← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
“How Does This End Well?”
00:57:47
Stumbling in courtrooms and sweating in press conferences, Trump’s election fraud fever dream spreads.
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- [00:05]
A
There is a real here and now harm to the fact that the federal government has essentially stopped functioning as a federal government while the President throws this temper tantrum that threatens the guardrails of our democratic system.
- [00:25]
B
Hi, and welcome back to Amicus. This is Slate's podcast about the courts, the law, the rule of law in the Trump era. I am Dahlia Lithwick. I cover those things and more for Slate magazine. Two weeks ago, when we last checked in on this show, the 2020 presidential election was just about to be called for Joe Biden. The podcast actually dropped early Saturday morning, November 7th. The election was in fact called for Biden just a few hours later. So here we are. It's been two weeks. Donald Trump has declined to concede the election. He has stymied efforts by Biden's trans team to prepare to deal with a COVID pandemic that has now taken 250,000American lives and is worsening across the country. Trump has fired high ranking officials in the military and national security communities. He's installed loyalists in various positions, and he's not allowing the Biden transition team access to high level national security briefings. So here we are, two weeks after the election has been called for Joe Biden. Trump is filing lawsuits left and right around the country trying to set aside state election results. This is just as Rick Hassan predicted two weeks ago on the show, just fomenting the conviction around the country that the election was illegitimate. Later on in the show, Slate plus members are going to get to hear from Mark Joseph Stern about that litigation and about a state Supreme Court race in North Carolina. That segment is only accessible to Slate plus members. Thank you. Thank you for being the support we need at the magazine right now. If you are not a member, you can always sign up@slate.com amicusplus and access bonus content like my conversation with Mark and ad free versions of all of Slate's network of podcasts. And you never hit a paywall on the website, so that's slate.com amicus plus. As ever, we thank you now more than ever for the support. Okay, so currently as of this taping, Trump's win loss scorecard reads something like 2 and 31, depending on how you're counting. That spectacular loss rate has not kept Rudy Giuliani from dusting off his expired law license to argue with a straight face, I guess, in a Pennsylvania courtroom. That fraud was rampant. He just has no proof of it. And also, he doesn't know what strict scrutiny in fact means or some other big tricky Words.
- [03:01]
A
I'm sorry, I don't really understand the question, you, Honor. Does the amended complaint plead fraud with particularity? No, you're Honor, and it doesn't plead fraud. They were denied the opportunity to have an unobstructed observation and ensure opacity. I'm not quite sure I know what opacity means, but probably means you can see, right? You can see. It means you can. It's a big word, your Honor, but it's for me, too. Let me ask you, are you arguing then that strict scrutiny should apply here?
- [03:33]
B
No.
- [03:34]
A
The normal scrutiny should apply. If we had alleged fraud, yes, but this is not a fraud case. Well, this is how I would look at it. I would think that it's a standard review of strict scrutiny potential. You're not sure that that's the case? I'm not imposing my. Maybe I don't. Maybe I don't understand what you mean by strict. Well, for strict scrutiny to apply, a fundamental right needs to be. How do the counties.
- [04:00]
B
That same scorecard also has not prevented Giuliani and Michael Flynn's former lawyer, Sidney Powell, schwitzing their way through a feverish press conference on Thursday on nationwide vote fraud, apparently. Stay with me. Pre engineered by a deceased Hugo Chavez. Other stuff. Something. Something broken algorithms. Massive influence of communist money through Venezuela, Cuba, and likely China. Backdoors that can be hooked up to the Internet or a thumb drive stuck in it or whatever. But one of its most characteristic features is its ability to flip votes created in Venezuela at the direction of Hugo Chavez. Had the votes for President Trump not been so overwhelming in so many of these states that it broke the algorithm that had been plugged into the system. Massive interests of globalist dictators, corporations, you name it. Everybody's against us except President Trump and we, the people of the United States as well. All of this is a hallmark of this age. Even after we thought we could exhale, apparently we cannot. Because not only will the law itself be bent to undermine democratic efforts, but because Trump's enablers, from Rudy Giuliani to Lindsey Graham to Ted Cruz to the big law attorneys who are filing these, are happy to keep abiding by the fiction that there are two sides to this story, even when one side seems to be making up evidence and filing sanctionable lawsuits. Good times. Good times. Our guest today is Joshua Matz. He is a partner at Kaplan, Heckeren Fink llp. His specialties include complex commercial disputes, constitutional law, civil rights, and appellate and Supreme Court litigation. Joshua took a hiatus from his law job last winter to serve among counsel for the House Judiciary Committee for the impeachment and trial of President Trump. His current cases that he's working on right now include E. Jean Carroll's defamation lawsuit against the president. He represents ICE detainees challenging the terms of their confinement in the COVID pandemic and the victims of the Charlottesville attacks in a lawsuit against white supremacists. He also represents the city of Philadelphia in Fulton versus Philadelphia. That is the case we talked about two weeks ago with Mark Stern. Now, one of the reasons I wanted to talk with Joshua this week isn't just that he's had a front row seat to so much of the law of Trump and Trumpism in the past few years, but also because he's an attorney at a prestigious New York law firm. And we find ourselves in a moment in which lawyers across the country are having to ask really hard questions about what, if any, responsibility that all carries. So, Joshua, I've wanted to have you on for a long time. I welcome to the podcast.
