← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Case Regarding the So-Called Emergency
01:01:32
Dahlia Lithwick is joined by conservative lawyer Stuart Gerson and finds common ground over the President’s declaration of a national emergency so he can build the wall. And Leah Litman helps us take a lawyerly look at Michael Cohen’s testimony before congress this week.
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- [00:06]
Stuart Gerson
This is a case that I would expect that were he alive, James Madison would sit by my side and agree with what we're saying.
- [00:17]
Leah Littman
Dear Diary, today I witnessed one facet of a constitutional crisis.
- [00:31]
Dahlia Lithwick
Hi and welcome to Amicus, Slate's podcast about the law and the rule of law and the courts. I'm Dahlia Lithwick. I cover many of those things for Slate. It's been a busy few weeks for lawyers in America again. At the Supreme Court, Clarence Thomas is suddenly signaling a desire to do away with long standing doctrine that protects newspapers. And Chief Justice John Roberts has continued this new boomlet of siding with the court's left wing this week in a case about whether the Eighth Amendment bars the execution of someone suff from dementia. But the Supreme Court has absolutely nothing on the legal showstopper we witnessed before the House Oversight and Reform Committee at which Michael Cohen, the president's longtime lawyer, testified on Wednesday. And it was wow. Later on in the show, we will take a very lawyerly look at that testimony with Leah Littman, who teaches law at UC Irvine School of Law. But first, we promised at the very top of last show that we would turn our eyes to emergency declarations, and we do that today. Looking to the southern border where the president declared a national emergency two weeks ago. That was two weeks in human time, but I know feels like 12 years ago in human capacity to tolerate mayhem time. This past Tuesday, the House of Representatives voted to overturn the president's emergency declaration. Thirteen Republicans joined with Democrats to try to block this effort to redirect funding to a border wall without congressional approval. The Senate is going to have to vote likely in the next few weeks on the very same question. And so far, three Republicans in the Senate have suggested they are going to vote against the declared emergency. A fourth, Lamar Alexander from Tennessee, has now stated he doesn't really support the declared emergency, but he is not telling us yet how he'll vote. If just four Republicans join Senate Democrats to block the emergency declaration, Donald Trump will have to veto Congress for the first time in his presidency. But we wanted to get beyond just the political showmanship. There is a really layered legal question here, and we wanted to probe it deeply. That question is essentially, does the president have the power to declare an emergency under the broad sweep of the National Emergencies Act? And this past Thursday, the House Judiciary Committee held hearings on that very question. And joining me to parse what is genuinely a complicated set of legal doctrines is Stuart Gerson. He is a lawyer at Epstein Becker Green. He testified at that Thursday hearing And he also serves as co counsel in a lawsuit filed by El Paso county and the Border Network for Human Rights challenging the emergency declaration. That's a different challenge than the one filed by the states last week. Stuart Gerson served as Assistant Attorney General and Acting Attorney General in the George H.W. bush administration and then as Acting Attorney General in the early part of the Clinton administration. Stuart, it is a delight to have you. Welcome to the show.
- [03:23]
Stuart Gerson
Thank you, Dalia.
- [03:25]
Dahlia Lithwick
And I think I want to start, if I may, with something that really just should not matter for purposes of constitutional analysis, but seems seemingly does. You opened your House testimony with the fact that you are a lifelong Republican, you are a constitutional conservative. And I'm flagging this for the same reason you flagged it, which is to point out that this just should not be a question of which party you belong to. Right.
- [03:48]
Stuart Gerson
Well, I certainly agree with that. And you know, among my co counsel on the, on the Texas lawsuit is my friend Larry Tribe of Harvard Law School. He and I differ probably about as much as you and I differ maybe 90% of the time, particularly with regard to constitutional interpretation. I'm an originalist, a textualist. He believes in a more elastic view of the Constitution, A classic liberal versus conservative in terms of jurisprudence. But this is a case about the Constitution. This is a case about what the power of the Congress is under Article 1. It's about how Congress over time has let its power erode. And as I have said before several bodies in recent days, this is a case that I would expect that were he alive, James Madison would sit by my side and agree with what we're saying.
- [04:42]
Dahlia Lithwick
So let's break it down because it really is quite complicated. And it starts with this foundational constitutional question. And then we get to this sort of Youngstown tripartite test in the steel seizures case. And then there's layered over all that. We've got the National Emergencies act and then we've got a series of statutes that the President wants to use to appropriate funds. So it's sort of a cake with many, many layers. And I wonder if you can just help us walk through the layers one by one. And the obvious place to begin is just the bare bones claim you just made. This is a separation of powers case. If separation of powers means anything, it has to mean that Congress, not the President, has the power of the purse. That's the baseline right?
