Stephen Bright on McWilliams v. Dunn, an Amicus transcript.

Read What Slate’s Amicus Podcast Had to Say About McWilliams v. Dunn

Read What Slate’s Amicus Podcast Had to Say About McWilliams v. Dunn

Slate Plus
Your all-access pass
May 2 2017 2:31 PM

The Neutral Expert Transcript

Read what Slate’s Amicus podcast had to say about McWilliams v. Dunn and capital punishment trials.


This is a transcript of Episode 67 from Amicus, Slate’s podcast about the Supreme Court. These transcripts are lightly edited and may contain errors. For the definitive record, consult the podcast.

Dahlia Lithwick: Hi, and welcome to Amicus, Slate’s podcast about the Supreme Court and the courts and the law. I’m Dahlia Lithwick and I cover that stuff for Slate. Another week, another round of nasty remarks from President Donald Trump about another federal judge. The president’s latest volley was directed at a district court judge in California who, at least temporarily, blocked the White House from withholding federal funds from so-called “sanctuary cities.” Later on in today’s show, we’re going to try to catch up with our old new friend, the Constitution’s emoluments clause, but first, this week marked the end of oral arguments, for the time being at least, at the U.S. Supreme Court. The justices heard their last case of the term on Wednesday and decisions will come in June.

The case we want to talk about today was heard on Monday and it tries to set a legal standard for what kind of expert psychiatric assistance an indigent defendant should be given at his trial. Oddly enough, that’s the exact same question that the state of Arkansas is trying to figure out and the reason they actually stayed some executions last week. The case as it came to the Supreme Court is called McWilliams v. Dunn. This case actually dates back to a 1984 capital conviction of James McWilliams, who raped and murdered Patricia Reynolds during a robbery at the Tuscaloosa, Alabama, convenience store where she worked. McWilliams claims he was entitled to a psychological expert who could’ve helped him prove his mental illness. The state of Alabama and several federal appeals courts claimed no, he was only entitled to a neutral expert. Stephen Bright, who’s been working on death penalty litigation at the Southern Center for Human Rights since 1982 represented him.

Bright: Thank you for having me.


Lithwick: Steve, before we dive in on the legal question, let me ask you just the purely health question, which is what sorts of mental health impairments was your client alleged to be suffering from?


Bright: There were two that were critical, but they came right at the last minute. He was sent for an evaluation by a neuropsychologist who conducted a number of very sophisticated tests on him, the leading cutting-edge tests, and he came back and said that he had brain damage, that he had a lesion on the right hemisphere of his brain, that it was a serious significant pathology with regard to his brain and, of course, what that means is that his brain has gotten, the connectors and so forth, are either broken or are injured and he’s not—everything that the brain does, judgment, how you go about various things, are affected by that.

In addition to that, the records from the prison showed that he had been on a very powerful psychotropic drug the entire time that he had been at the prison. One of the things the lawyers wanted to know is if there’s nothing wrong with this guy, why is he on this powerful psychotropic medicine. Both of those things were sort of in play here at the sentencing hearing, but they did not get the report that told them about the brain damage until two days before the hearing. The hearing was on the 9th. They got that on the 7th, and then on the 8th they got some of the hospital records, and then on the very day of the hearing they got the records from the prison.

These lawyers just basically were overwhelmed. They had more records than they could possibly go through. They had a report, which they didn’t fully understand because they were laypeople. They weren’t psychiatrists or psychologists and so they desperately pleaded with the judge to give them time to get someone in who could help them understand all of what they had and then present information to the judge about James McWilliams and his impairments.

Lithwick: At the trial itself, the only people who testified about the childhood head injury and the possible mental health issues was McWilliams himself and his mom, right? There was no expert at trial.


