We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 53, in which Slate’s Dahlia Lithwick speaks with conservative legal scholar Orin Kerr about his decision to vote for a Democrat this past election.
Listen as Lithwick and Kerr discuss how checks and balances might work during Donald Trump’s presidency, and where the majority of these checks and balances will come from. What can key players in the government do to mitigate the fears of the American people? And finally, Kerr shares how he manages to feel optimistic about the next four years.
Garrett Epps, contributing editor at the Atlantic and professor at University of Baltimore, also joins Lithwick to talk about his recent column, which explores how Trump’s approach to politics threatens the Constitution. What does that signal for American democracy?
This transcript has been edited for length and clarity. To learn more about Amicus, click here.
Orin Kerr: His model seems to be crush dissent, and that’s how you show you’re strong. And that just could not in any way more scare me for someone who is going to be the head of the executive branch.
Garrett Epps: We’re not required to pretend that everything is all right. Everything is not all right. Fly the flag upside down.
Dahlia Lithwick: Hi, and welcome to Amicus. I’m Dahlia Lithwick. And I cover the court and law and justice for Slate.
So I wanted to start this week’s show about this week’s election with a big heartfelt thank you for all the letters and the emails, and the texts, and even one or two slightly alarming hugs from random strangers in D.C. this week. We really, really thank you for listening. It now appears that the GOP’s gamble over the vacancy that the High court has paid off.
President-elect Donald Trump will now get to fill that seat—a seat that’s been empty for nine months. And Judge Merrick Garland of the D.C. Circuit Court of Appeals will probably never get a hearing. On our show today, we’re going to answer questions listeners have been asking us by Facebook and by email about whether there is any chance at all for some Hail Mary Garland appointment. And maybe most profoundly what the election of a candidate who has promised to alter the Constitution and the rule of law in America in very fundamental ways might mean for the next four years in America.
Joining us first is Professor Orin Kerr. He’s a prolific blogger and thinker at the Volokh Conspiracy. That’s this country’s pre-eminent conservative/libertarian legal blog. He’s also a professor at George Washington University Law School, specializing in criminal procedure and computer crime law. So, welcome to Amicus, Orin.
Kerr: Glad to be here.
Lithwick: I think the first thing I want you to do for our listeners is sort of locate you in this conversation around President-elect Trump and the courts, because you are a self-described small government, fiscal restraint libertarian.
You came out just a week ago—it feels like 100 years ago—with an article in the Post saying why you were nevertheless voting for Hillary. Is that a fair positioning of you?
Kerr: Yeah, that’s basically right. I’ve been opposed to Trump from the beginning. And have blogged sort of negative pieces about him for a long time. But I finally wrote a piece about my vote last week.
Lithwick: Can you just lay out for us what the reason was that you were affirmatively going to vote for somebody who I think you pretty eloquently said you do not share most of her values?
Kerr: It seemed to me that Hillary Clinton is within the United States constitutional tradition in the sense that she understands the separation of powers, she understands the different roles of different government actors, believes in the Bill of Rights.
When called on to say sort of basic constitutional principles, she’s there. And so I don’t think I would have liked a lot of her policies, but it would have been kind of within the mainstream of American political thought, for lack of a better phrase. And Trump, I fear, is not in that mainstream and that’s why I could not support him.
Lithwick: And it goes beyond, oh, Hillary Clinton is a lawyer and Barack Obama is a lawyer. And that’s the difference. But I think seizing on something deeper than just that he doesn’t come up steeped in this constitutional tradition, you’re saying he doesn’t even think on this metric. Is that fair?
Kerr: Yeah. He seems to have no interest in the idea of limited power. Sort of always seems to be find the strong man appealing. He always seems to find the dictator appealing. His model seems to be you crush dissent, and that’s how you show you’re strong. And that just could not in any way more scare me for someone who is going to be the head of the executive branch.
Lithwick: So, what I wanted to talk to you about today is the piece that you did this week where you sort of asked about how checks and balances work going forward. And I wrote about it as well. And I think if you come to the table with the view that you’ve articulated, which is not super clear this is a person who wants to be checked, and by the way there’s no checking mechanism because he’s got the House and the Senate and possibly the court.
Talk a little bit about the piece you wrote this week about what would lead Senate Republicans to break with him on some of these big legal questions.