- [05:27]
Stuart Gerson
That's exactly right. In fact, that's the fundamental power that the Congress has. Now that's not to say that the President doesn't have extensive powers and that those powers can be exercised summarily. The classic example is the war powers provision of the Constitution. Every single President from George Washington through the current one has exercised war powers. And courts have often held, almost always held, that when Congress objects to it, it presents a non justiciable political question. But the case that we have here regarding the so called emergency is an entirely different case. And there are two, at least two very significant facts in this case. The first is emergency has to mean something. The National Emergencies act has no definition. The President argues that that allows him to define an emergency in any way that he wants. Of course, he's had made public statements that suggest that however it's defined, this isn't one. And he's almost been joking about that. But put that aside for a second. My point with respect to that is you shouldn't be allowed to referee your own game. And it would be one thing if the statute defined an emergency. It's an entirely different thing when it doesn't. So in this case, there is potentially a justiciable controversy because one can determine what an emergency is on an objective basis. Certainly there are some characteristics that any emergency needs to have. It has to be unexpected, sudden. It has to require action so quickly that the political branches can't confer with one another. This doesn't have any of those characteristics. You don't have. Substitute your judgment about the nature of emergencies. You can say objectively what they are and that this doesn't fit the category. Why does that become a constitutional question? Because here is a case where Congress specifically told the President, this is how much money you're getting. This is what it's for, and it isn't for what you want it to be for. And so the President is literally defying the Congress. And that's where that has to do with Youngstown sheet and tube against Sawyer. Those that are not familiar with the case might at least remember in their history book that President Truman, at the time of the Korean War, essentially seized the steel industry and his administration was quite confident that they had the right to do that. The Supreme Court felt otherwise. Justice Black wrote the majority opinion, which is a very straightforward Justice Black opinion, that there was no enumerated power in the Constitution for the President to do that. The more persuasive opinion, the one that's quoted evermore and the one to which you referred, was the concurring opinion of the late Justice Robert Jackson, who did have a tripartite view of what constituted the kind of controversy between the political Branches, the Congress and the President, those parts that are elected by the people, what constitutes a dispute that the courts would hear. And he had three categories of dispute. And in the third one, which is this, that is where the President directly disobeys a position of Congress, a holding of Congress and the two political branches are at loggerheads, we think that that presents a justiciable controversy. Now, you mentioned other layers on the cake. On Thursday, when I testified before the House Judiciary Committee, before the ranking minority member, Mr. Johnson, who's from northern Louisiana, I suggested that the construct of the Emergencies act was like a turducken. It's a bunch of different meats larded together, except that there's no definition. What you have here is first no emergency. And then even if you assume that the President had the power to do something along these lines, he is attempting, at least he says that he's attempting, to redirect money from various programs that are defense related programs, and there are a whole host of barriers to using the military to police the borders of the United States.
- [09:52]
Dahlia Lithwick
Okay, wait.
- [09:52]
Stuart Gerson
Particularly, go ahead, because I do think.
- [09:54]
Dahlia Lithwick
That'S the icing on the cake or the butter on the turducken. But I do want to go back for one second because I think you've just laid out, you know, that there's a constitutional problem and there's a Youngstown problem. And isn't the answer that Youngstown is essentially vaporized by the National Emergencies act, that in 1976 when essentially Congress says, here you go, Mr. President, you have all the powers in the world. And as you just said, Stuart, emergency isn't defined. You can say this tuna sandwich is an emergency. I think Jonathan Turley made that point on your panel. So doesn't Youngstown just go away?
- [10:34]
Stuart Gerson
Well, no, it doesn't. And first, in passing the act, that's not exactly what Congress did. What Congress really intended to do by passing the act was clear the deck of a whole bunch of so called emergencies, some of which were 10 years old and had to do with very mundane things like the supply of diamonds and other things. The product that the Congress came up with by an overwhelming vote was like so many of those things that produce an overwhelming vote, a compromise that said, well, we're not going to have this term like civil rights acts. You can't tell who they cover, whether for example, they, they cover homosexuals because they were never mentioned. These things are left out intentionally by warring Congress people who say, let the courts interpret them. And that's just what happened here. Except there's nothing to interpret. And if you followed the hearing on Thursday, you could see that there was unanimity across the dais from very liberal Democrats, including the Democratic representative who represents the area that has my client, El Paso County, Texas, in it, all the way over to some of the most conservative people in the Senate. And there was a sense of collegiality and unanimity that you rarely, if ever, see in a hearing. You know they're going to walk out of that room and you know they're going to come up with a revision to this vague bill. Now, my friend Professor Turley said, well, if you have a blank slate, the president ought to be able to write anything that he wants on it. And that's what Congress intended. I don't think so. And I think we have the much better of the argument. It isn't for the president to determine. The act says emergency. And by any literalist, textualist definition, an emergency has to be something. It has to have certain characteristics. It can't be, well, it's a nice and sunny day, not a cloud in the sky, and I'm hungry. And that represents an emergency. An emergency can be objectively determined. The argument we're making, as I have been very pleased, almost ironically pleased to say to my liberal friends, is a very conservative argument.
- [12:56]
Dahlia Lithwick
I agree. I think, and I want to be clear about one thing. When you describe unanimity across the dais and across ideology, the unanimity isn't on the question of is there or is there not an emergency. It's unanimity that the National Emergencies act is objectively terrible and has to be revised. That's what people agree.
- [13:17]
Stuart Gerson
That's what people agree. And certainly in the conversation that we had at the end of the hearing, discussions that I had with both the ranking minority and majority member, that's exactly where they're going. And they were quite pleased by the hearing. I am as critical of the Congress as I am of the executive. And my criticisms of the executive are not confined to this current administration. I mean, I felt the same way about how the previous administration handled the Affordable Care act and revisions that were made ex cathedra in the Affordable Care Act. Similarly, I don't happen to agree with President Trump as to his desire to build a wall. I don't favor open borders. I don't know many people who do. But I think there are much better ways to direct our limited resources than building a contiguous wall. We've spent many millions of dollars at DARPA developing electronic technology. It didn't work well in Vietnam, but they kept going with it, and it's really quite good and could be better deployed. But if I even agreed with President Trump that we ought to build his wall, I'd still have the same position that I have now. And that's because of this fundamental question of the president defying Congress when the Congress is exercising its fundamental power, its only real Trump power, if you'll forgive the pun, that is the power of the purse.