- [07:19]
A
Thank you so much. I'm excited to be here.
- [07:21]
B
So I wonder if we can just start with where we are at this moment as of this taping. We are in this really deeply strange interregnum. It's not a lame duck. I don't know what it is. It's this moment of constitutional and democratic stasis. Biden has won the election decisively across several key states. And yet Donald Trump, maybe just as importantly, the GSA just refused to begin an orderly transition of power and his lawyers are filing lawsuits. And they're largely silly lawsuits. We could totally play out the Benny Hill theme song as we talk about, you know, triple hearsay and evidence of post it note and Rudy Giuliani. Ha ha ha. But it's not actually, as a lawyer, all that funny, right?
- [08:08]
A
Not at all. I mean, I don't know what to call this strange period of time. But you know, I would start with unbeliev. You know, the fact is that this election was always going to present significant challenges. It was being conducted amid a national pandemic. Many states had modified their voting procedures in all sorts of ways to allow for drop boxes, early drive thru and in person voting absentee ballots on a scale and scope that was not previously known to the country. And there were threats early on and continuing right up through the election from white supremacist groups that they would seek to sow chaos of efforts by the president and the Republican Party to sow doubt about the legitimacy of the election and ultimately even from the Justice Department itself, to sow some doubt about the validity of the votes that were cast. And notwithstanding all of that, notwithstanding all of the ways in which things could have gone wrong and in which it seems like some groups were determined to ensure they would go wrong, they didn't. This was an unbelievably well run election. And there is clear evidence that the vote tallies that we are seeing now across all 50 states were the result of an election that was effectively administered and whose results should not in any serious world be subject to doubt. And yet, as you've pointed out, Dalia, here we are.
- [09:31]
B
And I think that there's a way in which we give ourselves a lot of solace and comfort, right, Joshua? We say to ourselves, look, the thing I was worried about on election eve was white supremacists on the streets, right? Maga, massive civic disturbance and protests and massive lawlessness, looting. Right. People were boarding up the CVSS in D.C. and I think that there's a way in which, because that didn't happen and because the election was won decisively, that the only thing left to be concerned about, if anything, is this kind of weird King Lear creature who's bumbling around the White House and tweeting and golfing and, you know, being disruptive in the manner of a tiny, tiny child having a tantrum, but certainly not anything to worry about. And I wonder if part of me thinks that's descriptively true. Right. He's going to be gone, and it turns out his supporters are not going to violently oppose the transition. So we just wait this out. But I don't think that's perfectly correct. And I think there's a way in which his enablers, whether it's Lindsey Graham picking up the phone and calling Georgia election officials or to election officials in Michigan who simply don't feel like they want to certify the vote, there's a way in which the Trump mini mes that this has spawned and the lawlessness that that seems to be fomenting, and it's adjacent to Trump, he's almost irrelevant to it. But it's not nothing.
- [11:21]
A
Well, it's absolutely not nothing. I mean, I actually want to start with your first point, which is, you know, Trump himself and this figure, you described him as sort of like King Lear, and I think that's an apt analogy. The challenge is that he is, in fact, still the president. And quite problematically, he has decided to stop acting like one. And so right now, as the country navigates a resurgence of the pandemic in A truly terrifying way. What we've seen is a president who has essentially stopped governing the country, other than to exact revenge by firing officials at the Defense Department and cybersecurity officials who disputed his claims about fraud. And while the president himself has failed to govern, his party has essentially gone along for the ride, with the Senate more focused on confirming, in some cases, shockingly unqualified judges than it is on enacting policies that would redress the problems that our country faces. So the first thing I'd emphasize is that there is a real here and now harm to the fact that the federal government has essentially stopped functioning as a federal government while the president throws this temper tantrum that threatens the guardrails of our democratic system. That latter point, that this is a threat to the guardrails of our democratic system, is why I ultimately think that even though it's easy to in some respects, minimize what's happening, the damage here, the collateral damage is undoubtedly going to be significant, because what the president has called into doubt is the peaceful transition of power and the acceptance of the results of an election that officials at virtually every level of the government and virtually every court to have considered the question have concluded was conducted fairly and properly and within the bounds of law. And once you unleash that idea that an acceptable response to the election is to grind the government to a halt, to unleash maximum partisan warfare at every level of local, state, and federal government, and to try to persuade the country that even though you lost, you should really won, once that idea takes root in a way that it really hasn't in America for well over a century, I think you mark a path that could potentially be a pretty dark one unless the country turns away from it as it comes out of, hopefully, this experience into a new Biden administration.
