>> Troy Senik: John's gotta cut the video so we don't have to look at that shirt. >> John Yoo: You guys. You guys want one? I think they're not made anymore. I'm not giving you. I'm not getting you the metal hook arms, just the shirt. [MUSIC] >> Troy Senik: Welcome back to the Law Talk podcast from the Hoover Institution. Coming to you, as we always do, from the faculty lounge of the Epstein and Yoo School of Law, an institution that is not only not woke, but in fact, barely awake.
I'm your host, Troy Senik, former White House speechwriter, co-founder of Kite and Key Media. And if we're being honest, I'm also Banksy. And I'm joined, as always, by the Zack and Screech of the conservative legal movement. They are Richard Epstein, the Peter and Kirsten Bedford senior fellow at the Hoover Institution, the Laurence A Tisch professor of law at NYU and senior lecturer at the University of Chicago.
And John Yoo, visiting fellow at the Hoover Institution, the Emmanuel S Heller, Professor of Law at the University of California-Berkeley, and former deputy assistant attorney general in the Bush administration. Gentlemen, good to be back with you. I had a topic that I was planning on introducing up top. I feel like I need to table that for a moment so that we can discuss what the hell John is wearing. I have never wanted this to be a video program.
John, what you describe for us, and then I'm going to have Richard audit your description. What it is that you have chosen to wear to this taping. >> John Yoo: Troy, I'm filing a complaint against you for lookism under the University of California's secret anonymous reporting rules for hate speech. [LAUGH] Look, all I'm wearing is a piece of clothing has stood me in good stead since my college days. I don't understand why- >> Troy Senik: That should be your first warning sign.
>> John Yoo: The big hubbub amongst you. It's a red and navy blue striped turtleneck with the stripes going horizontal. And they're very nice. I still remember I bought it at the LLB clearance section in Maine when I just decided to drive up north for. I can't even remember why. And I don't understand. Look, I'm not trying to be in fashion, but I don't understand when this ever went out of fashion. This is timeless.
>> Troy Senik: You don't understand when this went out of fashion, 1767, off the coast of Florida? >> Richard Epstein: No, it didn't go out of fashion then. What John is trying to do is to project a psychedelic image of somebody who is superior to and above everybody else in the world by bearing this shirt, which sort of slithers around him every time he starts to move.
And the contrast between him and the beat up old shirt that I'm wearing with a frayed collar and the not so nice little jacket I'm wearing on top of it shows that John has basically become a social client. He is trying to win all the debates between the two of us by appearance, whereas I am trying to win them by a form of sober reality. >> John Yoo: The fact that you're spending the first five minutes talking the podcast shows that I was successful.
>> Richard Epstein: No, you'd managed to distract- >> John Yoo: Cuz we're talking about me [LAUGH] me, me, me. >> Richard Epstein: No, John, it's a kind of a style about you. Sometimes you don't sink to these sorts of levels of trying to one up everybody, wear a psychedelic shirt. But I'm gonna pass it by now. I'm gonna shut my eyes, and every time I think I'm gonna look at you, I will stare at the ceiling instead.
>> Troy Senik: Yeah. I mean, the fact that we're dedicating the first five minutes to it is because you look like an understudy in the pirates of Penzance. >> John Yoo: I am gonna send you both these shirts if I can find any place that still makes them. >> Troy Senik: I'm not kidding. I will move so as not to receive it. I do have a topic for you guys up front because it just occurred to me that we've. I don't think we've ever talked about it. This is our immediate post-president's day show.
Although, as I've mentioned on the program before, president's day is a lie. The actual holiday is just Washington's birthday. Nobody is compelling you to celebrate the life and times of Millard Fillmore. But I start you off with this question just in brief. Most overrated and most underrated president. John, take it first.
>> John Yoo: So first, can I say on President's day, the first day afterwards in class, I actually bring a book to give away to any student who can list the presidents in order from memory while standing in front of the class. And I have to confess, no one could do it this year. They tried, and I was so hoping that they were gonna skip Grover Cleveland cuz no one can remember him. >> Richard Epstein: No, he's got two terms. >> John Yoo: He's on there twice.
>> Richard Epstein: He's on there twice and Benjamin Harrison is between him. >> John Yoo: So can I say that the student, he came close, he forgot. This is the one, this is- >> Troy Senik: Where did he flounder? >> John Yoo: He forgot Chester Arthur, 18. It's hard to blame the kid for not remembering Chester Arthur. He got all the other ones right, but he forgot Chester Arthur. >> Richard Epstein: Was that right after Garfield? >> Troy Senik: Yes, between Garfield and the first Cleveland, yeah.
You normally have a winner, John? Pretty much every- >> John Yoo: In past years, I've had winners. And so when there have been two people who've been able to do it, then as a tiebreaker, I asked them to do it backwards. And they usually can. >> Troy Senik: Well, you are cool. >> John Yoo: But then the winner, the one that no one gets. This is how sad it is. But maybe also true is I actually wonder if Richard could do this. I asked them to name the chief justices in order.