Kerr: So I think there are checks and balances on Trump. There will be. The question is what are they? The courts will be one. I expect courts to be really tough on Trump because I think a lot of federal judges have the same concerns that I have, you have, some others have about Trump’s views of the Constitution and the rule of law.
But the most important checks on Trump come from the legislature. That’s kind of the constitutional design, including at the very extreme end the legislature can impeach and remove a president. So the president has to keep Congress, if not happy, certainly not in outright rebellion. And what makes it interesting is that the checks that the legislature have on the president are usually ones of judgment.
Usually, they sit around and they go, has the president gone too far? Is what the president is doing on the wall or off the wall? Is it kind of crazy, or is it reasonably OK? And those are pretty contingent decisions. Those are things that you might in context say, yeah, this politician thinks that goes too far. Another politician disagrees. So the thing to watch is how much room the Congress is giving Trump.
Are they saying basically, let’s apply the old rules, and when Trump does something that we would have said was really off the wall 10 years ago or 20 years ago, it’s still off the wall? Or, are they saying, well the public seems to have wanted somebody who is going to play it really differently and we’ve got to let Trump be Trump? That’s going to be a really important thing to watch, because if the Congress doesn’t impose limits on Trump, what stops Trump from just taking the next sort of grander view of his power and taking the more extreme steps the next time?
So, checks and balances are there, but where they’ll be exercised is not so clear.
Lithwick: And is it as simple as saying you’re going to see this kick in on issues where Republicans in Congress align with his constitutional views. I don’t know if that’s putting too much weight into the notion that he has fully formed constitutional views. But where they agree that now it’s time to curb reproductive freedom, or it’s time to expand religious liberty for majorities, that we can assume those will go unchecked?
And where it will be interesting is where they may actually have different views, right? So whether it’s reinstating waterboarding and torture, or when he talks about the Eighth Amendment. Or whether it is suppressing press freedoms. That that’s where you’re going to see a real clash between his views and those of Republicans in the government?
Kerr: I think that’s right.
Lithwick: Can we talk for a minute about this question of when you see names like Rudy Giuliani and Chris Christie floated as attorney general, but is there a way in which he can surround himself with superb legal advisers and somewhat mitigate the fears that you have?
Kerr: I think there is. In thinking about the staffing of the presidency there’s different levels to think about. There’s the cabinet levels, the attorney general, the secretary of state, and then there’s the lower level staffers.
And it’s probable that at least at the initial go-around, Trump will staff the high level people with his allies from the campaign, Giuliani, and Christie, and the like. But then a lot of the decisions are actually made in the lower levels, and so it’s important to keep an eye on who is staffing the deputy assistant attorney general positions, and the lower-level positions. Because the Trump campaign did not have a big staff, there’s a lot of spots to fill and it’s entirely possible that the Trump campaign or now president-elect will staff the executive branch with what I think of as kind of the usual crowd.
The folks that are partners at D.C. law firms who served in the Bush Administration in one capacity, and then they’re looking to come back to government in the next Republican Administration. And I think that could put a check on Trump to some extent because you’ll have kind of the old hands in charge of a lot of the decisions, even if at the higher levels the decisions are made by more Trump himself, or the attorney general/Cabinet level.
Lithwick: Let me ask you this, Orin—an awful lot of our mail is from listeners who are saying, “But isn’t Merrick Garland going to get a hearing?” He is unequivocally toast, in terms of going forward? I’m wondering about your opinion on recess appointments, or this very much maligned theory that there was some kind of constructive waiver when Senate Republicans refused to have hearings. There’s no possibility in your view that Merrick Garland somehow magically appears on the U.S. Supreme Court in the coming months. Correct?
Kerr: No possibility at all.
So, you heard it here, listeners. For those of you who are signing petitions, I think that the time to think about this was probably before the elections and not now, correct?
Kerr: I think that’s right.
Lithwick: OK. Orin, you sound a little glum. But what is making you optimistic going into four years of a Trump regime that, as you say, may pose really unimagined challenges to those of us who think about the rule of law?
Kerr: I personally opposed Trump. I didn’t vote for him. But, it’s a new administration and new people coming in. And I think you always as an American have to hope for the best. Hope that the bad sides of Trump we saw on the road to the election are not the real Trump. And that someone with more wisdom will emerge. And if that happens, then great. That’s what we all hope.
