← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
Trump’s Pardonpalooza
00:55:52
Amnesty and clemency under an unprecedented president.
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- [00:06]
A
We're just seeing the beginning, the official presidential pardon. He's got several weeks. The president out the door needs to pardon his whole family and himself. Once he starts doing it, I think it's going to be quite a cascade of pardons.
- [00:23]
B
Hi, and welcome back to Amicus. This is Slate's podcast about the courts and the law and the Supreme Court. I'm Dahlia Lithwick and I cover some of those things for Slate. This week has brought with it a whole lot of whiz bang over the prospect of presidential pardons, future preemptive presidential pardons, friends and family plan presidential pardons, and also continued fun at the Justice Department, where every day seems to afford a little bit more post election drama and continued drama in the post election lawsuits continuously filed by the Trump campaign. According According to Mark Elias, the current scorecard reads 1 and 42 today. As of this taping, we're also continuing to be battered by the claims of fraud and hoax and election stealing that emanate from the White House. Meanwhile, Covid continues to devastate the nation, surpassing all previous grim milestones, overwhelming hospitals in some regions, threatening to do so in the coming weeks. Almost everywhere else, this is a crisis and we ignore it at our peril. Later on in the show, we will check in with Slate's own Mark Joseph Stern about going on at the U.S. supreme Court, including arguments this week and a landmark religious liberty decision around Covid that came while you were giving thanks on Thanksgiving. That segment is only accessible to Slate plus members. If you're not a member, fear not, you can always sign up@slate.com amicusplus and access bonus content like my conversation with Mark and add free versions of all of Slate's network of podcasts and you will never hit a paywall on the website slate.comamicus+ to sign up and thank you as ever for your support. So look, two legal questions are on everyone's mind this week and they seem to be around presidential pardons and also what the heck is happening at the Justice Department after the big broad Michael Flynn pardon. Last week, we learned that bigger, broader pardons are being floated for the entire Trump family, his adult children, Jared Kushner, Rudy Giuliani, and possibly even for Trump himself. In the meantime, Bill Barr seems to be confounding our expectations by refusing to affirm that there was widespread criminal election fraud in 2020, but also by secretly appointing special coun the election who will probe misconduct back in the 2016 election. Generally, it seems like Bill Barr is ensuring that Mischief and mayhem from the Trump Justice Department are both behind us, but also not behind us. And today's guest is somebody who is going to help figure out what all that means. Jack Goldsmith teaches at the Harvard Law School. He is a senior fellow at the Hoover Institute and a co founder of the Indispensable Lawfare blog. Jack was head of the Justice Department's Office of legal counsel from 2003 to 2004 under George W. Bush. And together with Bob Bauer, he has co authored an amazing new book called After Reconstructing the Presidency, which serves as an extremely detailed roadmap for repairing both the ways in which this president has abused power and and in which he has somehow evaded responsibility for that. Jack Goldsmith, I've wanted to have you on for a very long time. Welcome to Amicus.
- [04:15]
A
Thank you so much for having me. I'm looking forward to this.
- [04:17]
B
Jack, let's begin, if we could, with just a lightning round of stuff that is in my inbox this week and probably your inbox, too. Questions from people about pardons. They are very, very confused right now about the scope of the president's pardon authority. I think people know president can pardon someone for federal, not state, crimes. But beyond that, I think there is a whole world out there that needs to be explained. You wrote about this in the New York Times this week. You warned that in terms of pardons, quote, we ain't seen nothing yet. Then you went on to speculate that, quote, Trump will likely pardon himself, friends, family members, and Trump business entities and employees for any crime they might have committed before or during his presidency, end quote. That seems like a lot. Can you tell us, and maybe we'll just do straight up doctrine first, what, if any, are the actual limits to the presidential pardon power?
- [05:19]
A
So the pardon power is found in Article 2 of the Constitution. It is very broadly conferred. It gives the president broad and with two exceptions, unqualified power to pardon. The exceptions, or the limitations are, one, he's limited to pardoning federal crimes. He can't excuse or pardon state crimes. So, for example, Trump has no ability to stop the prosecution in New York investigation into the Trump Organization. He doesn't have the power to stop that. Second, pardons cannot be used in the context of impeachments, which is no longer relevant. But you can avoid, and president can't avoid an impeachment by issuing a pardon to someone. Other than that, Article 2 states no limits. And the Supreme Court has basically stated for hundreds of years that the pardon of power is very broad and has really countenanced very few, if any restrictions by Congress on it. And presidents have in the past used it very broadly. Trump is not the first president to potentially pardon family and friends or associates involved in criminal cases. He has been done so at a much higher rate, much more aggressively, used the pardon power thus far in self serving ways. And I think he's going to continue to in the next three weeks. Which is not to say there are no limits on the pardon power, but basically that's the doctrine.
- [06:47]
B
You've already said this implicitly, but let's just spell it out. There's no problem with pardons qua pardons. Presidents have used them for good and for ill. We've seen very broad pardons. George Washington, the plotters of the Whiskey Rebellion, Jimmy Carter, Dick, draft dodgers, famously Gerald Ford, Richard Nixon. So the problem is not that Trump has already pardoned and will continue to pardon, it's how he's using them, Right?
