S1: This ad free podcast is part of your Slate plus membership, the combination of Donald Trump as the president and Bill Bach as the head of the Justice Department. This is a combination befitting of Banana Republic, and you’ve got to scratch your head pretty hard and wonder how in the hell we got here.
S2: Hi, and welcome back to Amicus, Slate’s podcast about the law, the courts and the rule of law. I’m Dahlia Lithwick. I write about some of that for Slate. And this week has been just about as Rock’em Sock’Em as it gets in my world. We’ve heard from whistleblowers, inspectors general, we’ve heard from federal appellate courts. And yes, we heard from the journalist who brought down Richard Nixon himself about malfeasance in the Trump administration. Immagine, fires are raging on the West Coast. We’re thinking of you. Take care. Coronavirus continues to ravage parts of this country. We’re thinking of you. Take care. The president has doubts about his generals and didn’t tell us the truth about covid.
S3: And if your children are anything like mine, they are at, quote unquote school in ways that exhaust them and me in just about equal measure and oh, God bless you. Teachers and school people. And in school administrators, you are deserving of medals. Now, later on in the show, Slate plus members are going to get to hear our bonus check in with Mark Joseph Stern, my Confederate, in covering the courts to talk about Donald Trump’s very, very long short list of Supreme Court candidates. But the events of this week bring us back to the United States Justice Department and notably to one William Barr, the attorney general who has very ably repurposed his DOJ to perform functions once undertaken by Michael Cohen, which is to say that Bill Barr is now formally in the role of Donald Trump’s booster fixer, issuer of threats and all purpose legal. Roto-Rooter this past week featured continued threats from the Justice Department of criminal sanctions that are about to be levied any minute now on Donald Trump’s political enemies, as well as the gob smacking motion to have the department take over a state defamation lawsuit from Egin Carol. She’s a journalist who accused Donald Trump of raping her in the 1990s. Bill Barr has also continued to press the president’s patently false talking points about all the dangers of voting by mail, describing it as, quote, playing with fire and falsely claiming that the Justice Department has indicted someone in Texas for collecting seventeen hundred ballots and altering them all to vote fraudulently. That never happened. We have talked before on this show about the weaponization of the machinery of justice and how really dangerous that can be. But with this week’s developments and the election impending, I really wanted to talk to somebody who could make that, which seems like an abstraction at times, just very concrete and immediate and real. And for me, that person really is Donald Baer. He served as United States attorney and principal deputy solicitor general in the Reagan administration and then as deputy attorney general under George H.W. Bush. Indeed, it was er who turned over the keys to the DOJ to one Bill Barr, and he has been a vocal critic of what Barr has wrought at DOJ, calling in the Atlantic this past winter for Barr to step down. Last month, he joined a group of one time Republican presidential appointees who served as senior ethics or Justice Department aides to endorse Joe Biden for president out of their concern for the legitimacy of the Department of Justice. I wanted to talk to him about what recent events portend for the future of the possibility of an independent Justice Department and also about the next four years. And I want to talk to him about what it all portends for the election itself. So it is a great pleasure. Donald, er to welcome you to Amicus. Thank you for having me. Happy to be here. I think I wanted to start with this abstraction, if I may, which is just the very notion that there can even be an independent, neutral Department of Justice. I know that you have thought harder than almost anybody about post Watergate reforms, about Edward Levi, what he tried to do and the changes that were put into place to at least try to fix the ideal of an independent DOJ. And I feel like I want you to respond to what the cynic is going to say, which is, come on, it was only ever in. And the DOJ is always politicized and Hillary Clinton’s Justice Department would have served her priorities and her and just as much as Donald Trump’s and look, they all serve at the pleasure of the president. So none of this is different and none of this is troubling.
S4: Well, I think, you know, I think you can talk with almost anybody who has worked in the department and the last literally four or five years and see the glow on their face when they talk about their time there and the idealistic sense they have of what they were doing. A lot of of what is being undermined radically now is in the nature of attitudes and norms. Certainly there are lots of practices that are being violated. But the idea that what we aspire to in the Department of Justice is a system in which literally, as Edward Levy put it, in his words, no man is above the law and and the law must be applied in an even handed way that people will trust. And, in fact, that that has not been perfect, but it’s been pretty darn good for forty five years. And what’s gone on in the last 18 months, and to a lesser degree before that under under sessions, is a gross undermining of that.
S1: And this is a long list of things that that Bill Barr has done which which you’re well familiar with. And I think your audience is we can certainly go through them and it’s getting worse and worse. And the bottom line right now is that this spring, in countless ways, I don’t think it’s an exaggeration to say that Bill Barr has made his office and the and the Department of Justice tools of the president’s re-election campaign.
S3: Well, let’s start with I think one of the things that you really honed in on in your Atlantic piece from last February was Barr’s willingness to intervene in cases cases. I think at the time what was setting you off was Michael Flynn, Roger Stone, what you called 11th hour intercessions to benefit the president’s associates. And let’s start there, because I think the leap from even Roger Stone and Michael Flynn to what happened with Carol Carroll this week is noteworthy. But let’s start with Flynn and Stone, maybe.
S1: Yeah, well, I mean, those are those are two examples where best anyone can tell. The president obviously had personal associates who he had he had opinions. He tweeted his opinions about how they were being treated by his own Justice Department. And he really believes in this vision that Barr has told him is his constitutional right to be all powerful and direct. What goes on in the Justice Department? That’s what Barr has told him. That’s what Barr has written. And so he darn well wanted to treat these guys, Stone and Flynn, better than they were being treated. So Bill Barr arranges a series of acts, including getting rid of a US attorney and substituting a crony of his in order to change all of that in the various ways that’s been done. One, raking a lighter sentencing recommendation for Stone and the other making a motion to dismiss entirely the case of Flynn, who twice pled guilty. And that’s still going forward and pending. You know, and then ultimately the president commuted the sentence because he didn’t want the stone to have any sentence. So so those are two incredible acts, simply doing the president’s bidding because the president wants it done. A lot of the other things like bars lying flat out about the findings of the Mueller report with regard to obstruction, you know, were things that were really designed to protect the president, not just whims that he had about things, wanting things to be done in a certain way, but but things that protected him because, gosh, it isn’t good if people know that the president did clearly obstruct justice, as he, in fact, did. You know, and others of the things and these are the ones that I’ve really gotten distressed about lately, are simply acts. And there are many of them to advance the president’s prospects of re-election. And Barr is now full time appealing to the base and a bunch of different ways and doing what he can, including violence in our cities, to create the narrative and create videos for the narrative that Trump is telling about America being a country under siege. It goes on and on and on, and it just gets worse and worse.