Bright: That’s right. There are two trials, remember, in Alabama because in Alabama the judge can override the jury, so there was a sentencing phase before a jury, in which case the only witnesses to say anything about Mr. McWilliams’s impairment was himself and his mother, who described these head injuries he had had and how they had affected him. Now the state put on three doctors from the state hospital, which is notorious for almost always finding nothing wrong with the defendants that they look at. They’re sent people all the time from the courts and they decided that he was sane at the time of the crime, that is, he had no insanity defense. He was competent for trial, that is, he knew what was going on in the trial, and they went way out on a limb and said that there was absolutely nothing that mitigated the crime that he’d committed. Basically, they on every level turned him down and then, right before the judge sentencing, which comes after, that is when there was this neuropsychological examination done, which revealed his brain damage.


Lithwick: Can you walk us through? I think it’s important to lay out the precedent in this case, 1985 case, Ake v. Oklahoma. That sets the standards, a baseline of the kind of help that an indigent defendant can seek, right?


Bright: That’s right.


Lithwick: Tell us what the standard is after Ake.


Bright: It’s much like, and it may be good to think of this as sort of like, you’ve got two armies. You’ve got the prosecution and the defense, and if one army has all of the weaponry and all the tanks and everything else and the other has none whatsoever, it’s not going to be a very fair fight, and it’s going to be pretty one-sided. The system that we had in the courts is the prosecution of course can hire experts to testify with regard to their position on mental health issues, or for that matter, anything else that might be contested. On the other side of the street, a poor person accused of a crime of course has no money to hire an expert witness or an investigator or anything else.

The Supreme Court in 1985 in this case called Ake v. Oklahoma held that where it was a significant issue in the case, the mental state of the defendant is a significant issue in the case, that in that case the defendant had a right to at least one expert, one mental health expert. It wouldn’t even the playing field certainly, but it would at least give the defense some guidance about what disorder or injuries of the brain the defendant might have, how it might affect his behavior, those sorts of things so that there could be at least some chance to present affirmatively information about the defendant and about, in this case, his brain damage.

Lithwick: I think that there’re two things going on that we need to explain. One is you have his lawyer saying, “I’m imploring you, Judge. Give us a continuance. Give us someone to help us understand what just happened.” The judge just summarily saying, “Take lunch. You’ve got a couple of hours and I’m sentencing him to death. By the way, I think he’s faking.”


Bright: Right.


Lithwick: Then you have the other piece of this, which is, and I think this is hard for lay listeners to understand because this is a habeas petition, you have to show that the rules set out in Ake that you’re seeking, which is more help than that—


Bright: Right.


Lithwick: —is clearly established law. Can you explain why the standard is so high?


Bright: Yes. Up until the Antiterrorism and Effective Death Penalty Act was passed, Williams would be able just simply to say, “I was entitled to an expert under Ake v. Oklahoma and I didn’t get one,” and the court would just simply make a determination of whether there had been a violation of the court’s decision in Ake. Then Congress decided to put this layer, almost a filter, over the top of the legal issues, including the constitutional issues that says, “You can only have your case reviewed for a federal constitutional violation if the federal basis that you’re relying upon was clearly established by a decision of the United States Supreme Court.”

It doesn’t matter if there’s a consensus of all the other courts, if there hasn’t been a holding by the United States Supreme Court that clearly establishes the point, then you can’t rely upon that case. That’s what we were arguing about on Monday was whether we think that the Ake decision clearly established a right to an expert independent of the prosecution, that the person on trial has got a right to an expert that his lawyer can talk to, ask questions to, do evaluations, help prepare for taking on the state’s case, even testifying in behalf of the defense, and that that lawyer can’t be in both camps. It’s an adversary system, and if it’s going to be an adversary system, it means that that expert is either going to be an expert for the defense or an expert for the prosecution, but our positions can’t be both.


Lithwick: Let’s look at that language in Ake for a minute because I think we spent, you’re quite right, a whole hour trying to parse whether this language means an expert for the defense or someone neutral who dumps the file on counsel table. The language says after Ake that you have to be allowed to have an expert who can help you “conduct a professional examination, help determine whether that defense is viable to present testimony to assist in preparing the cross-examination of the state psychiatric witness.” Really, the question becomes, is that descriptor fulfilled by someone who more or less gives you a file, right? They got an independent report and I think that there was at least some feeling, at least the word that I kept hearing was ambiguous, that Justice Sam Alito and Anthony Kennedy and the chief justice said, “Oh, that’s a pretty open-ended test,” right?


