← Which Side of History?
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- [00:01]
Pam Karlan
This is much worse than Watergate. Watergate was about a relatively discreet issue, but this is far more sweeping because this is an attempt to destroy the entire Justice Department. They've driven out most of the career lawyers in huge swaths of the Justice Department. The Public Integrity section of the Criminal Division, gone. Most of the people in the National Security Division, gone. Most of the people in the Civil Rights Division, gone. The administration just really has tried to drive out of the Department of Justice most of the career people who have been responsible for enforcing the laws over the last 30 years.
- [00:52]
Jim Steyer
Welcome to which side of History? I'm Jim Steyer, the founder of Common Sense Media and a longtime Stanford University professor. This is a new podcast, so please make sure that you press that follow button on Apple and Spotify. And please subscribe to our YouTube channel as well. On this episode, we're going to look at a really important topic, the Supreme Court and the rule of law, a very timely issue indeed. Our guests today, the renowned journalist Ruth Marcus, Stanford Law professor Pam Karlan, and California Attorney General Rob Bonta. So without further ado, let's head to Stanford University and talk with this rock star panel. Rob, let me start with you. And then Pam, Ruth, answer the same question. When you look at the challenges to the rule of law broadly, and I'll get into what you've done as AG of California about it, what do you think has been the most profoundly what's been the most profoundly important challenges to the rule of law and the Constitution over the past. I mean, we're really about 12, 10 months in now. Yours, Rob, Thanks.
- [02:03]
Rob Bonta
Well, thank you. Good evening. Thank you, Jim, for having me. Great to be with you, Ruth and Pam. And thank you to everyone tuning in at Stanford tonight to have this very important discussion. And you know, I think the biggest challenge has been a executive branch with a very robust, it's a euphemism view of executive power and that is not supported by the Constitution or history, precedent of the law. And a deferential and supine Congress who will let the executive branch do whatever it wants, whenever it wants. A president who has appointed people based on really one major trait, loyalty, and not merit, skill, talent, who will support him in whatever he wants to do. And that has looked like a lot of things. It has looked like a federal administration that's trying to be Congress and stop and block the flowing of congressionally appropriated funding. $103 trillion worth nationwide was their early attempt and we were able to block and stop that. It looks like what Jim has talked about, the National Guard being deployed to la, first in the nation, later dc, Then Portland and Chicago. It's looked like a president who wants Congress's power to tax in the form of tariffs, and has imposed taxes against nearly all of our trade partners without any congressional authority to do that or any congressional delegation of authority to do that. And so it has been a executive branch that wants power and will keep seeking it and using the power unless someone stops them. And you hear their language, their rhetoric, they say things all the time like, this is an emergency, this is an invasion, this is a rebellion. Why do they use those words? Because if those things were true, which they are not, and a judge in the District of Oregon said that the Trump administration was untethered from the facts, I think that was a really good description of his general state of being and his general relationship with the facts. But if those things were true, it would mean that the executive branch gets more power, and that is what they're interested in. At the end of the day, they want the power. And Congress won't stop them. Right now, not this Congress, maybe the Congress that is newly constituted, perhaps in 2026. So this sort of unchecked, robust view of executive authority that's being used by the executive branch, well thought out. By the way, there are conservative jurists who have thought about this for a long time who think the President should be able to fire anyone in the executive branch who thinks the President should be able to deploy the National Guard where he wants, when he wants, for as long as he wants, for any reason or no reason at all. They want the President to be able to impose tariffs, but that is, you know, exactly what the Constitution says you cannot do with our checks and balances, our separation of powers, our co. Equal branches of government. The view that we would. That is built in and baked in and embedded throughout our Constitution that says that we shall never have a monarch, we shall never have a king, we shall never have a Tyra. And that's what he wants to be. So that is, I think, the biggest challenge that we're facing. And that's where we are meeting this federal administration. We are meeting him at the limits of his power and saying, you shall not cross, you shall not pass. You cannot come to the other side of this line because there are limits, there are boundaries. It's not unchecked. We're checking you and we're going to go to court to stop you. And we have 46 times in 41 weeks. We brought our 46 lawsuit today, and not because we want to bring. Thank you. Not because we want to bring a lawsuit, more than one a week. We being the Democratic attorneys general, 23 votes. We didn't plan before the inauguration. You know, how can we sue Trump more than once a week? That would be a great stat to be able to tout. We wanted to sue him never. Because if we never had to sue him, that would mean he was complying with the law, following the Constitution, and not a lot to ask, in my humble opinion, that the President of the United States of America follow the law, follow the Constitution. He is not. And so we're going to the courts and we are winning 80% of the over 80% of the time. So I want to say this before I hand it over to my smarter, more thoughtful colleagues on the panel. We are prevailing over 80% of the time in our lawsuits, securing temporary restraining orders, preliminary injunctions, permanent injunctions, or sometimes this is happening more and more. The Trump administration is saying, you got us. We'll do everything you ask. They are waving the white flag, throwing in the towel and completely crying uncle and stopping all of the things that we are saying unlawful and doing a complete 180 degree turn. So we're seeing some success. Also in all of our cases, the Trump administration is following the court orders. That's important for me to tell you. I know he's not always following all court orders everywhere, but well aware of that. And I'm not naive to think that there might come a time when he doesn't follow court orders in one of our cases. But we are winning over 80% of the time and the Trump administration is complying with all these court orders.
- [07:31]
Jim Steyer
Ruth, your perspective on this, both currently and also historically, you've written about this a lot.
- [07:36]
Ruth Marcus
So I first of all want to say thank you and nice to not see you, Rob, but to have you over my shoulder. And thank you all for being here. I think it's really important to amplify something that Rob said, which is in a situation where our system of checks and balances is really faltering in a very alarming way. The fact that Rob and his fellow Democratic attorneys general, who can get standing where other people might have a problem getting standing, can get injunctions where other people might have a problem getting injunctions, are really stepping up to the plate in a big way is very important. Because while I agree with everything that Rob said about how Congress is falling short of its responsibilities and how the president is over seizing his power without being checked, I just want to add a few more entities that are falling short. One is law firms. Law firms that this is where the importance of the attorneys general come in. Law firms that stood up to Trump in the first term are not signing on to lawsuits. They're afraid of what might happen to them. And even if they didn't already capitulate, they just don't want to stick their heads above ground. I have to say, shamefully, while the media is doing very many newspapers and other media organizations are doing a very good job of reporting on the actions of the Trump administration. Too many of them are capitulating to pressure from Trump and not holding him adequately to account. I think I probably need to painfully put my former employer, the Washington Post,
- [09:25]
Jim Steyer
but explain that just for a minute, Ruth, because people know you left the Washington Post.