S3: Let’s just hone in on one thing that you mentioned briefly, but I’m not sure all listeners fully understand the implications, and that is these US attorneys. So you’re thinking of Jesse Lou. You’re thinking of Jeffrey Berman in the Southern District of New York. And these are folks, again, at some level serve at the pleasure of the president, not the first time U.S. attorneys have been shuffled around. First of all, I think there is the fact that. Bill Barr straight up lied about at least the bermann removal and suggested that Berman was leaving on his own steam when, in fact he was just canned. But can you talk a little bit for folks who don’t know the intricacies of, again, that line between serving at the pleasure of the president and being released from your job because you’re handling sensitive cases that inflict on the president?
S1: Sure. So the US attorneys, US attorney, is maybe the best job anybody can have in government if what they want to do is represent the United States in court. And they’re ninety three US attorneys around the country, their presidential appointments that are confirmed by the Senate. And yes, you can be removed by the president. The tradition and the norm is that US attorneys are appointed. They do get reviewed by the Senate. They have some stature and standing. And their pledge, above all else in my lifetime has been act independently and fairly and do everything you can to let the public know that you’re being fair. What these folks have done is convert or try to convert the US attorney position and in many, many instances around the country to nothing more than an operational arm of what Bill Barr wants to get done in order to accomplish his objectives, to advance Donald Trump’s interests and his own interest in an autocratic government. And so he has Jesse. Lou, you mentioned US attorney in Washington, D.C. I think a very fine person who I’ve spoken with, nominated by Trump, confirmed by the Senate, and was going forward in ordinary course with with the prosecutions in the D.C. office of Flynn and Stone. And then in the latter part of last year, a series of events occurred, which I’ll make short. But essentially she was offered a job, a presidential appointment in the Treasury Department, a law enforcement related job. And she was essentially convinced to leave her position and move over there. And then they withdrew the nomination of her for that presidential appointment and the Treasury Department. And Barr insisted that she leave early in the year. And ultimately what happened was he sent his crony. And I say that because Fox News describes him as bar’s right hand man, Tim Shea gets sent over there as an acting US attorney, and he then does the dirty work. He then changes the position in the Flynn in the Stone case. More generally, Barr has been using, trying to use and effectively using the US attorney slots as places to put his trusted associates who will do his bidding. And he’s using acting positions a lot. This whole government is using acting positions to put people of low stature and perhaps low integrity in many cases into jobs where they ought to be presidential appointments, people confirmed by the Senate. People have to have a respected background. And instead, what you’ve got are people who are in some cases just hacks who have been put there. And if they don’t do what they’re told, they’ll just be told to leave because they haven’t been confirmed. They have no stature. And that’s the game they’re playing. And it’s being played in lots of different ways and not only with US attorneys, but with lots of other jobs in the Justice Department.
S3: And I think you make such an important point, which is I started by saying the two things that Barr stands accused of is both weaponized DOJ to go after Donald Trump’s imagined enemies and using it to exculpate his friends. And you’ve just described a pretty systematic use of the US attorneys themselves to effectuate those outcomes. So whether it’s sidelining Jeffrey Berman or Jesse Lou to make sure that certain prosecutions don’t go forward or whether it’s using kind of conscripting different US attorneys to do investigations into whatever unmasking is, whatever that claim is, the Durham report, the John Durham report that’s looking at the origins of the investigation into Russian interference in the 2016 election. So both of those that sort of pincer move of going after Donald Trump’s enemies, using, for instance, the Durham investigation, continuing to dangle that as any minute now, Peter struck any minute now, Jim Comey, you’re going to frog marched in front of the cameras with cuffs on. And also, as you’re saying, having US attorneys that are trying to oversee long standing, legitimate criminal investigations. Sidelined. That’s what you’re describing.
S1: That’s exactly right, and there are many examples of that, and there are a number of US attorneys from around the country that that Bill Barr has called in to play these different roles. Somebody is I don’t know if it’s a US attorney.
S4: Somebody is doing intake with regard to material from Rudy Giuliani or somebody came in and second guessed, allegedly reviewed the files in the Flynn and Stone cases and said, oh, no, that’s not the way we should do it. We should change it.
S1: There’s a whole lot of these situations where people are being used. And that’s that’s part of a bigger picture, which is really, really critical to the way the norms and ideals of the department have been undermined. And that is the respect for the career staff of lawyers at the Department of Justice is at an all time low, certainly in my lifetime, certainly since the reforms that Edward Levy put in place. You know, there’s a there’s a system it’s a system that involves a role, certainly for political appointees. This is not one where the department runs is a perpetual motion machine by the career. People in the political people have no say no. They’re an integral part of the review process. But it’s a normal standard process and cases go forward and there’s a normal way. I was a U.S. attorney in Sacramento and I had to approve all the indictments that I approve every indictment. No, but it’s a regular process. And the one thing everybody is conscious of is that you would never let the whiff of political or personal influence have any part in anything. Well, these people have made political influence and personal preference an integral part of decision making in numerous cases. And one of the things that’s resulted, it’s a very important thing, but it’s only one of many is that the just the absolute disastrous state of morale in the department. And we need a restoration of both of the procedures and of the morale and to get it back on the track that it was on before.
S3: So let’s talk before we leave this topic, let’s talk a little bit about the John Durham investigation. I think Mark Meadows, the chief of staff, cited the John Durham report. He told Fox Business News this week.
S5: I can tell you additional documents that I’ve been able to review say that a number of the players that Peter struck, the Andy McCabe’s that James Comis and even others in the administration previously are in real trouble because of their willingness to participate in an unlawful act. And I use the word unlawful at best. It broke all kinds of protocols and at worst, people should go to jail.
S3: As I mentioned previously, put aside whether Mark Meadows was saying that he was seeing new documents. But regardless of the substance of these claims, the Durham probe continues to be dangled as this October surprise cabinet. Donald, like you’ve written about this, you’ve testified about this using a criminal probe. I think you described in your testimony in June as fodder for the president’s campaign propaganda mill. And I’m not sure that listeners understand. I mean, you’ve talked about the effect on morale, but understand the implications of Bill Barr and the Justice Department engaging in a criminal probe that keeps being held out as any minute now folks are going to jail in really only in an effort to goose Donald Trump’s electoral fortunes. That’s right.