- [07:19]
A
Yes. I mean, well, he presents the possibility potentially of using a pardon in a way that may be subject to crimes. But let's set that aside for a second. Yes, the problem here is not one of primarily of illegality. The problem is one of abuse. So the pardon power is really this extraordinarily broad, unchecked, almost unqualified power. Presidents have used it mostly for good. The main reasons for it are for the framers thought that there should be an act of grace possible somewhere in the Constitution. And they also believed that there should be a way of using pardons for community healing, amnesties and the like. So they thought it was very important that the President have this power. There was debate about it, but it has been subject to abuse by past presidents. Bill Clinton famously at the end of his term, pardoned his brother, pardoned Mark Richard Pardon, Susan McDougal who was involved in the Whitewater matter, and he was actually investigated. Clinton was in the Southern District of New York where there was an investigation of these pardons to mark rich out of concern that they may have been secured by bribes. In any event, the pardon power has been abused by past presidents. I've analyzed the 45 or so pardons that Trump has issued. By my count, 40 of them are personally or politically self serving. And that's a rate and a percentage of self serving pardons that no president has come close to matching. So like most things, Trump has ramped up the presidential extremes on using these powers.
- [08:54]
B
And to be clear, it's not the number of pardons. Right. It's actually been a relatively small number. It's Partly, as you say, he pardons famous people. He pardons sort of heroes of denialism or people who may have obstructed justice for him. He pardons people because Kim Kardashian pops her head into the Oval and says, hey, here's a thing. So the problem isn't that he's using pardons, it's that he seems to be using them in ways that are profoundly different from, you know, what you're describing as, as healing purposes. And then I think connected to that, Jack, is the fact that the process has dropped out. Right. That there is a pardons department. There is supposed to be, you know, scrutiny and clear agreement from various other entities. All that's gone too. It's just something he's doing like.
- [09:49]
A
Right, exactly. So there's a, there's a process that's supposed to take place that involves the Justice Department. There's someone called the pardon attorney in the Justice Department. There's an elaborate set of regulations for Trump's 45 pardons. He has skirted the pardon attorney procedures in 40 of them, which is, he's not the first president to skirt those procedures. And again, Clinton did too with his controversial pardons at the end of his term. But Trump has made the exceptional case, the rule. He's made the exceptional case, the rule both on skirting the normal processes and on issuing self serving pardons. Again, Clinton, George H.W. bush, George W. Bush all had a small percentage of what might be deemed self serving pardons and a small percentage of cases where they skirted the pardon attorney. Trump has basically flipped that and made what was the exceptional case the rule. And I think we have, we're just seeing the beginning. He's got several weeks in which once he starts doing it, I think it's going to be quite a cascade of pardons.
- [10:52]
B
So put this in the bucket of speed round questions, Jack, but self pardons, I know he's been saying from the get go he can pardon himself. Seems to me the academic literature is mixed with I'm at least sense of some on the scale of presidents cannot self pardon. What are your thoughts?
- [11:11]
A
My thoughts are just what you said. It's an entirely novel, unaddressed question. I will tell you one place that's been addressed, the Justice Department, my old office, the Office of Legal Counsel in one sentence in 1974 in an opinion said, and this is almost a quote, because no man can be a judge in his own case. The President cannot self pardon. That was a throwaway sentence without analysis. But that's basically the Only official word we have on the pardon power. It's never self pardon power. It's never been tested in court, as you say. The scholars have a mix of views. Most of them, I would say, think it's not possible, but quite a few think it is. And the truth is that the Constitution is entirely silent on it. And so you have to make an argument based on different kinds of principles like structure or purpose and the like. And the argument's kind of cut in both ways. It's never been tried before.
- [12:04]
B
And it raises a little bit of the question I want to get to at the end, which is again, these things are not self effectuating. It would require somebody to investigate and determine and then I guess litigate and then what? The Supreme Court would at some day in 12 years determine that self pardons are either permissible or not. But this, this is not something that resolves itself based on a lot of academics fighting.
- [12:32]
A
Absolutely right. It would only be resolved if at all by court, probably by the Supreme Court. You might not have to wait till prosecution. Trump might be able to bring a case to resist even investigation for crimes that are covered. Possibly. I'm not sure it would be premised on someone in the next administration going after Trump. For example. Let me give you an example. Ford gave a blanket pardon to Nixon. He didn't even specify the crimes. He just said for every crime possibly committed during Nixon's presidency, he was pardoned. Some scholars think that's not specific enough. You have to be more specific. But it was never challenged. And so that now actually counts as a precedent. And so you're right, he might do it and it might stand. Someone, I can't remember who speculated the other day, I think it may have been Stephen Sachs speculated the other day that a self pardon might be self defeating because a self pardon might actually force the Biden administration's hands to bring an investigation to test the proposition. But anyway, you're right, it has to be. It can only be tested and resolved definitively if a prosecution investigation is brought against Trump.
- [13:38]
B
And this goes to the heart of what I'm going to mercilessly pick on you about the differences between you and Bob Bauer in your book in terms of the wisdom of the Biden administration really going ahead and litigating the past four years. But I think it's a really interesting wrinkle to suggest that. But Trump in some sense has some control over that because the more crazy stuff he does in the interregnum, the more likely it is that the do something about it side prevails. Right? That's what you're saying?