I have to say my greatest hope is that I was completely wrong about Trump. I would be so delighted to have people for the rest of my career say, “Wow, that guy, Kerr, he’s an idiot. He thought Trump was going to be unstable.” And if that happens, that would just be fantastic. So that’s the happy version. Maybe that will happen. And then the not-so-happy version is maybe it won’t.
Lithwick: I’m speechless.
Because I’ve spent much of my career wanting to write “I told you so” emails to you, Orin. And now my head is exploding because I don’t even know what I’m going to do with that. That was professor Orin Kerr. He blogs at Volokh Conspiracy, this country’s really must-read conservative/libertarian group blog. He’s also a professor at George Washington University Law School. Orin, thank you so very much for joining us this week.
Kerr: Thank you for having me.
Lithwick: Joining us now is a dear friend of this podcast, Garrett Epps. He is a contributing editor at the Atlantic. He teaches con-law and other subjects at the University of Baltimore. Garrett, welcome back.
Epps: Good to be here.
Lithwick: So I want to start by asking you how surprised you are by the outcome of this presidential election.
Epps: I think I’m as surprised as everybody else.
Having been involved in politics for a long time, I’m always terrified before an election. And I expect to be surprised. And I’ve been through elections like this before. So, in that sense, it isn’t like a crack in the space-time continuum. But I had thought things through and I had looked at the figures and the material that was being served up by the bouffants at FiveThirtyEight and Upshot and it seemed to point in a single direction. So, I was surprised.
Lithwick: I want to turn now, Garrett, to the column you wrote the day after the election, this past Wednesday. It’s got no less terrifying a title than Donald Trump Has Broken the Constitution. And I think you and I worried at that time about similar concerns. Orin Kerr mentioned some of them, too. That Donald Trump is not a man who comes from a tradition of respecting constitutional norms, constitutional values, the rule of law, the way we may think of it. Can you talk a little bit about what was animating that column when you wrote it?
Epps: I think there is this reflexive American impulse at the end of an election campaign to sort of say, “Oh my, that was unpleasant. Isn’t it lovely that we really are Americans and we know God loves our country and everything will be fine? And no one meant any of the things they said.”
But, history doesn’t actually support that contention. There have been times when a presidential election led to horrible consequences, including a bloody Civil War. And we can’t assume that God is going to make everything OK. And if you look at the record and ask yourself what has this man told us he will do, and you can go through the provisions of the Bill of Rights and see that with the probable exception of Third Amendment—quartering of troops in private homes—he has vowed to break virtually every one of the individual rights provisions of the Bill of Rights.
The First Amendment, he intends to suppress hostile criticism of the government by opening up the so-called libel laws. He intends to, in some way he hasn’t explained, restore the centrality of Christianity in American government. The Fourth Amendment, with searches and seizures, he is certainly in favor of stop-and-frisk, which has already been found to be unconstitutional.
Lithwick: National stop-and-frisk, right?
Epps: Yes, he’s going to impose. And so federalism, too, out the window, by the way.
Epps: Fifth Amendment, non–self-incrimination, that doesn’t apply to Muslims. They better turn in their neighbors. And if they don’t, they’re going to be punished, too. Fifth Amendment, due process. Well, that doesn’t apply to the families of suspected terrorists, who may be executed simply for their blood relationship.
And you can go through these and he has repeatedly advanced these ideas. He then subsequently backs away from them but not really. This is really the content of his program. Government must be strong. He frequently speaks about strength. He admires strong rulers. He’s expressed admiration for Putin. He’s expressed a grudging admiration for Kim Jong-un. He expressed admiration for the Chinese communists and their massacre in Tiananmen Square. Government must be strong. Government must have the tools it needs to keep us safe.
And it’s a pretty classic old-fashioned authoritarian program. We need to do the man the compliment of taking him seriously. As we all know, one of the techniques that Trump has used in the campaign was gaslighting. And he would make a statement that was outrageous and then he would deny he said it. “What are you talking about? I never said anything of the sort.” He did say these things. He’s on the record having said them. They all point one way.
And for us now, I think officials like President Obama and Secretary Clinton, they have to proceed in a normal fashion. In part, in order to preserve their authority and credibility later. But we don’t have to be gaslighted. You and I are out here, and we can say whatever we believe to be true. And I think we’re in the stage of an abusive relationship where the abusive spouse has just gotten to be employee of the week, and he’s gotten a raise, and everything is fine. And he’s going to be nice from now on.