S1: And this is this is one where the rot in what he did, I think, goes back to the very beginning, because back in the early part of last year, Inspector General Michael Horowitz of the Justice Department had been working for many months on an investigation of of the of the FBI, CROSSFIRE, hurricane investigation of Russian interference in our election, including the parts where they were looking at the conduct of Trump campaign people, many of whom well over a dozen of whom had contacts with Russians. And he came up with a report late in last year, well, long before he finished his work, Bill Barr created what I have to describe as his own personal investigation. And he commissioned this fellow, John Durham, the US attorney in Connecticut, to be his agent to do it. But he worked personally with him. He flew various places around the world to meet with people with Durham and to try to develop evidence on it. And that’s been going forward. And the really. Most blatant outrage, No. One, my personal view is there’s probably no reason at all that that investigation ever had any business being started. But leaving that aside, there’s the fact that Bill Barr began talking about it and about what he indicated he knew to be the facts long before it ever got finished. Of course, it isn’t finished yet. So that’s the easy thing to say. Started talking last year about the FBI spying, and that was his word on the president’s campaign. And he said that repeatedly and he said it over and over again for many, many months. And the sort of drumbeat and the and the volubility of his comments and the emotional content of his comments has just gotten nothing but worse back in April. And this is, of course, where does he go? He goes to Fox News, you know, in April, I think on the night he talks with Laura Ingraham. And I think I’ve got this right. And at that point, he describes what the FBI did in that investigation as one of the greatest travesties in American history. And similar language has been used by him in numerous interviews ever since. Well, the problem with this on a common sense level is that this is something the government could do to anybody if the government starts saying terrible things about people, whether they’re true or not, and they haven’t ever finished an investigation and they haven’t ever brought charges and we’re all in big trouble, all of us who are speaking out now, you got to wonder what’s going to happen if Trump gets re-elected because they can make up any B.S. they want and start talking about it. And so Barr has been doing this repeatedly. Now it happens that that particular behavior is a flat out violation of an of a of a rule in the Department of Justice manual. It’s rule one, dash seven point four 00. And it says that that the department generally does not comment either on the existence of an investigation or certainly of anything about what’s being found. And Barr has just flagrantly and repeatedly violated that. Now, these comments by Mark Meadows are really a new low because now you’ve got somebody outside the Justice Department who acts like he has inside information about what is being found in this investigation. And he from the White House is giving running commentary on it and predicting what’s going to happen. And you’re entirely right. This is all about creating a campaign narrative. It’s all about telling people that, boy, we’ve got the goods and something’s going to happen. We hope it’ll be before the election. But this is really outrageous. So this is really one of the worst I would have said to month and a half ago. I would have said it was the worst, but some things have happened since that I think you could argue or even worse than this.
S3: And I’m loathe I really am loathe to cite to internal DOJ norms, because I think you’ve already said it’s the norms that are being eaten up from within. But correct me if I’m wrong. There is I think it’s not an affirmative rule, but certainly a DOJ policy that says that you don’t release this kind of information that would sway an election 60 to 90 days before Election Day. I gather that’s not an enforceable rule, but we are within either 60 or 90 days. However, you counted the fact that bar I guess I’m just looking at this quote where Bill Barr told talk radio host Buck Sexton on August 12th, we’re not going to do anything for the purpose of affecting the election, but we’re trying to get some things done before the election. Waka waka. So he’s absolutely flying right into the face of at least the norm that you don’t go releasing major investigations that are going to sway the election within that harbor.
S1: It’s like a lot of things about the Justice Department and I guess maybe other parts of the government, too, to a degree. But, you know, this elaborate, extensive set of reforms that that Attorney General Levy put in place in the 70s, they were a reaction to events in Watergate that there aren’t that many of us around who really remember them and lived through them. I lived through them while I was in law school. So they made quite an impression on me. But the country really came to distrust. We had two attorney generals who were and who were convicted of crimes. We had a whole lot of other people convicted of crimes. And basically it was for abusing government power. And Attorney General Libby did a whole lot of things, and many of them were in the form of statutes like the original IG Act and lots and lots of other things. But but some of the most important things were what’s in your heart and attitude and. Sense of what is our mission and what he did was he created a set of convictions and a set of of of sort of I call them norms, it’s repetitive, but essentially guidelines. And the guideline was you better bend over backwards to make sure people understand you are being fair. Think about how people are going to look at what you are doing and do what you need to do to be fair. And this election policy is like is one of those you know, it’s a judgment call, but it’s one that everybody has honored. And the thing about it is there will be trust in the way that’s implemented when there’s a belief that the people in charge are actually acting in good faith and they’re trying their best. And will they do it perfectly? And do you make the judgments in the same way every time? No, maybe. Maybe not. Maybe some of these things are fuzzy. But the problem we have now is that the foxes guarding the henhouse, we have people in power who I have no hesitation saying are acting in bad faith. They are not trustworthy. The combination of Donald Trump as the president and Bill Barr as the head of the Justice Department. And I would say, frankly, the second most powerful person in the country, this this is a this is a combination befitting a banana republic. And you got to scratch your head pretty hard and wonder how in the hell we got here, because this is not a place we want to be any longer.
S3: I want to give you a minute to comment on. The DOJ stepping in on Tuesday into the state defamation case that was brought by Eugene Carol. Again, this is at the 11th hour. This case has been going on since November of twenty nineteen. We were literally at discovery being due in this state defamation case and out of the blue under the Federal Tort Claims Act, we have the Justice Department filing motions to remove the case to federal court and to make the United States the defendant and now taxpayer dollars will go to have DOJ attorneys defend Donald Trump. And the most shocking component, I think you and I agree, is the allegation that what Donald Trump said about Jean Carroll when he dismissed her as not his type and said that she was making it all up to publish a book that was somehow under the course of his employment as president. I think the media described this as, quote, surprising. I described it as one where do you put this in your canon of things to be worried about?
