Amicus With Dahlia Lithwick | “Trump’s Constitution”

Air Date: November 12, 2016
Host: Dahlia Lithwick
Guests: Professor Oren Kerr, Garrett Epps

Episode Overview

In the first episode after the 2016 election, host Dahlia Lithwick discusses with distinguished legal scholars the implications of Donald Trump’s victory for the U.S. Constitution, the Supreme Court, and the foundational norms of American law. The episode channels listener anxieties, exploring whether checks and balances can restrain Trump, the status of Merrick Garland’s Supreme Court nomination, and the role of legal professionals in a turbulent constitutional moment.

Key Discussion Points and Insights

1. Opening Concerns: Trump’s Approach to Power

• Authoritarian Worry:
  • Oren Kerr expresses deep unease about Trump’s “crush dissent” leadership style.
    • Quote [00:00]: “His model seems to be you crush dissent, and that's how you show you're strong. And that just could not in any way more scare me. For someone who's going to be the head of the executive branch.” — Oren Kerr
• National Alarm:
  • Garrett Epps underscores that “Everything is not all right. Fly the flag upside down.”
    • Quote [00:12]: “We’re not required to pretend that everything's all right. Everything is not all right. Fly the flag upside down.” — Garrett Epps

2. Dahlia Lithwick Frames the Stakes

• Aftershocks of the Election:
  • The vacant Supreme Court seat, the failure of Merrick Garland’s nomination, and GOP control of government pose possible fundamental changes to constitutional norms.
  • Listener Focus: Many questions from listeners about Garland’s fate and the possible irreversibility of the moment ([00:23]–[01:48]).

3. Interview with Professor Oren Kerr ([01:48]–[11:51])

Kerr’s Background and Reasoning

• Libertarian, but Not a Trump Supporter:
  • Despite his conservative/libertarian leanings, Kerr supported Clinton due to fears that Trump lay outside “the United States constitutional tradition.”
    • Quote [02:44]: “Hillary Clinton is kind of within the United States constitutional tradition... she’s there. ...Trump, I fear, is not in that mainstream, and that’s why I could not support him.”

On Trump’s Conception of Power

• Disregard for Constitutional Limits:
  - Quote [03:39]: “He seems to have no interest in the idea of limited power... always seems to find the dictator appealing... His model seems to be you crush dissent... and that just could not in any way more scare me.”

Checks and Balances: Will They Work? ([04:05]–[06:37])

• Theoretical Checks:
  • Courts may provide resistance.
  • Legislature (Congress) as premier check—including possibility of impeachment.
• Congressional Latitude:
  • The key uncertainty: Will Congress apply traditional constraints or simply “let Trump be Trump,” redefining the limits of acceptable presidential power?
    • Quote [05:24]: “Because if the Congress doesn't impose limits on Trump, you know, what stops Trump from just taking the next sort of grander view of his power and taking the more extreme steps the next time?”

The Role of Legal Advisors and Staffing ([07:34]–[09:20])

• Cabinet Concerns:
  • High-level picks like Giuliani or Christie might be concerning, but influence may also rest with career and lower-level officials.
  • “Old hands” in key positions could buffer Trump’s instincts.

The Fate of Merrick Garland ([09:20]–[10:13])

• Listener Hope Denied:
  • Kerr unequivocally rules out any hope for a last-minute Garland appointment.
    • Quote [09:58]: “No possibility at all, yeah.” — Oren Kerr

Is There Room for Optimism? ([10:13]–[11:51])

• Americans Must Hope for the Best:
  • Despite his personal worries, Kerr says:
    • Quote [10:36]: “You always, as an American, have to hope for the best... My greatest hope is that I was completely wrong about Trump... that would just be fantastic.”

4. Interview with Garrett Epps ([11:53]–[22:09])

Initial Reactions to the Election ([12:06]–[12:50])

• Surprise and Historic Anxiety:
  • Epps frames the result as shocking, given all data and tradition.

