Professor Oren Kerr (2:44)

Well, it seemed to me that Hillary Clinton is kind of within the United States constitutional tradition in the sense that she understands the separation of powers, she understands the different roles of different government actors, believes in the Bill of Rights when called on to say sort of basic constitutional principles, she's there. And so I don't think I would have liked a lot of her policies, but it would have been kind of weird within the mainstream of American political thought, for lack of a better phrase. And Trump, I fear, is not in that mainstream, and that's why I could not support him.

Dahlia Lithwick (3:19)

And it goes beyond. I mean, we like to say, oh, you know, Hillary Clinton's a lawyer and Barack Obama's a lawyer, and that's the difference. But I think you're, I think, seizing on something deeper than just that. He doesn't come up steeped in this constitutional tradition. You're saying he doesn't even think on this metric. Is that fair?

Professor Oren Kerr (3:39)

Yeah. He seems to have no interest in the idea of limited power. Sort of always seems to be find the strong man appealing. He always seems to find the dictator appealing. 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.

Dahlia Lithwick (4:05)

So what I wanted to talk to you about today is the piece that you did this week where you sort of asked about how checks and balances work going forward. And I wrote about it as well. And I think if you come to the table with the view that you've articulated, which is not super clear, this is a person who wants to be checked. And by the way, there's no check in mechanism because he's got the House and the Senate and possibly the court. Talk a little bit about the piece you wrote this week about what would lead Senate Republicans to break with him on some of these big legal questions.

Professor Oren Kerr (4:46)

Yeah. So I think there are checks and balances on Trump. There will be. The question is, what are they? The courts will be one. I expect courts to be really tough on Trump because I think a lot of federal judges have the same concerns that I have, you have some others have about Trump's views of the Constitution and the rule of law. But the most important checks on Trump come from the legislature. That's kind of the constitutional design, including at the very extreme end, the legislature can impeach and remove a president. So the president has to keep Congress, if not happy, certainly not in outright rebellion. And what makes it interesting is that the checks that the legislature have on the president are usually ones of judgment. Usually they sit around, they go, has the president gone too far? Is what the president's doing on the wall or off the wall? Is it kind of crazy, or is it reasonably okay? And those are pretty contingent decisions. Those are things that you might, in context, say, yeah, this politician thinks that goes too far, or another politician disagrees. So the thing to watch is how much room the Congress is giving Trump. Are they saying, basically, let's apply the old rules, and when Trump does something that we would have said was really off the wall 10 years ago or 20 years ago, it's still off the wall? Or are they saying, well, you know, the public seems to have wanted somebody who's gonna play it really differently and we gotta let Trump be Trump. That's gonna be a really important thing to watch. 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? So checks and balances are there, but where they'll be exercised is not so clear.

Dahlia Lithwick (6:37)

And is it as simple as saying, you're going to see this kick in on issues where Republicans in Congress align with his, I want to say, constitutional views? I don't know if that's putting too much weight into the notion that he has fully formed constitutional views, but, you know, where they agree that, you know, now it's time to curb, you know, reproductive freedom, or it's time to expand religious liberty for majorities that, you know, we can assume those will go unchecked, and where it will be interesting is where they may actually have different views. Right. So whether it's reinstating waterboarding and torture, you know, when he talks about the Eighth Amendment or whether it's suppressing press freedoms, that. That's where you're gonna see real clash between his views and those of Republicans in the government?

Professor Oren Kerr (7:32)

I think that's right.

Dahlia Lithwick (7:34)

Can we talk for a minute about this question of when you see names like Rudy Giuliani and Chris Christie floated as Attorney General? I don't know how that makes you feel, but it's. Is there a way in which he can surround himself with superb legal advisors and somewhat mitigate the fears that you have?

Professor Oren Kerr (8:00)

I think there is. I think in thinking about the staffing of the presidency, there's different levels to think about. There's the Cabinet levels, the attorney General, the Secretary of State, and then there's the lower level staffers. And it's probable that at least at the initial go around, Trump will staff the high level people with his allies from the campaign, Giuliani and Christie and the like. But then a lot of the decisions are actually made in the lower levels. And so it's important to keep an eye on who's staffing the Deputy Assistant Attorney General positions and the lower level positions, because the Trump campaign did not have a big staff. There's a lot of spots to fill. And it's entirely possible that the Trump campaign, or now President elect, will staff the executive branch with what I think of as kind of the usual crowd, the folks that are partners at D.C. law firms who served in the Bush administration in one capacity, and then they're looking to come back to government in the next Republican administration. And I think that could put a check on Trump to some extent, because you'll have kind of the old hands in charge of a lot of the decisions. And even if at the higher levels, the decisions are made by more Trump himself or the Attorney general, cabinet level.

Dahlia Lithwick (9:20)

Let me ask you this, Orin, before I let you go. An awful lot of our mail is from listeners who are saying, but isn't Merrick Garland gonna get a hearing? He is unequivocally toast. Right. In terms of going forward, I mean, I'm wondering about your opinion on recess appointments or this very much maligned theory that, you know, there was some kind of constructive waiver when Senate Republicans refused to have hearings. There's no possibility, in your view, that Merrick Garland somehow magically appears on the US Supreme Court in the coming months, correct?