S1: Well, I think it’s something to be worried about because it is so transparently invalid as an action, when I when I was in the solicitor general’s office, one of the areas I had special responsibility for was defense of government, of lawsuits against the government. And and in these Federal Tort Claims Act cases, which is a statute that essentially says that that when a federal employee takes action within the scope of his employment, then that becomes an action against the United States. And and they take it over. And the FTC has a whole variety of rules and also immunities essentially that kick in. So you can’t get money from the government for a variety of things. One of the interesting points here is that you can’t get money from the government for defamation under it. So, of course, this this lawsuit is going to disappear if it goes forward. But the real outrage is the one that you’ve highlighted and your attitude about it, I think is right on target. And that is is the idea that he was acting within the scope of his employment when he made allegedly slanderous comments about a woman who said that she’d been raped by him. I mean, that’s that is just off the page. Ridiculous. One of the things that goes on and every one of these federal to our Claims Act cases is that you look at the facts of what went on and you say, was this employee working within the scope of his employment? Is this part of his duties as a federal employee? Well, this obviously obviously, obviously is not a good example of it is a mail, a mail carrier. He’s driving a mail truck and there’s an auto accident and he’s on his route and drag it up. And he’s in the scope of his employment if he’s driving on his route, even if he was negligent. But if he if he got drunk and took his truck and went partying at the beach in it, he’s not within the scope of his employment. Well, that’s what we’re talking about here. And one one little dimension of this from a legal setting is that this is actually part and parcel in a way of Barzeh aggrandized view of the president. He says he said in his twenty eighteen memo when he was applying to be attorney general, that the president is the executive branch. And apparently this is a corollary of that in his mind, which is that therefore everything the president does is within his scope of employment. So just think about that for a minute. You know, as in the famous quote, apparently, I don’t know. But maybe Barr would say if the president shot someone in the middle of Fifth Avenue because he’s president, that would be within the scope of his employment. That’s about what this amounts to. So it’s utterly ridiculous. And what it really shows, I think and this is this is why I’m very worried about what’s coming up. What it shows is how far Bill Barr is willing to go to please Donald Trump. Donald Trump doesn’t like this lawsuit. Apparently, it was moving forward and they couldn’t delay it. So something had to be done. Well, if Bill Barr wants to accomplish his mission of making the president an autocrat, you can’t do it before November. So he needs another term and another chance to do it. He’s got to get Donald Trump elected and he’s got to keep Donald Trump happy. As Trump said a while ago, you could be a great attorney general or you could be just another guy. Well, if he doesn’t do what Donald Trump tells him to do and some of these areas, he’s going to be just another guy and he doesn’t want that.
S3: I think I remember that line from some episode of The Apprentice. Right. It’s such a it’s such a made for TV caution. I do think you’re reacting to the same thing. I am in the Carol scenario, which is it is without a doubt, a kind of claim that. Sounds in the key of later, the same one. Right. The president and the entire machinery of the presidency and the president in his individual capacity, including acts committed before he was president, all of that is one in the same. And I guess it’s worth at least flagging as a legal matter that the opposite claims are made when Donald Trump wants to, for instance, use his Twitter feed to keep certain people out. Those are not presidential acts. So the irony isn’t simply that we now have Bill Barr in the Justice Department fully embracing this King George view of the presidency. But at the same time, in other contexts, they continue to say that when Donald Trump does something on Twitter that’s not a presidential act, that a lot of the things that Donald Trump does that would appear to be presidential acts are not. So it’s the hubris in saying everything is a presidential act except for the stuff that we think isn’t. You did just say something I want to come back to. It’s important. You’ve known Bill Barr for a long time. And I think you’ve said and I think it is absolutely descriptively correct that he took this job because there are things he wants to get done that he has a fully realized world view, both in terms, as you’ve just said, of his view of the unitary executive presidential power, an unbounded presidency. That’s part of it. There is another part of his world view, which I think is a quasi religious worldview. And I wondered if you’d be willing to talk about that a little.
S1: Yeah, I spent some time lately reading some of the things he has written. You know, he’s he is a strong believing Catholic. And that’s obviously a personal thing for him. And I don’t have any comment on that, obviously. But one of the things that’s apparent when you do when you read his various writings on the subject of executive power and then you read, you know, there are several things in our article that he wrote back in the 90s when he was just finished or it was finishing up as attorney general. And then, of course, recently, there’s the speech he gave at Notre Dame about religion and the narrative he tells there for the country relating to religious belief is very similar and very parallel to his sense with regard to executive power on executive power. He concocts a very wrong view that the founders actually intended the president to be a virtual autocrat. Never mind what you learned in eighth grade or high school about separation of powers and all of these ways that the different branches check each other, the checks and balances and all of that. Bill Barr’s view is that the founders intended a very strong executive who would be essentially immune from a whole variety of things, and that that reality was the reality in our country for the first almost two hundred years. Well, that’s just utter hogwash. And we could go into it, but I won’t take the time right now. But the key point is that in the sixties or maybe the 70s, certainly accelerating, as he said at one point, accelerating after Watergate, that all just went down the drain and we started attacking the executive in various ways. This is basically backwards. The power of the president has gone into its ascendancy in the last 50 years. But but that’s his view on that. And his personal role that he’s assigned himself is to restore that autocratic vision of the president. Well, the same thing on parallel way is true of his views on religion.
S4: He sees the founders as people who were very concerned that Americans would remain a pious country of churchgoers whose strict religious moral views would govern them.
S1: And I guess he thinks that was the dominant story in our country, even though, you know, everyone else knows that our country was essentially created as a result of the rationalism, the Enlightenment, the rise of empiricism and understanding of the world as a real physical place that had rules of its own. But Barr sees the founders as focused overwhelmingly on piety and adherence to traditional Christian, especially morals, and again on a parallel with his views on the autocracy. Gosh, golly, gee, that went to hell in a handbasket starting in the 60s with all the things that happened in the 60s and things that have happened since. And so, again, his role that he sees for himself. To restore that and, you know, a good microcosm of that, if you want to just think of one image, is Bill Bar ordering, you know, federal law enforcement people into Lafayette Park to clear out Lafayette Park. So the president probably the most vulgar, irreligious national leader. I say probably, I have no doubt the most vulgar, irreligious national leader we have ever had. So he could stride across Lafayette Park with a Bible in his hand and waved at the camera in front of St. John’s Church. So Barr has got this role for himself as a roster of these worlds that never were. And essentially the only way he can perform that mission is by keeping Donald Trump happy. So that’s what we’re seeing now. We’re seeing him do whatever it takes to get Trump re-elected and to keep Trump thinking that Barr is the guy who he needs to help him accomplish all of this.
S3: And I want to be very clear about this, because I think you and I share a sort of inherent trepidation about in any way maligning anyone’s religious motives. But I think it’s very, very clear that when Barr goes to Notre Dame and talks about secularists and talks about just the viciousness of anti religious fervor in this country, and he you know, I think you reference you know, he had written a nineteen ninety five article for Catholic lawyer, which is feels like the blueprint for what he’s saying now, where he talked about this militant secular age in all the ways in which if the vicious secularists had their ways, there would be vile religious persecution. It almost feels as though he’s describing an America that is the religious analogue to the smoldering ash heaps in the streets that he’s describing in his law and order version of America, that he’s constructing this all out war on religious liberty that is not really in evidence, much the same way that I think he and Donald Trump keep wanting to talk about looting and anarchy and rioting on the streets and the need for the law to come down like a hammer. It’s almost a fantasy world of chaos in both instances that I just don’t see.