- [09:28]
Ruth Marcus
I love the Washington post. I spent 40 years at the Washington Post. I resigned in March after for the first time ever in the history of the Washington Post, the publisher stepped in to kill a column that I wrote that disagreed with a limit the owner, Jeff Bezos, had put on what we were doing. The Post is doing fantastic job in terms of the reporting that it's doing, but the opinion section has been transformed into a much, instead of a broad opinion section, just much more conservative oriented opinion section. I think that is not marketplace of ideas. That is not healthy for the debate. We're just seeing, we think about checks and balances as the three branches of government thing. But checks and balances is really more than that. It's outside entities of civil society and it's states versus the federal government when that in one direction or another, where the federal government has had to check states historically, now states are needing to check the federal government. All of this is in a state that's quite frail and fraying.
- [10:43]
Jim Steyer
So Pam, I want to ask you about to comment on that, but also the Justice Department. Then we'll get into some of the prosecutions, the capitulation of law firms and many other good things.
- [10:53]
Pam Karlan
So it's great to be back in your class again. I think the flip side in some sense of what Ruth is saying is what is the biggest threat that this administration poses to the rule of law? It's that it's become a revenge tour. And what the president has decided to do and this is to destroy almost every aspect of civil society that opposed him in any way during his first administration. So that includes the press. If you look at the series of defamation lawsuits he's brought and the capitulation, which is in part, I think a function of the structural nature of the press, Today, which is that most of the press is owned by people or entities that have other businesses that are regulated by the government. And when you have a president who is prepared to use the Department of Justice and the Federal Trade Commission and the Federal Communications Commission to go after people who criticize him, those members of the press become scared. So it's no accident that CBS capitulates, whereas the Des Moines Register fights or the New York Times fights, because the difference in ownership structures explains that a lot. Then you have the president going after universities. He wants to destroy every university in the country and is using a kind of false narrative about diversity and equity and inclusion. And he's trying to use claims of antisemitism to go after universities over things that have nothing to do with diversity, equity and inclusion and have nothing to do with anti Semitism. He wants to destroy the law firms that sued him the last time around. And so he issued a series of executive orders. And the interesting thing here is the law firms that fought the executive orders, they've all won. And unlike a lot of his other cases where he races to the Supreme Court, he hasn't gone to the Supreme Court to try and get those executive orders back into place, because he knows every one of those executive orders is illegal. And so he's not going after them. People who criticized him the last time around, John Bolton, Jim Comey, Letitia James, he uses the Justice Department to go after them. And that's where I think the Justice Department comes back into this, which is since the era of Watergate, there's been an understanding in Democratic and Republican administrations alike that while the President gets to set the overall values and the overall policies of the Justice Department, so a decision to go after more white collar crime and less drug crime, or go after more drug crime and less in the way of fraud prosecutions, that the President does not get involved in any way in the individual decisions about whether to prosecute individual people. And the entire time I was at the Justice Department, in both the Obama administration and in the Biden administration, there was no pressure on us from the White House with regard to individual cases. When you met with the White House, it was always about, we'd like to see more of these kinds of cases. We'd like to see you doing more human trafficking cases and less police excessive use of force cases, or the other way around. So it was broad policy strikes, but not individuals. This president, by contrast, is in a different position. And here's where I actually disagree, I think, a little bit with you, Jim, which is the President, according to the Supreme Court, in its decision in the Trump against United States case, giving him immunity from prosecution for most of what he does as president, essentially said he is the chief law enforcement officer of the United States, that the executive power, the decision whether to prosecute or not, is ultimately lodged in the president. Now, what the president has done with that is to turn it into this cudgel where people are afraid. They are afraid they will be prosecuted if they criticize the president. They're afraid they'll be prosecuted if they demonstrate against the president. And that is what I think the biggest threat is. It's not just about separation of powers. It's about the fact that he wants to use every lever of the government to revenge himself on the people who say that he lost the election in 2020 or who criticized him the last time around. And the Justice Department the last time around put some brakes on the president. And he wanted to make sure this time around there would be no breaks. And so you see things like that tweet to Pam Bondi saying, TikTok, TikTok, I'm waiting for you to prosecute Jim Comey and Letitia James. And the next thing you know, the people who were career prosecutors are all forced out. And an insurance lawyer who used to be his personal lawyer is racing into a grand jury by herself to get an indictment, you know, a day before the statute of limitations runs. And an indictment that's so bare bones that you can't even tell what statement it is that Jim Comey was alleged to have made that was false.
- [15:59]
Jim Steyer
So, Rob, let me ask you a question. You are good friends. I know you. I've worked with you and Trish James together on things. I'd love to hear you respond both to the weaponization, if you will. I'm paraphrasing what Pam said of the Justice Department, but also the use of the prosecutorial powers for personal revenge. First of all, just as a prosecutor yourself, what do you see? You know, I'm a former prosecutor, too, but also, how does that play out now for your role as Attorney General in the biggest state in the United States?