Professor Oren Kerr (9:58)

No possibility at all, yeah.

Dahlia Lithwick (10:01)

So you heard it here, listeners. For those of you who are signing petitions, I think that the time to think about this was probably before the elections and not now, correct?

Professor Oren Kerr (10:12)

I think that's right.

Dahlia Lithwick (10:13)

Okay, Oren, you sound a little glum. I'm diagnosing over headphones. But what is making you optimistic going into four years of a Trump regime that, as you say, may pose really unimagined challenges to those of us who think about the rule of law?

Professor Oren Kerr (10:36)

I personally opposed Trump. I didn't vote for him. But it's a new administration and new people coming in. And I think you always, as an American, have to hope for the best. Hope that, you know, the bad sides of Trump we saw on the road to the election are not the real Trump, and that someone with more wisdom will emerge. And if that happens, then great. I mean, that's. That's what we all hope. I have to say, my greatest hope is that I was completely wrong about Trump. I would be so delighted to have people for the rest of my career say, wow, that guy Kerr, he's an idiot. He thought Trump was going to be unstable. And if that happens, that would just be fantastic. So that's the happy version. Maybe that will happen. And then the not so happy version is maybe it won't.

Dahlia Lithwick (11:24)

I'm speechless because, you know, I've spent much of my career wanting to write I told you so emails to you, Oren, and now my head is exploding because I don't even know what I'm gonna do with that. That was Professor Oren Kerr. He blogs at Volok Conspiracy, this country's really must read Conservative libertarian group blog. He's also a professor at George Washington University Law School. Oren, thank you so very much for joining us this week.

Professor Oren Kerr (11:51)

Thank you for having me.

Dahlia Lithwick (11:53)

Joining us now is a dear friend of this podcast, Garrett Epps. He is a contributing editor at the Atlantic. He teaches con law and other subjects at the University of Baltimore, Baltimore. Garrett, welcome back.

Garrett Epps (12:06)

Good to be here.

Dahlia Lithwick (12:08)

So I want to start by asking you how surprised you are by the outcome of this presidential election.

Garrett Epps (12:17)

I think I'm as surprised as everybody else. I having been involved in politics for a long time, I'm always terrified before an election and I expect to be surprised. And I've been through elections like this before, so in that sense it isn't like a crack in the space time continuum. But I had thought things through and I'd looked at the figures and, you know, the material that was being served up by the boffins at 538 and Upshot, and it seemed to point in a single direction. So I was surprised.

Dahlia Lithwick (12:50)

I want to turn now, Garrett, to the column you wrote the day after the election this past Wednesday. It's got no less terrifying a title than Donald Trump Has Broken the Constitution. And I think you and I worried at that time about similar concerns. Oren Kerr mentioned some of them, too, that Donald Trump is not a man who comes from a tradition of respecting constitutional norms, constitutional values, the rule of law, the way we may think of it. Can you talk a little bit about what was animating that column when you wrote it?

Garrett Epps (13:33)

Well, I think there is this reflexive American impulse at the end of an election campaign to sort of say, oh my, that was unpleasant. Isn't it lovely that we really are Americans and we know God loves our country and everything will be fine, and no one meant any of the things they said. But history doesn't actually support that contention. I mean, there have been, have been times when a presidential election led to horrible consequences, including a bloody civil war. And we can't assume that God is going to make everything okay. And if you look at the record and ask yourself, what has this man told us he will do? And you can go through the provisions of the Bill of Rights and see that with the probable exception of the Third Amendment, quartering of troops in private homes, 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 by opening up the so called libel laws. He intends to, in some way, he hasn't explained, restore the centrality of Christianity in American government. The Fourth Amendment with searches and seizures. He is certainly in favor of a stop and frisk, which has already been found to be unconstitutional.

Dahlia Lithwick (14:57)

National stop and frisk. Right.

Garrett Epps (15:00)