- [14:09]
A
Absolutely. Yep.
- [14:10]
B
Okay, so I think last question for speed round purposes and then I won't do this anymore. But you mentioned the Nixon pardon and the ways in which it was very, very broad. It didn't specify crimes. It just said this is a blanket pardon for this entire period of the presidency. In some ways that sounds in the key of the Flynn pardon.
- [14:34]
A
Right.
- [14:35]
B
Where it's very broad. Anything within the scope of the Mueller report. It's quite broad. And I guess it leads to this question. You've now said Nixon becomes the predicate for doing things like Flynn. Does that all become the predicate for the inchoate future crime preemptive pardon that is now being talk. At least the New York Times is reporting that there's a discussion of future pardons for things that haven't even been investigated or charged yet.
- [15:09]
A
Let me try to make some distinctions there. So I don't think that there can be a pardon for crimes committed after the pardon is issued. I don't think that's what you were saying. You were talking about a pardon for crimes that. For investigations that haven't even begun. And with regard to that category, there are more precedents than just the Nixon precedent. And there's dicta in the Supreme Court that suggests that you can pardon for a crime. And a lot of amnesties do this pardon for a crime, even if there hasn't been an investigation brought at all for the crime. The crime has to have been committed at the time of the pardon if it's. If it's covered. But it. But there need not have been an investigation, at least according to. Some scholars still debate this, but at least according to dicta and a couple Supreme Court cases. And more importantly for these purposes, there's a lot of practice of presidents issuing pardons and especially amnesties covered by the pardon power for actions where the actual crime was not specified. It's not just the Ford pardon of Nixon. There are many more precedents than that.
- [16:12]
B
So that's like the draft dodgers.
- [16:14]
A
That's draft dodgers by Carter. Some of the Whiskey Rebellion case that you mentioned, the Iran Contra pardons by George H.W. bush was actually like the Flynn pardon. As I recall, it was all crimes within the jurisdiction of the special counsel or the independent counsel then. So what happened with Flynn has precedent behind it. And I have to say in this context, when it gets to court, if it does, presidential practice will count a.
- [16:42]
B
Lot for constitutional meaning, which is essentially just saying that we defer defer, defer, defer. Largely on these. Right. There just is a general sense that pardons are going to be okay.
- [16:56]
A
Well, I mean, that's been the practice in the Supreme Court so far. This is so for several reasons. One, as I said at the beginning, the pardon power is very broad. Two, the Supreme Court has always read it to be a broad power. And three, in context like this, where the text is not, it doesn't really speak to the issue. The court tends to look at historical practice. Now, this is an historical practice that's only by the executive branch. There hasn't really been anything we can call acquiescence by Congress. So they might not give the practice as much weight as they normally would. But I think in fact they would give it weight in these contexts. As you know, when the executive branch does something in an area where the constitutional meeting is unsettled, the more precedents it can support to and the further the precedents go back, the stronger the arguments end up being for good or bad. That's the way it works.
- [17:43]
B
So in a weird way, this goes back to the through line in the book, which is so much of this is constrained by norms and past practices and just a general sense that the government is working to check and balance itself. And so in some sense, we are in this last right coda to the story, we're going to be the victims of just a whole bunch of presumptions of good faith and deference to the president.
- [18:12]
A
I mean, in the pardon context, I do think that I'm not sure about self pardons, but on those other questions of the pardon power, I do think that the president will receive deference. I also think that, yes, I mean we've the main thing I have learned from the Trump presidency and it's a little embarrassing since I've been studying the presidency for 25 years and I kind of knew this but didn't appreciate it because it was never really called into question is the amazing extent to which many of the constraints on the presidency kind of assume good faith, reasonableness, a sense of decorum, a sense of shame, and all of those things. Trump has exploded. And really this is what our book is about. Our book is about trying to pick up the pieces after you figure out that you can't really assume that the president is going to have those qualities. Whether it's an Obama or a Bush or whomever. You can't assume that the president's going to have those qualities.
- [19:08]
B
And just on this last point on pardons, it's so interesting That a lot of the reading I've done this week. Frank Bowman had a piece in Slate, but an awful lot of folks saying, oh, there's so many negative inferences. You'd basically be admitting criminality. Ivanka and Eric and Rudy are not going to want to say I committed a crime. There's questions about being forced to testify once you've been pardoned. But I think I'm getting the sense that your answer is none of those soft norms around shame or appearance or optics would really be operative here. I mean, the notion that this is worse for Trump than not assumes capacity for some of those soft norms.
- [19:52]
A
Yeah, but I'm really talking about the President. I don't have a sense about the extent to which Ivanka and her husband, how the calculus bears out for them and the kind of social norms and reputation and things like that. It's completely clear that Trump doesn't care. And in fact, he thrives off of the reaction to him breaking those things and as do his followers. So he's kind of hacked the system in a way and kind of benefits from attacking institutions and violating norms. I'm not at all sure that his daughter and son in law do. I just don't know. But also, I mean, if the calculus is reputational harms and admissions of guilt versus years of criminal litigation and the possibility of going to jail again, I don't know what the underlying criminality may be. They might opt for the pardon. There's just no way to know.
