think that those caricatures make it really difficult to listen to one another. And it doesn’t mean that like I’m not being quixotic or Pollyannish about this and saying that like there is a win win no there is going to have to be a policy and that policy even if it’s a compromise policy is going to make people upset because it’s not what their ideal world and in a pluralistic society we’re going to. We have to live within a representative democracy. But at the very least we will have the ability to learn and understand about our neighbors perspective on these things not vilify them and not use these really important issues as as a wedge to then make by the way. The problem also is that because of coalition building which as I said has a really valid and important purpose. But what then happens is if you and I hate each other we don’t just disagree. We don’t disagree about like 24 weeks versus 12 weeks right. Like now we actually like hate one another. Is it gonna be possible for us to work together on immigration where maybe as a you know someone who’s a person of faith and someone who’s not or whatever like we may actually both agree that we need a more progressive immigration policy that’s more humane. It’s harder when we hate one another.

S31: And so I really believe that even and in fact I think especially on those issues that we’re most passionate. Where were the most passionate. We’ve got to avoid easy categorization or reduction of issues to bumper stickers and instead try to really hear where the other side is coming from. Give them the benefit of the doubt be gracious with one another and try to at the very least as President Obama said agree without being disagreeable.

S30: I would just have to ask you about being blind and I have to ask you what challenges you face in 2019. Are we going forward backward sideways on these questions of disability. I think that I was thinking I don’t know that we’ve ever done a show about disability of any kind which kind of makes me feel just embarrassed and mortified.

S1: But how are we doing in a legal sense or in a policy sense. We’re not doing well because we’re not doing well on a whole bunch of whole bunch of areas because Congress is not functioning. You know so almost 10 years ago when we Democrats had control the House Senate the White House we did pass the CVA which was a little bit of an a D.A. for the digital world not nearly as protective. And without the kind of enforcement mechanism of the FDA. And we need to do a lot more because you know it’s obviously 30 years ago when the ACA was being debated the types of infrastructure where accommodations were needed was very different. Right. It’s great if I can get in and out of this building but probably ultimately less important for my long term economic well-being than whether or not I can get on Slate’s Web site. Right. Which to the best of my knowledge has always been fully accessible I want to say but but that you know so there’s a lot more that needs to be done and a huge problem here is that there is that just the sheer diversity of disability and the disability community and the fact that you know ah ah ah situation educationally economically it just makes it sometimes in terms of our health care situation or our health makes it really difficult to create coalition of name calling but just actual political power. And so it’s a real issue. But one thing I’ll tell you is that what I’ve noticed that does make me very optimistic is that because disability is something that affects every community. I often say that like you know if you are lucky to live long enough you will have a disability. Right. And you know because it you know you can’t really read line around it. You can’t avoid it like it’s gonna be anyway because of that. I have found that when I talk about my desire to be included earlier in life people who one might think as conservative or close minded or small government are like we of course that should be available of course.

S31: You know like why isn’t the school district paying for that or why isn’t as a baby you know because they may have experienced they may have a loved one with a disability and then they they feel that connection or maybe they have a fear of it happening to them or to their child.

S1: And so I think it can be a really important inroad into conversations around diversity equity inclusion in other contexts because it’s not for many people as as polarized a position. But one other way in which I often talk about being blind is that when I talk to young people about the the need in my view to be woke with grace is that I say look believe it or not every single day every single day in my life people ask or say stupid things about me being blind like it happens all the time like people be like.

S31: Like do you dream in color you know and I’m like Oh I’m not just colorblind you know what I mean is that like oh you know or they’ll say like oh it’s so amazing how you just like go up and down these stairs you know and I’m like well that’s not a problem if you’re blind you know. So you know and if I or even at the level of language just think about like turn a blind eye or blindsided by or you know blind corner blind spot or whatever like it’s all over the place let alone the use of vision as a metaphor for knowledge and understanding. If I spent every day getting offended and not looking behind those words to the intentions or level of awareness of my interlocutor then I would just drive myself crazy right and I probably wouldn’t have any friends because pretty much all of my friends at some point or other have made some kind of an insensitive comment. And so I instead I try to urge people say look like I get it. I understand how frustrating it is when people continue to misunderstand where you’re coming from or what your lived experiences for one another reason. But I promise you that you’re going to feel better about yourself if you extend grace to that person inform and educate that person about your own experience remembering that you can’t necessarily speak for others and and give them the benefit of the doubt now if they’re jerks they’re jerks.