And he makes promises. I’m so sorry, but he is who he is. And we are in a situation where we have someone at the top of the government who has overtly proclaimed his adherence to authoritarian ideology. And look at the people he is surrounded with, including this guy Bannon who comes out of the hate right. And I know you have experienced, as I have, the kind of rising tide of harassment of critics of Trump by people who are overtly anti-Semitic and racist. And willing to make physical threats.
And for that reason, I think it’s very important that those of us whose job it is to kind of comment on what’s going on from a position of independence, we’re not required to pretend that everything is all right. Everything is not all right. Fly the flag upside down. “It is proper,” James Madison said, “to take alarm at the first experiment upon our liberties.” And being conciliatory and saying we’re so happy you say you’re not really going to hit us, that doesn’t lead us in the direction of safety.
To behave that way toward someone who is obviously a bully is simply to invite abuse. We have to start now. And I said in that column, and I believe this, and I say it knowing that it’s a terrible thing to say, and I would never had said it about any other president we’ve ever had, he may have been elected—he was elected—but he is not my president. He never will be.
Lithwick: Garrett, I keep thinking about how in conflict that is. I wrote a version of this myself, and I described it as keeping a knee in this legal regime. I just can’t say these are my laws. And yet I find myself thinking about those justice department lawyers.
The lawyers in our military. The lawyers who serve this president. And who are in the unenviable position of having to either flee en masse. We heard threats of that at the beginning of this campaign. I’m not working for this. I can’t be a part of this. And yet I think a real impulse to stay and mitigate harms and say better me in this position than Steve Bannon and his flying monkeys.
So, I really think one of the crises that you and I are both experiencing is when they go we go high is such an intrinsically lawyerly way to speak in this work. We always go high. We act like grown-ups. The law is not the purview of going low. And yet what I’m hearing you say is they went low and they won. And now it is not the time for lofty speeches about unity and about hoping this president succeeds because something fundamental has been shattered.
And that as lawyers, instead of going along, we have to be at the vanguard of fighting back. Is that chiming with what you’re saying?
Epps: It is. I would say, beforehand, that God bless the government lawyers and those whose consciences lead them to stay at their desks. God bless them. Because we saw in the George W. Bush administration how conscientious lawyers, even within the military, could make a huge difference in terms of what policies the government can pursue and the extent to which it is limited by values of due process.
Lithwick: And that’s Jim Comey, right? That’s Jim Comey standing up. That’s Jack Goldsmith. You’re right.
Epps: Yeah, and you think of the military lawyers at Guantanamo who were basically told throw these cases and they said, “We’re not doing that. We’re lawyers.”
And it produced enormous amounts of litigation and some very positive legal change. So, God bless those people. And if any one of their consciences leads them to stay, then they have my full support.
I’m not a government lawyer. To the extent that I have any role to play, I sit down and write what I see going on. And I am not content to pretend that I don’t see what I’m seeing. And I will also say, I have spent much of my life studying the United States Constitution because as a young man I saw it transform an unjust and repressive society, southern society, into something much, much more, like a modern democracy, peacefully, because of shared allegiance to the idea of the rule of law.
The Constitution has been the center of my political thought. And I am now 66 years old and as of today, Nov. 11, I’m not sure there is a Constitution anymore.
Lithwick: Garrett, I have to tell you that I share, and I know a lot of listeners who share your concern for the Constitution this week.
And I want to thank you for the work that you’ve done on this. Garrett Epps is a contributing editor at the Atlantic. He teaches constitutional law at the University of Baltimore. Garrett, thanks for joining us.
Epps: Lovely to be here.
Lithwick: And that’s going to do it for this episode of Amicus. But, we are looking forward, as always, to hearing from you. Our email is email@example.com. We’re also on Facebook at Facebook.com/AmicusPodcast. We value your thoughts now more than ever and we’d love to hear ideas for future shows.
Remember you can always listen to any Amicus episodes that you may have missed on our show page. You’ll find that at Slate.com/Amicus. And if you’re a Slate Plus member, you’ll also find transcripts there.
A big thank you goes out, as always, to the Virginia Foundation for the Humanities, where we tape the show. Our producer is Tony Field. Steve Lickteig is our executive producer. And Andy Bowers is the chief content officer of Panoply.
Amicus is part of the Panoply Network. Check out our entire roster of podcasts at iTunes.com/Panoply. I’m Dahlia Lithwick. Hang in there, folks. We’ll be back with you in a few weeks with another edition of Amicus.