- [20:44]
B
Do you want to talk a little bit about the chapter in the book where you talk about specifically reforming the pardon power?
- [20:52]
A
Sure. So, I mean, as we've just been talking about for a while, the pardon power is extremely broad and the Supreme Court has given it a very broad construction. But Bob and I argue in the book that that doesn't mean that some of the extreme abuses of the pardon power can't be regulated. And in particular, we think, and even someone like, believe it or not, Bill Barr, who has an expansive view of Article 2, even he and someone like Lawrence Silberman, who also has a broad view of Article 2, wrote an opinion in the Justice Department on this. They believe that in theory, a president who issues a pardon in exchange for a bribe or an order to obstruct justice, that that can implicate criminal statutes and the Congress can regulate that. And moreover, the person who receives the pardon in exchange for a bribe, he can't be prosecuted for the thing he was pardoned for, but he can be prosecuted for bribing it's. A separate crime. So that's a theoretical possibility. Bob. And I feel very strongly there's some complicated doctrines about the plain statement rule and whether the President's actually covered by the obstruction of justice statute and the bribery statute. One extremely easy reform to clean up a lot of the abuses at the margins is just to extend the bribery prohibition and the obstruction of justice statute to the issuance of pardons. We think it's constitutional. We think it can be done fairly easily. And I actually think that will have not just an impact on actual obstruction of justice pardons and actual pardons for bribes, but anything in the general area. It will give future presidents pause and also the people involved in issuing those things pause. So that's the main reform. You can't have a statutory reform that, for example, says you can't pardon your family members or you can't pardon people after the transition. That would require constitutional change. The other reform we propose is that Congress simply ban self pardons and say that they're illegal and not effective. And Congress cannot directly resolve that question because it's a constitutional question ultimately. But we think that when the courts finally get around to addressing it, if Congress in a serious way weighs in and backed by its own constitutional analysis about why self pardons are not valid, that would play a role in the court's assessment of the validity of the self pardon. So those are the two main reforms. They're actually fairly modest when you look at the abuses that are possible. But those I think, we think get at the most extreme abuses and those happen to be the ones that we think can be done by statute.
- [23:27]
B
Jack, I was trying to think, when I was preparing for this interview about a scenario in which one would want the president to have the power to self pardon. So could you, like in your capacity as law professor inventing a hypo, think of a reason why? I mean, it just seems so completely noxious and corrosive, but nothing is what it seems anymore. And so I guess I'm trying to think of why one might want to preserve the ability for a president to self pardon. Or does it just assume nihilism and chaos?
- [24:02]
A
I thought about this. I think it's very hard to come up with a good reason why the President should be able to pardon himself. I'm sure if I spend enough time thinking about it, I could come up with something. But the truth is the Constitution contemplates prosecution of a president after impeachment. The Constitution, there's already a rule that says the president can't be indicted while he's in office. And it's going to be very hard to prosecute a president under any circumstances for a whole bunch of legal and pragmatic reasons. And I think that any reason we could think of about why a president should be pardoned would have to be a strong enough reason for the next president to pardon him. It would have to be some kind of community based, reconciliation based argument. And the president who's subject to the pardon shouldn't be making that decision. Now, I'm not saying that's a constitutional argument. I'm just saying it's kind of a policy or, you know, conceptual argument. It's hard for me to see why, if, let's put it this way, if we were designing a constitution and addressing this question and we wanted to, we wanted to resolve the question one way or another, you would not allow self pardons, you would prohibit them. And I just don't. It seems like the arguments cut all in that direction and very few in the other.
- [25:16]
B
So the other thing I wanted to raise is that we have seen some news this past week that the Justice Department is investigating schemes that are are political contributions for pardons and bribe for clemency schemes and Trump associates are possibly implicated. A hugely redacted filing. But does this all go under your sort of Presidents should not generally be allowed to either profit off the pardon power or to pardon folks for self serving reasons. I mean, this is addressed in some sense by your fix.
- [26:00]
A
Well, I think yes, our fix aims to get it just what was floated in the news this week. And the ultimate facts are still kind of unclear, but it seems that there was at least contemplation or the possibility of a wealthy person providing political support in the form of campaign contributions in exchange for a pardon or maybe influence in a pardon or something like that. That's exactly the kind of thing that we think should be made expressly illegal and it might even be actionable under current law, but it's not at all clear. And so we really think it's important. There's no reason that should not be made crystal clear that that's not allowed. And let me say, by the way, that's just one little sliver. You can just imagine, given Trump's proclivity to make deals and his transactional attitude towards everything and his promiscuous use of pardons to pardon friends and also his circumvention of the Justice Department and basically just have a free for all at the White House on pardons, it's easy to imagine that there's lots of stuff like that going on. You know, pardons are extremely valuable things. It gets people out of jail. It wipes off your criminal record. And there are a lot of wealthy people out there who, you know, would like to get those pardons. And it's not the first time we saw it, as we discussed earlier with Mark Rich. But one can just imagine that in the kind of moral world of Donald Trump and given his past performance, that that's just the tip of the iceberg. I wouldn't be surprised if there's a lot more like that going on.