Bright: Yes, that’s at least what they said, but I think the key thing that was at stake here is back in the old days the thought was, yes, you send the defendant off and there’s a psychiatrist in town and that psychiatrist does an examination and everybody goes along with whatever he or she says, but those days are long gone.

Today, as the Supreme Court acknowledged in its opinion in the Ake case in 1985, mental health issues are very hotly contested in all kinds of legal proceedings and certainly in one like this, and you’re going to have some doctors who are going to say, as happened here, “There’s really nothing wrong with this guy at all. He’s malingering.” Then you can have other doctors who are going to say, “This person is suffering from a major mental illness that really affects the way he processes information, the way he acts, the way he makes judgments and so forth.” In the court system, in the adversary system, the way you sort that out is to present all that evidence to a jury and the jury makes the decision. It may or may not be right, but the jury can’t possibly make a reliable decision if it doesn’t have any information from the defense, if it only has one version of facts before it.


Lithwick: Another intriguing moment was when the newest justice, Justice Neil Gorsuch, asked directly, I think in response to what you’re saying, “Look, where do you draw the line? If everyone is entitled to their own defense team mental health expert, aren’t they also entitled to every other kind of expert?” Let’s have a listen.

Justice Gorsuch: Where’s the stopping point? Is it just psychiatry? Would we also have to apply the same rule in other kinds of medicine, perhaps forensic science? Where is the stopping point that you would advocate for the court?
Bright: I wouldn’t advocate it because it’s not before the court in this case and what’s before—
Gorsuch: But it would be something we’d have—an implication we would clearly have to consider.
Bright: The thing that the court has to consider here is the unique nature of mental health and the fact that experts widely disagree on mental health—
Gorsuch: Experts widely disagree on everything, that’s why you hire them.
Bright: That may mean—
Gorsuch: And why they cost so very much.
Bright: Many courts, state courts, other courts have said and, of course, under the Criminal Justice Act and the federal courts that where there are other issues, there may be other experts. It’s a due process question.

Lithwick: Steve, is he wrong there? Is there something so fundamentally different about mental health expert witnesses that they differ from, say, forensic accountants, and are you asking for the defense team to be given every kind of expert under the sun, or is mental health different?


Bright: I thought that question was very unfortunate because it really put the . . .trying to limit this and limit the amount of money that would be involved ahead of the real question here, which is a fair trial. How do you get a fair trial? One of the bases for the Ake decision is the Supreme Court decided in 1985 was, they said, “Mental health is unique because there’s such a vast difference in the way different doctors see mental health issues and there’s wide disagreement and it’s very important and it often is outcome determinative in many cases.”

What unfortunately Judge Gorsuch apparently doesn’t know is that in most of the states today, anytime there’s a critical issue that’s going to decide the case that turns on expert testimony, there’s going to be an expert on both sides. Most states today, in his home state of Colorado, which has an excellent public defender system, I can assure you that if a case goes to trial where the prosecution’s case rests on the testimony of an expert witness, the defense is going to have an expert witness to contest that, because again, if we’re going to have an adversary system, if we’re going to have a system where both sides make their best case, you can’t have one side being totally armed for battle and the other side not having anything at all.


Lithwick: Steve, one of the things that a lot of folks said when we were getting ready to hear McWilliams is because this just doesn’t happen anymore, because you are in most instances going to get your expert, this doesn’t actually implicate a whole lot of people. It’s just this is an accident of history that McWilliams, this issue has been on the table for decades, but oddly enough in Arkansas, we just stayed two executions last week on the same issue. How many people does this in fact affect?


Bright: I was going to say nobody knows, I don’t think, how many cases it would impact, but the fact that there were two people set for execution in Arkansas on the same night, Don Davis and Bruce Ward, and that they were stayed because they had this very same issue in their case and so they were not executed and their cases were put on hold until the McWilliams case is decided. We at least know that those two people are affected, but there are going to be other people who did not get expert assistance and depending upon how this case comes out, it could mean that they would get a new trial.