- [13:46]
B
And now let's return to our conversation with Joshua Matz, partner at Kaplan Hecker, adjunct professor at Georgetown Law, and co author with Professor Lawrence Tribe of Uncertain justice and to end a presidency. One of the things I've been really mulling, Joshua, is this question of how does this end well? We want to believe it ends well because somehow after the new president is sworn in, what Mitch McConnell says, just kidding, Lindsey Graham says, psych. Everybody pretends that this was all about Trump all along, and we all snap back to the norms that existed to the extent that they existed at all. Right. They didn't exist in the end of the Obama era either. But there's so much magical thinking around the idea that either Biden can enforce some kind of return to norms, or that once we've sucked out the poison, once Trump himself is gone, everything is going to go back to some at least resemblance of what came before. That, again, also feels descriptively wrong based on what we're seeing right now, I guess. You know, I think the temptation to just describe what we're seeing as a smash and grab, you know, Mitch McConnell's just going to grab the silver on the way out. You know, Josh Hawley's positioning himself for the 2024 run. That's a really tempting narrative, but I don't see that playing out at all. What I see is this is actually going to be a profound continuation of illiberal, anti Democratic weaponization of the government itself.
- [15:38]
A
I completely agree. And I think the idea that this is an artifact of Trumpism, you know, its last hurrah, or whatever the terrible opposite of a hurrah is, you know, to me, seems. It just seems. I mean, the way you put it is magical thinking. I mean, the fact is that this isn't just the president, and who knows what the president's motives are personally for doing this. We've all spent the last four years deep in the murky, mysterious, muddled depths of Trump's psyche. I don't think anyone has a particularly clear grasp on it. This could just reflect an inability on his part or an unwillingness to acknowledge legitimate defeat. This could be the result of the fact that he's the kind of person who would commit fraud, and so he assumes that others surely must have done so. Maybe he's just in this to boost his personal brand or to posture himself for 2022 or 2024 as a dominant player in the GOP. But whatever his motives are, the fact is that, you know, that I get what's more unnerving is that so much of the Republican Party establishment has gone along with him, and not just the establishment, but the base. I mean, the fact is that, you know, there's some evidence out there that a majority of the people who voted for President Trump, in fact, believe that he won this past election. And that group of people will, one assumes, believe that Biden, in fact, unlawfully stole power when he comes into office. And when you establish that kind of a dynamic, it will create all sorts of continuing problems in our democratic system. I expect it will push the Republican Party to pursue all of these various nonsense claims of fraud and continue to attack the legitimacy of the new administration. I think there's a risk that the Republican Party will remain enthralled to Trump personally and to Trump's brand of politics, which bore so many of them to power, especially given that Trump has demonstrated at least some interest in trying to remain a kingmaker within the party. And so I think, as you see these dynamics unfolding right, of Trump trying to remain a key part of the story of the base, largely standing by him in these crazy circumstances of the party either looking the other way or actively abetting an essential slow motion couple following the election outcomes that I don't think disappears on the day that President Biden comes into office. And the one last point I might put on the table there just to think about is this will be potentially the fourth presidential administration in a row to come into office with some significant part of the other party believing to its bones that the office was stolen. That happened for President Bush after Bush versus Gore, perhaps with a bit of reason. That happened when President Obama came into office and there were all of those various racist conspiracy theories relating to his birth certificate. Obviously when President Trump came into office, there were any number of theories in the various respects that he might have unlawfully obtained that office in the first place, some of which bore fruit, many of which ultimately were not substantiated by the evidence that has since come to light. And now President Biden will come into office. And it is kind of crazy to think that there'll be four presidencies in a row where when the president comes into office, some significant part of the opposition doesn't just believe that they lost the election, but believes that the person who won it didn't or is otherwise unable to legitimately exercise the powers of the office. And I fully expect that dynamic, along with all of the various accoutrements of Trump and Trumpism that I think will remain very much on the scene to remain a source of deep dysfunction in our democratic system.
- [19:27]
B
So then, a two part rejoinder to that I'm just thinking about as I'm talking to you. I'm looking at this economist YouGov poll that just came out suggesting that, just as you say, in this particular poll, 88% of the voters of the Republicans polled do not believe that Biden won the election. And that's slightly higher than the numbers we saw two weeks ago. And I wonder if, looking at this as a tactician, you're thinking about what Joe Biden has done. Joe Biden has largely proceeded as the adult in the room. He and Kamala Harris have been brief. They have been sober and purposive and serious about COVID about national security. They are certainly doing level best to cab in the crazy and to say we're not even responding to it because it's crazy. And I get it. I think there is no other move. But I think if I have an abiding lesson from the last five years, it's that ignoring Trump and Trumpism doesn't make it go away. And in this case, it seems to allow it to burrow in a little deeper. And we have six more weeks of allowing it to, to burrow. And the idea that Rudy Giuliani disgracing himself in courtrooms across the land will somehow end the burrowing seems again wrong headed to me. It seems that this playing out as it's playing out again. Cue the silent Benny Hill theme. But I don't think that this lengthy period in which Trump and his confederates get to foment serious doubt about the legitimacy of the election can be ignored away.