- [14:42]
Dahlia Lithwick
One of the things I'm curious about is, in effect, the National Emergencies act gave the president, I think we can agree, pretty sweeping power to declare an emergency, but then gave itself this responsibility and, by the way, a timestamped responsibility to respond. And one of the things that's so interesting is that seems to be the problem now is that we've got this kind of supine Congress that you've described that doesn't want to do the thing it needs to do, which is check the president. And so in a strange way, the statute itself says, congress, if you have a problem with this, you have recourse. And that seems to be, I guess the word is ironic. But it's ironic in the extreme that the worldview you contemplate here, which is that Congress has the authority to stop this, is exactly the thing that seems to be stymying Republicans in the Senate.
- [15:40]
Stuart Gerson
Well, I don't want to characterize Republicans in the Senate or the reasons for doing what they're doing or failing to do, but I am quite confident that a substantial majority of the Congress believed that they did act when they authorized the amounts that they did, followed almost immediately by the president's declaration. I think that they think that they triggered their responsibility. Now, you're right that this time element is an issue and is a problem both with the actual and with the way that Congress acts. I was asked on Thursday a number of times, okay, well, you believe that we ought to amend the statute or revise the statute? And I said, well, first, I think we could live without the statute altogether. But that aside, it certainly, if you're going to have the statute, there needs to be an amendment that will define what an emergency is. I think everybody now agrees about that. We'll see what they do. But then I got the question from a number of quarters and other people did, too. How long should the timeframe be? Should it be 10 days? Should it be a month? Should it be whatever? And my answer to that was a pragmatic one, which is, I don't know that there's science to any of this. But you need to figure out what it takes to get the Congress to act in some meaningful way. If the act is triggered in the first place, how long does it take you to get your ducks in a row and either negate what the President has done by exercising the power of the purse or by doing nothing, affirming what the President has done. And that will be a difficult question. That's what intelligent people have to figure out. And to me, the best way to figure that out was to sit the staff down and play a war game. You know, set up a hypothetical problem and try to figure out what it takes to solve it. What you have to do, what kind of referrals you need to make, what kind of political steps do you need to take? Now, in point of fact, up until recent Congresses, most of these questions have been able to be worked out for better or for worse, but action taken, and that's been particularly true with regard to the exercise of military force. Congress isn't doing as well. And it's the job of Congress to act like a Congress. The fundamental business of Congress is to pass wise laws. And too little attention has been paid to that. And too little attention has been paid to exercising the actual constitutional powers of the House of Representatives and the Senate.
- [18:16]
Dahlia Lithwick
Let me ask you this, because you started to get to this when you were laying the table, and I cut you off. But the other complicating factor is this military construction statute, right? That even if we were to agree that this national emergency is a national emergency, the funding statute that Donald Trump. Trump is using to appropriate the money, 10 USC 2808 doesn't quite envision the situation at hand. Can you, can you unpack that? Because I think that's also quite complicated.
- [18:49]
Stuart Gerson
I will be happy at least to try. We have talked up to now about the constitutional question. And while everybody doesn't agree as to what the outcome ought to be, everybody agrees that a constitutional question has been presented in this case. However, going back, you'll recall from your law school days, Dalia, the case of Ashwander against the Tennessee Valley Authority and the great concurrence in that case, setting forth principles of interpretation that the Supreme Court largely has followed over the years. And one of those is constitutional avoidance. If the court can decide a case without reaching and deciding a constitutional question, it can do that under statute, under lesser grounds. And in fact, that's possible in this case. And the reason why that's possible is the reason that you suggested the specific statutory areas in which the President is claiming authority to act after declaring an emergency are all things that have to do with military expenditures or the deployment of the military. The activity relating to a border wall and border security that is not directed at any military activity at all runs counter to the specific provisions of those statutes, particularly the good old Posse Comitatus act that prevents the use of the military for civilian purposes. It's a statute that echoes a historic constitutional provision in all Western countries.
- [20:30]
Dahlia Lithwick
As I read section 2808, it says that if the President declares a national emergency, quote, that requires use of armed forces, the Defense Secretary can, quote, undertake military construction projects not otherwise authorized by law that are necessary to support such use of the armed forces, end quote. That's the statute. And I.
- [20:53]
Stuart Gerson
Well, there are two. I was going to say there are. There are two things that one can say here. First, there's nothing here that requires the use of the armed forces.
- [21:02]
Dahlia Lithwick
Right.
- [21:03]
Stuart Gerson
And there's nothing here that involves construction for military purposes, including the military residences and support facilities for troops and their families that are envisioned by the language that you quoted.
- [21:17]
Dahlia Lithwick
So there's no set of facts under which you can say the military needs to be building this wall. Right. Border security is generally a civilian function. And there's no set of facts under which the military is endangered by this national emergency. And I think the sort of gravamen of your claim in the lawsuit, and I'm just looking at your testimony, is that there's no way to read this military statute to allow the President to do the thing that he says he's doing to protect the military.
- [21:50]
Stuart Gerson
I don't have to say anything more than yes, okay, good answer. That's exactly our position. And I think that it's right again, that it's objectively right. You don't have to interpret these statutes in order to reach that conclusion. Dalia, let me compliment you for taking a literalist, textualist approach. You don't always do that. And here we have something where the plain meaning of the statute dictates the result that you're implying.
- [22:23]
Dahlia Lithwick
Okay, well, I don't want to agree too much, but I want to give you an opportunity to answer what I think is the hardest question here. And it's the one that I can't quite think through when I try to figure out where courts are going to go. Everything you are saying, Stuart, is entirely fact dependent. It would require courts to look at all the things you just said. Is this exigent? Is it an emergency? Does the fact that the President said I don't have to do this as he was in the Rose Garden making this emergency declaration, all of the things that shore up your argument that this is not an emergency and moreover, all of the government data that shores it up. Courts don't want to look at that. Right. Courts just want to say, I'm going to look at the president has vast power as contemplated under the Constitution, has vast power to keep us safe. And all of these fact based, very interesting things that you are saying and that you've put in your brief don't matter. Isn't that the court's overwhelming inclination in these cases?
