← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
The Predictability is Part of the Tragedy
00:50:32
Joshua Geltzer on what so many saw coming—and failed to prevent.
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- [00:02]
Joshua Geltzer
How do we point back to Wednesday and do justice, in a sense to how close this democracy came?
- [00:18]
Dahlia Lithwick
Hi, and welcome back to Amicus. This is Slate's podcast about the law and the rule of law in the courts and the justice system. I'm Dahlia Lithwick. I cover the law in the courts for Slate. This week we're going to bring you another extra week edition of the show to talk about events at the National Capitol. On Wednesday, as both houses of Congress convened to formally ratify the election of Joe Biden as President of the United States, a mob of rioters, some armed, stormed the barricades around the buildings, broke windows, climbed walls. Capitol police tasked with defending the Capitol and members of Congress were completely overwhelmed as rioters smashed into both the House and the Senate chambers. Representatives were rushed to secure locations, some of them pulled on gas masks. After several hours and a small smattering of arrests, the insurrectionists mostly left the building, just walking out the doors. The counting of electoral votes that had stopped that afternoon continued into the evening and early Thursday morning, the election was finally formally called for Joe Biden. As of this taping, five people are dead. As of this taping, two members of Trump's Cabinet have resigned. As of this taping, talk of invoking the 25th Amendment has largely been quelled by Vice President Mike Pence. As of this taping, articles of impeachment have been drawn up, reportedly to be introduced in the House on Monday. As of this taping, the United States reported its highest single day COVID 19 death toll, surpassing 4,000 people on Thursday. Our guest today is Joshua Geltzer. He serves as the founding Executive Director of the Institute for Constitutional Advocacy and teaches law at Georgetown University Law Center. Geltzer served from 2015 to 2017 as senior director for Counterterrorism at the National Security Council staff, having served prior to that deputy Legal Advisor to the National Security Council and as Counsel to the Assistant Attorney General for National security at the U.S. justice Department. Josh, it is a pleasure to have you back even on this incredibly sobering week.
- [02:47]
Joshua Geltzer
Thank you for the chance to join you.
- [02:50]
Dahlia Lithwick
Josh. One of the reasons it was you I wanted to talk to this week is that you wrote the piece almost two years ago. It was February of 2019, issuing the warning that Donald Trump would never step down even if he lost the election. And as I recall, at the time, you were largely met by silence for a long time. People just did not want to engage with you on that then. I remember that I interviewed you that summer in, in a printed piece at Slate and you said, again, a lot of the same things, that you didn't think Donald Trump, by temperament, was ever going to concede defeat. And you warned again that, at minimum, we should be preparing for that possibility. Do you want to talk a little bit about what it is that you saw coming in 2019, why you saw red flags then, and the extent to which the events of Wednesday at the Capitol either corroborated your fears or in some ways ran counter to them?
- [04:01]
Joshua Geltzer
You know, I think the predictability is part of the tragedy here. This was not some break with the previous Trump, the Trump of the campaign trail or the Trump of the White House. This was the culmination of that Donald Trump. Why might one have thought that a loss at the polls was not going to be accepted by him graciously or at all? Well, he'd lost an early primary battle to Ted Cruz, and he said it was rigged and it should be done over. When he thought his party, the Republicans, were going to lose big in the 2018 midterms, he cast doubt ahead of time on the validity of, of that. All the groundwork was there, and the stakes were then higher, of course, because here was Donald Trump now sitting in the White House, having tried to use the organs of government to ensure an electoral victory. That's what got him impeached, and it didn't stop him even when he was. And for all of that still not to yield a victory. It fit with the pattern that he wouldn't accept that graciously or indeed at all. But I do think the predictability adds to this, the sense of avoidability, because as we go back and we look at moments that could have headed this off, frankly, from two perspectives, from a law perspective, there obviously was impeachment. He was impeached for trying to abuse the powers of the United States government to secure his personal political fortunes. And from the perspective of national security, from the fact that his encouragement and I dare say, at times incitement to his supporters to take resistance to his electoral loss into their own hands from both perspectives, Wednesday was. It was not a break, it was a culmination. And that makes it very sad to see, but it also means that it was predictable.