S1: Well, no, I think you’re right. And I you know, these are views that Barr has held for more than 30 years. He didn’t make up either his desire to restore autocracy in the presidency or his belief that traditional Christian pious faith needed to be restored in America. He did not make that up as a rationale for going to work for Donald Trump. He’s believed this a very long time. In a way, it’s a sort of horrendous match made in heaven that these themes that are what he genuinely apparently believes in, their convictions he’s had. And for more than 30 years, I think in his own mind, he is a sign. It’s like Don Quixote. He’s assigned himself the role of rescuing America from these things. And and that’s really what we’re seeing now. And so, yes, I mean, the imagery that he uses is very apocalyptic. It absolutely is. And you’re right. I mean, he talks about, you know, one of the worst things I’ve ever heard him say was a series of things he said in an interview with Mark Levin in August, where he goes on and on about militant secularists. He says the left wants power because that is essentially their state of grace and their secular religion. They want to run people’s lives so they can design utopia for all of us. You know, it’s just really sort of a cosmic vision of of, you know, morality at risk at the barricades and bulbar in service of Donald Trump is the only one who can fix it.
S3: I have to ask you this just pointedly, because I think you’ve said it. Elliptically, but I want you to say that, say it straight on, you’re describing a devil’s bargain in which Donald Trump doesn’t really need Bill Bulbar, but Bill really needs Donald Trump because Bill Bar, unlike Donald Trump, who is just a series of whims and caprices and feelings, Bill Barr has a plan. He has a programmatic vision, and he needs Donald Trump in order to build the America he’s been dreaming about for decades. And what happens as a consequence, I think, is what you’re saying is that Donald Trump says crazy stuff and Bill Barr has to repeat it. Bill Barr has to keep saying even things that he knows to be bananas, like the Obama administration spied on Donald Trump or like seventeen hundred votes were stolen in Texas and we prosecuted a guy for that. And so really, in a sense, the more bananas Donald Trump is, the more Bill Barr has to contort himself in order to just shore up Donald Trump’s crazy world view. That’s what you’re saying, right?
S1: Absolutely. Absolutely. And I would I would say that’s exactly right. And the crazier that worldview gets.
S4: Well, it’s been crazy for a long time. It’s gotten somewhat crazier as we’ve gone along. But the urgency of that worldview has become ever greater as we approach the election, that if Trump gets reelected, it’s going to be by this sort of presentation of a totally unreal world view of, you know, demons at the gate and the need to defend our civilization and all of that sort of stuff. And so, so far, yes, you’re right. I mean, and as you know, in his own mind, recognizes that his game is over if Trump doesn’t get re-elected. This personal mission of redemption for America, which I think he truly thinks he’s he’s on and he thinks that’s right. Probably as best I can figure, that is over if Trump doesn’t get re-elected. So he not only is mouthing the words to make Trump. Contented. But but he is doing this because he needs to get re-elected and this is the strategy, so he spews garbage. But the worst part than that, even hard to think of something worse than that. But the worst part from that is that he’s doing things, too. He’s doing things as necessary to. So you have all these troops all over the country, right? In various cities, we got to have a video complement to the theme of of unrest. And let’s send troops in and fire off some tear gas and do various things. And, you know, and let’s go to Chicago, you know, on on Wednesday of this week and have a press conference, you know, about the great work we’re doing with Operation Legend and all this kind of stuff. And so anyway, but the one thing I want to say is that everything you’ve said I agree with except one little point, and that is I do think Trump needs. I do think Trump not only does BA desperately need Trump, but Trump needs BA because BA has these powers and BA is far, far smarter than Donald Trump and and BA needs to play this role. Trump has fired everybody worth a darn who who he ever had, and he did have a few people who were had some integrity and Barbara is kind of it. And so I think Trump needs him. He may not know he needs it, but he needs him. So it’s really an unholy alliance that is working for the two of them and against the country.
S3: You have cracked. Something that I haven’t understood for a long time, we tag Donald Trump for his American Carnage inaugural speech right in 2017, but Bill Burr, in effect, wrote the American Carnage speech decades ago. That’s this is an amazing symbiosis you are describing right now. They both fully inhabit that world. But I want to turn, if I can, to the November election, because I think you’re right. I think I have been almost careless in saying, oh, this is just talk. This is just talk. But of course, this is not just talk when it comes to November and we’re all seeing how something is simple. The air we breathe, the post office can be deployed to interfere with or at least confuse this election. What’s less clear, I think, to listeners is what Bill Barr could do if Bill Barr, beyond making I’ve now cited it several times, patently false claims about fraud and mail and voting and foreign interference and mail and voting stipulated, he says, things that are lies that I think undermines voter confidence in mail, in balloting. Beyond that, Donald Air, what do I have to worry about going into the November election if Bill Barr is, as you say, absolutely committed to Donald Trump’s re-election?
S4: Well, I know I hesitate to throw out extreme speculations. Know, I mean, there’s every every manner of possibility. And I and I, I don’t I don’t want to kind of go down the list of all the things that he might do. I guess what I would just say is that we know for a fact that he is not at all committed to the ideal of a Justice Department that works only for the people that bends over backwards to be evenhanded and fair and would never consider acting for political reasons. You know, I mean, this Federal Tort Claims Act intervention the other day is a great example of him using the litigation resources of the government in order to intervene in order to protect Trump politically, you know, against a piece of litigation. So I think he is fully prepared to use those resources for a grossly political and improper reasons. And the question is what opportunities may avail themselves as in connection with the election? And I haven’t already thought about the details of all of that. But the idea that he would send the Department of Justice lawyers into court in settings related to an election whose ultimate resolution is of the issue, who will be the president of the United States. It is not beyond the realm of possibility. And I I’d want to think hard about the given situation, but I don’t think you can put anything past this guy is the bottom line. And he’s proving it every day by the things he does.
S3: This is one of those very rare times when I’m hosting this show where I desperately wish I had a little pocket defibrillator under my desk because I don’t that I cannot let myself think about. But I do want to ask you, because you said earlier to attorneys general went to jail for Watergate. And one of the questions I have been asked all week about the Eugene Carroll intervention is, can there be consequences? Can there be any consequences either for Barr or for attorneys who signed pleadings? Is there I mean, I think there is a normative question about whether we want there to be consequences. And perhaps if Joe Biden is elected, we just turn the page and move on.