S1: And you’ll have the opportunity you’ll never you know you never give up the opportunity to tell someone you know to take a hike but you do. It’s hard to do to have a do over when you tell them to take a hike because maybe they used the wrong term or because they didn’t know how to help you or not help you if you’re blind or you know and there are analogies obviously for every other group that faces adversity. So to me it’s been a really I know this sounds odd but I view it as a tremendous gift in my life to have been able to experience and understand exclusion to experience understand obstacles but also to experience and understand the generosity of others people’s Jen genuine desire to learn about someone who might have a different lived experience and be able to to to walk with them in that way. And I really hope that my fellow progressives will continue to do the hard work rooted I think in a legacy of Dr. King and so many others of patient tolerant gracious generous invitation to others to join our coalition in making this a fairer more equitable more open and diverse country.

S29: I love that you are ending there because that was essentially the speech he gave to a bunch of student leaders law students this spring and I think the point you made there and that you’re making now is that all of us live on this sort of fragile theme between privilege and our suffering all of us and we can’t privilege are suffering in some sense over the kind of deeper need to to listen and connect to each other.

S33: That’s the thing about dehumanization right. Is that it is true that there is such a thing as toxic masculinity. It is true that there is such a thing as white privilege and if you know someone will probably get around to talking about sighted privilege in a in a kind of blind advocacy context those things are all true but we still have to remember that we encounter the other at the level of the individual in society and that to the extent to which we can understand that a particular person is not an embodiment of a discourse they benefit from discourses they also suffer as a result of different discourses but they are an individual and I think if we can extend that kind of grace to another at the level of society then we I believe will encourage and incentivize our elected officials to also do to do that right into also say look like we’re not gonna participate in reducing others to a caricature or stereotype or a book title etc.. And I really do I think that type of of of grace is critical because I will tell you that I speak to folks all the time. I remember when Hillary Clinton in her debate with Donald Trump was asked a question I may be getting this wrong but you know do you think that law enforcement officers have implicit bias. And she said You know I think we all have implicit bias and that is true. But it’s also true that for a lot of folks out there who we are telling you know you’re just privileged. They may not feel privileged they may have been dislocated by the same dynamics that are hurting communities of color. They may be suffering from the same opioid pandemic in our country that affects you know communities in inner city America. So so what do we do when we tell somebody who doesn’t feel privileged that hey you’re not only not top of mind for us but we actually view you as the villain in this narrative. I think we turn away folks who can be our allies and who are naturally part of our constituency and the good news is it doesn’t take a whole lot of work to adjust how we discuss these things. It just means we don’t buy into Steve Bannon’s you know zero zero sum rhetoric and that we come at it from a position of generosity. I think if we do we don’t have to change any of our policy positions and I wouldn’t want us to but if we do that we can have a much broader coalition of support around economic justice around access to education around addressing issues as important as climate change access to health care but we have to get out of our own way. And remember this is not an intro to cultural anthro. This is our society. This is our country and this is our future.

S23: Cyrus Habeeb is lieutenant governor of Washington state since early 2010 19. He served as co-chair of the Democratic Lieutenant Governor’s Association. He’s been fully blind since age 8. His parents immigrated to the U.S. from Iran before he was born and he is the first and only Iranian American to hold statewide elected office in the United States Cyrus who boy did I need to hear a little bit about listening. Thank you very very much for being with us. Thank you so much. I appreciate it.

S4: And that’s a wrap for this episode of amethyst. Thank you so much for listening. If you want to get in touch our email as always is Amicus at Slate dot com. And you can find us at Facebook dot com slash anarchist podcast. We are finding your letters inspiring new shows and that’s really helpful so thank you. Today’s show was produced by Sara Birmingham. Gabriel Roth is editorial director of Slate podcast. June Thomas is senior managing producer of Slate podcast. We will be back with another episode of Tamika’s in two short weeks.