- [23:30]
Stuart Gerson
Nope. And let me tell you why. Now there are some problematic facts. The extrajudicial statements that have been made by the President that there's not really an emergency and that he could have taken a longer time and his flippant remark about acting when he did. There is some question as to whether those will play before the court. They're rare remarks. To the extent that intent is an issue, perhaps that can be looked at. But that's one kind of fact. That's a fact that's closer to the sort of thing that you're talking about. But courts and even courts of appeals look at facts all the time. Not in terms of evaluating whether they believe them or not, but whether they're there at all. The classic example of that is in looking at motions for judgment of acquittal in criminal cases or motions for new trials in civil cases, or reviewing acts undertaken by a trial court in the court of appeals, which is are there sufficient facts from which the legal conclusion can be drawn irrespective of whether or not you agree with them? And what's different here, the kind of fact analysis that we're talking about is not to interpret facts that have been presented, but to understand the import of the failure to present any fact. If there's an emergency, there need to be facts to support it. Now there can be all sorts of facts, but there are certain objective criteria that define what an emergency ought to be. That any person, whether it's a lawyer, a layperson or the mythical man from Mars, can apply to determine is this an emergency or not. You can argue all day long about that and courts won't do that. But here there's nothing that suggests that there's an emergency. So the determinant is not weighing facts. It's the absence of facts. And that's just a different story. It's why I think that we're going to prevail.
- [25:36]
Dahlia Lithwick
Can you talk for a minute about your co counsel in this lawsuit you mentioned with Larry Tribe filed by El Paso and the Border Network for human rights listeners probably know that there was a lawsuit filed by 12 states. Yours is a different suit. I think the claims are similar. And I'm wondering if you can tell us about your suit and how it differs from the one filed by the states.
- [26:02]
Stuart Gerson
Well, it doesn't differ a lot. It's certainly the rights and interests that are alleged are different for El Paso county and for our public interest group that deals with human beings. I don't want to cast any shade upon anybody else's suit, but in evaluating our suit and the challenges that are generally made to this, as you know, the first line of attack is Article 3, whether there is a justiciable case or controversy and a plaintiff with standing who is entitled to bring it, and whether the matter is sufficiently ripe that the courts ought to hear it. And again, without reference to anybody else's case, what distinguishes our case is that El Paso county is the place where a significant portion of this putative wall is going to be built. And in order to build it, you have to seize land that is in private hands. And it would be incumbent upon state government or the county, as a creature of the state, to value and deal with those questions of eminent domain that has to be planned on right now, even if the ultimate spending act, assuming that it could ever take place, has taken place. So there's an immediate injury that the county has. Our public interest client is dealing with individuals and families who are immediately affected by what's going on, who own property along the border, whose rights and interests as to family members in the United States and family members outside the United States are immediately affected. What importantly characterizes our case, without reference to anybody else's case, is that our clients are immediately affected and have to do something right now. So they're pleading an act that is causing them a direct and immediate injury. It's occurring in the present. And so we believe that our case avoids many problems that others, at least in theory, could have. With respect to standing and ripeness.
- [28:24]
Dahlia Lithwick
We almost should have started with standing. But I think standing will be the reason that some of these cases get kicked out of court, because it's very speculative in some of the cases. And I guess your argument is that El Paso really has to make decisions right now. This is not speculative because they are.
- [28:42]
Stuart Gerson
That's right. And as I say, I'm not denigrating anybody else's lawsuit. I don't have the right to do that. And the court that I'm in Front of is not the court that's going to determine those lawsuits. But speaking of our case in our court, we think that we can pass muster under Article 3.
- [29:00]
Dahlia Lithwick
I think the last thing that I wanted to ask you, Stuart, and we really are agreeing far too much, it's heartening. But I think the last thing I wanted to ask you about today is this question of why this. What is it about the symbolism of this that made you feel like you actually had to step into this.
- [29:24]
Stuart Gerson
Well, it's more than symbolism, but I've got to say this, as I think, you know, I, along with about 14 or 15 other people, have founded an organization called Checks and Balances. We're concerned about the rule of law. All of us are at least center right and some of us significantly further to the right along the. Along the political spectrum. And certainly there are things that have occurred in this administration that impel us to do it. Use of the Justice Department in ways that the Justice Department was not intended and doesn't serve the people. So I think we've become, as private citizens, we've become attentive to the need to bolster the rule of law. Others have said the same thing. So that's one part of it. I'm now going to go corny on you. You know, among the greatest influences in my life was my dear friend and boss, President George H.W. bush. When I was asked to be the acting attorney general, I called up President Bush and said, would this embarrass you in any way? I mean, he and I have always been identified together, and that was well known. And his answer was very brief. It was country before party. I've served the country in a number of ways. I've been a military officer. I was a federal prosecutor and served in the Bush and then the Clinton administration. I've always been involved in public issues, though my career has largely been in the private sector. I care a lot about government and I care about the Constitution. And I have been greatly dissatisfied with the. With the quality of government that we're getting and different from a lot of people who just beat their breast. I know the technical reasons why the government is failing. A lot of other people do, too. And we've begun to unite and to express ourselves on rule of law questions. They may produce answers that the left likes. This is such a case, but they could come in other areas as well, for example, demanding that Congress pass clearer, more definitive statutes. I don't particularly care, and I know that most conservative judges don't particularly care what a particular or who a particular civil rights bill covers. But that person or class of persons is unlikely to be protected by that statute unless the statute calls them out. It's Congress's job to do that. I'm tired of spending time and my clients money litigating some cases that really, in the grander scheme of things, would be unnecessary if we had better government. And I just think we've reached a time, especially now, where there's such polarization in the society, when we better address adequately representing the mass of the people of America, both left and right of center, who really are functionally not being represented at all. And this is the time to approach it. It's the reason why someone like Larry Tribe and I happily can get together on a question like this.