- [16:37]
Rob Bonta
I agree with everything that was just said. That Trump, perhaps his most animating principle of his administration is vengeance. He feels entitled to go after everyone that he has a grievance against, that harmed him, that held him accountable, that sought justice when he was engaged in injustice. And he thinks, as president, he is empowered to do that. And he's gone after my colleague, Tish James, and she was on an enemies list. He posted it on Truth Social included Tish James and James Comey and Adam Schiff. And I think there's some theories that it was supposed to be a personal message to Pam Bondi, but it ended up being a post and he said, you know, what's going on? We got to get these prosecutions going. And for the president of the United States to be that directly involved in prosecutions. And again, facts aren't his issue. He needs a prosecution, doesn't care what the facts are. He's sure that the conclusion is that they're guilty of something. So just prosecute them already. And if you won't Trump appointee who's there looking at the facts and looking at the law and deciding that the facts don't justify prosecution, then I will install a loyalist who will do my bidding, who has no prosecutorial experience, but she will do what I ask her. And in comes Lindsey Halligan to do exactly that. So it is not a criminal prosecution. It is a political persecution and it erodes the integrity of the Department of Justice. It is an abuse of power. It's a dangerous political escalation of the political weaponization of the criminal process. And it is exactly not how it's supposed to work. There are ethical standards and professional standards and legal standards. You're supposed to be impartial and objective and work towards blind justice and let the facts and the law determine where you end up, not determine where you're going to end up first and then start ordering people to get you there. So it is exactly the opposite of what criminal prosecution is supposed to be. And that weaponization is dangerous and it is not who we are. We've seen it before in McCarthyism and other times when political opponents were gone after. But this has reached another level that is that undermines the trust in the criminal justice process. It is not how ethical, professional, lawful prosecutors exercise their duties. And it's just a very dangerous escalation.
- [19:15]
Jim Steyer
And as a follow up. But then I want to Ruth, how much do you think Pam mentioned the immunity decision? Right. That the immunity decision by the obviously which we'll go down as one of the most controversial decisions in the history of the Supreme Court. And we're going to spend a fair amount of time Talking about the U.S. supreme Court tonight, primarily with Pam and Ruth. How much do you think that emboldened the behavior you've seen now? I mean, Ruth, I'd be interested but Rob, for you, how much do you think that emboldened that that decision by the U.S. supreme Court emboldened him and whoever he can find to appoint to various jobs since they've gutted so many of the position, so many people have left, including career Republican prosecutors, very conservative members of the Justice Department, et cetera. How much do you think that immunity decision has had an impact? And Ruth, after Rob, I'd love to hear what you think about that.
- [20:09]
Rob Bonta
I think it certainly helps embolden him. I don't think it is the sole source for his decisions and his behavior and being emboldened. I think the, the criminal immunity definitely emboldens him. The ability to pardon those around him if they have any criminal liability probably helps his team sleep a little easier at night. But he still has civil liability and all the cases that we brought, his criminal immunity has nothing to do with it. We're stopping him in court based on his official actions and their unlawfulness. But, you know, I think he just, he is untethered from both law and facts. I mentioned earlier is how he's untethered from facts. You know, he was on 60 Minutes being asked directly, do you think due process under the Constitution applies to all people or just all citizens? And he said he didn't know. He's a president of the United States that swore to uphold the Constitution, and he's in the middle of violating the rights, due process rights of people who are not American citizens. And to not know and more importantly, not care the law is an inconvenience to this man. He wants to do what he wants when he wants, and he wants his lawyers to figure out ways to get around that very inconvenient set of things called the rule of law and the laws of the United States. So I think it has something to do with it, Jim, his criminal immunity. But I think it's just the way his mind is wired. He doesn't care for the law or for facts. He just wants to use the power and get the ends that he desires.
- [21:47]
Ruth Marcus
Ruth, I agree with that. Certainly the immunity decision didn't help. It fueled his boldness, but his boldness was going to come because I think it's important to understand that what's changed between Trump 1 and Trump 2 is not Trump. Trump wanted to go after all of these people and Trump won. The reason he didn't go after them and Trump won is that he was surrounded by other people who were willing, not all the time, not enough, but willing to serve as guardrails against the outright abuses and outright weaponization that we're seeing now. He learned his lesson after being disappointed in his first Attorney General, William Jefferson Sessions, after being disappointed in his second Attorney General, William Barr, he was going to get a different kind of Attorney General this time around. He tried Matt Gaetz. That didn't work. But he's doing just fine with Pam Bondi, who, unlike her predecessors, is just there to do Trump's bidding. And because she, I think, understands that the minute she fails to do Trump's bidding, she's going to be out and somebody else is going to be there in her place. But it's not just Pam Bondi. It's all of these people at the justice department in U.S. attorney's offices. I'm so sorry to say this. And in the hierarchy of the Justice Department who are failing to live up to, as Rob said, the ethical responsibilities that they have, the standards that are set out in the guidelines for prosecutors. And, and we have never seen anything like this, as Pam said, since Watergate. And it is in a moment of scary things, what's happening at the Justice Department, to me, is the scariest and most heartbreaking.
- [23:45]
Jim Steyer
Pam Watergate, you would put it on. How would you view this in a historical context, having looked? I mean, you teach con law. How would you look at all this in a historical context?
- [23:57]
Pam Karlan
So this is much worse than Watergate. Yeah, Watergate was about a relatively discreet issue. I mean, there were four or five issues kind of connected to one another. But this is far more sweeping than Watergate was because this is an attempt to destroy the entire Justice Department. And they're quite candid about what they're trying to do. They've driven out most of the career lawyers in huge swaths of the Justice Department. The Public Integrity section, which deals with political corruption. The Public Integrity section of the Criminal Division, gone. Most of the people in the National Security Division, gone. Most of the people in the Civil Rights Division, gone. Half of the people, career people in the Solicitor General's Office, gone. You look across every part of the department, just the Environmental and Natural Resources Division, completely hollowed out. The Office of Civil Rights that enforces things at the Department of Education, gone. They really have driven out, I would say, hundreds of thousands of years of experience from people who were career civil servants who I know people who were there from the Nixon administration on. So these are people who served under Nixon and then served under Carter and served under Ford and served under Reagan and served under both Bushes and Clinton and Obama and Biden. So these were not people that were so ideologically rigid that they couldn't serve under presidents with very different views. But they have left this time around because they were pulled out of their jobs, they were transferred into a so called sanctuary cities Task force and the like. The administration just really has tried to drive out of the Department of Justice justice most of the career people who have been responsible for enforcing the laws over the last 30 years.
- [25:54]
Jim Steyer
So, quick question and then, Rob, I'm going to ask you about the role of the states watching that happen, you being the Attorney General of the largest state, is this irreversible damage? I mean, is this damage that we're going to see no matter what happens in the next couple of elections, is this going to be irreversible damage for 20, 30 years for the rule of law?
- [26:15]
Ruth Marcus
Yes, it is.