Lithwick: Last question, Steve, one of the things that I heard you say time and again at argument where argument’s about just poverty, about what it is to be an indigent defendant and I think you said, “Look, if you’re wealthy and in Texas, you can just hire as many folks as you want.” How much is poverty the issue in this case? It seems like it’s under everything, but I think that your feeling was you really can’t have an adversarial system if one person is desperately poor and just doesn’t have the resources that the other side has, right? This does come down to poverty as well as mental health?


Bright: That’s absolutely right. It comes down to poverty. If you had the same mental health issue in a case with a person of means, somebody who can afford mental health experts, then they’ll have one or more mental health experts and they’ll try to hire the best people they can find to testify. The prosecution is certainly going to hire the best witness it can. Of course, the state hospital will have witnesses probably that the prosecution will use because those witnesses tend to be pro-prosecution. Of course, if you had civil cases where you had people suing about some issue that might have mental health in it, if the people had enough money, they would each have experts.

The only person left out in the cold is the poor person accused of a crime and the Supreme Court didn’t say, “We’re going to level the playing field. We’re going to give you an expert every bit as good as the prosecution’s expert or we’re going to give you more than one if you need it.” What the court says is very modest. They said, “We will give you one competent expert,” and the defendant doesn’t even get to choose who the expert is, so basically, the judge appoints the expert and the expert is hopefully competent, and then, that expert’s responsibility is to advise the defense lawyers about all aspects of mental health that are at play in the case.


Lithwick: Steve Bright has been working on death penalty litigation at the Southern Center for Human Rights since 1982. He’s stepping away from that to teach other brilliant young lawyers and he represented James McWilliams in McWilliams v. Dunn argued this week. Steve, thank you so much for joining us on the show.


Bright: Thank you so much for having me.

* * *


Lithwick: You may remember a conversation we had on this show back in December with Zephyr Teachout all about the formerly obscure suddenly fantastically interesting section of the Constitution known as the “emoluments clause.” At the time, she mentioned that she and other anticorruption experts were thinking through legal options for holding President Trump accountable to that clause.

Just a few weeks after that conversation, the Center for Responsibility and Ethics in Washington announced that it was filing a lawsuit alleging that Donald Trump’s continuing business interests put him in violation of the emoluments clause. At the time, some observers questioned whether this group, known somewhat menacingly by its initials “CREW,” had standing to even file such a suit, but last week, two new plaintiffs joined onto the suit leading some to believe that it may actually now have real legs in court.

Norman Eisen is a fellow at the Brookings Institution who served as Barack Obama’s ambassador to the Czech Republic and before that as Obama’s ethics czar. He is one of the founders of CREW and the board chair there and he joins me today to discuss the latest developments on the anticorruption front in Washington, D.C. Norm, welcome to Amicus.

Norman Eisen: Thank you, Dahlia and hello to all the Amicus listeners.


Lithwick: Norm, I just have to start with the question that I know you get asked all the time, but I have to ask it, which is that you and Richard Painter, he was George W. Bush’s ethics expert, you’re like the Rodgers and Hammerstein, the Simon & Garfunkel of ethics enforcement in America, right? You guys suddenly became rock stars. You have nothing in common, and suddenly, you’re the guys, the go-to guys on ethics. Can you please explain to me how two people who I would not have put on the same album are suddenly in lockstep on this issue?


Eisen: I’m definitely the Art Garfunkel of the duo, complete with my locks. I like to think that we get along a little better than Simon & Garfunkel did. Painter and I, I first knew him by his writings because when I arrived in the White House to take over as Obama’s ethics czar, you inherit the files, some of the files of your predecessors and there were some Painter memos and writings in there on some of the ethics issues and I really felt a kinship with him, Dahlia, because he took the same hard line approach that was to earn me so many unflattering nicknames for my White House tenure, “Mr. Know,” “the Fun Sponge.” I was shocked when I read that in the Washington Post that people were calling me the Fun Sponge.

One thing led to another. We ended up writing together. Then when I was asked to come back as the chair of the watchdog group I had founded, CREW, Citizens for Responsibility and Ethics in Washington, because I believe so much in trying to walk across the aisle and I think ethics should be nonpartisan, I said, “I’ll do it if Painter will co-lead it with me as vice-chair,” and he was willing. We developed that dimension to our relationship as well.