- [32:38]
Dahlia Lithwick
I really love that you're not making the argument that if Trump can declare an emergency on the border, when there's no emergency someday, President Kamala Harris could, you know, declare an environmental state of emergency and appropriate funds. You're not making the mutually assured destruction argument. I think you're making a different argument, which is we're not saying this is a fight about, you know, whose ox is gored. We're saying this is something that is baked into the way we think about power in the Constitution. And it's not about making sure the other side doesn't use this against us. Right?
- [33:16]
Stuart Gerson
That's right. Now, I have to say that I and many other conservatives, as I said earlier, were unhappy with the way that the Obama administration dealt with issues raised by the Affordable Care Act. There were congressional suits that related to that. But that's water over the dam. I don't need to make ad hominem arguments to win this case. I mean, it's theoretically possible for some future president to declare an emergency that has to do with guns or the environment or people eating the wrong kinds of food. But that's not what we're fundamentally about. What we're fundamentally about is that we have a case in front of us right now where the executive is defying the will of the legislature, where the legislature has the constitutional power to turn over the last card. And that's what this case is about. It's a principle, but it's a very important one in terms of the way the, the way the Constitution works and should function. I hope also that it's an object lesson to a lot of people on the left who really don't view the Constitution in terms of what it is. They don't like our Constitution for a lot of reasons. They would like a rights based constitution like some European countries and others in the world have. They don't recognize the value of the structural constitution that we have that has kept us free in a way that our society has been the most dynamic one in the world. If the rights and powers that are apportioned in the Constitution, in our system of separation of powers, if those rights and powers are honored, we're going to have a better country. If we let things like the current problems slip by, we're going to move ever closer towards tyranny. Not as a matter of rhetoric. You can complain about anybody and his or her attempt to accrete power, but in point of fact, you'll have this slow evolution towards all power residing in one place. And that isn't a good thing for the country. And it's not a good thing for the creativity and ability of citizens ultimately to express themselves, to create things and to live in a productive society.
- [35:38]
Dahlia Lithwick
Stuart Gerson served as Assistant Attorney General and Acting Attorney General in the George H.W. bush administration. And as Acting Attorney General in the beginning of the Clinton administration, he serves as co counsel in one of the lawsuits filed around the emergency declaration. And Stuart, I cannot thank you enough for your clarity and your time today.
- [35:59]
Stuart Gerson
Well, Dalia, thank you for asking me to come on.
- [36:02]
Dahlia Lithwick
I want to take just a moment to talk to you about our membership program, Slate Plus. If you are hearing this, you're listening to the regular version of our show, which is awesome and we're glad. But if you sign up for Slate plus, you can enjoy this show commercial free and get access to bonus segments and extended versions of your very favorite Slate shows. And it's only $35 for your first year. You can sign up for free for two weeks to check it out first. And that's not all. By signing up for Slate plus, can you, you really will be supporting this show and all the journalism that we do here at Slate. We know you value what we do and you know how urgent this work is now more than ever. So we need your help to do it. Sign up for Slate plus and help secure Slate's future. To learn more and to begin your free two week trial, go to slate.com amicusplus that's slate.com amicusplus and now back to the show. Unless you were trapped under something extremely heavy this week, you probably know that Michael Cohen, President Donald Trump's longtime lawyer and fixer, a man who will go to jail for lying to Congress, testified before Congress this week in a hearing that was about as extraordinary as political theater could ever be. But what did the lawyers watching think of it beyond just the spectacle of hearing the president called out as a con man and a racist and a cheat? Did this hearing, which may or may not have political consequences for the president, have any legal consequences? Joining us to consider this testimony through an attorney's eyes is a dear friend of the show, Leah Littman. Leah is an assistant professor of law at University of California, Irvine School of Law. She teaches and writes on constitutional law, federal courts and criminal justice. She is an active court watcher, commentator and litigator. Leah, welcome back to the show.
- [37:53]
Leah Littman
It's so wonderful to be back. Thank you for having me.
- [37:55]
Dahlia Lithwick
Let's start from the baseline, which is there's an awful lot we don't know about what Michael Cohen knows because he was very constrained. There are things he could not discuss, including a lot of Mueller related stuff. He, he flicked at some thing that Southern District of New York is looking at. So we didn't get the whole unfurling of all of Michael Cohen's brain this week, right?
- [38:21]
Leah Littman
Yes, that's right. And in some cases, one of the most interesting things he said is allusions to what we don't know. So you mentioned his reference to the Southern District of New York. That's the U.S. attorney's office in the Southern District of New York to whom the special counsel has referred some other crimes that don't fall within the special counsel's jurisdiction. And Michael Cohen said of the Southern District, quote, I am in constant contact with them. And that, of course, is an indication that there might be investigations going on that we don't know nothing about just yet. And he said he was not at liberty to discuss them, in part because they were ongoing. He's also testifying in addition to the open testimony behind closed doors. And so we don't know what he's going to say during that portion of the hearing as well. And not to channel my inner theater critic Dalia, and still trying to come at this from a perspective of an attorney, but you mentioned unless you were hidden under something heavy, you might have seen this. I think we all kind of collapsed under the sheer weight of the volume of crimes that Michael Cohen alluded to in his testimony.
- [39:24]
Dahlia Lithwick
Right. If we were in normal world having conversations about being reimbursed for payouts to mistresses and who, oh, Don Jr. Was signing the check in, all of that would have been the end. And yet here it was just like, well, shrugie emoji. Right? We don't, I mean, we all knew this.