- [27:32]
B
And now let's return to our conversation with Jack Goldsmith of Harvard Law School. He's a senior fellow at the Hoover Institution and the co author with Bob Bower of a new book called After Trump Reconstructing the Presidency. I want to turn, if we could, to the Justice Department. I was remembering that you and I co wrote a piece a kafilion years ago about this sort of some of the magical thinking around the independence of a Justice Department and the need for the Justice Department, particularly post Watergate, to be walled off from the executive. And interestingly, when Joe Biden now says I have no taste for going after after Trump and his confederates, he uses that very aspirational view of an independent Justice Department to bolster it. So I think I want to talk about both the sort of general sense that the Justice Department has largely been weaponized to help Trump's allies to hurt his enemies, but also very specifically about the weirdness of what Bill Barr has done in the last few days. I think you called it diabolical in one of your tweets, but this sort of push me pull you of having said that the Justice Department had found no evidence of widespread election fraud and criminality. Barr secretly also somehow installing John Durham as special counsel to keep investigating 2016. It was it feels as though something is happening on the way out for Bill Barr and I wonder if you have some insight into it.
- [29:19]
A
Sure. So my views on Barr are a little contrarian. I've defended him in some instances. I've been extremely critical of him in some instances, including with regard to Durham. I'll just start off by saying before I answer your question, I don't think that Barr has been quote, unquote, in the can for Trump at all. I think everything that Barr has done that supports Trump or seems to carry out Trump's wishes has been entirely driven by his view of Article 2 and his view that it's clear that he thinks that there was wrongdoing that went on in the 2016 investigation of the Trump campaign and in the Mueller investigation. But my own view is that all of that is driven by a view, almost all that is driven by a view of Article 2 and not by carrying Trump's water. And in fact, Barr has. Hasn't been noticed as much, but he's pushed back against the President several times, saying, look, pal, you're making my job impossible. I'm trying to do the right thing here. Sometimes doing the right thing is going to mean doing what you want, but if you're going to tweet about it, it's going to undermine my credibility. So that's just a, that's just a background point. That said, Barr has violated department norms and done some things that I think show bad judgment. But I just want to say that I don't think that the standard characterization of him is right.
- [30:36]
B
Just amplify what you just said about Barr's views of Article 2. I know we did a show with Don Eyre where he talked about it, but I think it's important to understand what the scope is of what it is that he's pressing.
- [30:49]
A
Yes, good. So Barr has a very broad view of what he calls the unitary executive. Now, the unitary executive. Barr gave a speech on the unitary executive earlier this year, I believe it was. The unitary executive is not this, in my judgment, this horrible evil thing it's often made out to be. It's actually kind of a standard view of Article 2. And all it really means is that the President sits atop an executive that is unitary. The President has the authority under the Constitution to supervise the administration, including law enforcement. The President has the power to fire people under him. That's really what the unitary executive is. And Barr has a broad conception about that and he feels very, very strongly about it. So when Barr comes in and when he sees so the whole idea of a special counsel investigation to him, even one under regulations, as opposed to the independent counsel statute, that's just anathema to him, even though he just appointed one, which is interesting and we'll get to that. It's just anathema to him, or at least it just bristles to have the chief Executive being investigated by a semi independent prosecutor. And as you know, he wrote a memorandum before he even became Attorney General, may have been why he became Attorney General, questioning. And I actually agree with him on this. What he thought was Mueller's obstruction of justice theory about the President because Barr thinks that that would impinge upon the president's Article 2 power. So Barr comes in and by the way, he comes in with a 1980s mindset, 1980s, early 1990s mindset. And boy, have things changed since then. And he looks around, this is my interpretation of it. He looks around and things aren't working like they're supposed to. And he also thinks, it seems clear to me that the investigation of Flynn was corrupt and didn't follow the book. And so anyway, so that's the background on how I view Barr. And again, we can get to the things I think he's done wrong because I think he's made a lot of mistakes that have been hugely harmful to him. And that gets to Durham and we'll get there in a second. But what happened this week was I actually am not sure these things are connected, except that Barr connected them in a way that kind of buried the lead of what was important. So I actually said on a show several weeks ago, when Barr kind of expanded the jurisdiction of the U.S. attorneys to look into election fraud, I said then this seems problematic, but if Barr ends up saying that there was no fraud in the election, it's going to enhance the credibility of that claim and people are going to appreciate the fact that they looked even harder than normal and they found nothing. That's exactly what he said. And so there hasn't been a more definitive reputation of the President's claim about fraud in the election than the supposed crony Bill Barr with this, with this expanded investigatory writ concluding that there was no systematic fraud in a way that would change the election. So that happened. And that was the highest headline and the headline below that, and some papers didn't even make it. The headline below that New York Times had it be the sub headline was that Barr appointed Durham, John Durham, as a special counsel to continue the investigation that he began last year. And that is the real story here. I mean that is the story with a long tail consequence. You've been explained what it's about?
- [34:13]
B
Yes, yes.