>> Richard Epstein: I can name most of them. >> John Yoo: You can name most, but you always gonna forget one or two. >> Richard Epstein: Well, I'm always gonna forget John Jay to start it off with, right? >> John Yoo: [LAUGH] >> Richard Epstein: And I'm trying to remember, was there anybody between him and John Marshall? >> Troy Senik: Yeah. >> John Yoo: [CROSSTALK] Ellsworth. >> Richard Epstein: There was, I think, Oliver Ellsworth. Yeah, Ellsworth court, I believe.
And then there was what you may call it. There was a guy named Marshall. He died in office. And then it was Roger Taney, and at which point, after which it was Salmon Chase. Is that correct? >> John Yoo: Yes, Chase, secretary of Treasury. >> Richard Epstein: 1860, whatever it is, forward to 1873. >> John Yoo: This is ridiculous programming.
>> Richard Epstein: And then I know who the next one is, but his name currently slips my mind, so I'm not- >> Troy Senik: Wait, wait, that means you don't get the free book. >> John Yoo: Yeah, I don't think- >> Richard Epstein: I don't want the free book. >> John Yoo: Right in second place, you get the striped- >> Richard Epstein: This shirt, I get the- >> Troy Senik: That's last place. Okay, wait a minute, I have a couple of questions here. I have to dig us out of this hole.
So the actual sort of lawyerly question here, John, is what happens if they give you all of the names correctly, but only say Cleveland once because they have named all the presidents? >> John Yoo: Yeah, no, but it's an order, so I don't consider- >> Troy Senik: So you have to get Cleveland twice, okay. >> John Yoo: Yeah. >> Troy Senik: Then we go back to my original prompt, which is most overrated and most underrated. >> Richard Epstein: I can answer that.
>> John Yoo: Yeah, so I actually think one of the most overrated presidents is John F Kennedy. I find his. >> Troy Senik: I completely agree with this. >> John Yoo: Yeah. I just find him. I find his reputation, particularly in the public mind, so out of whack with what we know about him now that he was reckless, that he was not. I don't think he was a very good president, but you know what he did that was brilliant?
He brought all these intellectuals around him who wrote books about him [LAUGH] and who went out into the world of media and movies and TV and created this myth, the Camelot myth. It is a myth, and I think it was a myth. With him as well. >> Troy Senik: Well, this will kind of. Kennedy will probably find his level when the baby boomers die off. Right? Because part of it is the romance of the attachment at the time. >> John Yoo: Can I also.
>> Richard Epstein: I'm the only one in this room who actually remembers that, right? >> John Yoo: I think you were the only one who's alive. >> Troy Senik: [LAUGH] >> Richard Epstein: I was about to go to my little class with professor sociology, and then a kid named Ken Motapearl came to me, said, there's a rumor that the president's been shot. It's interesting how slow it took for the information to spread on that day, once it came through, it was totally cataclysmic in terms of it.
Nobody, regardless of their political sentiments or belief, did this. The thing that made Kennedy a great president, of course, was his youth and apparent vigor, had nothing to do with his policies. There's a great piece by Henry Fairley in the New York Times, I think, in the beginning of 1963, in which he talks about 20-odd episodes that Kennedy managed to create in international affairs that did not enjoy the attention that he gave him.
And this was the guy of Vienna, this was the guy of the Bay of Pigs and so forth, who did regime himself, it seemed to me, in October of 1962, when he had Adlai Stevenson face down the Russians at the UN. But he lived life very dangerously, I think that's right, but he's not the worst president by far. >> Troy Senik: I didn't say worst, most overrated and most underrated. >> Richard Epstein: Overrated, I would say it's Woodrow Wilson who's- >> John Yoo: That's a good pick, too.
>> Richard Epstein: He scores higher on the list than Kennedy, who doesn't make it into the top ten. I think Wilson is sort of just behind or just ahead of, depending on which poll you start to look at, Eisenhower and Truman, who remarkably are related quite closely to one another, and I think quite fairly. But Wilson was a genuinely catastrophic president, on domestic affairs, every piece of information that he wanted to introduce was probably a bad thing.
And in international affairs, the way in which he handled the situation towards the end of his life with Versailles and everything else after World War I and the treaty and so forth, he was the guy who was president remember, when had all the Palmer raids and so forth. He just did one terrible thing after another, people say he also resegregated the civil service. At the time, that was regarded as a minor event that was obviously in the long term, much more important.
But it certainly wasn't at the top of the things that he did that were wrong. And I still remember the famous passages that Winston Churchill wrote about World War I in his lofty history of the subject. Where he said, if only Wilson had agreed to end after the Lusitania had been struck, the number of lives that could have been saved would have been in the tens or hundreds of thousands and so forth. So, I think he's at the top of my list.
>> John Yoo: So, I got on the underrated, this is a hard one, so you usually wanna go with the one-termer because if you got two-term president, they're generally not totally underrated. I was thinking between Martin Van Buren, who I think was much more influential and consequential than people give him credit for, he's the one who basically created our modern party systems. Or here is my- >> Troy Senik: I know what you're gonna say. >> John Yoo: Herbert Hoover.