Lithwick: I want you to start by—this really is going to sound like I’m saying, “Norm, recite the Constitution standing on one foot,” and I don’t want to be unreasonable, but I want you to help listeners. We’ve talked about the foreign emoluments clause. That was really in play when we first started litigating in January, but now suddenly, there’s this domestic emoluments clause and it’s different, and now, it’s been grafted onto the other. Can you help our listeners understand there are two different parts of the Constitution and we’ve only been talking about the Foreign emoluments clause until suddenly, we’re talking about domestic? Help us understand what’s going on.


Eisen: Yes, I’m going to take your listeners back to the beginnings of the United States in the 18th century, and the anxieties of the framers of the Constitution and the founders of our country. One of their main anxieties was that because of the power that our republic invests in the president, that a president could be bought off to compromise the interests of the United States as a whole.

There were two different types of anxieties about how a president could be bought off by government that animated those heroes who gave us our country, including our system of checks and balances. One anxiety was expressed in the foreign emoluments clause and that was the anxiety that a foreign government would provide cash or other benefits to an American president and would cause the American president to compromise the interests of the United States. This was not a fantasy, because it was common practice in the 18th century for foreign sovereigns. The Bourbon throne paid off King Charles, for example, distorted British policy for decades that way, and American officials had been the targets of payments from foreign governments. So for a fledgling new country, this was not an abstract, an obscure, or a remote possibility. It was a terror of the founders and the framers, and that’s why they gave us the foreign emoluments clause of Article 1, which provides that no presents, cash, benefits, or as they referred to them, “emoluments of any kind whatever may be accepted by a president.” It’s very sweeping, a subject only to congressional consent, which of course we don’t have with Trump. Now that’s foreign cash and benefits.

There was another worry, and it may have been an even greater worry, Dahlia, than the foreign emoluments. Certainly, it was just as profound and that was that a president of the United States would be paid off by the federal government to benefit it at the expense of the states or paid off by one or more of the states to benefit them at the expense of the feds and the other states. Why were the founders and the framers so worried about that? Because as you know, and your listeners know, the United States was cobbled together, our federal system, by these individual state sovereigns who had a lot of sovereign authority and there was a big debate about the proper balance of power among the states and between the states and the federal government. It’s still a live issue today.

So to deal with that, in Article 2 of the Constitution, the founders and framers put in a rule that the president may not accept any other compensation from the federal government or any of the states apart from his salary, and that’s the domestic emoluments clause, and those are the two concerns and they are live concerns today. That’s why we’ve brought our amended complaint, which builds out the domestic emoluments issues in addition to the foreign emoluments one and there’s a bunch of other things including adding more plaintiffs.


Lithwick: Give us an example, because I think that we understood the snuffbox and the horse. We understand what the stakes are in the foreign emoluments clause and I think we’ve talked about it a lot in this country, but give us an example of a domestic emoluments violation that is now on the table.


Eisen: I’m tremendously concerned about the many discretionary grants, payments, other benefits, permits that Mr. Trump requires for his hotels. There’s a large amount of these benefits that he gets. Often, he’s notoriously litigious, he fights about them. These are flows of things of great value in any state where he has a property. How can we be sure that he’s not going to attempt to favor those properties and the states where those properties exist at the expense of the other states and the federal government?

And there’s so many of them. Just today, Reuters was out with a story. I was very pleased to be one of the experts that they talked to for the story about the ways that state pension funds are invested in Trump property. There’s a lot of these and that’s contrary to the Constitution and importantly, the founders didn’t set up any kind of an intent test. They didn’t want to get into the question of what was going on in the head of the president. They simply said, “No foreign government cash or other benefits or presents, none from the federal government besides your salary and none from the states,” and he’s violating it all over the country and all over the world. That’s why we’re litigating.


Lithwick: Let me ask you just a structural question for a minute, Norm.


Eisen: Sure.