- [06:01]
Dahlia Lithwick
And I think, before we go on, Josh, I want to say something for a moment about tone, because the other thing that I note now, when I look back at my published Q and A with you after you wrote your piece, was that already I was being a little flip, right? I was making jokes about, ha, ha, ha, you know, he appropriated money from the military to build his border wall even after Congress told him he couldn't. Ha, ha. And you checked me pretty quickly, even in a printed Q and A, and said those are consequential things that you're describing. And I feel like I want to really have this conversation with an understanding that it's very, very easy to succumb to the funny memes. Right? The axe body spray. Ha, ha, ha. Beer belly put. Ha ha, ha. You know, people died. And I feel like one of the things you've been checking me on since. Since I've known you is that it's really tempting to slide into irony, humor, disdain, all the ways that we trivialize something that you'll tell me if I'm wrong. Josh, I think what happened on Wednesday was one of the most sobering and consequential things I've ever seen.
- [07:25]
Joshua Geltzer
I think so, too. It's a day that if we don't remember it, if we don't keep it tattooed on the inside of our eyelids for weeks and months to come, we will be making a serious mistake, because we need to learn from it, and we need to figure out what it means for the trajectory this wonderful democracy could be on if there isn't active effort to steer it in a different direction. So I think it's an enormously consequential and sad day. But I also think there was a real challenge in how to talk about this before Wednesday, before various other horrors of the Trump era, because just imagine if somebody had pitched to you, Dalia at Slade, a piece six months ago that described Wednesday as it went down, that the Capitol rotunda will be overrun, that there will be members of Congress cowering and told to have gas masks at the ready in case more tear gas needs to be used, that the Confederate flag will be held by rioters who've climbed some of the external parts of the Capitol. It would have been hard to say, yeah, we'll just run that one. Even if I've just told you that overall, it's predictable. The particularity of the scenes, the astonishing images, videos, audio. We've all heard of, how it played out. It's uncomfortable to say that that could happen because it's uncomfortable for it to happen. And so to figure out how to warn people ahead of time, I think was something you and I grappled with in conversation and in print. But even now, how do we point back to Wednesday and do justice, in a sense, to how close this democracy came? There could have easily been members of the House and senators hurt or killed by how things played out. And if we don't appreciate that gravity and what it means, not just as a failing of securing the Capitol building that needs to happen, but more that there were trend lines in our democracy that pointed to this moment and that some allowed to get to this moment. If we don't take that really seriously, then we are not going to figure out a better pathway out of this.
- [09:37]
Dahlia Lithwick
And it's useful, I think, just to dovetail with that point, to think about the fact that we get really caught up in the guys with the fur garments and the pointy helmets. And it's just ever so easy to slide back into the ways this looked like parody, because it allows us to smugly say, oh, our institutions held. We've been saying our institutions held for years now. I think that it's not so much that the institutions held and saved us. As you just pointed out, the Capitol Police didn't prepare for what was to come. What held was our luck in some sense. And it is absolutely emphatically the wrong lesson to say we don't prepare for the next one after Charlottesville. We don't prepare for the next one after we saw riding in the streets in D.C. because our institutions are doing a good job. Don't be fooled by the fact that these guys are dressed up in costumes. Right. That's what you're saying.
- [10:50]
Joshua Geltzer
I am saying that, you know, the ridiculousness of the costumes, the silliness of how some of it looked, obviously with some very serious results, but that's deliberate. That has been a deliberate turn by those loosely characterized as violent white supremacists that includes neo Nazis and neo Confederates. It includes a group of folks who have deliberately embraced a bizarre humor of sorts and symbolism and logos that strike the rest of us, and sometimes I think even them as ridiculous. But it has been their reinvention. And as they burst onto the national scene in a new way with Charlottesville back in August 2017, these sorts of memes, Pepe the Frog, their joking phrasings, that was their rebrand, their reboot, in a sense. And they know that the phrase boogaloo boy is to take another group. They know that that sounds silly. They wear Hawaiian shirts on purpose. But they're doing it because it is gaining a certain traction that that combination of deadly serious ideology, deadly serious actions on Wednesday, and some element of ridiculousness and humor, it seems to be gaining traction. And of course, it's gaining traction in part because the President of the United States for the past four years has at times looked the other way at times more actively encouraged it, such as the stand back and standby comment at the debate. And so it's not an accidental byproduct of their approach. It is part of how in an Internet driven, meme driven digital world, these groups have taken some very ancient and awful ideas, but also given them a certain modern and even jocular look. And yet, of course, when it is Capitol Police losing their life as they try to protect our nation's senators and representatives, that is nothing but serious.