>> Troy Senik: Not at all what I was gonna say. >> John Yoo: Cuz I actually think Hoover was not as bad in response to the Great Depression as people think. And then look what FDR did, I think what FDR did in response to depression was much worse in the long term for the country. >> Troy Senik: I was really surprised, I thought you of all people- >> Richard Epstein: No, the man who is most underrated.
>> John Yoo: No, but Polk is not underrated cuz he's like, if you look at the top ten list of presidents, he's actually top ten presidents. So, I'm thinking about Polk, but actually- >> Richard Epstein: No, I think the president who is rated as generally starting out to be the worst president ever is- >> John Yoo: Johnson. >> Richard Epstein: No, no, no, it's Warren Harding. >> John Yoo: Johnson and Buchanan.
>> Richard Epstein: No, Warren Harding is generally thought to be the worst president ever. And what is ironic about him is he actually had the strongest cabinet I think, that you could ever imagine. He becomes president, he wins pretty much by a landslide. You might even recall that Herbert Hoover was odds-on favored to become a nominee of either of both parties given the heroic service that he did in World War II.
But, I mean, when people start talking about Harding, all they could bring themselves to bear is Alfred Fall and the various scandals that took place on the teapot dome. But this is a man who appointed Charles Evans Hughes as the Secretary of State, Andrew Carnegie as the Secretary of the Treasury, and a very vital and dynamic Herbert Hoover as a Secretary of Commerce. He managed to negotiate various kinds of international treaties to limit the amount of warships and all the rest of that stuff.
It was a pretty consequential presidency, there was a very serious recession when he started in office, and he actually used very high interest rates and managed to choke that thing off. He was not particularly dynamic, he did die of a stroke very early on. And then he was replaced by another president, Hoover, who is generally, I think, underrated, but not previously so, Coolidge rather.
So, I would say it would probably be Harding that is, if you ask me, lemme give you the sort of the one little instance which explains why Wes Harding was a better president than Wilson. Remember the Palmer raised one of the people whom Wilson had had arrested through his attorney general was Eugene D Debs, do you recall that? >> Troy Senik: Yeah. >> Richard Epstein: He was thrown in jail for the speeches he made at the presidential convention of his own party.
Who was the person responsible for his release? It was Harry Daugherty, who was the attorney general of Warren G Harding. And so, I think what's really going on is if you were to afford to take the political coloration of people who are doing these presidential histories, probably 80% to 90% of them are Democrats. It seems to me, people like Arthur Schlesinger, who I always thought was intellectually hopeless on all of these issues.
And so, what they do is they tend to push the Democrats up a little bit beyond where they ought to be, and not the Republicans down a little bit beyond where they'd be there. Certain republican presidents who are kind of ecumenical, I think it's fair to say that Eisenhower is that way, and I think he's probably a top ten president. And my guess is he will remain a top ten president, and the same thing will be true of Truman, you mentioned Roosevelt, Roosevelt is two presidents.
He was a disaster as a domestic president, just about everything that he touched. But in international affairs, after say, 1940, when the European threat and the Asian threat became there, he was an extremely effective president. >> Troy Senik: He might have saved the world, so I give him credit for that.
>> Richard Epstein: So, the question I'm asking myself, if a guy could form a grand alliance to stop Hitler and Japan, I rate that higher than his inability to figure out how to organize agricultural markets, which is what he screwed up on domestically. So, I rate him quite highly as a president. >> Troy Senik: I do, too. >> Richard Epstein: Because I think on that stuff, he was there.
The great achievement of Roosevelt, [COUGH] this is something which I don't think is fully appreciated, is he had an unerring eye to appointing the right people to the right positions in time. And it was not just people like Eisenhower and George Marshall, how many people know of Vannevar Bush? >> John Yoo: The science guy, the scientist? >> Richard Epstein: But he was the guy who organized the war effort.
>> John Yoo: Yeah. >> Richard Epstein: And getting all these scientific task force together. So, he put together the stuff in Los Alamos with Oppenheim, and then he did the same thing with the radiation laboratory that took place in Boston and so forth with radar. The most important battle in World War II, I think it's clear from the American side, and maybe even including Stalingrad, was the battle of the North Atlantic that started in December of 1941.
And only reached its successful resolution in March or April of 1943, when the radiation lab under this guy, Alfred Loomis, was able to put together enough information. So, there was no place in the North Atlantic that the U boats could service in order to refuel. >> John Yoo: Richard, can I interrupt? I have to correct something I said which will leave you, I think, speechless and amazed. The second.
So when I was going through the chief justice list, there was actually someone else in between Jay Ellsworth and Marshall that we never would have thought of because he was a recess appointment. John Rutledge was the second chief justice. Isn't there, really, I don't know if he actually presided over any cases. >> Troy Senik: Wow. >> John Yoo: But I think, officially, he was the second [CROSSTALK]. Isn't that a nice piece of trivia?
>> Richard Epstein: John, you have such a great sense of perspective. You managed to talk about Rutledge saving nothing on the Supreme Court, when we're talking about how Roosevelt and Churchill and so forth managed to save Western civilization and so forth. But the point I wanted to finish about Roosevelt, he just knew whom to appoint to the key position in these things, and it was at every level.