S1: I think I mean, I think one thing. One thing. There are bar association, ethics rules and things like that, and your listeners probably know that there have been serious complaints of ethical violations filed against Bar for a bunch of the things that he has done in general. Lawyers, certainly prosecutors acting within the scope of their employment have absolute immunity. Well, they have they have immunity. I’m not I’m not sure if it’s absolute. Judges have absolute immunity and lawyers have immunity. The idea that you go after the lawyers for the way they litigated a case is an extreme thing to think about. And I would not want to go into that as as something, gosh, we really should be thinking about. I think the other the other question that’s important and not easy is what ought to happen to President Trump after he’s defeated, if he’s defeated? And I think that’s another set of issues that are challenging. They’re there all kinds of reasons. People want to say, you know, forgive and forget, turn the page and move on. And I have a lot of feelings along those lines. But I got to tell you, in my adult life or my whole life. I’m not aware of anything remotely comparable to the abuse of the justice system that these people have engaged in. I don’t think anything remotely similar systematically across the board, repeatedly in act after act after act, and then lying about it, lying about it constantly. You know, I have I want to forgive and forget, but I have a little trouble forgiving some things. And I know no one’s asking me to make this decision. Or I guess I’m glad because I think someone ought to think long and hard before they figure out how these people should be treated.
S3: Yeah, and it brings us full circle to where I know you started, which is thinking about post Watergate reforms and how damage done to the Justice Department and to public confidence in the attorney general and an independent Justice Department. It doesn’t just magically snap back regardless of who is elected in twenty twenty. It is hard fought. And it is, as you say, it is a culture. It is baked in and attorneys have to be trained up to think by triangulating against those values. And so I think it’s a very, very fraught question how you restore that. And maybe we should just promise that we’ll have you back on the show to talk about it after the election. But before I let you go, I do have a question of nomenclature for you. You keep talking about autocracy and I think you’re very mindful with your words. And so when you I know you told Politico a little while ago that your I think your word was alarmed, frankly, at the threat of a theocracy and talked about what that would mean in a second term autocracy, tyranny, those kinds of words didn’t used to be words that lawyers threw around. I certainly never used those words to describe the United States. Those were Masha Gessen words. Those are Tim Snyder words. When you talk about autocracy, what exactly do you mean? I guess I want you to unpack it and tell me when you started using that word.
S4: Well, I don’t know quite when I started using that word, but it was it was around the time that I saw that there was this the systematic by which I mean in many different areas, effort to free the president from the limitations upon his use of power that have always been sort of in the water. We drink on the air, we breathe, you know, and one of the very first things that started down that road with Bill Barr was, you know, when the president not not liking the fact that Congress had declined to appropriate money for his border wall, declared an emergency and then immediately said this isn’t really an emergency. I just want to do it quicker. And bars. Justice Department went to court to defend his ability to do that. So what is that? That’s the appropriations clause. The Constitution says that the Congress appropriates money. Congress repeatedly, explicitly refused to appropriate that money. And the president says, forget it, I’m just going to go ahead and do it anyway.
S1: So that’s one one example of a of a power being overridden. Then there’s, you know, throughout twenty nineteen, there’s this vast array of acts to stonewall efforts by the Congress to do oversight, to get information, to get documents, to talk to witnesses, even in connection with the impeachment. And they basically just said, now we’re not going to give it to you. And when they needed it, they’d get an old opinion and they’d order up an old opinion that would say, you don’t have to do it. Some of those relied on opinions Bill Barr wrote back when he was the head of LC in nineteen eighty nine and ninety. You know, so you’ve got you’ve got a lot of different things that are being done. Of course, another element of it is what we don’t like the Mueller report, so we’ll just overwrite it. We’ll just have Bill Barr go out front. Nobody’s seen it yet. So he’ll have a press conference or he’ll write a letter and then he’ll have a press conference and he’ll say, you know, well, I’ve decided this issue of obstruction and there’s no obstruction. So so negating. And the findings, of course, of the report, when you look at it, are no, there’s enormous evidence of obstruction. So Barr overrules that. You’ve got the regular process of Inspector General Horowitz’s investigation of the Russian interference CROSSFIRE hurricane investigation. He comes out in December of twenty nineteen with a report. And it it does find some problems. It finds that a number of warrant applications were improperly prepared. And it was it was bad. What some of some of what was done, but he also found that the oversight of that investigation and the reasons for doing it, what they call the predication for that investigation was was adequate, was totally fine. And there was no sign that the supervisors were biased in any way. Well, immediately, Barr comes out and and so did John Durham, amazingly, with a statement that says, oh, I don’t agree with that. We don’t we and of course, we’re doing our own investigation so we know what the facts are and we don’t think that’s true. So you’re negating the findings of usual and ordinary processes that people trust and you’ve got the whole set of things about the inspectors general. You have five inspectors general fired, one of whom was in connection with a whistleblower complaint that that was ended up finally going to Congress, but not until you had written an opinion saying it didn’t need to. So the list goes on and on and on. And what it amounts to is a systematic effort by this administration, I would say under the direction probably of Bill Barr pretty much totally to dismantle the checks and balances on the system. And literally, you know, the president makes the statement periodically. That his Article two gives him the power to do anything he wants. Those are his words. Well, he says that because Bill Barr has told him that, you know, that’s what Bill Barr wrote in the memo in his audition memo in June of twenty eighteen, he basically said the president is the executive branch and he can do whatever he wants, including he can dismiss an investigation of himself if he wants to. So anyway, it goes on and on and on. And when you eliminate virtually all the checks and balances on the president’s power, what do you have left? You have an autocrat.
S3: I think what you’re saying is that we have an idea about authoritarianism as something that is happening on the streets. What we saw in Lafayette Park, what we saw in Portland, people getting thrown into vans. That’s authoritarianism. I think what you’re saying adds another dimension and it’s a really important dimension. You’re saying it’s not just that authoritarianism is cumulative. Authoritarianism is an attitude. Authoritarianism can happen in the vaulted halls of main justice as readily as on the streets. And what you’re telling me is even on that axis, it’s happening all around us?
S1: I think so. I think so. And I think, you know, I think when one measure of it is the sense people feel, I feel it. I think you may feel that a lot of other people feel that the craziness continues. One thing after another happens. And you may speak out if you can, if you have a forum and a way to do it. But ultimately you say, well, I can’t do anything about that right now. You know, there’s just nothing I can do about that. That’s the way it is. That’s what they do. It’s completely wrong and completely outrageous. But this administration has the power right now to do that. And it’s as outrageous as it is. None of us can do anything about it. But once that’s institutionalized and we all accept that attitude where you are now living in an autocracy and that’s what they’re working toward. And if if Trump is re-elected, I’m not I wish I could say I see a way that that isn’t going to happen, but I don’t.
S3: Donald Baer served as United States attorney and principal deputy solicitor general in the Reagan administration and is deputy attorney general under George H.W. Bush, I think in another universe, someday we will find that we could have a podcast together in which we actually disagree about a lot of things, but today was not one of them. Donald Air, thank you so very much. I think you have been a clarion voice for helping understand why the Justice Department is such a big part of this picture. And I cannot thank you enough for your time.
S1: Thank you very much for having me. I appreciate it.