Lithwick: You said right up front, this is meant to be Congress enforcing this and there’s a way in which, there’s such a limit to what a court can do, right? I think that there is this question you’re going to get, which is, is this even properly justiciable? Isn’t this a political question? Don’t we let the political branches handle this? That seems to be what the framers contemplated, but more pointedly, what can a court do? If folks just want to stay at a Trump hotel because they think they’re going curry favor with the president, there’s not much we can do about that, right?


Eisen: Certainly, the framers did not intend emoluments to be a political question because there’s no waiver provision for domestic emoluments. Congress doesn’t have the power to waive it. These types of issues of federal officials receiving improper payments were commonly litigated in the early-federal era. Nobody’s been bold enough since to try to do what Trump has done so it’s clear that it’s not a political question. We think it’s fully justiciable by the federal courts.

Then, as to the second part of the question, it’s actually pretty simple. The court has the power to tell as a co-equal branch of government in the system of checks and balances, which I’m so glad we have now when you see the rampant illegality in the White House, the court will simply say to Mr. Trump and he must listen, “No more emoluments. You must stop taking foreign presents, cash, and benefits, and domestic ones from the federal government and from the states or any agents or instrumentalities of those governments.” Then, it’s going to be up to Trump to say how he’s going to comply with that.

Lithwick: He’s going to say, “I already complied with it, Norm. Remember that big briefing we had with all the files and my lawyer telling you that I’m not even subject to these rules,” right? If it’s up to him to comply, he’s answered that, right?


Eisen: That’s the thing, it’s not going to be unilateral. Most likely what courts do in these cases is, the court will ask, “Do the parties have standing?” We think they do. “Is the Constitution being violated?” We think it is being violated. Then the court decides whether to order relief, and typically when relief is ordered, the court will say, “OK, guys, here’s my ruling. Now how are we going to implement the relief?” Both sides will put in an order and we’ll have back-and-forth with the lawyers for the other side and with the court about what the terms of it will be.”

I think the way that Mr. Trump will have to comply is simply to do what every president has done for the past 40 years, which is to divest their holdings into a blind trust or the equivalent so they don’t have business entanglements. Mr. Trump can do that very simply by signing a paper, a short power of attorney turning all of his ownership interests just as he did his management interests, although he’s backed off on that because now we know he’s talking to his son about management, but he can say, “I’m turning over my ownership interest to you, Mr. Trustee, independent professional, not a family member, with instructions to sell them as expeditiously as humanly possible.” What more can he do than that? That’s what other presidents have done in both parties. That’s what he should do.


Lithwick: This is, I guess, at least tangentially related to what you just said. I think one of the things that Trump has said over and over again is people don’t care. More pointedly, Norm, people don’t understand anymore the anticorruption stuff, and so we’re in this weird whack-a-mole world, right, where we’re talking, even I’m thinking of the piece you did in USA Today with Richard Painter this week, we’re talking about the GSA and the hotel and Ivanka and the Chinese trademarks and the Mar-a-Lago and the State Department. There is so much stuff going on that it is this galactic game of whack-a-mole and I think it’s not that people don’t care, but that they don’t know how to focus anymore.

Would you do us a courtesy of telling our listeners how you even triage when you think about all the stuff that you’ve described, how you even think about what matters, what doesn’t, what’s secondary, what’s tertiary? What do we focus on when we’re thinking about anticorruption principles and this administration?


Eisen: I do think the American people care about it. For example, somewhere between 75 and 80 percent in poll after poll say they want to see his taxes. Part of the reason for that is they want to understand the questions of these foreign payments. I would say in terms of prioritizing, and you have to prioritize, Dahlia, because Trump was brilliant at this. Paul Begala likes to say, “In the campaign, Trump lay on a bed of nails. He had so many different problems, but his weight was equally distributed like a swami who can lie on a bed of nails, whereas Hillary, there was one stake, which was the email controversy.”