So all the Titans, Henry J Kaiser and the daily ships and stuff like that, who knows where he got these people from? But what he did is he was able to run an efficient machine by pointing able people to run all his major agencies, and then his able people, in turn, would point able people behind them. And so that the United States was just an incredible, the word was arsenal of democracy.
There's a nice book about the air force in the Navy by Paul Kennedy, and what you start seeing happening in american production starting in 1942 by the time it's 1944, the problem that we have is we're producing too many goods of high quality that we can't even put them all into use at the same time. We may close to 100,000 planes in one year, along with everything else.
I mean, it was an amazing achievement of logistics and command all the way up and down the line, and I think Roosevelt has to be given credit for. >> John Yoo: It's a funny thing, so if you read the histories of the New Deal, FDR's problem was that he actually could not abide by formal systems. There was actually no chief of staff in his White House because he liked to have all these aides informally coming in, coming out, some in charge of this, some in charge of that.
He's the kind of guy who would put two people in charge of the same thing and not tell either of them so that he could see what would happen. And I think, actually that informality and flexibility worked to his advantage when it came to organizing the war effort, because then he just basically had the head of GM and the head of the shipyards out here, and he just asked them to organize the war effort. Yeah, but he picked the right guy.
Yeah, but he was a very -- I mean, this is what I would thought you wouldn't have liked. Richard was. A lot of these people were kind of. No, sort of the old white shoe, blue blood people he went to college with or he knew from New York City. It wasn't sort of meritocratic in any way, I don't think. I think it was more, these are the important people he knew. >> Richard Epstein: Well, I do think, in fact, he was an aristocrat, and that certainly had a heavy influence in what went on.
He did make one, at least, very serious major mistake in World War II, which was his very reluctance to get involved in the Jewish rescue efforts and the stopping of the concentration camps. In the end, he did agree to the appointment of the war Refugee board, which did an enormous amount of good with an extremely small budget. But if you go. >> John Yoo: He also should have nuked Moscow, but that's another thing. >> Richard Epstein: That's another story, by the way.
I mean, it's interesting enough, one of the basic -- >> John Yoo: We're coming back to that now. >> Richard Epstein: No, I mean, one of the interesting debates at the time was, could you bomb Auschwitz or should you? And it was actually a very, very close debate because, amongst other things, it wasn't at all clear until the early 1944 whether you even had the range to be able to hit that target and return safely to bay. But I think that's the area in which, if anything, he did that.
And there was always a kind of, how do we say, a polite form of antisemitism. Not so much in Roosevelt, although he probably had a little bit, but in people like some Noelles and so forth who worked around him, who did everything. I mean, there was a book written, I'm trying to remember the man who wrote it called the abandonment of the Jews. And this fellow came and what he did, he was not Jewish himself, he came and gave a lecture in 1988 about all this.
And what he did is he picked up the form that you had to fill out in order to become a refugee from Romania into the United States. What he did is, he took the top of the form and held it above his head. All the pages came clattering down and it was quite clear that the whole form in question was probably 10 to 12ft long, filled up with irrelevant stuff.
The jewish committees, in fact, were willing to pay to bring all the refugees out of the country, and what they did is they managed, somehow or other, to slow all this kind of effort down. He was in part responsible for that, the British Foreign Office was in part responsible for that because they were still worried about the complications that would take place in Palestine after the war. So I think that's the point on which I'm most troubled about, the way in which I think Roosevelt behaved.
But on the military stuff, I think he did an amazingly good job under very difficult circumstances. And people like Eisenhower, it's very easy to underrate a guy because he doesn't talk in big sentences and so forth. And my favorite line from Eisenhower, I think, describes him, he defined an intellectual that he's talking about, you and me, John. You know what he defined us as? People take more words to say less than we know. >> John Yoo: Speak for yourself.
>> Troy Senik: On that point, gentlemen, I will just remind you that the question I asked you to respond to briefly, we are 22 minutes into our current event show, and the most recent date we've gotten to is November 22, 1963. So I am going to nudge you into the current events portion of the proceedings. And I will start by saying that most episodes of the show, I can tell pretty well in advance, like what topic we're going to start with. This one I did not see coming.
So there is this special grand jury in Fulton county, Georgia, this is Atlanta, that has, for the people who really want to see Donald Trump take a spill, been, I think the investigation they placed the most hope in. This is looking into whether there was criminal interference in the Georgia election in 2020. The Trump campaign was trying to find the margin of victory somewhere. This grand jury sat for eight months, just completed their work in January.
Most of the jury report is still sealed and is expected to stay that way until the DAs office makes decisions bringing charges. And yet the foreman of this grand jury, who is a young and let's say, exuberant woman by the name of Emily Coors, has essentially been doing a media tour this week. She's been on CNN. She talked to the Atlanta Journal & Constitution, she talked to NBC, she talked to the Washington Post, the Associated Press.
And she is clearly delighted to tease the public with the fact that she's got information that they don't. She's been hinting about evidence, talking about them, hearing Trump's phone calls. She's hinting that they recommended perjury charges. She's sort of suggesting by innuendo that they recommended indictment for Trump. And it sounds like a lot of other people always sort of dancing right up against the line of giving away everything that happened here.