- [13:03]
Dahlia Lithwick
Josh, I want to talk about precisely this question of who is responsible, who has lashed themselves to this project, who is complicit? Because I think part of the silliness and the jocularity you describe makes it very easy for serious people to later disavow it. Right. This looked like it was fun. It was a lark. And I'm remembering again when I interviewed you about your now years old claim that the president would not walk away mildly, I asked you again in print, what's the best advice about how to prepare for this? And your response was, I'm quoting you to yourself. Now, we need political leaders, especially Republicans, to make clear, both publicly and privately that for Trump to contest the valid results of an election would be a red line and that he would get zero support. That was your claim at the time that Republicans would need to make clear to Trump and then enforce to Trump if he walked away from the valid results of an election, they would not support him. So this brings me to this really complicated question about the events of this week that start not with that rally, but with Josh Hawley with Ted Cruz calmly telling us they're prepared to set aside the election results. I'd like you to listen for just a minute to an interview from this past Sunday of Ted Cruz talking with Fox News's Maria Bartiromo, where he is very, very dismayed that other folks are alarmed at his decision to challenge the election results.
- [14:52]
Ted Cruz
Well, listen, I think everyone needs to calm down. I think we need to tone down the rhetoric. This is already a volatile situation. It's like a tinderbox and throwing, throwing lit matches into it. And so I think the kind of hyperbole we're seeing, the kind of angry language, you know, yesterday when I released my statement with 10 other senators, I had multiple, multiple Democrats urging that I should be arrested and tried for the crimes of sedition and treason. Now, look, that's not helpful at a time when this country, when we're pitted against each other, just relax and let's do our jobs. We have a responsibility to follow the law. And let me say, by the way, to those members who may not have a concern about this election, whether you're a Democrat or even some Republicans, the poll numbers you covered at the top of the show, I think ought to be deeply troubling to everyone. 39% of Americans think, quote, the election was rigged.
- [15:52]
Dahlia Lithwick
My question for you at this moment, in hindsight, is, is it wrong to say that those Republicans who implicitly let this spin out, implicitly? I guess at this point I can say explicitly this spin out by saying, well, if Donald Trump has questions, we have questions. Nothing wrong with getting more information. Let's just form a commission. Is that the kind of thing that you can say directly emboldened Donald Trump and the rioters? The look, I'm just doing my job. I just want to get to the bottom of all this election fraud. Nothing irresponsible there. That's what you were worried about, right?
- [16:39]
Joshua Geltzer
The way it played out was what I worried about and indeed the opposite of what I urged. Not only was there no red line drawn, Instead, when after November 3, and especially a few days later, after it became clear that Trump had lost, there was active amplification of downright lies, lies about voter fraud, lies about what state officials had done, lies about whether there was any doubt about what the will of the people had been in terms of choosing our next president and vice president. And that it's not just indulgence, it's amplification and augmentation continued, not just for a couple days, not just for a couple weeks, but it continued. And it continued on the floor of the House chamber in Wednesday's joint session. And it continued even after our Capitol had been taken over by violent rioters whose very design had been to try to force our Congress to act on the lies to do, to delay what they were doing that day, which in fact they succeeded in doing, and potentially to somehow change who was going to become president. And so there was no red line at all. There was instead, by some, a willingness to amplify the president when he insisted on things that were not true. And when I say not true, you don't need to take my word for that. That is what state election administrators and officials have said and shown. It is what governors have said and shown. It is what has been the conclusion of state and federal judges of both parties across the country in dozens of pieces of litigation. Of course, some of those didn't reach the merits. Some were about standing and other things, but some did look into this. And so it really was it was the opposite of a red line. And so to try to figure out how we got to Wednesday, I think you have to look at those who took what the President was saying and got more and more Americans to hear it and believe it, and in so doing, definitely encouraged the President to keep saying it. And indeed, he keeps saying it even after the violence of Wednesday. He keeps insisting that there was something wrong and he should have been the victor, even if he now acknowledges that he won't be that. So that information environment was easily predictable based on Trump's behavior and rhetoric before November 3rd, and yet it was not avoided at all. To the contrary, it was allowed to fester.