Yes. He's going to impose, so federalism too out the window, by the way, you know, Fifth Amendment, non self incrimination. Well, that doesn't apply to Muslims. It turns out they better turn in their neighbors. And if they don't, they're going to be punished too. Fifth Amendment due process. Well, that doesn't apply to the families of suspected terrorists who may be executed, you know, simply for their blood relationship. And you can go through these. And he has repeatedly advanced these ideas. He then subsequently sort of backs away from them, but not really. This is really the content of his program. Government must be strong. He frequently speaks about strength. He admires strong rulers. He's expressed admiration for Putin. He's expressed a grudging admiration for Kim Jong Un. He expressed admiration for the Chinese Communists and their massacre in Tiananmen Square. Government must be strong. Government must have the tools it needs to keep us safe. And it's a pretty classic old fashioned authoritarian program. We need to do the man the compliment of taking him seriously. As we all know, one of the techniques that Trump has used in the campaign was gaslighting. And he would make a statement that was outrageous and then he would deny he said it. What are you talking about? You know there, I never said anything of the sort. He did say these things. He's on the record having said them. They all point one way. And for us now, you know, I think officials like President Obama and Secretary Clinton, they have to proceed in a normal fashion, in part in order to preserve their authority and credibility later. But we don't have to be gaslighted. You and I are out here and we can say whatever we believe to be true. And I think we're in the stage of an abusive relationship where the abusive spouse has just gotten to be employee of the week, and he's gotten a raise and everything's fine, and he's gonna be nice from now on, and he makes promises. I'm so sorry, you know, but he is who he is, and we are in a situation where we have someone at the top of the government who has overtly proclaimed his adherence to authoritarian ideology. And look at the people he is surrounded with, including this guy Bannon, you know, who comes out of the hate. Right? And I know you have experienced, as I have, the kind of rising tide of harassment of critics of Trump by people who are overtly anti Semitic and racist and willing to make physical threats. And for that reason, I think it's very important that those of us whose job it is to kind of comment on what's going on from a position of independence, we're not required to pretend that everything's all right, everything is not all right. Fly the flag upside down. It is proper, James Madison said, to take alarm at the first experiment upon our liberties, and being conciliatory and saying, we're so happy, you say you're not really going to hit us. That doesn't lead us in the direction of safety. To behave that way toward someone who is obviously a bully is simply to invite abuse. We have to start now. And I said in that column, and I believe this, and I say it knowing that it's a terrible thing to say, and I would never have said it about any other president we've ever had. He may have been elected, he was elected, but he is not my president. He never will be.

Dahlia Lithwick (18:32)

Garrett. I keep thinking about how in conflict that is. I wrote a version of this myself, you know, described it as taking a knee in this legal regime. I just can't say these are my laws.

Garrett Epps (18:46)

And.

Dahlia Lithwick (18:46)

And yet I find myself thinking about those Justice Department lawyers, the lawyers in our military, the lawyers who serve this president and who are in the unenviable position of having to either flee en masse. We heard threats of that at the beginning of this campaign. I'm not working for this. I can't be a part of this. And yet, I think a real impulse to stay and mitigate harms and say, better me in this position than Steve Bannon and his flying monkeys. So I really think one of the crises that you and I are both experiencing is when they go low, we go high is such an intrinsically lawyerly way to speak in this world, right? We always go high. We act like grownups. The law is not the purview of going low. And yet what I'm hearing you say is they went low and they won. Now, it is not the time for lofty speeches about unity and about hoping this president succeeds because something fundamental has been shattered and that as lawyers, instead of going along, we have to be at the vanguard of fighting back. Is that chiming with what you're saying?

Garrett Epps (20:02)

It is. I would say beforehand that God bless the government lawyers and those whose consciences lead them to stay at their desks. God bless them. Because we've seen, we saw in the George W. Bush administration how conscientious lawyers, even within the military, could make a huge difference in terms of what policies the government can pursue and the extent to which it is limited by values of due process.

Dahlia Lithwick (20:27)

And that's Jim Comey, right? That's Jim Comey standing up. That's Jack Goldsmith. I mean, you're right.

Garrett Epps (20:32)

Well, and you think of the military lawyers at Guantanamo who were basically told, throw these cases. And they said, we're not doing that. We're lawyers. And it produced enormous amounts of litigation and some very positive legal change. So God bless those people, and if any one of them's conscience leads them to stay, then they have my full support. I'm not a government lawyer. To the extent that I have any role to play. I sit down and write what I see going on. And I am not content to pretend that I don't see what I'm seeing. And I will also say I have spent much of my life studying the United States Constitution because as a young man, I saw it transform an unjust and repressive society, Southern society, into something much, much more like a modern democracy, peacefully, because of shared allegiance to the idea of the rule of law. The Constitution has been the center of my political thought. And I am now 66 years old, and as of today, November 11, I'm not sure there is a Constitution anymore.

Dahlia Lithwick (21:51)

Garrett, I have to tell you that I share, and I know a lot of listeners share your concern for the Constitution this week, and I want to thank you for the work that you've done on this. Garrett Epps is a contributing editor at the Atlantic. He teaches constitutional law at the University of Baltimore. And, Garrett, thanks for joining us.

Garrett Epps (22:09)

Lovely to be here.

Dahlia Lithwick (22:12)

And that's going to do it for this episode of Amicus. But we are looking forward, as always, to hearing from you. Our email is amicuslate.com we're also on facebook@facebook.com Amicus Podcast we value your thoughts now more than ever, and we'd love to hear ideas for future shows. Remember, you can always listen to any Amicus episodes that you may have missed on our show page. You'll find that@slate.com amicus and if you're a Slate+ member, you'll also find transcripts there. And if you're not well, you can sign up for a free two week trial@slate.com amicusplus a big thank you goes out, as always, to the Virginia foundation for the Humanities, where we tape the show. Our producer is Tony Field, Steve Lichti is our executive producer, and Andy Bowers is the Chief Content Officer of Panoply. Amicus is part of the Panoply Network. Check out our entire roster of podcasts@itunes.com Panoply I'm Dahlia Lithwick. Hang in there, folks. We'll be back with you in a few weeks with another edition of Amicus.