And, John, there's a lot of speculation in the media right now about what the implications of this are, particularly the idea that it makes things much harder for the Fulton County DA to have the foreman of the jury out there. Blabbing to the press. You've already had people on the Trump team say this is emblematic of a flawed process. But does this have any real world implications? Does this complicate any case that might be brought against Trump or any of his associates?
>> John Yoo: It's interesting. I think it complicates it, but I don't think it really undermines any prosecutions. First off, the DA here, Fannie Willis for Fulton County, Georgia, has to go to another grand jury to actually get. Get indictments of anyone. So this grand jury, I mean, each state can organize grand juries the way they like.
This grand jury, to me, is almost more like what we call special grand jury in some states that you can convene just to investigate things that have gone wrong. But it's not a criminal indictment jury. A grand jury that sits there to issue criminal indictments. That's why the jury investigated the overall election, also investigated whether there had been fraud in the 2020 election, putting aside any particular individuals.
And I think one important finding, apparently, that this grand jury made was that they found no cases of fraud in the Georgia vote in 2020. So that's the first thing. This is not a criminal grand jury. The DA still has to go to that. So some of these arguments that are being made would come up at that point, but not this broader one. So, for example, you could have a special grand jury just for are the roads bad in our county?
Who's at fault for making the road, not keeping up, filling all the potholes? So that's one thing to keep in mind. The second thing is to the extent Trump or anyone else who's indicted by the DA in the end could raise some issue, I mean, they'd have to try to use her statements to show some kind of ultimate violation of their due process rights by the unfairness of the grand jury itself.
And despite the fact that this DA seems to be like a high school kid on their spring break, I mean, she literally, I think she said that she was like, what? Eating an ice cream cone while she was administering an oath to one of the witnesses? >> Troy Senik: I believe it was a Teenage Mutant Ninja Turtles themed popsicle. I'm not joking. That's what's in the report. >> John Yoo: Really? I was like I didn't even know the Mutant Ninja Turtles were still around.
I mean, is that like, what's the other hand she was using- Can you name them, John? Did she have a Flintstones cereal box on her other hand? Anyway, so that, I mean, she just seems frivolous. I don't think anything she has said really goes to proving a claim that the grand jury process itself was fundamentally unfair in a constitutional sense. Grand juries are not really supposed to be all that fair, because what happens is that the DA brings in witnesses.
They don't get to bring their lawyers the defense or the witnesses. There's no defense yet, so the witnesses don't provide, say, the story that Trump might want to use in his own defense. So it is already a one sided affair. And so I think it's really difficult. I'm not really, I've not really read any cases, in fact, where the Supreme Court, for example, threw out an indictment because the grand jury was just so utterly one sided and unfair that it amounted to a due process violation.
I don't see that here with the things she's been saying. >> Richard Epstein: Look, this is an area which I think is pretty far from my own area of expertise. The clear argument that somebody would try to make is that she's creating a climate of opinion which would make it impossible for him to have a fair trial. The difficulty, of course, is he's making these statements now. They're teases rather than specific statements.
There's a long time that's going to pass between this and any serious grand jury which has a criminal indictment, which will be sworn to secrecy, which might well negate everything that's going to start to take place here. It seems to me that the serious problems that are going to be associated with the Trump grand jury is whether or not the man is just incredibly impolitic on the one hand, or whether it turns out that he was trying to suborn an election outcome, on the other.
So take the most famous statement, you've got to find me 10,000 or 11,000 votes. This could be meant to say, manufacture them, whether they're or not. Or it could say, for God's sake, go back through all the votes and see whether or not there's some ballots which were left uncounted because of some manifest irregularity that took place in Atlanta. It's very difficult from the outside to figure out which of these two interpretations is better.
And so one of the things that you come up with all the time when you're dealing with Donald Trump, if, in fact, you believe that he is a beacon of light and intelligence, every time he makes a statement like this, what he's doing is he's exposing the hypocrisy and the double handedness of everybody who's an established officer. If, on the other hand, you're anti Trump, what he's doing is he's subverting the very roots of american democracy.
And what he does is he makes it impossible for somebody to take a measured and intermediate position. And so what you can look forward to, I think, is if there is going to be an indictment, there's going to be essentially a second narrative taking out there.
In which what Trump will do is try to organize his forces to indicate that all the terrible things that happened in Atlanta are in fact, the sort of thing that require some genuine public release and that this is just a giant conspiracy on the part of established officials who don't want to admit that things went very bad, bad on their watch. I have no idea of how anything like that is going to come out.
My own view about this is I am not in favor of indicting former presidents, particularly those who are contemplating running for office again. I would rather these things be sorted out politically rather than through the destruction of what will be a very difficult and awkward trial that's going to take place. I feel that generally, I mean, I've been strongly against Trump as a president because of his personality from the day he took office. But I think these are political objections.
