The David Frum Show – “The Crises of Due Process”

Date: April 23, 2025
Host: David Frum (The Atlantic)
Guest: Peter Kiesler, former Acting Attorney General (George W. Bush administration), longtime conservative legal mind

Overview

This episode takes a searching, urgent look at the status of due process in the United States—how the law, courts, and norms undergirding constitutional democracy are being tested and, in many cases, undermined. David Frum is joined by Peter Kiesler, a seasoned legal mind and former senior Justice Department official, to dissect recent Supreme Court rulings, the Trump administration’s aggressive legal strategies, and why longstanding traditions of executive restraint have collapsed. They explore the legal, institutional, and cultural consequences of these shifts, and reflect on how democracy—and its defenders—can respond.

Key Discussion Points & Insights

1. The Erosion of Due Process Rights

• Frum’s Introduction (begins 00:38, main argument at 01:00):
  • The Trump administration is detaining individuals—often wrongly and without legal process—and outsourcing their imprisonment to El Salvador.
  • Individuals are held incommunicado and possibly for life, with no evidence presented or hearing.
  • The infrastructure for “non-due process” incarceration is expanding within the US government.
  • Frum: “They’re building skills and competencies at non-due process forms of arrest and incarceration that are going to be very hard to limit.” (03:08)
• The danger: Not only to the individuals affected, but corrosively, to all Americans—undermining the principle that government must answer, however minimally, for its actions in a court of law.

2. Case Law & the Supreme Court’s Rebuke

• Kiesler on Admin Tactics (10:51):
  • The administration’s legal strategy for deportations: act so swiftly under the Alien Enemies Act that there is no chance for review (bundle people onto planes before they know what’s happening), then argue US courts have no jurisdiction once detainees are in “foreign” custody.
  • Kiesler: “It would always be either too early or too late for them to get into court... the Supreme Court dealt what can only be described as a death blow to both aspects of that legal strategy.” (11:37)
  • The Supreme Court unanimously held: There must be sufficient notice for legal challenge, and the US can be ordered to secure someone’s return if they were removed illegally.
• Scope of Due Process: (Frum 13:05 / Kiesler 13:39):
  • Deportation doesn’t usually require a jury trial; it’s usually a streamlined process, but minimum due process must allow legal challenge and independent review.
  • Kiesler: “It is a very minimal level of due process... but it does require the administration to submit to some neutral testing of its legal theory and its evidence.” (13:39-14:00)

3. Executive Defiance and the Rule of Law

• Frum: Points out longstanding court deference to presidential power, especially under Trump, and sees the recent Supreme Court decision as a rare, necessary assertion of authority (16:07).
• Notable moment: The Supreme Court’s 1am order to halt secret removals, reflecting deep mistrust of the administration’s willingness to comply with court orders (17:01).
  • Kiesler: “If you squander the reputation that governments... have had for credibility and fair dealing... they’re going to treat you different because they know they can’t quite trust you.” (18:31)
• But: If the executive refuses to comply, courts have limited practical tools; contempt is hard to enforce against the government (19:07).

4. Norms, Traditions, and Institutional Collapse

• Federal Reserve/FBI independence: (Frum 21:36, Kiesler 23:18)
  • Past presidents respected the independence of agencies like the FBI and Federal Reserve, with firing of officials enormously rare.
  • Trump has disregarded these norms, making top law enforcement and regulatory bodies into political extensions.
  • Frum: “That tradition is over. The FBI director is no longer independent of the President.”
• Kiesler on statutory/constitutional limits:
  • A default rule allows presidents to fire appointees at will unless Congress creates for-cause protections; the Federal Reserve Board is one such rare exception.
  • Legal debate continues, but the norm is eroding—and the Court may sidestep a final judgment, unless Trump forces the issue.

5. Conflicts of Interest and the “Post-Legality” Era

• Elon Musk’s government role: (Frum 31:45-34:10)
  • Musk, a “special government employee,” has vast personal business interests and government-wide authority—the ultimate conflict of interest.
  • He self-polices his conflicts—a total deviation from previous practice.
  • Kiesler: “If all of those institutions have been sufficiently compromised that there’s nobody who’s going to say this is a conflict, is it really law?” (35:32)
• Norms are not laws: There’s a “museum of scandal” where previous presidents' transgressions resulted in post-facto laws—but the basic assumption had always been: “the President would never do that.”

6. Accountability vs. Repair

• After Trump: Can you “turn the page”? (Frum 36:32, Kiesler 38:27)
  • Frum worries about endless cycles of retribution, undermining stability.
  • Kiesler: The post-Trump agenda will prioritize rebuilding institutions over seeking vengeance (“My priority is going to be less... accountability for past misdeeds and more like how do we just repair the damage.”) (38:27)
  • Accountability still matters, especially for those beyond the President who committed crimes.