Trump and the Bill of Rights ([13:33]–[14:57])

• Epps’ Column: “Donald Trump Has Broken the Constitution”
  • Systematically lists Trump’s threats to nearly every Bill of Rights protection (libel laws, religious liberty, Fourth Amendment, etc.)
  • Quote [13:33]: “He has vowed to break virtually every one of the individual rights provisions of the Bill of Rights, the First Amendment... He intends to suppress hostile criticism of the government...”

Authoritarian Program and Gaslighting ([15:00]–[18:32])

• Admiration of Dictators:
  • Epps notes Trump’s voice for “strong government” and admiration for leaders like Putin, Kim Jong Un, and even the Tiananmen Square crackdown.
• Warning Against Normalization:
  - Quote [16:52]: “We need to do the man the compliment of taking him seriously. ...One of the techniques that Trump has used was gaslighting... he would make a statement that was outrageous and then he would deny he said it.”
• No “Binders Full of Lawyers” Moment Here:
  • Epps: “He may have been elected, he was elected, but he is not my president. He never will be.” ([18:32])

Lawyers’ Dilemma: Stay or Go? ([18:32]–[21:51])

• Conscience in Government Service:
  • Dahlia speaks of those who stay in government to “mitigate harm,” and Epps agrees “God bless them.”
    • Quote [20:02]: “God bless the government lawyers and those whose consciences lead them to stay at their desks... they have my full support.”
• Precedent from Bush Years:
  • Epps highlights the role of ethical government lawyers in resisting unjust policies during the George W. Bush administration.

Mourning the Constitution ([21:51])

• Concluding Despair:
  • Epps’ emotional closing:
    • Quote [21:51]: “I am now 66 years old, and as of today, November 11, I'm not sure there is a Constitution anymore.”

Notable Quotes & Memorable Moments

• “[Trump’s] model seems to be you crush dissent, and that's how you show you’re strong. And that just could not in any way more scare me.” — Oren Kerr [00:00]
• “We’re not required to pretend that everything’s all right. Everything is not all right. Fly the flag upside down.” — Garrett Epps [00:12]
• “He may have been elected... but he is not my president. He never will be.” — Garrett Epps [18:32]
• “I am now 66 years old, and as of today, November 11, I'm not sure there is a Constitution anymore.” — Garrett Epps [21:51]
• “God bless the government lawyers... whose consciences lead them to stay at their desks... they have my full support.” — Garrett Epps [20:02]
• “My greatest hope is that I was completely wrong about Trump... that would just be fantastic.” — Oren Kerr [10:36]

Important Timestamps (MM:SS)

• 00:00–01:49 — Initial statements of anxiety about Trump’s authoritarian tendencies
• 01:49–04:05 — Kerr explains his opposition to Trump, favoring constitutional stability
• 04:05–06:37 — Kerr on checks and balances; will Congress rein in Trump?
• 07:34–09:20 — Staffing the Trump administration: can institutional actors act as a check?
• 09:20–10:13 — Kerr dashes listener hopes for the Garland nomination
• 10:13–11:51 — Kerr’s cautious optimism and wish to be proven wrong
• 12:06–12:50 — Epps on the shock of the Trump victory
• 13:33–14:57 — Epps: Trump’s direct threats to the Bill of Rights
• 15:00–18:32 — On authoritarianism, gaslighting, and the vital importance of plain-spoken alarm
• 18:32–20:27 — The crisis of conscience for lawyers in the Trump era
• 21:51 — Epps’ poignant concern: “I'm not sure there is a Constitution anymore.”

Tone and Language

The tone remains grave, candid, and at times mournful, blending clear-eyed legal analysis with personal anxiety and calls for vigilance. Guests speak plainly about the stakes, at times with biting wit or solemn resignation, insisting on the duty of legal professionals to resist normalization when democratic principles are threatened.

Summary

This episode offers a sobering, illuminating conversation about law, constitutional order, and the responsibilities of courts, Congress, government lawyers, and engaged citizens at a moment of profound political upheaval. Both guests emphasize the necessity of taking Trump’s rhetoric and record seriously, resisting complacency or normalization, and remaining alert to threats against constitutional norms. The fate of the Garland nomination is sealed, but the greater drama—can America’s institutions withstand a presidency outside the constitutional mainstream?—remains an open, urgent question.