- [26:16]
Pam Karlan
Because the ability to rebuild the Department of Justice, it's not like all these people are sitting at home waiting to be hired back. Some of the people took early retirement, some of the people have gotten other jobs in other cities. People's faith that as a career merit system protected person, as long as you do your job, you get to keep that job, is what led people to make this financial sacrifice to work for the federal government rather than to work for law firms or to work for other entities. And once you have done this, people are gonna look at this and say, there isn't job security, there isn't a secure career. If I go to the Department of Justice, because I saw all of these people fired by the Trump administration and that could be me the next time around. So I think, I think rebuilding is going to take a lot of work. I mean, one of the things that's just a law of physics is it's much easier to destroy things than to build them. And that's true of institutions, just as it's true of buildings.
- [27:20]
Ruth Marcus
And, Pam, it's not just rebuilding the workforce, which I completely agree with you, is an enormous loss, but in a way as hard to rebuild, are figuring out what to do with these norms that we have all lived with since Watergate, that the White House does not dictate prosecutions, that it does not dictate prosecutions of the President's political enemies, that when career prosecutors say there's no case here, the White House doesn't overrule them. Once you go down that terrible, dangerous slope, how do you then reconstitute a Justice Department that is committed to doing justice and not wreaking revenge? I think that the temptation is simply going to be there in the future, now that we know this can be done.
- [28:11]
Pam Karlan
Yeah, I mean, I think that's a big problem. And then, of course, on top of that you have all of the difficulty with creating new norms because some of these norms took generations to build. If you've never read it, something you ought to read because it's the best description, I think, of how the Department of Justice should operate, in a way, is a 1940 speech that Robert Jackson, who was later a Supreme Court justice, but at the time was the attorney general, gave about the awesome power of prosecutors and the difficulty with prosecutors who first find the person and then look for the crime rather than finding crimes and then looking for the person he
- [28:56]
Ruth Marcus
gave it in the great hall where we saw President Trump clicking.
- [29:00]
Pam Karlan
Exactly.
- [29:01]
Jim Steyer
And we will post it on the canvas and the website after tonight's class.
- [29:06]
Pam Karlan
Yeah, I mean, it's an amazing. It's amazing. We will.
- [29:08]
Jim Steyer
Justice Jackson was my dad's boss at the Nuremberg trial. So there you have it.
- [29:14]
Ruth Marcus
Yeah.
- [29:16]
Jim Steyer
Anyway, Rob, let me ask you a question. When you listen to this, I've sort of two questions. Number one is where does this take us as a nation, when you think about this? Because over the past few weeks, we've been looking at all the challenges we've seen broadly over the past year or so. Where does it take us as a nation in the context of the rule of law? And then the second question I have, Rob, because at some point we're going to lose the attorney general, is how much do you see the ability of large state leaders like you and Governor Newsom or Tish James and Kathy, Oakland, New York, to be able to stand up at a moment where Congress has been. I can't remember if you called them supine, but I've certainly referred to them as supine. So how do you see this in historical context, in terms of where the rule of law is going, and then second, the role of states in taking this on?
- [30:14]
Rob Bonta
You know, I'm hardwired, hopeful, so I feel a little different about this question. I'm not a realist. I see exactly what's happening. I see where we're headed, where we could go. I see the damage and devastation that's already been delivered on Americans, on the rule of law, on norms, on the Department of Justice. I see all of it. So I absolutely do not take any issue with the descriptions of the damage and the harm, the pain. But I tend to think that most things are not irreparable, and it just depends on what we do next. I think that the pain is devastating, the harm is devastating. I think it will take a lot of time to rebuild what was created. It is much easier to destroy than to Build, but build we can, if that's what we decide. And it might take time. It might take one step at a time. It might mean getting back the House next year and then getting a Democrat back in the Oval Office and in the White House who's going to surround himself with people of decency, who bring back the norms that have made our country what it is and reject what the Trump administration has demonstrated. I don't think just because Trump is doing it means it's the new norm. It could be the opposite, that it's the thing we never want to return to, ever, because it's so anathema to who we are and what we stand for, because it creates so much harm and so much pain, because it took us to the brink of losing our democracy. And so I tend to look at the silver lining and what people do in response. And I have been inspired and invigorated by everyday people stepping up and wanting to do more. People who've never done anything now doing something. People who've done a lot, who are now digging deeper and saying, I need to do more. I need to rise to the occasion. I need to meet the moment that democracy requires it. And that's what progress looks like. It's almost never linear. You move forward and then you slide back and you lurch forward again because of your will and your perseverance and your desire to push forward. And to your question, Jim, the states have a key role in that pushback, in that rising up. I mean, I know not everyone agrees with anyone on anything, but I couldn't be more proud of our governor right now. If you want to talk about channeling the spirit of fighting back, of pushing back, of standing up for our core democratic principles, constitutional principles, the rule of law, separation of powers, checks and balances, co equal branches of government, he to me is leading and pushing. And no one said, we're going to give you official power to do this. He's just doing it because he thinks it's the right thing to do. And yes, he has a huge platform. He's the governor of the biggest state in the nation, the fourth largest economy in the world, the most diverse state in the nation, the state that has led to the phrase, as California goes, so goes the nation. And others can step up, too, and others are stepping up and more will in the future. And when I was a legislator during Trump 1.0 and I saw the AGs, including California's AG and other AGs step up, I called it the rise of the AGs. It was not something that we had seen before. In that way, states pushing back, exercising their sovereignty under the 10th Amendment, not allowing the federal administration to trample over their rights. And now we're seeing it again. So it's what we do next. And states have a key role in the pushback, in the push forward, in the refusal to accept the unacceptable, to normalize what's so abnormal. We can't get desensitized to what is happening here. Just because the thing he does tomorrow is worse than the thing he did today doesn't mean the thing that he did today, which was absolutely unacceptable, any better. So I think our states are going to continue to push back. Everyday people continue to push back. Thank you to the 7 million people who rose up on no King Day. That's going to keep happening as we move forward. And the pain that we have I think will be a driver for change, will turn pain into purpose and purpose into change. And I believe write the next chapter in California and our country that will be very different than the chapter that Trump is trying to write.