- [21:22]
A
I completely, again, I think we find ourselves in heated agreement on this point. But I think it's a point that's important and worth unpacking because it's so easy to wish it away and to think this is all crazy. You know, Giuliani's performance in court was, from a certain point of view, like, comically bad. You know, when the judge asks him what standard of scrutiny applies and he says, well, the normal one, you, Honor. I mean, look, that's funny. Or at least it's funny if you're damaged the way I am by virtue of having gone to law school and you get that kind of humor. But it's deeply unfunny in another sense, which is that Giuliani was there as an emissary of the President of the United States in an effort to disenfranchise the Commonwealth of Pennsylvania on the basis of frivolous legal arguments, the likes of which are now playing out in courtrooms all across the country. The lawsuits themselves may seem like a pittance because they're meritless and courts have easily and handily rejected nearly all of them, really on their face. But the lawsuits are part of a larger political story and part of a larger social effort to undermine the legitimacy of the election, to undermine the legitimacy of the incoming administration, to sow the seeds of a really horrible grievance that I think the president and at least some of the Republican Party expect and perhaps hope will fester in American life for quite a while yet to come. And, you know, as you look at these lawsuits and try to understand what are they ultimately doing, the lawsuits themselves are unbelievably unlikely to affect the election outcome. So you really do think, like, okay, what is this all for? And, you know, at least part of it seems to be. And we saw this play out in Wayne County, Michigan, this week. The lawsuits are part of a broader effort, at least in the initial, in the short term, to persuade local and state officials to refuse to certify or to delay certification of the election to potentially sow mischief at the state legislative level. I mean, it's not unimportant that President Trump has summoned the leaders of the Michigan legislature, the Republican leaders of the Michigan legislature to meet with him in the White House and ultimately, after these lawsuits, seek to sow trouble at the local level and the state level. You know, it's not unimaginable that there will be objections or other conflicts when Congress convenes on January 6th to consider the slates of electors that have been sent. So even from a purely procedural point of view, as we think about this story, that these lawsuits are part of, right. They're part of a bigger effort to delegitimize the election, to sow chaos, to make it harder to actually get to an outcome that I think we're already starting to see efforts to operationalize outside of the courts, including at the level of the boards of canvassers. And I worry that this is going to be with us for a while and will itself only accelerate some of these underlying dysfunctions that you and I have been talking about since they will come right up to the doorstep of the new administration.
- [24:25]
B
We're going to take a brief pause right now to hear from some of the great sponsors of this show. And then more with Joshua Matz, partner at Kaplan Hecker, adjunct professor at Georgetown Law School, and co author with Professor Lawrence Tribe of Uncertain justice. And to end a presidency in just one moment. And the play is what, Joshua? Is it to get these legislatures in Michigan, in Wisconsin and Pennsylvania to just appoint Trump electors, or is it to slow walk this delay certification so that some of the states don't send electors at all? And this gets thrown to the state delegations in the House? I assume that's the only play left, one of those two, right?
- [25:17]
A
You have to think it's something like that. Every once in a while I think, wow, these people must have a plan. But then they show up at Four Seasons, total landscaping, and I wonder if they're really winging it day to day or hour to hour. The bottom line is that if the president, in fact, wants to stop Vice President Biden from winning the election, the only way to do that is to cash it out in the Electoral College. And there are only so many ways to do that. And so far, the lawsuits seem obviously unsuccessful as a tool to that end. And that's partly why I think we're starting to see more action now shift out of the courts and into other aspects of state and local government. I mean, the fact is, the theories they would rely on there are as crazy as the theories they have advanced in court. And I think that it is still clear that a majority of the American people wish to see the results of the election upheld. And so, at the end of the day, I think it will be unbelievably difficult, legally and politically, for Trump to, in fact, thwart the electoral verdict that the American people rendered on and before November 3rd. But he can still do a whole lot of damage on the way out. And that damage is damage that will remain with us. And that, I think, undermines core norms of what it means to be a democracy. And that will, I think, create a host of challenges, not just for the incoming administration and the legal profession, but for the American people as a whole, as we sort of come out of this time into a Biden administration and think about what it means to try to set the world and the country aright.
- [26:52]
B
And before we leave Wayne county, you mentioned it briefly, I think we should pause and just absolutely underline the fact that that was just objectively racist, what we saw happen. And I think we should slightly interrogate whether it's more or less dangerous and threatening to constitutional and democratic norms to move this skirmish out of the courts and into direct pressure on election officials in states. In other words, does this strike you as a move toward just object nullification of the will of the voters in a way that's a little different than throwing out votes of tens of thousands of voters? Or is it the same? Or is it just more desperate and so it looks crazier?