- [19:31]
Dahlia Lithwick
And I guess that leads inevitably to the follow on question, which is how much do we hold the words of Rudy Giuliani and Donald Trump that very day?
- [19:45]
Donald Trump
All of us here today do not want to see our election victory stolen by emboldened radical left Democrats, which is what they're doing, and stolen by the fake news media. That's what they've done and what they're doing. You could take Third world countries, just take a look, take Third World countries. Their elections are more honest than what we've been going through in this country. It's a disgrace. We will never give up. We will never concede. It doesn't happen. You don't concede when there's theft involved. Our country has had enough. We will not take it anymore. And that's what this is all about. Our country has been under siege for a long time.
- [20:29]
Ted Cruz
Who hides evidence? Criminals hide evidence. Not honest people.
- [20:37]
Donald Trump
And to use a favorite term that all of you people really came up with, we will stop the steal. So we're going to. We're going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue, and we're going to the Capitol.
- [20:57]
Dahlia Lithwick
So.
- [21:00]
Ted Cruz
Let'S have trial by combat.
- [21:04]
Dahlia Lithwick
We can have a technical legal conversation about incitement. It certainly did not calm the crowd. How much are the people who were saying, as Trump was saying, let's go to Washington, let's be wild, let's get this thing. If we, you know, if we can't litigate it in the courts, let's do it by force. How much do you credit that with being part of the problem?
- [21:34]
Joshua Geltzer
I blame them a lot. I blame them a lot. As you say, Dalia, for purposes of this conversation, it's not the question of the liability necessary for criminal offenses or even for civil liability for people hurt that I suspect will play out in various ways. But we can put all that aside. These, the Types of spreading of disinformation. You're talking about made Americans descend on Washington, D.C. with weapons, believing, believing that the 2020 election had been rigged and stolen from the person they prefer, Donald Trump, and had them descending on the US Capitol to try to make it so, or at least to convey the message that they wanted it to be so. And fostering that is fostering the opposite of a democracy. At the core of a democracy is the idea that the people choose. And once they've chosen, whether you're in the majority or the minority, in terms of how you voted, you accept that result, you stick around and you play again. That's why our constitutional structure builds in so many protections for minorities, for those who lose, who are the minority party, who aren't happy, happy with who the president is, the Bill of Rights. Other core protections are all about thinking you may not like the people in power, so these rights will be there and available to you nonetheless. And to say we won't accept it will make other people not accept it and worse still, will urge them to take it back by violence that's antithetical to this whole beautiful experiment and act of faith that the United States represents.
- [23:24]
Dahlia Lithwick
We'll be right back. I want to ask you one last framing question, and that is about speech. Because I think the other thing you and I have been talking to each other about writing together, is that speech has meaning and force and consequences, and you've just laid out what it means when Ted Cruz or Josh Hawley or Rudy Giuliani or Donald Trump or any number of people say things and they say, I'm just saying words, just asking the questions and how that's an information problem. It's not a democracy problem, but it becomes a democracy problem. But I wonder if I can ask a little bit of a sideways question, which is I feel as though for the last four weeks of maybe longer, since the election, we've been having a national public debate about what to call this thing. And I wonder if we're both prisoners of the language we use, but also too sloppy with it, and in a strange way, because we still can't decide. There was a moment when the editors of all the major papers said, we're going to stop calling them protesters now. We're going to call them some other thing that weinsurrectionists, rioters, a mob. The imprecision of the language around what is happening, what has happened for the last four years has in some ways been to blame for the failure of imagination that you're describing from the outset.