- [39:44]
Leah Littman
Yes. Well, we know this in part because there has been a steady trickle of reporting about most of the crimes Michael Cohen alluded to, although some of the questioning by some of the representatives arguably pointed to others as well. And I think it's in some ways helpful to unpack the many different crimes that might have been committed by so many different people in the course of Michael Cohen's testimony. To my mind, he alluded to the election law crimes that we have talked about. And that is one of the things that Michael Cohen pled guilty in relation to, which is trying to make payments and concealed payments in order to influence the outcome of an election. This is the catch and kill stories where Michael Cohen and other people would pay women not to tell their stories in the lead up to the election so as to potentially influence it. There are also crimes related to lying to federal officials, either Congress or the special Counsel's office, about anything those bodies were investigating. There's also potential tax fraud, there's potential insurance fraud, there's potential misuse of the nonprofit organizations connect to the Trump Foundation. There are crimes that are potentially related to Russia collusion. And then there are just general crimes against stupidity and humanity. I mean, like, so many potential crimes came out of his mouth.
- [41:00]
Dahlia Lithwick
What you're saying is there's actually a whole bunch of new stuff that he at least flicked at. And this isn't just about, right, buying a painting and checks to mistresses and snotty letters to Fordham saying, don't release my grades. That underlying this, there's just a lot of. Of legal meat that is material. So what was the most shocking thing you heard as a lawyer?
- [41:24]
Leah Littman
Can I list three? I mean, this hearing was just otherworldly. You know, the first one was what came out in response to Representative Ocasio Cortez's questions. So she asked Michael Cohen about whether the president ever artificially inflated or deflated the estimates and worth of his property, either to reduce the extent of his property tax liability or the extent of insurance protections his property afforded. And that was significant because I don't know that we have ever really gotten a glimpse of the potential insurance fraud that might have been going on in addition to potential tax fraud. And in the course of that questioning, she also got Michael Cohen to list the names of several individuals who might be familiar with the insurance fraud and tax fraud schemes, and that will and could form the basis of subsequent investigation. So that was definitely potentially of interest. The second is related to one of the crimes that we already knew about, and that was the election Law crimes. And in the course of explaining how Michael Cohen and other people organized it so they would make payments to women so they would not speak about their purported affairs with Donald Trump, Michael Cohen revealed that actually these payments continued once the President took office. And he talked to the President about these payments from the White House. That is, the President was literally purportedly giving him continued assurances and encouragements to continue making these payments from the White House. And it is just stunning, I think, still, to imagine that there is just this completely banal grift of ongoing white collar crime happening from the White House itself. And then third was a smaller exchange. And this happened in response to questions from Representative Jackie Speier. And this was when she asked him to estimate the number of times he might have made threats on behalf of Donald Trump in the course of his negotiations or relationship with him. And I think he estimated it at something near 500. And all three of these things were shocking. And that's just some of the things that just blew me away during the course of that testimony.
- [43:38]
Dahlia Lithwick
And how does it work, Leah? Is there somebody at like, SDNY who's just got a kind of checklist that's like, got it, got it, need it, got it? I mean, was somebody playing along at home and saying, well, I guess now we need to look at how, you know, they were inflating numbers for tax purposes. I guess now we need, I mean, how does it work? Do we assume this is all known and being investigated, or was somebody on the red bat phone saying, okay, let's now let's do this?
- [44:03]
Leah Littman
With respect to the Southern District of New York, I would have to think that they were probably aware of what Michael Cohen knew, just based on his statement that he has been and still is in constant contact with them. And these are very smart attorneys. And I would imagine that just through their questioning and contacts with him, they had already gotten out what these representatives were able to. You know, of course, there's some chance that representatives like Representative Ocasio Cortez pointed them toward other fact witnesses that they did not themselves know of. But I think that in addition to the Southern District of New York, you know, some of the crimes that Michael Cohen alluded to are state law crimes in addition to federal law ones, or maybe just state law crimes. You know, when you're thinking of some of the property tax fraud or insurance fraud or the usage of the Trump foundation to perpetuate some ongoing fraud, you know, those are state law crimes. And so that might have been useful to some of the state Prosecutors like Attorney General Barbara Underwood and other officials to develop their own investigations and cases against various members of the Trump Organization.
- [45:16]
Dahlia Lithwick
And all this bracket, for a minute, Chris Christie keeps going on television and saying, you know, where he's going to get hammered is on this inauguration stuff. That that's going to be, at the end of the day, the big stink bomb that takes him down. I mean, that doesn't even come up. But this is all part of this pay to play stuff and this grift and this just constant drip, drip that you're describing of how he did business. But I guess let's talk about the two big things which, which do matter, I think, for purposes of the Mueller investigation. And one of them is the claim that we are hearing from Time, if we believe Michael Cohen, that he actually heard Roger Stone tell Donald Trump about the WikiLeaks dump, does that matter? Does that get us any closer to, and I know you know, this problem with the word collusion, and it has no legal meaning, but does it get us any closer, Leah, to something that Mueller's investigating?
- [46:14]
Leah Littman
I think it gets us closer in three respects. You know, first, it certainly does strengthen the factual narrative and factual basis for any story that Mueller or other investigators subsequently weaves together about the extent of the Trump Foundation, Trump Organization, Trump executives, Trump family, Trump campaigns, willing collaboration with or welcome of any assistance from Russian related organizations. Second is that I think it does potentially relate to the Mueller investigation, specifically in that, if we believe the reports from, I believe it was cnn, that in Donald Trump's written statements to the Special Counsel's office, he claimed that Roger Stone never told him about the release of the WikiLeak emails or any communication from Assange. Well, then there might be a case of perjury there, either perjury by the president or perjury by other people who spoke to the Special Counsel's office about any contact between Roger Stone and WikiLeaks or any contacts between the campaign and Roger Stone. So I think it is both relevant to the factual narrative. It is also relevant to any potential investigations into perjury to the Special Counsel's office. And it could potentially be relevant to some legal claims as well, although that's harder to know, as you alluded to, because the word collusion, collusion itself isn't a crime. And so it will just depend what are the other potential criminal violations that this might be relevant to.