- [34:18]
Jim Steyer
And Ruth and Pam, when you look at the lower courts, right, we're going to talk about the Supreme Court in a little while. But when you look at the lower courts and some of the judges, right, you know, Jeb Boasberg, some of the other judges, some of the Washington, the judges, but, but either district court, appeals court judges, how do you see their reaction in the broader context of what we're talking about, the broad challenges to various aspects of the rule of law?
- [34:49]
Ruth Marcus
Federal judges are seeing things happen that they never believed were going to happen, these flagrantly unconstitutional orders against law firms. They are seeing federal attorneys come into their courtroom and make assertions that, as the attorney general said, are untethered to the facts, that they can't trust the normal presumption of regularity that is given to attorney for the federal government. When they stand up in court and say, I'm here representing the United States has been squandered. And these judges who are just dealing, it's like a kind of video game of cases coming at them and coming at them partly from the good work that the attorney general is doing, are trying to figure out how to deal with this new world. At a time when they can't trust what's being said, things seem flagrantly unconstitutional at the same time. And I know we'll get to this, the Supreme Court is telling them, whoa, guys, slow down, don't interfere. We don't like your temporary restraining orders. We don't like your injunctions. Who do you think you are? And I think they're doing a valiant job of trying to work the law, as they say, see it, and to do what their job is, which is to follow the instructions of their bosses, which are ultimately the Supreme Court. But boy, it is not a fun time to be either to be a federal worker in general, but also not to be a lower court judge.
- [36:37]
Jim Steyer
Hey, Rob, I want to ask you because you worked as a private lawyer with a couple of my good friends, as you know. So how do you look at the particularly the early capitulation of the law firms? Pam, I want to ask you too, because you're a law professor, and whether we like it or not, maybe not all you guys, but most of my colleagues at Stanford Law School went and became lawyers at big firms. That's why I'd say 80% of probably 75, 80% of the students who graduate from a really great law school are going to do that because either you have a it's a great job, incredible opportunities, and sometimes you have loans to pay off, and they're going to pay you a whole lot more than going to work at the NAACP Legal Defense Fund like me and Pam. But how do you see the capitulation of the lawyers, Rob, Right early on. And do you think that's reversed? Because at your old firm, obviously John and Elliot stood up really early. But how do you see that in the overall context here? And Pam, you too. Even
- [37:39]
Rob Bonta
the early capitulation and early acquiescence by the law firms, it made me sick. I thought it was weak. I thought it was disgusting. I thought it was dangerous. Because you can trendset if you're the first. And there's strength in numbers. If you stand tall and you stand strong, then that's the trend you're setting. And these are attorneys who fight for their clients every day and they wouldn't even fight for themselves when their rights were violated. We should never voluntarily give up our rights. If our rights are violated. They must be, must be vindicated, Period, full stop. You go to court and you fight for your rights. And as was mentioned, those who fought are winning in court. And so just fight and stand up for your rights and don't acquiesce and don't run down to the White House to cut a deal to give millions of dollars or millions of dollars in pro bono service or whatever it is. Don't do that. And so thank you to Perkins Cohey, thank you to Mark Elias, thank you to Kecker and Van Ness, my prior law Firm. I want to shout them out. I'm very proud of them. John Kecker, Bob Van Nest, Elliot Peters. They wrote a letter. It was an op ed in the New York Times that said, who's going to fight if not us? So stand up and like that call to action, you know, giving people strength and hardening their spine and saying, you fight, we'll fight, we'll fight together. No one has to do it alone, but you have to fight. You have to be part of this fight. So I thought it was very dangerous early on. The trend has changed. But those who acquiesced and capitulated early, it disgusted me and it was weak.
- [39:11]
Jim Steyer
Pam, how do you see it in the overall context of legal profession? Then we're gonna switch to the Supreme Court. Just overall context of the legal profession's reaction to this?
- [39:20]
Pam Karlan
Sure. So just to kind of set the table slightly for this, there are, in big law, there are basically two kinds of big law law firms. There are ones that are primarily about lit, and then there are ones that are primarily about deals. And the ones that capitulated are the ones who have most of their income coming from the deals. And the ones who fought are the ones that are primarily litigation oriented firms. That's the first point to make about this. The second point to make about this is just how. It's not just that the capitulation is kind of disgusting. It's also a sign of bad lawyering because the people who capitulated capitulated without any kind of real deal. If you settled a case for one of your clients the way that these firms settled with Donald Trump, you'd be sued for malpractice. There's no release there. There's no agreement not to come back. I mean, it was really kind of staggering. But it's also, for those of you who've ever done any kind of game theory, you know about the prisoner's dilemma. Is that something most of you know something about? Yeah. Well, this was a prisoner's dilemma because if each of the firms agreed that it wouldn't try and poach the clients of the firms that had been gone after, they could have stood united. But instead, what happened is several firms started to try and pick off the clients of the firms that they thought were going to be targeted by Donald Trump. And so firms kind of raced in there to do these deals with the administration where they agreed to stop having any kind of diversity initiatives in their hiring. And then they agreed to something that's being referred to as pro bono. But it's really not pro bono, because pro bono is supposed to be lawyers making an independent judgment about what's good for the public and then doing uncompensated legal work. Instead. Here, what they agreed to do is to do whatever kind of legal work Donald Trump wanted them to do. And so you've seen some stories in the press about how they may be doing some negotiation of some of the trade deals. There's an executive order which hasn't yet been really enforced against anybody, but suggesting that the firms should start representing police officers who are accused of using excessive force on members of the community and the like. And so. So it's really a sign of a sort of rotting or hollowing out of a lot of what has made law a profession and not just a business, which is the independent judgment of lawyers about what the law requires and what justice requires. And here, what they've done instead is they've raced to the White House to try and propitiate Donald Trump because of his ability. This goes back to what we were talking about before, because of this ability to go after them. So threats that we're gonna take away the security clearances of your lawyers, which means there's certain kinds of business they can't work on. We're gonna ban your lawyers from federal buildings, which makes it hard for them to go in and negotiate, and the targeting of law firms as places they're going to go after and start subpoenaing all of their personnel records on the theory that the law firm has somehow violated Title VII and the like.