I don't think they're the basis of criminal charges. >> Troy Senik: Let me ask you guys this. Trump has a bunch of legal headaches right now. You've got the Manhattan DA having just seated a new grand jury looking into the hush money allegations, the payments to Stormy Daniels. You've got this case in Georgia. You've got the special counsel inquiries from the DOJ, which cover both the election meddling charges and the issues with classified documents.
And then this is all in addition to the things that don't necessarily bear on him as a candidate, like the defamation case about the rape allegations and the conviction last month for the Trump Organization on tax fraud and other things. If you are on Donald Trump's team, which of these makes you the most nervous? I mean, where do you think they have the highest probability of actually snaring him? John, I'll start with you. >> Richard Epstein: Please do.
>> John Yoo: There's so many things to pick from. Well, of course, from a criminal perspective, I think the grand jury in Georgia is a big problem for Trump. Because apparently one thing that the forewoman said is that the tape of the phone call between Trump and Brad Raffensperger, I believe, was the name, the Secretary of sSate, where he said, just find me 110,000 votes. I'm not sure whether that would be a crime.
I mean, I think that would be interesting to see whether that amounted to some kind of coercion. I'm not sure it does. But apparently she said there were a lot of other phone calls that Trump made to people in Georgia that were taped and that they listened to a lot of these. So who knows what else they've got him on? If that's true, that I think is the most serious one because he could be accused of corruption.
Now, the other ones that are, I think he may well end up pleading out or there's some kind of deal, I think even if he gets caught, I don't think they're that. That's serious would be the investigations that are going on up in New York City about Trump's sort of pre-presidential life that accused him of, for example, inflating the value of his properties in order to get better loan terms, or understating at the same time the value of his properties to reduce his taxes.
I mean, I think those are, to me, ticky tacky kind of things that actually have nothing to do with the presidency. It seems to me, in the New York real estate world, this might be a much more widespread practice than the DA up there is taking into account. And in the end, I don't think he would do any serious jail time for that. He'd probably just plead out to some kind of fine, unless the DA really wants to try to go all the way. And then I think he's got good, interesting defenses.
So I really do think it's the investigation of the DA. Now, the one that I think everyone's focused on is the January 6 investigation with the special counsel, Jack Smith. I think so far, I have not seen enough proof to link Trump to anything directly links him to anything criminal. So I don't think that's actually going to come off. So if I was on his legal team, I would not take that one as seriously as the Georgia prosecution, I'm sorry, investigation.
>> Richard Epstein: Yeah, I mean, let me sort of give my general sort of estimation of this. I think that John is right about the financial stuff. One of the things that's important to understand is he may have engaged in inconsistent systems evaluation for different purposes, but there is nothing more common when you're dealing with complicated commercial and real estate transactions.
That property has value of one level for tax purposes and another value with respect to securities purposes and so forth. So it's going to take a lot more than showing inconsistent valuation to make this work. The lesson I would take from this is we now have seen Trump's tax returns and everything seemed to be just absolutely tempting that, God, they were gonna find everything.
By the time these things are resealed what you do is you see this incredible set of interlocking tax returns, and the whole issue just dropped like a stone, because it turned out you could not find any obvious systematic deviation from the very occult and arcane rules that govern these kinds of transactions.
So what you do is you start thinking to yourself, why on earth did Mr Trump decide to keep them secret to begin with, when he knew that this was exactly the way in which these things were gonna play out? So I don't know. My view is that the New York thing won't go anywhere. I have looked, as everybody else, at what's existing on January 6, and there's nothing here. I think that wasn't perfectly apparent at first view. Trump was far away.
He was saying, we've got to go over there and tell them to defend our rights, to make that into a criminal charge, when there were other people who were actually trying to force people into the building and trying to whip them up closer to the scene. I think it's gonna be very, very difficult to make that into a serious criminal case. Given the fact that the First Amendment privilege to petition the governor for redress of grievances is certainly very, very much on the table.
I think that it's gonna be very difficult to take everything that's said by the January 6th committee at face value. There have already been extensive refutations that is published in other kinds of circumstances, and frankly, I do not see that as the basis of a criminal charge. I didn't even see it as the basis of an impeachable offense. I think what happens is Donald Trump engages in activities which are boorish, silly, insensitive, self-justifying, self-pitying and all the rest of it.
But that kind of stupidity doesn't get you to the level of a criminal charge. So I think he's going to probably escape that one. So by process of elimination, it looks as though the Georgia thing is going to be the most apparent.
But I would caution this, which is we've yet to see anything that's been raised by way of defense by anybody on the other side, including the chaotic conditions that seem to have existed in Atlanta on the evening in which the ballots were suspended and counted and recounted and so forth. I have no opinion on these kinds of things. I like to say all the time, I'm a professor of law, I'm not a professor of facts, but my own instincts are in total hear the other side on this sort of stuff.
You have to be a little bit cautious before you say that the things are as apparent as they are. I think, in an odd sense, the fact that the people who hate Trump, hate him so much is something which in a criminal trial will actually undermine their credibility going forward. >> Troy Senik: I do want to drill down for a second just one aspect of the DOJ investigation where Mike Pence has become the center of attention of late.