S2: Welcome to our special Slate plus members only first class, warm hand towels, free champagne, fuzzy foot area. Mark Joseph Stern covers the courts and the law. The Supreme Court voting LGBTQ issues state court so much more. Mark, would you like the orange juice or the champagne? Welcome to first class.
S6: I want them mixed together. And I got my fuzzy foot socks on, so I am a little tipsy, I guess, and I’m ready to go.
S3: Let’s catch up on some of the news of the week, if we might. We are now less than two months from the election, and it required Donald Trump to unfurl, I think, 4.0, his judges list. But it’s so stupid. This whole conversation is stupid. So let’s bracket it and have it at the end. Stupid part. Stupid part will be moved to the end and we will have a serious conversation, which is you and I have been speaking for months and months and months about election snafu, screw ups, problems in the states, things to watch out for. And here we are. We’ve got things to watch out for. Do you want to start with Wisconsin?
S7: Always. Wisconsin, right. One of the swingiest of swing states with one of the craziest of Supreme Courts. So Wisconsin has a state law that requires it to start printing absentee ballots on September 17th. Federal law requires it to start printing them on September 19th for overseas military folks. And the state’s been doing a really good job at it, dealt with all of the last minute details of these ballots. It finalized the candidates who had made the cut and it started printing the ballots and it started sending out the ballots. And then guess what happened? Our favorite Wisconsin Supreme Court stepped in and issued, would you believe, in a four to three decision conservatives versus liberals, Republicans versus Democrats, halting the printing of absentee ballots and saying that there was a live dispute over whether this Green Party candidate whose attempt to get on the ballot was rejected by a deadlocked Wisconsin election commission, which found that there were irregularities, that there was an invalid submission, that Wisconsin Supreme Court said, wait a minute, we got to adjudicate this. So you guys need to stop printing your ballots, to which the Wisconsin Election Commission said, well, we’ve actually already printed a ton of them and we’ve actually already sent possibly about 400000 of these absentee ballots out to voters. And so now the Wisconsin Supreme Court has made it quite possible that in the near future, those folks who’ve gotten ballots have already filled them out and we’re going to send them back, are going to get another ballot that says, by the way, we know you already voted, but it doesn’t count because of our Republicans on Wisconsin Supreme Court. So you’re going to have to fill out this new ballot and send it back. And we’re supposed to believe that that’s not going to lead to any voter confusion, no trouble in the election, that it’s all going to be hunky dory, even though the one thousand eight hundred and fifty municipal clerks who are in charge of these ballots and running the election in Wisconsin have unanimously said that they absolutely cannot meet the deadlines anymore, that this totally sabotages and thwarts their efforts, that they are, in a word, screwed, and that the Wisconsin Supreme Court has just thrown the smooth administration of this election into jeopardy, if not already undercut it entirely. So that’s Wisconsin.
S3: And I guess the obvious question is, is this the aberration or are we looking at a template for Wisconsin has become the canary in the electoral coal mine? Is this a template for what’s going to happen around the country in the coming weeks?
S8: I’m so worried that it is. I’m so worried that this is sort of the first tremor. Right.
S7: And what’s going to be a series of earthquakes where you have 50 different states with 50 different systems and sometimes clashing agencies within government and sometimes really radical wild state supreme courts. And they can all kind of stick their finger in the pie. And I’m worried that that’s what’s happening here. And it’s going to be a template for future conflicts that have the effect of confusing voters, making the election more chaotic, making it less legitimate in the eyes of voters. Now, one interesting note here is that this is all the work of the Green Party, not the Republican Party. And I don’t think so far as we can tell, that the Green Party in Wisconsin is just a sock puppet for the GOP. So I think the GOP welcomes the chaos, but they are not the authors of it in this particular instance.
S3: And we don’t talk about this enough. But you write a lot about state supreme courts and. We both talk about the US Supreme Court, maybe too much in light of how much action happens in state supreme courts. But just talk for one little minute about how the Wisconsin Supreme Court, the August body, the neutral judicial arbiter of last resort in the state of Wisconsin, came to be the hair pulling, biting, scratching entity that you are describing today.
S6: So one word, elections right now, the Wisconsin Supreme Court, the justices are elected.
S8: And because of that, the Republican Party and a lot of its allies, including the Kochs and a lot of big Republican Wisconsin donors, decided some time ago that they were going to capture the court and did quite successfully just spend unprecedented sums, putting extreme, far right conservatives on the Wisconsin Supreme Court. And Democrats kind of woke up too late to the problem. They lost a key judicial election just last year. They won one this year. But it has left us with probably the most bitterly divided court in the country. I mean, the justices on the left and right absolutely despise each other and just just say the most disparaging things about each other and snappy little footnotes constantly. You can tell these people can’t bear to sit in the same room with each other, which is good that they’re zooming these days, even though they’re still busy to each other on Zoome. And so it’s kind of hard to separate what’s like a legal fight here and what’s just a personality dispute between these seven scorpions in a bottle who just cannot stand each other.
S3: So let’s turn to what I think is a big fat deal story from Thursday and a federal court in New York issuing, I think, a pretty consequential ruling around Donald Trump in the census and apportionment.
S8: Yeah, yeah, absolutely. So Donald Trump hates the census. You know, we all know this. He tried to sabotage it. He tried to throw in a citizenship question. The Supreme Court blocked it. There is no citizenship question on the census. So then he decided, well, what we’re going to do is when we tell Congress how to apportion House seats. So remember, with each new census, Congress has to take a look at the population of the different states and the number of seats that each state gets in the House of Representatives is sometimes shuffled around depending on where people have moved. So Trump says, well, what I’m going to do is I’m going to send you the census numbers and the apportionment figures here, but I am going to subtract unauthorized immigrants from that figure because I don’t believe that they should or even can be constitutionally counted, which just like go read the 14th Amendment, it’s totally backwards. That is absolutely not true. They are counted in the census. And what this would do is essentially strip House seats from states that have large undocumented populations, including some liberal states like California and New York, some conservative states like Texas. And what the three judge court said unanimously on Thursday was, no, Donald Trump, you can’t do that. It may or may not be unconstitutional, but it’s actually just a clear violation of federal law because Congress has constitutional authority over the census. It’s given the president some power to implement it.
S7: But Congress has said that the president does not have the power to meddle with the numbers before it transmits them to Congress. The president has to simply send over the numbers and the apportionment count as they are following the census is completion.
S8: It does not get to go in and subtract some population on the basis of speculation because we don’t actually know how many undocumented immigrants there are. These numbers are going to be concocted. So the court basically said, look, nice idea, maybe, but you can’t do it. This is not what Congress authorized a really strong kind of fair minded decision. Two Republican appointees joined this unanimous decision by a three judge court. I think John Roberts is going to agree. I think after John Roberts stuck his neck out on the citizenship question, he’s not going to tolerate another kind of cockamamie scheme to sabotage the census and its results through this ridiculous executive order. That’s a blatant violation of the Constitution.