- [27:51]
A
I think the ultimate objective is the same. At the end of the day, what the president and his campaign are trying to do is nullify the will of the American people. Whether they do that by disregarding the outcome of the popular vote, or whether they do that by invoking crazy theories and unsupported allegations of conspiracy and using that to knock off 10,000 ballots here, the city of Detroit, there, there's clearly an effort by the administration to essentially reject the democratic outcome. You know, doing it in court, I have to admit, you know, when you're in court, there are norms, there are rules, there are standards of evidence. There's a reason why the Trump campaign has lost, even though it has the ability in at least some cases to forum shop and to seek judges that they think will be favorable. And even though many of the judges before whom they've appeared are conservative, the Trump campaign has lost because its claims are so ridiculous that whatever a person might think in the abstract, when you're sitting in a courtroom, testing the evidence, seeing it laid out before you, there is simply no there there. You know, and Rudy Giuliani can say whatever he wants at a press conference, but when you have to answer to a judge, there's something to be said for that adversarial presentation. And so, on the one hand, it's unnerving that they're doing it, but it's more structured. You know, what we're seeing as they move their pressure tactics outside of the courtroom is a world that is not unconstrained, but constrained differently. It's constrained by the rules and procedures of local canvassing boards, like whoever heard of the Wayne County Board of Canvassers? But all of a sudden, their procedures matter. The number of people that can make it onto their crazy limited zoom call matters. The question of whether they can change their minds and change them again or then change them a third time, they don't seem able to make a decision over there matters. And then the question of, well, what if the county board of Canvassers can't certify what happens at the state level if the county refuses to do it? Can the state step in? Our system of election administration does provide rules, but it was not built with this kind of massive bad faith resistance to the outcome of an election in mind. And so I think what we're going to see are strains on people and institutions and procedures that were not prepared for it and that have never previously seen anything like it. And as that unfolds, it won't at all be like a court of law. But we're going to see similar debates and arguments unfolding with the same ultimate objective, which is the disenfranchisement of people who cast lawful ballots and a rejection of the outcome of the popular vote. And the forum will change, the process will change, the decision makers will change, but the goal will be the same. And that goal should fail for that basic reason, wherever the administration seeks to pursue it.
- [30:44]
B
I wonder if you noticed the same move toward the end of the week where even under the guardrails, you just laid out courts as functionally truth seeking enterprise that have the capability to distinguish true from false. And that's in Some ways. What makes them a good forum for testing some of this. And the move when Rudy Giuliani stops claiming that he can adduce evidence of vote fraud and just starts making these bananas claims, right? I mean, these truly nutty claims about, you know, widespread conspiracies between big urban centers and Soros pops in and out like, it's so interesting that even within the formal constraints of how we talk about courts, Rudy Giuliani has stopped, as you say, he doesn't know what opaque means, but he stopped even pretending that the formal rules of evidence, that the formal rules of pleading or of fact based argument. Now he's just making straight up Monty Python claims about conspiracies that he can't prove. But trust me, they're there.
- [32:13]
A
Yeah. And you know, and part of what's so scary about it and part of the reason why, although it's easy to laugh at it or reject it as just the ramblings of a deluded person, is that, you know, I mean, you mentioned that poll from the Economist earlier. A not insubstantial portion of the American public believes that to be the case. A portion of the American public that for years now has gone along with any number of outlandish and unsupported and fanciful and conspiratorial claims advanced by the Trump administration and its hangers on. And so even though Giuliani and his colleagues aren't able to prove their claims in a court of law or to offer evidence and other indicia that there might actually be something to what they're saying, the fact is that their narrative is resonating with some significant number of people. I mean, we're talking about tens of millions of people. And so as I think about what the lessons are here, I mean, there's this sort of immediate question of ensuring that the mandate that resulted from the last election is enforced and that Vice President Biden is sworn in as the president in early 2021, and that we in fact, have a peaceful transition of power. And that's going to be a rocky road. I mean, I think we all need to buckle up for the next couple of months. It's going to be a challenging time for institutions of democracy and American life. But even looking past that and thinking, what does it mean to live in a country where a political party or at least a substantial faction within one can make claims like this and call into doubt an election like that, how do we recover from that? How do we move past that? What does it mean to think about sort of rehabilitating our democratic institutions and systems. To me, there's real challenges there because when arguments of the kind that Giuliani makes are landing the way they are with that many people who will come into 2021 believing that Biden has stolen the Oval Office, you know, we all sort of, you kind of need to stop and reassess and just think, how do, how is, how do we solve this problem? How do we fix our democratic institutions? And obviously that's going to be a major challenge for an incoming Biden administration.
- [34:35]
B
Before we get there. I mean, I do think that is the work. And Jack Goldsmith and Bob Bauer have taken a shot at it, at their new book. And I do think that's an important conversation. But I want to linger for one last minute, Joshua, on the lawyers, because I think if there's been a lesson in the last four years, for me, I always thought laws were norms, norms were laws. And by the way, they're both self reinforcing somehow and that lawyers exist to, you know, kind of work the levers around the edges. But law is law and we all agree on that. Okay, I'm an idiot. Stipulated. But now we seem to be in a world where norms aren't norms and laws, by the way, are not law. And whether it's a courtroom or Wayne county canvassing board, they're all just kind of fora for really complete bullshit claims. Forgive me. The role of the lawyers in making some of this come to pass I think gives me real pause. I again am one of those people who really believe that the ethics rules and the federal rules and the rules of evidence and sanctionable conduct for filing frivolous plea like I thought that machinery was pretty robust, my friend. It is in fact, not. And so I want to pause for a minute. Mark Stern and I wrote a piece at the beginning of the week about the lawyers in Big Law who have signed off on some of this. They have been backed down in some instances by campaigns, including from the Lincoln Project, to name and blame and shame them for participating. But I want to talk about am I just naive to the point of near mental illness for believing that lawyers should be constrained by the things that exist to constrain us whether or not they're enforced against us?