- [42:38]
Ruth Marcus
But I'm going to suggest that Donald Trump won by losing. In other words, the law firms that capitulated are losers. They are losers in the public eye. They are losers in the ability to recruit the best and brightest law students.
- [42:54]
Pam Karlan
And they're losers when they look in
- [42:56]
Ruth Marcus
the mirrors and ask themselves who they are, 100%. But there's a lot of other law firms that are quiet capitulators who aren't helping the NAACP Legal Defense Fund with their litigation, that aren't stepping up to the plate. They don't want to stick their heads above the foxhole.
- [43:17]
Pam Karlan
Yeah, I mean, this is like a lot of the things that the president is doing where he doesn't actually care whether he wins or loses in the end in court, because he's cowed people into doing stuff.
- [43:30]
Jim Steyer
How would you look at the role of the Supreme Court over the past few years as they've sort of set the table for a lot of what we're talking about tonight? So, Rob, first Jim?
- [43:43]
Rob Bonta
Yeah. This will be my last opportunity to respond. I apologize for that. I'd like to stay longer. But the Supreme Court obviously always has a critical role. They have a critical role now. They the 6, 3 split on the court with ideology and the cases that have been decided in the last few years leading up to now and the cases that will be decided in the near future, including the one that's being heard on Wednesday on tariffs and what they decide about the National Guard, what they already decided in the CASA case around nationwide or universal injunctions, it'll all shape our future. I'll say this about Chief Justice Roberts. He does stand up for the US Supreme Court as a Kobeko branch of government. He has pushed back publicly and vocally against attempts to discredit the courts when the Trump administration has called for impeachment just because they disagree with a court's and a judge's reasoned decision. So I like that he has stood up for the coblical branch of government, of the judicial BRANCH and the U.S. supreme Court. But this court is, you know, definitely is going to have an impact on our nation for years to come. And you know, things like the Dobbs decision reversing Roe versus Wade, the presidential criminal immunity case. You know, there's a really interesting line of cases around the major questions doctrine and what Congress has delegated to the executive branch and what that allows the executive branch to do or not do. That is very much front and center in this tariffs case. And should they apply their principle uniformly, as they had under the Biden administration, to this Trump administration? They should strike down the tariffs of Donald Trump in the case being heard before them this week. So I want to just end by circling back to the prior question or the comments around what I call the soft power of the president, which he seeks to exercise quite a bit. He has a lot of official power, but he likes to always exercise power that is beyond that. And he has this whole sort of band of power outside of his official power that he's used very effectively to intimidate, to target, to chill, to scare, to slow down people, to make them keep their head down instead of popping their head up. And it's true that when he targets someone, even though he's not successful, he has won because he has. He has shown the audience of the American people what he's willing to do. And it's an image that is I apologize in advance for giving it to you, but I think it's an appropriate analogy. It's the heads on a pike. It's not just the person you're going after. That is your goal. It is everyone else who sees it, who sees you going after that person and then whose behavior is changed or altered because of it. And Trump tries to exercise that power quite a bit. It's kind of what he's known for. He's the master of bluff and bluster, but turning it into real impact. And so I wanted to end by saying this. Three things are really important right now. I call them the three Cs. You may have heard them before. Courts, crowds, and courage. Courts, crowds, and courage. The three Cs. And courts are places where we can continue to bring facts, bring law, get neutral determiners, make decisions, and hold an unlawful president or presidential administration accountable and block and stop their unlawful actions. Crowds are where you turn up, everyone watching and show up and speak up, where you know that democracy dies in the dark with apathy and neglect, and it thrives with engagement and participation and advocacy, and that it is people who have the power that is the most potent power in government, People power. And that we need to continue to tell our president what we will accept and what we will and what we demand and what we will never accept. So people power continues to be important in the form of crowds. And then finally, courage to what we were talking about with respect to these firms. Some showed it, some did not. And it's important to continue to stand up, to push back against the bluffs, against the targeting, against the intimidation. Stand up for the rule of law, stand up for our democratic institutions, stand up for the future of our country and show courage in the process. So courts, crowds, encourage the rule of law, and democracy lies in the balance. Honored to be here with you, Ruth and Pam and Jim and all of you who've tuned in tonight. Thank you for having me.
- [48:10]
Jim Steyer
Thank you, Rob. Okay, I will see you soon. Thank you. So you're Attorney General Ruth and Pam. I'd love to hear you all. You guys really know this topic. Well, talk about. Well, first of all, interest. Any response to what Rob just said as the attorney General of the biggest state in the United States and who's obviously along with Tish James and a few other AGs, both Republican and Democrat. I don't think it's true that it's only. I mean, some of the Republican AGs have finally started to speak. Have started.
- [48:45]
Ruth Marcus
I think it's pretty partisanly divided on the aggression. Yeah.
- [48:48]
Jim Steyer
But on the Supreme Court, how do you look at this now? And you guys both write about this and know this, you're a former Supreme Court law clerk. Pam, you're one of the great constitutional law scholars. Ruth, you've written unbelievably good stuff, a lot of which we've assigned to the students. How do you view the role of the court right now and are you as optimistic? Rob is the attorney general of California has to be careful about what he says about the United States Supreme Court, in case you hadn't figured that out. You guys, you're a great journalist, you're a great law professor. How do you look at this right now, Ruth and Pam, I think we're
- [49:25]
Ruth Marcus
going to know a lot more at the end of June.
- [49:27]
Jim Steyer
Explain why two or three cases for
- [49:30]
Ruth Marcus
me and I should actually just sit here and listen to Pam, because I come here every year so I can hear what Pam has to say on
- [49:38]
Jim Steyer
educating me too, by the way.