S3: Arguably cockamamy or I would think I mean, this is even sillier than the citizenship question, right?
S8: Because it’s just so blatantly awful. It’s not a question of, well, how will this impact the numbers? How will this affect the, you know, the validity of our count? This is like can you read two sentences in the Constitution and one federal statute? Because if you can, you can see that the executive has absolutely no power to do this. That doesn’t mean that that Trump doesn’t start off with four votes at the Supreme Court. Right. We learned that in the citizenship case.
S6: Right. I fear that there are still four conservative justices who will side with him. But I think Roberts has his head screwed on straight these days, enough to say we implement.
S3: So Roberts is a nice Segway to the list, the list, the ever growing rolling thunder of a list Donald Trump in May of 2016 did this unprecedented thing where he said, I’m not crazy. If you vote for me, I’m going to put one of these people on the Supreme Court. And I think it was because many, many conservatives were a little bit nervous that if he were elected, Donald Trump was going to seat Miss Kentucky or his sister. But he put out this list and has since added to it and added to it again. And lo and behold, we had a good big whomping press announcement that there’s another list I led with the fact that stupid. But talk about it stupidness mark.
S6: Well, how much utility does a list have when it has forty five names, all possible nominees for a Supreme Court vacancy that does not yet exist? I mean, these people are essentially lining up outside the cemetery gates. It’s all rather morbid, right? They’re expecting certain justice to die in the near future. But beyond that, you know, like we should maybe start counting who is not on the list, because this is as I as I’ve said to you at this stage, just a way that Donald Trump gives his favorite conservative lawyers a nice, wet, sloppy kiss on the back of their necks. He says, I love you so much again. You know, I just dig everything you’re doing. I mean, I don’t think he really understands it, but he’s got people who can explain it in kindergarten terms. Thank you so much for degrading transgender people. Thank you so much for defying the Supreme Court’s abortion precedents. Thank you so much for flouting judicial ethics. Thank you for striking down environmental and labor regulations. I love you. I love you. I love you.
S7: Kisses for all.
S8: And, you know, maybe that gives those those folks on the list a little bit of an ego boost. I don’t think it has any utility for the rest of us. I think everyone who is going to vote for Donald Trump because of judges was already going to vote for Trump because of judges. They didn’t need this list to know. The man has already put more than two hundred federal judges on the lower courts, and they have almost all been staunchly far right sort of fringe radical conservatives, with a few exceptions. So this was more like kind of just a little bit of a political stunt that I felt kind of fell flat at the at the press conference where he announced it. The questions afterwards were all about covid and and the new revelations there. Nobody even deign to ask about this list. So I just think the well has run dry.
S3: The reason I mentioned John Roberts is that at least in part, Donald Trump is for reasons you just laid out in the census case, running against John Roberts. John Roberts is single handedly keeping his dreams from coming true. That’s the reason that weird, improbable folks like Ted Cruz and Josh Holly and Tom Cotton are on the list. Right. These are all people who’ve been immensely critical of the chief justice.
S6: Exactly. These are all senators who have gotten up and said, basically, I hate the chief justice. And so I think that it’s it’s revealing that both Roberts critics and his kind of antithesis on the bench, like conservatives who do not try to ever hew toward the center or broker compromises or sound like the reasonable person in the room are. Those are the folks on the list, people who would just scoff at John Roberts saying we should respect democracy and uphold Obamacare. That to them was a betrayal. That’s one of the reasons why they are on the list, and it’s one of the reasons why they probably wake up every morning just dreaming, hoping, praying that Roberts will fall again on a golf course and they can step in and take a seat and usher in the true conservative revolution.
S3: So it’s really worth, I think, putting a point on this. Donald Trump has, in fact, transformed the Supreme Court. He’s ceded two justices in four years. They are both staunch conservatives, certainly to the far right of anyone that Hillary Clinton would have put up. The balance on the court has shifted, I think, for a generation. It is fascinating to me that having triumphed at the court, he’s still not winning, not on most of his issues that matter to him. And it’s really I think the messaging around this is so paradoxical because essentially it’s saying I have four years to reshape the court. I did reshape the court. Still, I’m losing. So you’ve got to help me see. He’s saying four more justices he’s going to have the opportunity to fill. And it’s an amazing message. Instead of saying take the W, he’s saying, you know, we’re just going to keep. Filling these seats and we’re going to keep losing, so we’re going to have to run against the court and precedent and the rule of law itself in order to win. I see it as very nihilistic.
S6: Oh, yeah, absolutely. I mean, it’s like there is no end to this, right? It will never be enough. I don’t I don’t know when conservatives would be satisfied with the Supreme Court. It’s hard to imagine it. And it’s funny because, you know, back when Justice Kennedy was the swing vote and and the term would end with like two big conservative victories and one moderate liberal victory, Democrats would be like, awesome, we love the Supreme Court. This is perfect. Like, this is as good as it’s going to get. Meanwhile, conservatives win like 90 percent of the time and they’re still just absolutely disgusted with the courts. They demand total allegiance to the most recent draft of the Republican Party platform and anything less they consider to be a betrayal. And so here we are. Donald Trump ran on reshaping the courts. He reshaped the courts, and yet he is still running on reshaping the courts that he already reshaped. I don’t know, maybe it’ll motivate some Democrats to understand that if Trump does get another term, he really could appoint four more justices and he could also appoint a lot more lower court judges to this to the point that, like, if you walk into any federal courthouse, the odds will be very, very, very good that Donald Trump appointed your judge. And that is a dystopia that I do not want to live in.
S3: We’re close to that. Now, let’s be super clear. There are a lot of courts that you will walk in and certainly appeals courts and Donald Trump will have appointed your judge. And it is an astonishing track record for the president. Mark Joseph Stern covers the courts and the law and voting and state courts and LGBTQ issues and so much more at Slate. Mark, thank you very, very much for joining us again this week and our Slate plus extra.
S2: Always a pleasure. Thanks so much. And that’s a wrap for this episode of Amicus. Thank you so much for listening in. You can always keep in touch at Amethyst’s at Slate Dotcom. We love your letters and you can always find us at Facebook dot com slash amicus podcast. Today’s show was produced by Sara Brittingham. Gabriel Roth is editorial director. Alicia Montgomery is executive producer. And June Thomas is senior managing producer of Slate podcasts. We’ll be back with another episode of Amicus in two short weeks. Until then, hang on in there.