- [36:42]
A
Not at all. Not even in the slightest bit.
- [36:46]
B
Oh, phew. Oh, good. Yeah.
- [36:49]
A
Although I have to admit that sort of puzzling about the role of lawyers in the Trump administration generally, and especially the role of lawyers serving the Trump campaign as they seek to undermine a transition of power is enough to make Anybody feel like a crazy person. So if you feel that way at times, you're in good company, because I definitely go there myself. And I have to admit, there are times where I'm not sure what I find more frustrating. The lawyers who do that work and insist that they're just like public defenders or anybody else who takes an unpopular client because of the old saying, everyone deserves a lawyer, everyone deserves representation, which to me is an entirely facile and unsatisfying response. I'm not sure if I find them more frustrating or the supposed progressives who work at some of those firms that have been doing this work for years and have now rushed off to the New York Times on background to profess themselves shocked, shocked by the suggestion that their colleagues would engage in precisely this kind of work. The fact is, I think, all of us in our lives, when we choose what to do professionally and otherwise, we're making choices about who we are and about what kind of people we are. And this notion that lawyers are just sort of guns lying about for people to pick up and aim as they please reflects an outmoded and, I think, deeply problematic perception of our profession. And if there's a limit anywhere, if there's a boundary anywhere on the kind of case that a lawyer can in good conscience take and can take, consistent with being an officer of the bar, I would think it has to be a case that is brought in bad faith for the ostentatious purpose of defeating a peaceful transfer of power in our democracy, for undermining confidence in the results of an election whose outcome there is no credible reason to doubt. And that seems to be brought solely to advance the personal political interests of a single man and perhaps those of his inner circle and some of his partisan allies, at the grave detriment of the entire legal system that sort of gives rise to the legal profession in the first place. And so I feel like there are times where you think, boy, it's really hard to draw a line. But just because some cases might be hard doesn't mean you should get the easy cases wrong. And in my mind, this is one of those easy cases where it is wrong to engage in that representation. I think it has been entirely appropriate that the lawyers who've done so have suffered sanctions, because, as Leah Littman has pointed out in a wonderful essay in the Drake Law Review that I know you and Mark quoted in your piece, too often elite lawyers are able to exercise from their position of privilege to engage in all sorts of acts and never actually suffer any consequence. It's not personal to them. They can just sort of take the cases they take and do as they please and there's ultimately no repercussion for it. By and large, I think that's a good thing. By and large, lawyers need to be able to represent their clients. But this is the kind of case where I think the backlash that we've seen against some of the individual lawyers and firms that have lent their efforts and their resources to this is entirely valid because it's a backlash aimed at defending our democratic system itself.
- [40:13]
B
And I think that in addition to the strange distancing of the elite law firm from life as lived on the ground, there is this other component which is, oh, if I have colleagues at my firm that represent unpopular causes or if someone at my firm is elevated to a court and I, even though we disagree about all things, stand up and defend them, it helps me look like I am civil, right? That I am open minded and fair and that there are two sides to everything. And I think it's not just that it's dissociative in a weird way, but it actually gives cover to this fiction that big law is a party to this deeper shared understanding of working across the divide. And it actually gives cover. And I know this is in Leah's piece too, but it gives cover to so much awful, awful behavior under the guise of quote, unquote civility. It's really toxic and I think it needs to be called out as that.
- [41:28]
A
There's a reason why that many of these norms exist. It's important that lawyers be able to represent many clients, including powerful clients, including vulnerable clients who are unpopular. It is important that lawyers be able to represent them free of harassment and sanction. And there have been too many points in our history where that wasn't the case. And I think it is a triumph of the rule of law that that norm has been quite firmly established, especially over the past few decades. It's also important that lawyers uphold the virtue of civility. You know, it's by and large not a good lawyer who's just calling their opponent a jerk or refusing to collaborate with anyone who disagrees with them and who insists self righteously that they won't work with or will not engage with anyone who doesn't share their vision of the world. There's a balance to be struck. But I think it's quite fair to say that there have been times, especially these past few years where it's been struck the wrong way and where those considerations, many of which, many of which were down to the benefit of all of society, but some of which really are the sort of privileges of an elite few, where those considerations have overtaken pretty basic good judgment about what it means to be an ethical lawyer and a lawyer that's part of a legal system and part of a legal system that itself arises from a constitution and a democracy that promise a certain form of government. And when you're a lawyer, lending your efforts to the destruction of that democratic system, to the baseless mass disenfranchisement of Americans, particularly black and brown Americans, and to an overt campaign whose only apparent end is to reject the electoral outcome or undermine confidence that America even is a democracy. Again, like I said before, whatever the hard cases might be about where to draw lines, those are easy cases. And the lawyers who cross those lines, in my mind, deserve the kind of public and social and professional opprobrium that I think we've seen unleashed in a real way over the past couple of weeks against many of the lawyers that were doing Trump's bidding in some of these truly despicable, these truly despicable lawsuits.