- [24:59]
Joshua Geltzer
These words matter a ton. And they're more than words, as you say, Dalia. They reflect how we think about it. And you were kind enough to mention earlier that I've gotten the opportunity to work on counterterrorism issues in government so that framing comes to mind for me. And we have a definition, a statutory definition in the US Code that says, and I'm just paraphrasing here, but that acts of domestic terrorism are those intended to coerce or intimidate a civilian population or alter the policies or actions of government. Again, that's just a loose paraphrase, but, boy, does it capture what we saw on Wednesday, because that's precisely what those who used violence at the Capitol wanted to do. They wanted to intimidate a civilian population. They wanted to change the course of our government. And I don't know if calling it domestic terrorism even fully captures the moment, because we tend to think of terrorist incidents as awful violence, but not as fundamentally switching who our leader is, at least our president is, which was the ultimate animating principle and goal of those who used violence on Wednesday. So I think we are all struggling to appreciate the magnitude of it. And there's so much happening in this country right now, so many lives being lost from a pandemic that's at its very worst even as all of this is going on, so much anticipation of new administration starting, that we all have so much to think about and to find the right words for and the right framing for. But I want us all to dwell on this, because if we don't dwell on this, that I know is understating and under serving the magnitude of what.
- [26:57]
Dahlia Lithwick
Unfolded on Wednesday, well, it raises this question for me about preparedness. And one of the things that I wrote on Wednesday night was that if you lived through Charlottesville 2017 and the manic activities of a local police force that was wholly unprepared for what came, and then read the reports after. And there was an extensive report done bythere was an extensive report done post Charlottesville that reflected how chaotic the police and law enforcement response was. And. And yet, having witnessed all that, we did it again at the Capitol. And we'll talk in a minute about the security failures, because I think it raises really interesting questions about the role of the National Guard in domestic terror problems. But I think the larger issue that I'm struggling with is if we can't name the thing that just happened and we don't agree on what just happened, we can't prepare for the next one. And so In a strange way, again, this gets back to your We've seen this coming. This was always inevitable. And yet because we can't name the thing, we can't do anything other than wring our hands and say, well, that was probably rock bottom. Even when it never is.
- [28:28]
Joshua Geltzer
It does. It leaves us trying to figure out the right mentality beyond getting to policing tactics or anything like that, the right mentality for the way ahead. And you're right that the HAFI report, which talked about where Charlottesville needed to do better was years ago now, as were the events of Charlottesville itself. Plus follow on incidents that pick up on the ideology, even if they were different in their form. And and this is hard, too. This is legitimately hard in the following sense. For those who want to express peacefully and lawfully their displeasure at the election results, they are entitled to that space that goes back to those protections for those who find themselves in the political minority that I mentioned before. And I think law enforcement has a tradition, not always perfect, but has a tradition of trying to be careful to preserve that space. And so when you start out with a day that sounds political in some ways and orientation, those who are unhappy with their election results, however one might characterize it, there's a wariness, I think, to recognize that there's also parts of that day that are likely to prove completely unacceptable because they're violent and they're unlawful. Or as you say, they're more than that. They are an attempt to change the leadership of our government by force and preserving space for legitimate expression of political views. That needs to be a priority, too, but so does ensuring that we never even get close to the scene we saw on Wednesday for the sake of, for our legislators, for the sake of the staff and those who work there, but more broadly, for the sake that this democracy doesn't depend on how quickly the halls of Congress are cleared of those who are violating the law and insisting on a different future president that that. You know, you talk about shows of force, sometimes Americans need to have confidence that that isn't what's gonna change the trajectory of history. Because we've all made a pact as a democracy that those that violence doesn't change that course. But Wednesday and the scenes we all witnessed, they sent a different message. And for those of us who are following what the cheerleaders of Wednesday, and maybe even some of the participants on Wednesday have been saying in the few days afterwards about it, they are celebrating it. They are finding it to be a success and a victory. And that notion that one can do something like that and walk away from it with something to celebrate that needs to be changed.