- [34:15]
A
Okay, first of all, who is John Durham? John Durham's a really interesting guy. He's the U.S. attorney in Connecticut. He has a decades long reputation for bipartisan integrity. He was chosen by Eric Holder, the Attorney General for President Obama, to do the look back on a sliver of the alleged criminality related to the Bush interrogation and black site program. And he was then described as someone with credibility on both sides. He conducted that investigation. Everyone gave him plaudits for it. So Barr chooses the same guy and he's got other bipartisan cred. Durham does. And he's a very below the radar screen guy. I mean, he does not have a public Persona. And Barr chose Durham building on the inspector general, early inspector general report to investigate. It started off, it's grown and grown over time, but it started off as an investigation of the FBI DOJ investigation of the 2016 Trump campaign and the Russian involvement. It started off as, I forget the term, but it wasn't a criminal investigation. It was just a review, I think is what it was called. Then it transformed into a criminal investigation that was in part because of that guy in the inspector general report who had, in the FISA context, changed the FISA documents. So that came in Durham's writ. But suddenly now it's a criminal investigation. We don't actually know what the scope of the investigation is, but he wasn't a special counsel. He was just like kind of an appointee of the Attorney General to carry this out. Now he's been made into this official status, although in a kind of a weird way, into a special counsel. And the reason I called it diabolically clever in that tweet you referred to is not only that does he do it the same day that he wins all this public cred for standing up to the President, but he appointed Durham on almost exactly the same terms and exactly the same jurisdictional basis as Mueller was appointed. And so what that means is that we're going to see now a dramatic shift when the Biden Attorney General comes in and ask Durham what he's doing. And Durham tells him, is the Biden Attorney General going to allow that investigation to continue? Because the argument was, well, special counsel appointed on these terms is sacrosanct and can't be fired, or he can be fired, but it's going to be politically very fraught to do that. Barr is someone who doesn't like special counsels, so him doing this is a real triple poke in the eye to the next administration. Now, I'm someone who thinks that it's perfectly legitimate to have an investigation of the 2016, 2017 investigation. We've already know that there were a lot of problems from that, from the Inspector General. There's a lot of things we don't know. I think that having a full blown assessment of what happened is actually vitally important to reform. This is one of my main criticisms of Barr. He's blown this. He's blown this because it's nothing really that Durham has done. But Barr has, for a year and a half prejudged the case. He has consistently and in a way that he knows he's not supposed to be doing basically in really conclusory terms, said people under investigation are traitors. Maybe not in a legal sense, he said, but that is, they're bad people, that there's malfeasance done. I just don't know if it rose to the level of criminality. There was wrongdoing. All this stuff that he knows well, Attorney Generals aren't supposed to be doing in ongoing investigations. So in my judgment he's damaged the credibility of the whole investigation, regardless of what Durham is doing doing. So it's going to be a tricky issue for the next Attorney General what to do about Durham. And in part it depends on why is this investigation taking so long. The newspaper report suggested that he hasn't been, at least up until recently, hasn't been speaking to the high level people that we hear may be involved, like Brennan and Comey and the like. So it's not at all clear what's going on in that investigation. And yet it's gone on for a hell of a long time and now it's going to go into the next administration and it's going to be a pain for them.
- [38:18]
B
And I guess the natural follow up is can Biden's AG just end this? I mean, you've now described the optics of how truly, spectacularly awful it would look. But is there something formally that Biden's AG could do to make it just stop?
- [38:35]
A
Yes. Well, this gets into some technical legal stuff and I'll try to make it generally understandable. So Durham was not actually appointed pursuant to the special counsel regulations, nor was Mueller. Both of them were appointed pursuant to the Attorney General's general powers to appoint an attorney for a special purpose. Barr basically copied what Rosenstein did in the Mueller investigation. In both cases, the regulations applied by reference. So there's a question whether there's a standard in the regulations for firing the special counsel. It's not clear if those, if those standards apply to the next Attorney General's ability to fire the special counsel, because since the appointment was not done through the special counsel regulations. Let me just say two things. There's going to be a technical legal question about that, about what the right standard is, but let's just cut through that. I have no doubt that if the next Attorney General wants to take the political heat that, that he or she can stop the Durham investigation. Now, is that a good idea? Is that going to enhance the conspiracy theories? Is that going, is that going to. Or is it better to let it play out? It might well be the case Just like all of Durham's past investigations, that he finds nothing. He's just a thorough guy and he believes in investigating everything. That's a tough question, I think, because it's going to be political dynamite if they shut it down, and especially if they don't let him say what he has discovered to date.
- [40:10]
B
I wonder if you can just broaden out a larger question about the Justice Department and independence having having, I think both agree that it can only be so independent. What is your thought about? And maybe these are entirely optics questions, Jack, but what is the first thing that an AG under Biden can do to at least reinstate the sense that, I mean, you and I can differ about how much Barr was carrying water for Trump, but at least reinstate the appearance that the Justice Department isn't kind of going around emptying the President's ashtrays?