- [43:48]
B
So this leads me inexorably to one of the reasons that I feel a little dispirited. You probably can tell I'm feeling a little dispirited. But one of the leaks this week we heard out of the Biden camp was essentially that President Elect Biden wants to do a version of what President Obama did around the CIA torture program. Turn the page, draw a line under it, move forward, bygones, hugs, mistakes were made. Who knows whose fault it was. Move on, bring the country together. That language of bring the country together, which, by the way, survives from the Ford pardon of Nixon. Bring the country together just feels like bring the country together. Particularly in light of the nihilism you have been talking about for the last 40 minutes. There's one part of the country does not appear to want to be brought together. And so then it just looks to me like appeasement. And I am in no way rejecting the general point that I think Biden is making, which is, look, the cardinal function in any democratic system is that the Justice Department is hived off from the will and the whims of the president. And I am going to ask the Justice Department to once again reinforce the post Watergate norms where it doesn't do my errands. Okay, Agreed. It felt like he was saying more than that. It felt as though he was saying, I just don't have an appetite for a lot of this. We have Covid. We have the economy cratering. We have so many real problems. I'm not going to focus more energy on Trump or his confederates, and I'm not going to look back instead of ahead. And I do worry in this larger question of how we begin to do the repair that you're describing, how you can do repair if there are no shared truths about damage. In other words, if we can't even agree about what happened because we're so busy healing the country and moving forward. I'm not saying there needs to be on day one a criminal prosecution of Bill Barr, but I'm saying I worry a lot about the Lucy football quality and how familiar it feels to me to believe that announcing that you're knitting the country together by forgiving all does not seem to redound to the benefit of knitting the country back together.
- [46:27]
A
I think that's a profoundly important point. And the fact is there are good reasons, I think, for a new administration to be wary of calls to punish and investigate and indict officers and others associated with the administration that preceded them. You know, we don't want the norm in American politics to be, especially in this time of intense hyper partisanship and partisan polarization, we don't want the norm to be that one party spends four years insisting that the other, you know, are a bunch of crooks and fraudsters and whatever, and then to feel that as soon as they come into office, they need to immediately set about prosecuting and investigating everyone who came before them. And so to a certain extent, I think a measure of what President Biden talked about is just an important part of having a two party system in which there can be peaceful transitions of power because one party isn't anxious that if they lose the White House, all of a sudden the other party is going to be coming after them personally and in all sorts of other ways for the next four years at the same time. And I think it's easy in the abstract to set that tone, and maybe it might even be right in the abstract to set that tone. But I have a feeling that when the Biden administration shows up in the executive branch, it's going to be like cleaning the Aegean stables. I mean, God only knows how many issues large and small, have been swept under how many rugs all throughout the various departments and agencies of the executive branch. I mean, the stories have come so quickly over the past four years that it's hard to even remember some of them. And I say that as one of the lawyers that was literally on the House and then Senate floor for the prosecution and trial of the president for his own high crimes and misdemeanors. And so I think they're going to find a lot there. And I think they're going to. I suspect they will find things that they will recognize it is simply unacceptable to look away from. And so I ultimately think that the tough decisions that are going to get made are not do we live and let live, or do we go after them full bore. It's going to be something between that which cases are important, which cases are worth pursuing, how do we pursue them, where do we seek accountability? But the more basic idea that there have to be consequences for some kind of wrongdoing is so inherent to the rule of law and is so much a part of our system that if you don't insist upon it, then not only do I agree with you that the nation can't heal because there will be so much that was broken which has never been revisited and never set a right. Not only will it make it hard for the nation to heal, but it will also, I think, blast all sorts of further holes in the norms and rules and institutions that uphold the kind of democratic system that America is meant to be. And that I think Vice President Biden himself hopes to help us build back better, as he would say. And if you have that much law breaking that much norm violation and no consequence, no sanction, it's not going to be very easy to insist upon those rules and those norms the next time around. And so I think that, again, it's that delicate balance where you don't want to sort of go after everything. You can't go after everything. It is truly, there are good reasons to be cautious about it. But insisting that there be no accountability, no consequences, no sanctions is, in my mind itself an unbelievably dangerous thing to do. I realize that's probably a little abstract, but, you know, I really do think this is going to be a case of, as it were, case by case, decisions. And perhaps the vice president is setting a tone. He doesn't want to create an expectation that he's going to come into office and spend his first several years, you know, with massive inspector general investigations in every single department and floods of prosecutions and, you know, all sorts of criminal and civil actions against all of these former officials. You know, and if he wanted to, he probably could, because my instinct is the record is there to substantiate it. You know, I don't think that's the kind of presidency he wants to preside over. And so I read that leak as sending a sort of setting a mood, as it were, more than giving categorical guidance. But inevitably, inevitably, we're going to see at least some consequences because some of the wrongdoing is just too stark to look away from.