There’s this problem of the plethora, every day brings a new flood of ethics violations, violations of regulations, and law, and the Constitution. Here’s how I think your listeners should focus: The top, and it’s what I do, we do need to stay focused on Mr. Trump because he’s at the top of the pyramid, and we need to focus on the violations that have the most, represent the most danger to our country. The single most worrying one is, how is it possible that in the midst of an investigation of Russia’s attack—there’s no doubt that Russia attacked our democracy with intent to benefit Mr. Trump and did benefit Mr. Trump in the election—in the midst of an investigation of that, where we’ve seen so many Trump associates who have lied or engaged in other misconduct relating to Russia, some of whom have been fired like Mr. Flynn, who’ve had to recuse like Mr. Sessions, who are under investigation like Mr. Nunez, let’s stay focused on Donald Trump and on the key question: Did he have financial motivations that are hidden in his taxes to favor Russia? Does that explain his and his associates’ bizarre behavior? His son said before Trump ran for office, his son said they see a lot of Russian money flowing in to their businesses and that Russians are a very important cross-section of their assets. That’s the most important question about foreign government cash that we have.

China—China denied Mr. Trump, to take just one example, they denied him a trademark for years of fighting. He lost over and over again. He’s going to become president. He says, “I am going to reexamine the one China policy.” He reaches out to Taiwan. He gets his trademark that they’ve denied him and he flip-flops on China. How can we trust him if he’s going to cave that easily, perhaps in response to that one illegal trademark. It’s against the Constitution to give a present like that. There can be no doubt it was a present. They denied it to him for years. If he’s going to flip-flop that easily, how can we trust him to fight for the American jobs that have been hemorrhaging out to China and the many other countries where he does business around the world?

I think you need to go through it one issue—it’s hard to do it one issue at a time because it’s not just Trump. It’s Ivanka and Jared, it’s the other members of the White House staff. My organization CREW has filed complaints asking whether Mr. Liddell, an assistant to the president engaged in criminal conduct by benefiting businesses he was invested in, whether Mr. Bannon is having improper contacts with the place where he used to work, whether Kellyanne Conway was using the White House to sell Ivanka’s products. It’s hard to focus. You’ve got to keep a broad focus, but above all, follow the Russian and Chinese money as it relates to Donald Trump. That’s the most important.


Lithwick: Norm, I have to ask you one last question before I let you go and I know you think I only ask you this question because your name is Norm, but here’s the question. This is about norms, ultimately, right? I know, there, ba-dum ching. All of this is not necessarily about hard-and-fast bright-line laws, right? This is about Jimmy Carter divested, presidents divest. This is about rules of the road that are not necessarily things that are enforceable, right? Isn’t that why, I’m thinking also he’s already going after a judge on the sanctuary cities order. Presidents don’t do the things he does.


Eisen: Yeah.


Lithwick: Again, I think that that violation of norms is not only hard to enforce in a court, but I think a lot of people don’t care. I think they like the fact that he violates norms.


Eisen: First of all, I have to tell you that Norm Ornstein and I have taken to calling ourselves “the Ethical Norms.” I think we have been, along with many others leading the outcry against the violation of these values, these American values, really, that are instantiated in the norms, but it’s not just about the norm violation because what happens is you start out to say some non-normative nasty things about Muslims or migrants, but then you back into a constitutional violation where courts are not slapping him on his wrist because he said something bad. They’re slapping him on his wrist on the ban because he said something bad that revealed an intent that was improper for official action and so violated the Constitution.

It’s the same with this, the norms of public services versus greed, that the president and his family are violating by hanging on to their businesses, pretty nakedly exploiting, in the president’s case, his public office for his own private gain. He spent a third of the days of the presidency visiting his businesses. Exactly the same as with the Muslim ban, though, he’s backed into a set of violations on accepting presents, cash, other benefits from foreign governments, the federal government and the state governments, and that is not a soft violation. That is a hard violation of a core, the most core document in our rule of law system, the Constitution, and we’re going to be holding him to account for it in a court of law.


Lithwick: Norm Eisen is a fellow at the Brookings Institution. He served as Barack Obama’s ambassador to the Czech Republic and before that, as Obama’s ethics czar. He’s one of the founders of CREW and I think the only guest on the show to ever make me look really mellow in comparison. Norm Eisen, thank you for joining us.


Eisen: Thanks, Dahlia.