- [47:43]
Dahlia Lithwick
And does it matter that at least in Michael Cohen's telling, he said, well, I heard it, and maybe the secretary heard it there's no way to corroborate this. It's essentially a lifetime fabricator telling us there was this conversation. But how seriously do we take it? Do we take it seriously?
- [48:03]
Leah Littman
Well, so I think we have to take it seriously for a few reasons. One is that some of the filings that the Special Counsel Office has made in the DNC hack case, for example, the timing of this conversation does coincide with what the Special Counsel's office has alleged was communication from Assange to various individuals in the United States. So some of the details that Michael Cohen is giving do line up with some of the Special Counsel's Office filings as far as their belief about how the WikiLeaks email dump happened and was coordinated perhaps with some individuals in the United States. And then second is to the extent this is a he said, she said or he said he said, then here, even though Michael Cohen is someone who has perjured himself and has admitted to perjuring himself, the person who is going to be challenging him, Donald Trump or Roger Stone, I mean, these are individuals whose credibility has only been further and further undermined just over the course of these proceedings. We mention, for example, Michael Cohen talking about these hush money payments that the president kind of gave his blessing to and was involved in. I mean, he literally signed one of the checks reimbursing Michael Cohen for a hush money payment and has been lying to the American people that he never was involved in any of these hush payments at all. And because Trump's credibility is being further and further undermined by this corroborating evidence that Michael Cohen has provided about some of the specific allegations he's making, even though it is a he said, he said and the he's aren't exactly credible here. You know, one of the he's is able to bring some corroboration to the table and has been really documenting the extent to which the other individual, Donald Trump, has just been repeatedly lying.
- [49:53]
Dahlia Lithwick
What about? I don't know what to make of you tell me as a lawyer what you make of the testimony that Donald Trump's own lawyers were reviewing Cohen's congressional testimony and tweaking it again. I know, mind blown. Sit with that. Is anyone in trouble on the hook for this?
- [50:13]
Leah Littman
A few different thoughts there. First, is, on the one hand, that's not that surprising. After all, they had a joint defense agreement. And so it's not surprising that people who had made this joint defense agreement would be collaborating with one another about what they are doing as part of that defense. On the other hand, you know, Michael Cohen is making some representations that that testimony may have been altered and was altered in a way that made it false. And that's a big deal if the lawyers were involved in those changes. He did not specifically say what substantive changes the Trump lawyers or Jared and Ivanka's lawyers made. However, he did say several different individuals reviewed the testimony and potentially made suggestions to it. That included the Chief Financial Officer of the Trump Organization, Allen Weisselberg. That included Jay Sekulow, the president's lawyer. Michael Cohen also mentioned that he had discussed his prior testimony with the House Committee with the president and Jay Sekulow. And that is, you know, really stunning to the extent that those conversations included suggestions from the president or his attorney about what Mr. Cohen should be saying or shouldn't. And then Abby Lowell is Jared and Ivanka's lawyer, and his name came up as one of the individuals who potentially reviewed Michael Cohen's testimony to Congress. That was false. And Abby Lowell is a well regarded attorney in Washington circles. And we don't yet know who reviewed the testimony to what extent or who made what changes. We do know the testimony was false, and it was, I think, is a big warning sign to lawyers who get involved in any way in Trump's orbit. Obviously, there is. Everyone deserves legal representation, and everyone deserves the best legal representation they can get. But lawyers involved with the Trumps need to know they are not dealing with honest people. And it's a serious risk to them to be dealing with clients who have such a troubled relationship to the truth. If they are believing their representations and then providing legal advice based on that, their professional careers are on the line. Michael Cohen said in his testimony, as of yesterday, I'm no longer a lawyer. And that's what some of these individuals may be risking as well, including when they go out on a limb and put their necks out for Donald Trump. Matt Goetz, the representative who threatened Michael Cohen before he testified, is now under investigation by the Florida Police Bar for making that threat. So I think these individuals need to think carefully about whether they are putting their own professional reputation and professional livelihood on the line for individuals who are never going to give them the benefit of being honest with them. And they need to look around and see what is happening to people in the Trump's orbit.
- [53:04]
Dahlia Lithwick
Just related to that, I'm struck by the news this week that just came out that when Donald Trump was allegedly pushing for Jared Kushner to get security clearances over the objections of John Kelly, over the objections of his own White house counsel, Don McGahn, the thing everyone does, Leah, is write a note to the files. Like, it seems like one of the really shocking memes of the Trump era is Jim Comey taking contemporaneous notes to say WTF Mr. President?
- [53:37]
Leah Littman
Yeah, like, dear Diary, today I witnessed one facet of a constitutional crisis.
- [53:43]
Dahlia Lithwick
I don't know how I feel about it. It's this sort of like, does it spark joy, Leah? Like, what do people do when they think? The way I will stand up to this is write a little note in my day planner saying, huh, emoluments violation. It's really deeply weird and disappointing that lawyers feel that this is their way to fight back.