7. The Fate and Future of the Conservative Legal World

• Loss of principle:
  • The Federalist Society, the conservative legal community once a bulwark, is “ready to do the work to enable Donald Trump to break what everybody used to think were laws.” (Frum 41:02)
  • Kiesler expresses disappointment: “I thought there were people who shared certain principles... that I guess turned out not to.” (42:00)
• Advice to young lawyers:
  • In Trump’s first term, Kiesler counseled conservatives to work in government to restrain bad actors; in the second Trump term, he sees no safe way for “good people” to serve—the entire government is being turned to nefarious ends. (43:07-44:42)

8. Corporate Compliance with Authoritarian Pressure

• Law firms bowing to pressure:
  • Law firms are pressured to abandon clients and cut deals to escape Trump’s retaliation, a short-sighted move that will only “escalate the demands.” (44:50-46:14)
  • Kiesler: “Everybody knows that when you pay protection money, it’s not one and done. They come back to you for more and more and more once they know you’re willing to pay.” (45:20)

9. The Limits of the Courts—And the Call to Action

• Don’t look to the courts alone:
  • While courts matter, the defense of democracy is up to citizens.
  • Frum: “They can do some things, but this is our job and we have to do it.”
  • Kiesler: “Some things the President is doing are going to be terrible but lawful. Some things are going to be unlawful, but there’s going to be a long lag time... So it’s ultimately up to the rest of us.” (46:31)

Notable Quotes & Timestamps

• Frum on the psychological cost of due process's erosion:

  “A thing it means to live in a free society is that you can encounter the look of a police officer without fear... You do not feel like you must cringe and defer. You know that you... can go about your business and meet the eyes of power without fear.” (05:26)

• Kiesler’s alarm:

  “What’s happening now is unprecedented and really serious. I mean, in some of the most high profile cases out there, the administration’s been acting with what could only be described as contempt towards court orders.” (10:51)

• Kiesler on Trump-era lawlessness:

  “There is a criminal conflict of interest statute... That applies to Elon Musk, because Elon Musk is what’s called a special government employee... With Musk... you have an enormous amount of financial holdings and... significant government wide authority. So there’s a huge intersection point.” (31:45-33:43)

• Kiesler on the rule of law:

  “If all of those institutions have been sufficiently compromised that there’s nobody who’s going to say this is a conflict, is it really law?... As a practical matter, I don’t think anyone’s going to be applying the conflict of interest requirements to Elon Musk any more than Elon Musk wants them to.” (35:32-35:56)

• Frum on inherited norms:

  “There’s a background law... which is the law the President of the United States would never do that. So we don’t have to write that down because the President... would never do that. So the President did it. So now we have this strange spectacle...” (30:41)

• Kiesler on Trump’s post-office accountability:

  “At the end of this administration, let’s assume it’s just a four year administration. The to-do list is going to be huge... My priority is going to be less... accountability for past misdeeds and more like how do we just repair the damage.” (38:27)

• On the role of the courts and citizens:

  “The message from the federal courts... is don’t look to us. This isn’t our job. It’s your job... The courts aren’t going to save us... and we have to do it.” (Frum 46:14)

  “Some things the President is doing are going to be terrible but lawful. Some things are going to be unlawful, but there’s going to be a long lag time between the act and a court remedy. And some things, the court remedy is just not going to be fully effective. So it’s ultimately up to the rest of us.” (Kiesler 46:31)

Timeline of Important Segments

| Timestamp | Segment / Theme | |-----------|------------------| | 00:38 – 07:16 | Frum’s opening: Expansion of non-due process systems, effect on democracy | | 08:21 – 10:51 | Kiesler joins, reflects on shifting politics & the conservative legal tradition | | 10:51 – 14:22 | Supreme Court case overview, legal strategies to evade judicial review | | 17:01 – 18:49 | Supreme Court’s 1am order and executive defiance | | 21:36 – 30:41 | Collapse of norms—Federal Reserve, FBI, “the President would never do that” doctrine | | 31:45 – 36:01 | Conflict of interest, especially in Elon Musk’s unique government/business role, “post-legality” | | 36:32 – 42:00 | Accountability vs. repair, cycles of retribution, the limits of writing new laws | | 44:50 – 46:14 | Law firms succumbing to Trumpian pressure, the “protection racket” analogy | | 46:14 – 47:00 | The limited role of courts & necessity for civic action |

Tone and Language

The conversation is grave but clear, imbued with a sense of alarm, disappointment at the failure of old norms, and a call to civic responsibility. Kiesler, once a conservative stalwart, is candid about shifting allegiances; both he and Frum insist that the defense of democracy now depends on collective action, not just courts or officials.

Takeaways

• The biggest threat is not just specific lawless acts but the creation of governmental capacity for ongoing abuses of power—rendering “due process” an empty shell.
• Traditional safeguards—court review, institutional independence, norms—are being eroded or bypassed.
• The response to corruption/abuse cannot only be legalistic or institutional; it must be societal and civic.
• There are no longer “safe space” roles for lawyers or public servants to quietly serve the public good in a law-defying administration.
• The courts play a role, but cannot repair democracy alone; “the rest of us” must take up the task.

Notable Memorable Moment

Kiesler, on the fate of law firms and professional integrity:

“When you pay protection money, it’s not one and done... They come back to you for more and more and more once they know you’re willing to pay.” (45:20)

Final Message

“Courts aren’t going to save us... They can do some things, but this is our job, and we have to do it.”
—David Frum (46:14)

“So it’s ultimately up to the rest of us.”
—Peter Kiesler (46:31)

This episode is a bracing, sometimes disturbing, reminder that law and democracy are not “self-executing.” The structures that protect liberty depend on people—and on the ongoing work of citizens, professionals, and public leaders. Above all, Kiesler and Frum urge, we must not be passive or fatalistic: “Everything does move.”