- [49:40]
Ruth Marcus
But for me, this is the push comes to shove term we've had since President Trump was sworn in for a second time. A lot of skirmishing on what's called the shadow docket or the interim docket or the emergency docket, which has been some of the stuff we talked about earlier in terms of as these cases, as these various executive orders and other things that he's doing, which has been so much more than any of us were braced for, make their way through the courts. How are we supposed to deal with them in the meantime and how much damage can be done in the interim While we're working this out and we've seen agencies can be disassembled, foreign aid can be stopped. If you win two years down the road, great. But an enormous amount of damage is done in the meantime. But this term we are going to learn more on the not just the skirmishing, on what happens in the interim, but really on the merits. We are going to learn this critically important case not just for the tariffs themselves, but for how much the court is going to ignore the language of statutes, refuse to look at anything. Once the president says the magic word, emergency in the tariffs case, we're going to see Pam knows so much more about this than I do. If anything is left of the Voting Rights act, we are going to see probably where things come down. On the effort to get rid of birthright citizenship, there are going to be so many. We're going to see the future of independent agencies and how far the court is willing to go to disassemble those. Some of this is a project that the conservative justices led by the chief justices have had. That's an executive power urge that complicated, completely predates and is separate from any sympathies they may or may not have with Donald Trump, but that happen to intersect very nicely with Trump's agenda. We're going to see how they whether they are willing to apply major questions, tests and other tests as rigorously to this president as they were to a Democratic president. The second Justice Jackson said the other in a very tartly worded opinion the other day, that this court played Calvin Ball. It just made up the rules, but it also made up the rules so that the administration always wins. We shall see. In the first Trump administration, when it got to the Supreme Court, the administration didn't always win. It's sometimes one, I think that's going to end up being true in this term that's coming up. But how they win and how much they win is going to really set the stage for the power of not just this president, but future presidents. There's a really interesting question that I think is facing the court about how aggressive it is willing to be in standing up to this president and whether its degree of standing up to the president should be kind of heightened as other institutions and Congress. I'm thinking of you fail to do their part of the constitutional bargain.
- [53:29]
Jim Steyer
Justice Barrett is going to be a critical justice in this coming term, and she's been an interesting justice to look at. So, Pam, bigger picture and then any comment you want to make about the shadow docket.
- [53:44]
Pam Karlan
Sure. So I come every year to listen to Ruth, who has captured for you what I think are the four big buckets of cases that are going to be decided.
- [53:54]
Ruth Marcus
I think I left some out, by the way, because I left out the role of the military and president's power there. And I left out from here in California how you can what you can do to stop people on the street based on what they sound like or what they look like or where they are. So I'm sorry, I'll get to those,
- [54:18]
Pam Karlan
because those are shadow docket issues. But the issues that the court is pretty clearly going to hear oral argument in and write a set of opinions in are first, first, the tariffs issue, second, the sort of independent agencies issue. And this is one where I can predict with 100% confidence exactly what the court is going to do, which is the court is going to hold that as long as somebody is within the executive branch, the president has to have the power to fire the people at the top, not the civil servants, but the people at the top. So they're going to hold that. The people on the National Labor Relations Board, the people on the Consumer Product Safety Commission, the people on the Merit System Protection Board and the like, that the President who nominates people who then get confirmed can also fire those people. That is that Congress can't say that those people are protected by for cause removal. On the other hand, in the Lisa Cook case, which is the case about one of the governors of the Federal Reserve, because the Supreme Court is not foolish, whatever else they might be, they.
- [55:27]
Ruth Marcus
Well, sometimes they're foolish.
- [55:28]
Pam Karlan
Well, sometimes they're foolish. But here they've already signaled that they think the Federal Reserve is different than all these other agencies. Now why is it different? Because it would tank the economy and the markets if a President could fire the people from the board. So what the President has done there is to try and fire Lisa Cook, quote, unquote, for cause by going after her on a sort of very aggressive charge and then saying he has the power to fire her without giving her a hearing, without deciding whether in fact she violated the law in any way, which is, I think, a bridge too far for the court. So while I'm pretty sure the court is going to get rid of the old Humphreys executor case, which is a case from the 1930s, it's now going to become Humphreys executor. It becomes Humphrey's, Humphrey's executioner, because they're going to get rid of it. I think the Lisa Cook case puts them in a very different posture. And it's interesting to see that when they went up there on the shadow docket, the court decided instead of just deciding this case very quickly, it would set the case for oral argument in January and actually issue an opinion on the marriage.
- [56:36]
Jim Steyer
Explain the shadow docket just for 30 seconds.
- [56:37]
Pam Karlan
So the shadow docket is generally when the Supreme Court. The Supreme Court does one of two things with a case. It either decides it's not going to hear the case at all or it says we're going to hear the case. It sets the case for briefing and oral arguments. The briefs take about 105 days from the first brief to the last brief and then the court hears oral argument and then months go by and then you get voluminous opinions in the case. The shadow docket is a reference to the fact that there are sometimes where the court acts without having full scale briefing and oral argument, but it issues an order of some kind other than simply saying we're not going to hear the case at all. And so they might stay a lower court's decision, which means say that the lower court's decision shouldn't go into effect while the Supreme Court thinks about whether it'll hear the case or it might stay a lower court's decision and say until the case has been fully litigated and it comes up to us in its regular form, we're not going to allow a temporary decision to go into effect or the like. And so these are cases where the court doesn't explain itself fully most of the time. So the case that Ruth just alluded to, the case from California that involved a judge saying to the ICE agents, you cannot simply stop people on the street because they are near a Home Depot and they don't speak English very well, and they're dressed. Dressed in work clothes, because the Fourth Amendment does not allow you to decide to stop people because of their race or ethnicity inside the United States. It does at the border, but not inside the United States. The Court stayed that injunction, telling them to stop doing this without issuing an opinion at all. Now, Brett Kavanaugh, who's one of the justices on the Supreme Court, issued his own explanation of what he. What's going on there that has led people to start calling these Kavanaugh stops, because what he essentially says, look, you know, you see somebody who's near a Home Depot who doesn't seem to speak English really well, they might well be in the country unlawfully, which, of course is talking about huge numbers of people who are citizens and lawful or otherwise lawfully in the country who don't speak English particularly well and go to Home Depots and our day laborers. And so the shadow docket often means things aren't explained or they aren't explained very well. Now, the second group of cases that Ruth talked about is