- [31:17]
Dahlia Lithwick
I want to press you on one thing, Josh, which is, of course, it is absolutely clear that law enforcement is going to balk a little when they know that this looks like protected political activity. But you and I both know people who've been dragged out of their wheelchairs, sitting in front of a congressman's office and cuffed by the Capitol Police. And you and I both saw the scenes at Lafayette Square and the scenes out of Portland and around the country. And I think most Americans of conscience would resist the notion that the police are anxious not to step in once something looks like it's political. It feels to me, particularly having heard the DC Call in the days before Wednesday, stand down counter protestors, go home, board up stores, let the police handle this. This can't be Charlottesville. And then to see the police, rather than step in and do what they need to do, run around in circles, in some awful cases, take selfies. It just feels as though, and this is the obvious line, if the people scaling the walls of the Capitol had been black and brown political protesters, this would have gone really differently. And that's a problem.
- [32:42]
Joshua Geltzer
It is a big problem. And I thought the president elect put this well in the aftermath of. Of this, where he said something similar to what you've just said, Dalia, which is the way people looked shouldn't affect how law enforcement does its job. And yet it clearly continues to in this country. And it clearly would have played out differently on Wednesday had people looked different. And so that's one of these big, vital, urgent challenges that sits on the table, so to speak, at the exact same time as sorting out the disinformation problem that contributed, maybe even was, was a prime mover of Wednesday. It sits on the table the same time as a raging pandemic. It sits at the same time as an economy that is letting many people down, in part because the pandemic has contributed to that. All of these are urgent. All of these are, in a sense, existential, because whether people are treated differently, whether it's by law enforcement or by other aspects of the government based on the color of their skin or how they look, that's core to this democratic thing we're all trying to do here in the same way that using violence to change an election result strikes at the core of this democratic thing we're trying to do. So there is a lot that we need to keep on the table, and there's a lot that we need to not allowed just to fade, not to say, okay, Capitol Police retook the building. The vote finished a few hours later than it otherwise would have. That's not good enough. But also simply accepting that the policing would have played out differently if those trespassing and assaulting and using violence had looked different. That's not good enough.
- [34:33]
Dahlia Lithwick
Now let's return to our conversation with Joshua Geltzer. He serves as the founding executive director of the Institute for Constitutional Advocacy as well as being a visiting law professor at Georgetown University Law Center. Let's talk briefly, if we can, about the Pentagon and about this question of who, if we can talk about this in terms of domestic terrorism, then who's in charge? And the headline from January 3, all 10 living former defense secretaries say involving the military and election disputes would cross into dangerous territory. And we all said, yay, that's the military saying they're not going to support Trump. But then we now know that the Pentagon stood down. Right. The Pentagon put limits on the National Guard before the protests. There was real quandary, it seems to me, after the D.C. mayor wanted the National Guard to step in. This is two sides of the same coin. Right. We're to trying terrified of the military getting involved in domestic affairs, but it left us at the mercy of having the Capitol Police completely outgunned the other day. Can you help me think about this question of we need to make a decision about when the National Guard can step in and we blew it this week.
- [36:03]
Joshua Geltzer
Yeah. This week was not clearly was not the way one would want to see any of that play out, even if, even if figuring out what we want is difficult. I think a big thing that's different about this week was the desire for help. Part of what has made a few different types of domestic deployments under Trump concerning is that they were done contrary to the wishes of those on the ground and local. And I'm thinking both of some of the activity over the summer in Washington, D.C. but I'm also thinking of DHS law enforcement, although often dressed and looking quite militaristic out in the Pacific Northwest as well. The idea that that happens contrary to what a mayor or a governor says will best resolve a situation. I think rightly people thought that those in Washington and the Trump administration were in some ways making it worse rather than better. Here things were already bad. Things were quite bad. And ultimately there is a need for force to meet force. We had crossed into the point where the Capitol had been, had been breached and people were being assaulted within it. Guns were drawn. One person was even shot. So there is a role for the National Guard in our society, and Wednesday showed us its urgent need. I think stepping back from that, it will help a future Pentagon, future law enforcement, and a future White House, I think, to try to figure out what was wrong about the thinking going into Wednesday. I don't mean that just in terms of what was obviously an underestimation by at least some as to the nature of the threat they faced, but also in terms of things that one thinks of the military generally being quite good at, lines of communication, channels of communication, communication, how to approve things when lives are on the line. All that did not play out Wednesday, and I hope that's not the end of the conversation, but the beginning of a look back. But there's also, I think, a broader sense that what happened on Wednesday reaffirmed that there will be people who try to challenge the US Government, state, local governments with violence. That's not going away. It's not going away on January 20th when you see, at a much smaller scale than Wednesday, but also horrific, the plot against Governor Whitmer by those who also, to my mind, clearly meet the statutory definition of domestic terrorists. There was a desire to change the course of politics and take human lives there. And that's not going to end on January 20th. That is something that has, of course, been of a part problem for law enforcement before. It's not brand new, but that has been revived and I would say incited by Donald Trump from the bully pulpit he's had for four years. And we are both going to be stuck with the lingering effects and the trajectory that that pointed some people on. Plus, we will have whatever bully pulpit Donald Trump chooses to use and abuse, even when he's no longer the president.