- [51:00]
B
And this leads me to my last question that I did want to probe with you, because you've been, for all intents and purposes, part of the juggernaut that was the lawyers of the Resistance. Right. The people who filed suits who believe that, you know, we'll see you in court, we're going to win this. And who did win overwhelmingly, right. I mean, Donald Trump has not fared well across the boards in the courts, even having flipped several circuits and seated 300 lifetime appointments. But I guess my question for you is your life in some ways won't change. Right? They'll still be e. Jean Carroll. They'll still be suing the white supremacists of Charlottesville. So there will be continued lawsuits of the Resistance. But the world is going to change profoundly for you and for. I guess here's where we say there's a 6 to 3 court that is really very fundamentally different from the 441 court that John Roberts presided over for the last couple of years. Tell me what your life is going to look like, assuming we all survive the next few weeks.
- [52:20]
A
Well, I've promised my husband that we're going to get a lot more sleep and take a lot more vacations. I've been meaning to be working out for the last four years, and it seems to have slipped my mind. So hopefully we'll get back on top of that. But, I mean, the fact is that the work of civil rights, the work of upholding the rule of law, never ends. And certainly a Democratic administration doesn't change that fact. It's nice to think that in at least many cases, the incoming administration will be working in favor of the cause of justice rather than against it, and will seek to promote rather than suppress civil rights. But power always comes with the risk of abuse. And that's true no matter who occupies the Oval Office. And there are many other issues in American society that are not going to go away, whether it's the scourge of white supremacy or the abuse of women, especially by powerful men, efforts to strike an appropriate balance between LGBTQ rights and religious freedom. There are any number of. And I could sort of. I'm sure that any list I gave would offend someone because it would miss some unbelievably important issue that I otherwise would really want to include. Right. There's going to be a lot of work to do. And it's hardly the case that a Biden administration coming in, that they're going to be the ones who go and fix everything. I mean, there's a lot that has been left broken in the Trump administration's wake. And it will be up to many folks, myself, and I think many, many, many others who are going to spend the foreseeable future facing down the problems that remain and trying to fix so much of what, so much of what needs fixing. But it is, it'll look very different than it has been these past four years. I do think, if I can offer one last thought on that, it'll be interesting to see how progressives come to think about courts and come to think about the federal government in that period these past four years. The story was so often sort of horror at the action of the executive branch and this sort of lifting up of the judiciary. Right. See you in court. And we did. We won in court a lot. We should have won more, but we won a lot and I think did a lot of good. To blunt some of the most egregious abuses of the Trump administration. Once the Biden administration comes in, it'll be interesting to see how progressives view a world in which the administration and the executive branch and the powers and privileges and prerogatives of the presidency are so much a part, perhaps, of advancing their agenda and their policy goals and trying to move the world in the way that they want it to move. And in which the courts, particularly those filled with President Trump's appointees, and obviously the Supreme Court, which is now an extremely conservative institution, in which the courts become a source of potentially significant resistance to the goals that progressive lawyers have. And I wonder if we're going to see a return to the Obama years in which progressives had their romance with a broad view of executive power, but really sort of had a more conflicted view of the courts. And that would be true even sort of doubly or triply so under the court as it's now composed, or if we're just going to see a very different orientation in how progressives think about what the role of law is and what the role of politics are in trying to advance their goals and trying to make the world a better and fairer place for all citizens, which will include working with the incoming administration, but will inevitably look far beyond it, especially to the state and local level and to the many other, the many other fora in which there's so much work still to be done.
- [56:12]
B
Joshua Matz is a partner at Kaplan, Hecker & Fink LLP. His specialties include complex commercial disputes, constitutional law, civil rights, appellate and Supreme Court court litigation. He took a hiatus from Kaplan Hecker last winter to serve among counsel for the House Judiciary Committee for the impeachment and trial of President Donald J. Trump. He clerked for Justice Anthony Kennedy at the U.S. supreme Court. And it has been a massive, massive joy to have you on the show this week. Thank you, Joshua, for joining.
- [56:43]
A
Us. Thank you so very much for having me. I'm a huge fan of the show and I'm grateful to you and to your colleagues for all that you've done these past few years, also to advance the cause of justice and warn about the perils of.
- [56:56]
B
Trumpism. And that is a wrap for this episode of Amicus, the Waiting for Godot edition. Thank you so much for listening, and thank you so very much for your letters and your questions and your support. You can keep in touch always@amicuslate.com we love your letters. You can always find us@facebook.com amicus podcast. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director, Alicia Montgomery is executive producer and June Thomas is senior managing producer of Slate Podcasts. And we will be back with another episode of Amicus in two short.