- [40:54]
A
Yeah, so it's a great question. We've got some suggestions in the book. But I'll just say right off that the most important thing, and this is not something you instantiate by law, is how the President of the United States behaves and how the Attorney General behaves. How does the Attorney General comport him or herself? Are they going to be talking about ongoing investigations? Is the President going to be offering public advice? I just think that the first and most important thing is a return to right action, so to speak. Second thing I'll say is I actually think that the Durham problem and the problem of investigating Trump makes this especially hard for the next Attorney General. Because if Durham is fired and or if Trump is investigated, that is going to look like, inevitably to a lot of people in this country, politicized law enforcement. For some people in the country, that's going to seem like justice law enforcement vindicated. That, in a nutshell, by the way, is the problem. The country is so deeply split on its interpretations of the meaning of Justice Department actions that I just think it's hugely difficult to really square the circle and go back to a kind of Ed Levy regime. We just don't live in the world of the mid-1970s where an ED Levy regime is possible. Even if we could find another Ed Levy and plop him down in 2021, I just don't think that our politics allows for kind of reconciliation, that the Justice Department is actually back on a rigorous law enforcement path with integrity. Look, Bob and I have a whole bunch of suggestions about how to fix the special counsel, about how to enhance independence dorms and the like. I think that a statutory obstruction of justice rule against the president is hugely important. Whole bunch of things that can buck the system up and really give more confidence that it's harder to actually have corrupt law enforcement. But I actually think that in this political environment, you know, whether we'll be impressed by how the aggressive acts or not, I think it's very hard given that law enforcement, it's so central to our politics. I mean, think about, for example, the DACA and dapa immigration stuff that was hugely controversial for Obama. That was a Justice Department legal opinion that made that possible. This is what you and I wrote about 12 years ago. I mean, that politics properly conceived and a president and pursuing a political agenda properly conceived, it just gets tied up in law enforcement because they're so closely related and the Justice Department is so intricately tied into politics that it's very hard for it not to look political, even if it's not acting that way.
- [43:36]
B
So then this brings me to the big meta question. And I know it is the one place where you and Bob Bauer part company in the book and he says, look, there have to be consequences, even if it means prosecuting the president. And your argument is essentially the one you just made, which is you can't keep politicizing or criminalizing politics or politicizing crime. I don't know quite which way to craft that. But it does raise a question, I think, especially, especially for someone like you, Jack, who lives in fear of the smart president coming along and doing all this stuff instead of doing it artlessly and lying about it and just completely bungling it. I think your fear is the president, the norm breaking president who does it well. And I guess I just want you to connect the sense that I think a lot of my listeners have conveyed to me that the original sin is the Ford pardon of Nixon and the original original sin is Obama not holding people to account for the torture program. And that the more you say we can't do this, the more you construct a world in which everyone gets away with everything with complete impunity. So I know it's not a fair question because I think it's holding you responsible for something that just is what it is. But I wonder if you can mollify the fear that every time we say it's time for healing, we're drawing a line and ignoring what happen. In some way we embolden the next wave.
- [45:19]
A
Right? So that is a perfectly fair and indeed terrific argument. It's a version of the argument that Bob made in the book. It's a powerful argument and part of me agrees with It I think the argument assumes, first of all, if it's clear, crystal clear, that Trump has committed a prosecutable crime, and I don't believe it is crystal clear that he's committed by prosecutable crime, I mean a crime for which he can be successfully prosecuted. If it's crystal clear that he's committed a prosecutable crime, then some of my concerns dissipate. But your story assumes a successful prosecution. It assumes that we're actually going to put the bad guys in jail. It assumes that Nixon would have gone to jail or that the CIA folks or maybe the Justice Department folks would have gone to jail or that Trump will go to jail. And I think that is extremely unlikely. I think that it's not at all clear what crimes he's committed. Even if you find some crimes that he the obstruction of justice is the main one, there's plenty of evidence that he tried to obstruct justice. But even Mueller himself pointed out the problems with an obstruction of justice prosecution. And that was just the beginning. It's very hard under the current statutes, which is why we want to fix them to prosecute a president for obstructing justice. So I begin from the premise that I think it's very hard to make do the successful. Then I ask myself, and I acknowledge the costs that you just that you just of not going down this path that you just mentioned. I just think that the consequences of going down the path are worse. So if it's not likely you're going to have a prosecution, the costs are going to be enormous. It is going to keep Trump in the spotlight. It's probably going to raise his standing. It's going to be a huge distraction for the Biden administration for whatever its agenda is. It's going to make it impossible for the justice to department to try to go back to this somewhat detached law enforcement agency. And it's going to set this precedent and I guarantee you it will come back the other way, that we just start investigating one administration, starts investigating the prior administration for crimes committed by the president in office. Now, interestingly, that's kind of what Barr is doing with Durham. And so I think that in many ways I think it makes it worse if we follow up on that because it's really going to instantiate. This is just the way we do business. But the basic argument is that despite the points you make, which I kind of agree with, one thing I disagree with, let me just say, is I'm not sure that has much of a deterrent effect on the Next president. There's so many factors that will check or not check. The current president, for example. Torture stuff. There was no prosecution for that. But it's quite clear that that's off the table now for a whole bunch of reasons. Reasons. And it's not clear whether we'll have a Trump like actor again. So I'm skeptical of the deterrence argument. I accept everything else. I just think the costs are worse if we go forward.