essentially about whether the Voting Rights act is going to survive. The court heard a case called Louisiana Against Calais earlier in the term. That raises the question, and this goes beyond Voting Rights act, about whether federal law can prohibit state actions that have the effect or the result of discriminating on the basis of race, regardless of what the intention behind them was. And so the Voting Rights act since 1982 has forbid states from using voting practices or procedures, which includes how they draw legislative districts and the like, that result in minority voters having less opportunity than other voters to elect candidates of their choice. And the Supreme Court seems poised to really cut back on that. It also has another case up there which raises the question whether voters can even use the Voting Rights act to bring lawsuits. This is what's sometimes referred to as the private right of action, which is, is it only the United States government that can enforce the Voting Rights act, in which case, at least until the Trump administration disappears, there will be no enforcement at all. Or can individual voters whose rights have been violated sue under the Voting Rights Act? And that issue is teed up for the court, which has postponed essentially deciding whether they're going to hear that case or not. The third bucket. Well, I think I've done two of the buckets, right? No, I've done independent agents and tariffs and voting rights. And voting rights. So the fourth bucket that's up there this year, which the Supreme Court temporized on last year, is birthright citizenship. And whether the 14th Amendment means what it says when it says all persons born within the jurisdiction of the United States and all persons born within the United States and subject to the jurisdiction thereof are citizens of the United States and of the state where they reside. And those words subject to the jurisdiction thereof were designed by Congress to respond to something that's been around since time immemorial in English law, which is, if you are a diplomat or you are an invader, you are not subject to the law, and therefore your child should not become a citizen. But otherwise, at British common law and in the understanding in the United States at the time of the framing, if you were born here, you were a citizen of the United States, regardless of what country your parents might be citizens of or the like. The 14th Amendment was intended to put that into the Constitution, in part to make clear that the freedmen were citizens of the United States. And notice that many of the freedmen who were made citizens of the United states by the 14th Amendment were the children of black people who were brought into the country illegally after the slave trade ended. So even from the very beginning, there were people born in the United States to people who were unlawfully in the United States, and yet they were citizens. And the Supreme Court in the Wong Kim ark case in 1898 said Wong Kim Ark was a citizen of the United States, even though he was born, born to Chinese nationals who were subjects of the Emperor of Japan, subjects of Emperor of China in the United States, during a time when no person who was of Asian descent could become a citizen of the United States if they moved here. Nonetheless, Wong Kim Ark was a citizen. And so the Trump administration is trying to overturn the original understanding of the 14th Amendment, is trying to overturn the Supreme Court's interpretation of the 14th Amendment, and trying to overturn a congressional statute from 1940 that understood that this was what citizenship means. And it will be a real test of the Supreme Court, if the Supreme Court doesn't declare this executive order beyond the President's power to do, do you
- [63:10]
Ruth Marcus
have any worries about that?
- [63:13]
Pam Karlan
So I always have worries. You know, I mean, I'm an optimist, but I always have worries. I do not think the Supreme Court is gonna uphold the executive order on birthright citizenship.
- [63:26]
Ruth Marcus
And as long as we have you here, can you give us your prognosis for the tariffs case?
- [63:31]
Jim Steyer
Can I just say one thing about the tariffs case? So the other guest tonight was Neil Katyal, who is arguing the tariffs case. And he called me last week and goes, I cannot come. He was going to fly in. He's arguing the case. Rob's going as an AG right to just appear and talk about it. So Neil was the third guest. They know Neil very well who's appeared in this class. He'll come back next year. And he literally called last week. I cannot show up. I have to argue the sheriff's case on Wednesday. So how do you think that will come out? It's such a huge.
- [64:03]
Pam Karlan
I think it is a close. It is a close case. I personally am persuaded by the argument, a combination of the arguments, that the power to tax is lodged in Congress, it's not lodged in the President. Tariffs are a form of taxation, and they've always been understood to be a form of taxation. Indeed, they were the primary form of taxation in the United States until we got the 16th amendment and the income tax, which is not until, like, 1913. So first thing is Congress is supposed to do this. The second thing is that when Congress does it, they normally use words like duties or tax or tariff in the statute that gives the President the power to do this. And so there are some statutes that give the President the power to impose tariffs, but they're generally statutes that tell you they limit the amount of the tariff and they limit for how long he can put it into effect on his own. So instead, what the President is trying to do is use an Emergency Economic Powers act that is designed to deal with the importation of goods during times of emergency and is a successor to a statute that was really about barring imports from countries we were at war with. Now, the President claims an emergency here, but the emergency he claims is that there are trade deficits and there have been trade deficits with one country or another, you know, for, I don't know, as long as some of these countries have existed. So it's a little hard to say that this is an emergency. And then on top of this, he keeps shifting things around in Ways that seem almost self defeating. I mean, if he would just, you know, STFU about how he's thinking about tariffs, he would have a better chance of winning in the Supreme Court. But when he pops the tariff on, you know, he raises the tariff on Canada after the premier of Ontario runs a sarcastic ad, you know, what's the emergency there? Donald Trump's frail ego has been hurt. I mean, it's not an economic emergency in any way. Or, you know, he puts the tariffs on, he takes the tariffs off. The Brazilian tariff, which is all about the prosecution of Bolsonaro and is not about anything to do with our relationship to economic relationship to Brazil. It makes it hard for the Supreme Court to rule. He's trying to make it as hard as possible for the Supreme Court to rule in his favor. The only sensible thing he's done recently is decided he's not going to go to the oral argument, which he was threatening to do for a while, because having him sit in the room would be just almost forcing the Supreme Court to rule against him to show that they are not afraid. So I think it's, I mean, I think it's a close case because there are arguments about the President's authority to declare emergencies. On balance, I think the Supreme Court is likely to rule against him. But I would not put money on that in the way that I would put money on the birthright citizenship thing going in the right direction. And I would put money on the Supreme Court doing something bad to the Voting Rights Act.
- [67:18]
Ruth Marcus
I agree with Professor Carlin's prognosis for all of these cases. And I think at the end of this term, the court, if it's wise, is going to be able to say to people, we ruled for him. Sometimes we ruled against, sometimes when we ruled for him. You might disagree with it, but it was rulings that we would have had if Jeb Bush were president or Marco Rubio were president or another Republican president were president and doing things like going after Humphrey's executor and independent agencies.
- [67:59]
Jim Steyer
Okay, bless you. Thank you. See you next week. Thanks so much for watching this episode of which side of History. Please make sure that you subscribe to my YouTube channel and like this video and please leave a comment as well. I'm Jim Steyer and this is which side of History.