So Pence has been subpoenaed by the special counsel to appear before the grand jury that's investigating Trump. And Pence is in an interesting position because he's walking this tightrope where it seems pretty clear that he's getting ready to run for president and challenge Trump. But he's been very careful about how and to what degree he's separating himself from Trump.
So the reporting is that Pence is going to try to resist this subpoena on the grounds this is a separation of powers issue, that the vice president, in his capacity as president of the Senate, is subject to the constitutional protections of the speech and debate clause. So, John, can you explain Pence's interpretation of this and sort of give us a refresher on what this means in the Constitution, and then give us your diagnosis, what you make of this argument?
>> John Yoo: Sure, speech and debate clause is in Article I. And it says, it's very brief, says the senators and representatives, for any speech or debate in either house, they shall not be questioned in any other place. And so one issue here, the upfront textual issue is, is Mike Pence a senator or a representative within the scope of the text? He is serving as the president of the Senate. He's also the vice president, so he's a very unique, unusual individual.
In fact, this is what gave many of the strangely, I think, critics of the Constitution pause, was, how can you have this official who serves in both branches? They actually have these weirdly conspiratorial fears that the vice president would seize power because of all these different roles. They also point out the vice president also has a judicial role in that he presides over impeachment trials in certain cases. So one question then, textually is, does Mike Pence fall within that phrase?
Now, the Supreme Court has interpreted to extend, I believe, to the staff. So there are arguments, for example, does the parliamentarian fall within the speech? So that's one argue you could say, is well, senators and representatives means the people who work in Congress. And so when Mike Pence was making decisions about whether and how to count the electoral votes that were coming in in 2021, does he, as head of the Senate, get the benefit of this speech and debate clause?
So the second issue, though, is we commonly analogize these kinds of privileges and immunities to the kind that apply to attorneys and their clients. And so one thing is often the privilege for. Example of the attorney client project is waived if you allow someone who's not an attorney or the client to participate. So I assume what the special counsel wants is mostly to hear about what Pence and Trump said to each other.
We've seen a lot of media reports, of course, already, about allegedly showing Trump trying to pressure Pence. And then there are gonna be people say they tried to coerce Pence into stopping the county electoral votes and somehow suspending the counts so that state legislatures could reconsider their electoral votes. So even if there is a speech and debate clause privilege, I think talking about this with Trump, who's not a member of the legislative branch, would waive the privilege.
In fact, if anything, their discussions would be part of the executive privilege. Members of the executive branch talking to the president about a public issue that actually would fit much better with what Pence is saying. But he has a problem there. One is that the courts here, and this goes back to the Nixon case, has said executive privilege doesn't protect discussions that have to do with crimes and generally don't stand up before a valid criminal investigation. So that's one.
And then I think another interesting is that Joe Biden, usually the Supreme Court's never clearly ruled on this. But in general, in practice, sitting presidents decide whether the privilege is to be claimed because it's the president, not the person of the president, but the office of the president, that benefits from the privilege, and so decides it. And Joe Biden has waived all executive privilege that has to do with January 6 and with this criminal investigation.
So that's why Pence has to hide behind this speech. Clean. Very string clean, yeah. A kind of unique vice presidential privilege comes from the speech and debate clause. >> Richard Epstein: Look, I think the speech and debate clause only applies to those things that are said in Congress. And I think that the president of the Senate probably is going to shoehorn himself in to get to that.
But I don't think that they were trying to get information about what was said in the formal proceedings, and all that stuff is on the public record anyhow. I think it's gonna be the conversations that took place outside of the Senate, outside of the formal branches of Congress that are going to be the subject to it. I think it's going to be a very hard road to hope. John did mention something which I think is a, correct and b, troublesome.
What he says is that the plea of executive privilege is, in the first instance, something that belongs to the sitting president. And it is said that he is entitled to waive that particular president, even to remarks that his predecessor in office made when he was president of the United States.
I find that actually extremely, very troublesome if you know, in effect, that your privilege is going to be lost the moment that you leave office, it's going to change the way in which you're going to act while you turn out to be in office. And it also turns out that the person who's now going to be in charge of your privilege is one of your sworn political enemies. And that, it seems to me, is a mistake.
So my own view about all of this stuff is that you probably want to rethink that body of law. And to start with the notion that under these circumstances, the president in office, at the time that the speech is made, is entitled to the privilege subject, a very narrow override, if it turns out that there's some genuine condition of necessity of some kind or another, which requires that information to be used in some other kind of office.
And I just, at this particular point, don't think that that's true. So I, in fact, would grant trump this particular privilege. I don't think that it's something that Pence has immediately. The question I'm gonna ask, since I'm not a political guy like John turns out always to be. >> Troy Senik: Wait till you put on your red and black tape turtleneck. >> Richard Epstein: Yes, and then I become as sophisticated as you.
But, I mean, the issue is, is it in Pence's interest to testify or not to testify? I mean, if he gets up there and he starts to give the account that it's accustomed to, he was the man who stood between Trump and the absolute electoral chaos that might have followed. It could only bolster the story that he was independent man of character and judgment, who stood up to the incredible barrage by Donald Trump and prevented the United States from falling into some kind of a major crisis.