- [39:22]
Dahlia Lithwick
I think that's so important because I think there is, just as we've described, you and I, this failure of imagination to see what's around the corner. I think there is a layer of magical thinking that says that what's around the corner is the status quo ex ante. We're just gonna go back to the good old days and this is all gonna go away. And I think it's really essential to understand what is gonna go away and what's not gonna go away on January 20th. I do wanna ask one interregnum question. It's. That's part of why I desperately wanted to talk to you this week. I guess it was Mike Pence who called in the National Guard, eventually raising questions in my mind and a lot of people's minds about who's in charge. I think there was some scuttlebutt. Did they 25th Amendment, the president in 14 seconds? I guess not. There's a real absence of, as I understand it, a commander in chief at this moment as a formal matter. I guess Donald Trump is still in charge. We heard from Friday morning Nancy Pelosi is talking to the Joint Chiefs about taking the nuclear codes away from Trump as though it's his, I don't know, Raggedy Andy doll. I, I'm very worried and stressed that in this larger conversation about is it the 25th amendment, is it impeachment, that we actually have either an unfit president for the next two weeks or, or a great sucking noise that might, when I think about geopolitical questions, be even scarier than an unfit president. So could you reassure me about the state of the whole entire world between now and January 20th, please?
- [41:04]
Joshua Geltzer
Let me start with the piece that I always find truly reassuring, which is below the political level. There are extraordinary Americans in the military and the intelligence services in law enforcement who are doing what they do every day, which is they are trying to identify, detect threats. They are prepared to respond to those in ways that some pre existing authority allows them to do or to alert superiors where that's the protocol. There are people who just continue and under extraordinarily difficult circumstances, I think with all the political noise of the past four years, they are continuing to do what they signed up to do and what they do as patriots, which is try to protect and defend this country. That doesn't change for all of the mayhem in Washington on Wednesday and all of the political and leadership level mayhem that as you say, Dahlia really persists after Wednesday and appears to continue. So that doesn't stop, that doesn't go away. But where leadership decisions are needed or where affirmative leadership decisions might be made, in other words, not responding to outside threats, but doing something that's escalatory or provocation by choice, I think there's reason to worry. I think there's good reason to hope that January 20 comes without such an incident. Because as much as I do trust in those brave men and women who are continuing to do at the non political, apolitical level everything they can to protect the country, it is hard to say one trusts in the leadership of Donald Trump after seeing what he exhorted, encouraged and some would say incited on Wednesday as well as the revelations on that day and since as to how little interest he seems to have in governing and how much interest he seems to have in watching coverage of himself, tweeting and doing anything other than looking out for the interests of the country. So one would be sugarcoating it to say that that's anything but a concerning state of affairs. But where do I take solace? I take some solace in those who are doing what they need to do below the political level to. To try to protect and defend us as they've sworn to do.
- [43:36]
Dahlia Lithwick
And it leads to this really complicated, what I've learned to call the exit voice and loyalty problem, the A.O. hirschman problem of who sticks around and who goes. And I've been obsessing about this for a couple years, I have to say. Betsy devos and Elaine Chao. But I wonder what it means when people are saying, okay, this is too much and I'm leaving now. That's a really tricky proposition. Maybe not for the Education secretary, but one would not want half the military to say, you've gone too far and I'm leaving before the next coup.