- [54:07]
Leah Littman
So you know, on the one hand it's better than doing nothing, right? It shows these individuals have some glimmering if faint recognition that things are not all okay. If they feel compelled to take notes of these events, which they perceive to be wrong. On the other hand, is there more they could be doing? Absolutely. You would think that a bunch of noisy resignations when the president is compromising national security by ordering that his son in law get a security clearance, when multiple agencies have apparently deemed him to be a security threat or an of a risk to the security integrity of the country not to give it to him. I mean, it is really otherworldly what individuals apparently feel willing to overlook for some reason or another. Be it that they think they are avoiding additional harm by staying or they just don't think it's that bad. Unclear. But you know, getting back to what we were just discussing, which is, you know, these lawyers need to think carefully about what it is they are doing and risking their professional integrity in the process. I mean, it can't be the case that the best and only thing a lawyer can do is make a memo or a note to file. We have to expect more of ourselves and we have to expect more of others who we perceive to be honorable lawyers with integrity or judgment and merely making a note to file. Today the President ordered his son in law to get a national security clearance contrary to the advice of multiple agencies is I would think, not enough given the gravity of that situation.
- [55:50]
Dahlia Lithwick
In your view, what next? What's gonna happen next? I know that there's a lot of subpoenas gonna go out and the House wants to talk to a lot of people. I feel like in this era of reality TV like that was a heck of a cliffhanger. But I wanna know what next season in your view should look like.
- [56:09]
Leah Littman
So it has already been revealed that we are in fact in the bad place and My guess is we will get to a worse place in the next season. I think that next season is definitely further fact investigations. I think the sheer number of additional witnesses that Michael Cohen identified and his suggestion that if he went back and looked at his files, he might have additional corroborating evidence or could look back at the substantive suggestions, for example, to his testimony, who made what edits and what edits they suggested, all of that would be very helpful in figuring out what exactly happened happened. And to the extent there are going to be criminal penalties or political penalties like impeachment, I think that the development of the facts is very important. And I think that that's what some representatives really did well in the hearing. And I hope that they continue to do more of. And it looks like they are, you know, as you suggested, Representative Cummings has, I think, already sent out a few additional notices to individuals that the committee and Congress are interested in hearing from them.
- [57:04]
Dahlia Lithwick
One of the things that I think always shocks me watching these hearings is just how bad the lawyering is, especially from people on the committee who are, in fact, lawyers. Do you, do you have any thoughts on, and I've always sort of said this, just all the years watching the Senate Judiciary Committee that, you know, ask a line of questions, you know, listen to answers, don't ask questions that have been answered seven times. Do you have thoughts on lawyering tips from watching the House cross examine a witness?
- [57:38]
Leah Littman
I certainly do. So first, they should definitely be listening to your tips. Dalia, you know, one half a line of questioning and know where you're going and listen to the answers and listen to what other people are asking. On top of that, I would add, don't ask questions you don't know the answer to. So Mark Meadows and some of the other Republican representatives were so terrible at this. So at one point, Mark Meadows asks Michael Cohen, you know, oh, Lynne Patton says that as a daughter of a man born in Birmingham, there's no way she would work for an individual who is racist. Michael Cohen says, as neither should I. The son of woman, a homeless Holocaust survivor. Or Representative Comer says in your opening statement, you call Trump a cheat. What do you call yourself? And Michael Cohen says, a fool. And then he gets to go on this long explanation about how Donald Trump is pulling the wool over people's eyes. Or Representative Gosser says Cohen is a pathological liar. And Cohen cuts him off and says, are you referring to me or the president? And just the sheer number of times representatives would ask things of Michael Cohen they didn't know what was coming back was shocking to me. On top of that, the number of times it was clear representatives had a pre prepared line of questioning that they didn't adapt to and didn't change after other individuals either asked the same questions or it was clear the witness just didn't have any relevant answers to this. So some Democrats, for example, really wanted to ask Michael Cohen about his knowledge of collusion, aside from, you know, him overhearing the conversation about Roger stone sharing about WikiLeaks or the establishment of the Trump Tower meeting involving Don Jr. You know, he said, I just don't know a ton. I know what you all know, which is all the pieces of evidence that point toward it. Whereas other representatives like Representative Ocasio Cortez, she had a line of questioning that actually revealed things that we didn't know before and she was able to follow up in response to answers that he gave, asking, for example, he made a factual allegation and then asking him, well, who could tell us more about that? And that's super helpful to everyone or representatives who are able to act on the spot in response to what was happening before that. Representative Talib is definitely someone I would put in that spot. After Mark Meadows trotted out Lynne Patton and said, look, here's a black woman who works for Donald Trump, therefore he's not racist. She responded to that and explained why that was not an acceptable thing for a member of Congress to be doing. So, one, listen, listen to the witness, listen to your colleague. Two, don't ask questions if you don't know the answer to them and you worry you're gonna get a bad answer back. And three, you know, part of your job is to do an investigation. So try to figure things out by asking narrow questions that are based in fact that you can get answers to without just getting the witness to opine and lobbying general allegations at them.
- [60:16]
Dahlia Lithwick
Leah Littman is an assistant professor of law at UC Irvine School of Law. She teaches and writes on Congress, constitutional law, federal courts and criminal justice and is really one of my very favorite court watchers and commentators. Leah, thank you so much for helping process what really was one of the all time weird weeks. In a year of weird weeks. This one was weird. Thank you for being with us.
- [60:42]
Leah Littman
Thank you for having me.
- [60:47]
Dahlia Lithwick
And that is a wrap for this episode of Amicus. Thank you so much for listening. If you'd like to get in touch, our email is amicuslate.com and you can find us@facebook.com Amicus Podcast and to the listener who sent in the Ruth Bader Ginsbabies Pictures. Oh, my God. I'm dead. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcasts, and June Thomas is managing producer, producer of Slate Podcast. We will be back with another episode of Amicus in two short weeks.