- [48:16]
B
And I guess the corollary meta question, Jack, is the book is absolutely correct that soft norms are too easy to trammel and we can say Hatch act emoluments, emoluments until our faces are blue. Clearly, more law, less norms. But it is interesting that you're also saying to me right now, less law. Like this is a political problem. And so there is this paradox a little bit of. Because I think if you have a president who's hell bent on breaking the law and we can say he's shattering norms or breaking the law, or talk about right action or just presumptively ill will, all of those things I think we've learned can't necessarily be cabined by more law.
- [49:09]
A
Some of it can and some of it can't. I agree. Look, you can buy more law. You can, I think, take care of the problem of presidential tax disclosure. You can take care of the problem of presidential conflict of interest and not disclosing business interest and using the public office to serve private business ends. I think you can, as I suggested, clean up the worst aspects of the pardon power. I think you can do things to enhance Justice Department independence. What you can't do through law or through norms is to stop a president like Trump. And there will be future presidents like Trump. And as we said in the book, Trump was not terribly effective at wielding executive power. The next Trump could be much worse because much more clever and patient and cognizant of how the executive branch works. You can't stop a president from attacking institutions if he wants to. If the American people want to elect someone like that, you can't stop that through law or norms. You just can't do it. All you can do is try to establish practices and laws that control the consequences of that. And my view about the post election investigation of Trump is simply a pragmatic judgment that it's going to end up being much worse for the rule of law, not better. Now, let me just say this. This. I think that there will be an investigation of Trump. I think that the pressures on the next attorney general to do something are going to be enormous, despite what Biden, by the way, breaking norms has already said what he thinks the attorney general should do. He didn't say what he should do. He said what his own preference was. I think we're going to see whether my predictions are right or wrong. So we'll see whether you're right or I'm right. I think because I think there will be an investigation, I think it will be very hard to cabin. I think it's going to disappoint everyone because I think it's going to be not enough for the people who want them to be prosecuted and way too much for all the reasons I'm talking about. So I predict that everyone will be disappointed in it and it will not buck up rule of law norms.
- [51:08]
B
So I'm going to let you go in a minute, but first I want to welcome you to the segment that I informally call welcome to Dalia's nervous breakdown. And this is the one where I say we have talked about, talked incredibly calmly about a lot of things that have to do with the rule of law. But what we haven't talked about much is the fact that four weeks after the election, the president gave a, I don't know, I think the formal legal word is batshit crazy 46 minute rant about how he won the election. And you know, I feel like in all the time I've known you, you sort of been the Oscar, the Grouch to my, you know, wild handed Grover. So I find this like 10 scale alarming in terms of illiberal impulses, in terms of fomenting distrust, not just in this election, but we're seeing in Georgia now voting itself. I really think this is a serious, serious moment. I will not use the word crisis or tyranny or any of the other words that get, get people upset. Am I overreading how profoundly, profoundly damaging it is to the rule of law to have a president refusing to concede and most of the GOP somehow pandering to that four weeks after an election. Give me a, give me a number one to ten how panicked Jack Goldsmith is.
- [52:42]
A
I'm not very panicked, but let me just qualify that. I agree with you. It is the worst thing of a very long list of terrible things. It's the most despicable thing he's done. It's deeply unpatriotic. I don't know any other word for it. It's like Trump in the extreme putting himself in his interest over our country and our democracy. And I don't admire the Republicans, although I understand why they did it, because they're political, political creatures and all they care about is winning the Georgia Senate and reelection. I don't admire them at all for not at least at some point more recently than they should have and some still haven't, coming out and acknowledging that Biden won the presidency. But I am a glass half full person. One way of looking at this is in the face of what you and I both think is this unprecedented, awful, profoundly anti Democrat attack on our institutions. Lo and behold, the institutions held. And by the way, with the help of a lot of Republicans in the states. So, you know, you can view this as the end of the world or a terrible thing, but you can also say, and again, I've just written a 420 page book that says don't be complacent going forward. But you can also say, just like you can say from the fact that Mueller was able to get his report out, that Berman was not able to be replaced with a Trump crony in the Southern District of New York, that Hillary Clinton wasn't prosecuted. You can also say, you know, the institutions, while they were damaged and didn't do terribly well all the time, they actually, in the face of this really unimaginable onslaught from the most powerful person in the world, they kind of held up. How's that for an optimistic ending?
- [54:21]
B
Your optimism infuriates me but also inspires me in equal measure. Jack Goldsmith teaches at Harvard Law School. He's a senior fellow at the Hoover Institution, co founder of lawfare, which I hope all of you consume voraciously. Jack was head of the Justice Department's Office of legal counsel from 2003 to 2004. And his book, 420 pages together with Bob Bauer, is called After Reconstructing the Presidency. And it really is, I think, going to be the bible for repair going forward. Jack, I cannot thank you enough. I know you're crazy busy for spending this time with us.
- [55:01]
A
It was super fun. Thank you so much. It's great to see you.
- [55:07]
B
That is a wrap for this episode of Amicus. Thank you so much for listening in. Thank you so much for your letters and your questions. We are trying devilishly hard to keep on top of them. You can always keep in touch with us@amicuslate.com or you can find us@facebook.com Amicus Podcast. Today's show was produced by Sara Burningham. Gabriel Roth is editorial director, Alicia Montgomery is executive producer, and June Thomas is senior managing producer of Slate Podcasts. And we will be back with another episode of Amicus in two short weeks.