- [44:14]
Joshua Geltzer
I think that's right. And the importance of resisting that which one is asked to do, but what one believes is actually unlawful or short of that. And that's a pretty high bar. And I think we generally want it to be a pretty high bar if we're going to have an executive branch that in better times, times, in normal times, is able to function. But short of that saying, I don't know if this is lawful or unlawful, but I know it's awful, I know it's immoral, and I know that if you're going to want it done, you're going to want it done by somebody else, because you'll have my resignation. There is a lot that people can do, whether they are politicals who are still there, whether they are not politicals, but folks who might be in acting roles because of the either the Trump firings, which used to happen at quite a rate, or the resignations, which, as you say, are now happening themselves at an unusual rate. Whoever finds themselves in a position where they're being asked to do something like that, they're not powerless. They are actors in the world. And I hope that they will realize that they have the power to both slow things down and to shine a light on it if they insist that it won't be them. And that's an easy thing to say when you're not the person threatening to resign or declaring you need to be fired if something is going to happen, it's certainly easier for somebody from the outside to say it. But I also think it's fair to expect that rather than to go along with what could be some truly awful things in what still feels like a long number of days left to the Trump administration potentially.
- [45:50]
Dahlia Lithwick
We've talked about how this doesn't magically end on January 20th, and yet we've had extraordinary news this week. Two Georgia Senate seats historically to a black man and a Jewish man. Quite an amazing ground shift. Plaudits to Stacey Abrams for her organizing and then the installation of extraordinary people at the helm of the doj. Merrick Garland, Lisa Monaco, Vanita Gupta, Kristin Clark. I wonder what all that signals to you about both the arc of the moral universe, if I can dare to use that phrase, but also the Biden administration's vision for how to do both the repair of what's been broken, but also what you're describing as years long work of repair in politics, discourse, truth, communications. What are these appointment signal to you about how Biden is thinking about this?
- [46:58]
Joshua Geltzer
To me, these wonderful folks who are about to lead the Justice Department, the National Security Council, the parts of our federal government, they indicate to me a recognition by the incoming administration that there are fundamental structural things that need work in addition to the urgencies of now. And the urgencies of now are big. I don't want to denigrate them. I know I keep, I keep emphasizing this. But when Americans are dying at the rate they are from a pandemic, and when the suffering is so great across the country, you can't help but emphasize that there is a fierce urgency of now to deal with this health crisis and the racial inequities, education problems so much associated with it. But when you see folks like Jake dealing with national security, like Susan Rice doing domestic policy, like Vanita and Kristen and their commitment to civil rights work, like Lisa, who's thought so hard about cyber enabled challenges and other technological national security and law enforcement challenges, you're seeing people who recognize that there's some fundamental structural work we have to do in addition to those fierce urgency of now problems. And if we're going to point this country in a pathway in which truth rather than disinformation dominates, in which the question becomes whom to vote for rather than whom to allow to vote, these are the right sort of people to tackle those challenges. And those are the challenges that underpin so much else. So that's what it signals to me. It signals to me people who thought hard and who recognize those underpinnings of our democracy need some real attention, even as people in those sorts of positions often deal with the issues that sit on top of that, the urgent ones of the moment. And I think that's a good thing because I think those things need attention fast.
- [48:55]
Dahlia Lithwick
Joshua Geltzer serves as founding Executive Director of the Institute for Constitutional Advocacy, teaches law at Georgetown University Law center, and served from 2015 to 2017 as senior director for Counterterrorism at the National Security Council Staff. He also serves as often my sanity check and often as my jiminy cricket to aspire for more and to push harder. Josh, I cannot thank you enough for your work in the past years, but also the work you're going to do going forward. Thanks for being here.
- [49:31]
Joshua Geltzer
Thank you, Dalia. Always fun to get to talk with you. Thank you for all the work you do as well.
- [49:39]
Dahlia Lithwick
And that is a wrap for this episode of Amicus. Thank you so much for listening to this extra off week episode. Thank you also so much for your letters and questions. We're doing our best to answer them and to stay one beat ahead of whatever it is that you're about to ask. You can always keep in touch at amica@slate.com or you can find us@facebook.com amicus podcast and we always appreciate your feedback. Today's show was produced by Sarah Burningham. Gabriel Roth is editorial director, Alicia Montgomery is executive producer and June Thomas is senior managing Producer of Slate Podcasts. We'll be back with another episode of Amicus next week.