And I think that there's something to be said for him to doing this. The other issue, of course, with respect to privilege, which John didn't mention, but is always in the background. Is there some other source of information that you have about the relevant events that require that make it inappropriate for you to ask somebody who does have a claim for privilege, when everything you need, you could find from these alternative sources? I don't think that you're going to win on that claim.
I think the argument is gonna be that Trump, rather, Pence, was uniquely situated in this circumstances, and there's no way that you could get out from underneath of that. So my guess is that he will be forced to testify. And then this, of course, brings back this constant problem that you always have, right. You appoint special prosecutors, and it turns out, I gather, this guy Smith is something of a hunter when it comes to being a prosecutor.
I should not have used the word Hunter because I gather there's an investigation of Hunter Biden and so forth, and the prosecutor in that case seems to be a much more mild mannered type. And so what happens is all these special prosecutor cases are really extremely difficult because the appointment that the attorney general makes over, which he has very little oversight once it is made, can be absolutely critical.
And I think on respect all of these issues, the correct response to Merrick Garland is a vote of no confidence in his ability to assure himself the independence of office, to make sure that these things are done correctly, both for friend and for foe. >> John Yoo: I don't mind just addressing briefly the political incentives, because I think that really explains what's going on, which is, I mean, this is a novel claim. This is not something the Supreme Court has ever really passed on.
I mean, they have talked about the vice president. There was a case about Cheney back in the 2000s, but that didn't directly address this kind of privilege. I think it mostly analyzed the privilege of the vice president as pertaining to the executive privilege, not to this legislative privilege. But look at it from Pence's perspective. I think he did the constitutional right thing in January 2021 by refusing Trump's pleas and not blocking any of the electoral votes or even suspending the count.
But because of that, I think he's got a problem with the republican base, and I think he's running for president. And so it seems to me now that he's running for president, he wants to also show that he's no friend of the Biden administration, and he wants to put some distance between him and this special counsel investigation. And he knows, I think, because this is a novel and important claim, that he could litigate this all the way to the Supreme Court.
And it may take months, it may take so many months that it might actually go past the primaries in terms of when the Supreme Court can get to this issue and decide. Cuz it'll have to go through trial court and then a DC circuit and then, ultimately, the US Supreme Court.
And so I think this is just a way, I think, of him kicking the can down the road with enough time so that he's not forced to take a public position, which is gonna anger the Republican primary voters who are gonna make the decision on whether they want Mike Pence to be the candidate in 2024. >> Richard Epstein: I mean, if there is a pro Trump base and a DeSantis base, I think he has no chance whatsoever of gaining the nomination based on the Information that's already available.
My advice to him would be to sit it out this particular time and then figure out how to reassess his prospects later on. But I think he's caught in an absolute vice, I don't believe that no matter what he does, he will ever be able to win a Republican primary, even though he might have some chance in a general election. But recall this, the Democrats themselves, for reasons that I think are somewhat dubious, they also have a visceral dislike of Trump because of his, not of Trump, but Pence.
Because of his apparent prudishness and all the rest to that stuff. So I just don't think he could win in a general election. And so, it's going to come down as whether or not the collection of plausible candidates, most notably Ron DeSantis, could knock off Trump. If they can't, and if we have a rerun of Biden versus Trump, it's going to be a genuine national catastrophe. >> Troy Senik: But to that point, I wanna get you guys to DeSantis in the remaining time that we have left.
>> Richard Epstein: Okay. >> Troy Senik: Because as you suggest, it seems pretty clear that he was trying to bring himself to the front of the pack on some of the issues that Donald Trump has really owned over the past several years. And as a result of that, DeSantis has got the media in his sights. And the mechanism he is using is a piece of legislation that he's supporting in Florida that would change the standards for defamation.
The goal here seems to be to get this thing litigated in the hopes it'll end up upending the status quo that currently exists under New York Times Visa open. So there are a bunch of components of the legislation that probably won't make sense to our listeners until we review what the existing standards are under New York Times Yuval Levin. So, Richard, can you just give us a quick refresher on that, and then I'll give a brief rundown of the legislation.
>> Richard Epstein: This is a very complicated subject, the American Constitution had little or anything to say about defamation before 1964. And the received wisdom on defamation as it developed at that particular period, was that defamation was, with respect to false matters of fact, generally something which was subject to strict liability.
Meaning that if you made the mistake, even if you were trying to avoid that particular error and had no malice whatsoever, you could be held responsible for it. And then there were rules for damages which allowed you either to specify precisely how you'd been injured with a particular causal chain. What third party had done what in response to what you had said that had hurt you, the plaintiff, given what the defendant had said, or there were general damages.
Statements like this is so troublesome that we know that they suffered particular harm even if you can't produce it. There was this terrible situation which took place in Alabama, in which Sullivan, who was the, I guess the commissioner of police at the time, sued the New York Times for defamation. Saying that they had published an advertisement that had essentially described the situation in Alabama falsely, and that he was entitled to general damages.
The amount that was awarded him was $500,000. There were maybe 100 papers of the New York Times edition that have been circulated within the state. And the state court said the standard rules apply. Comes to Justice Brennan, and what he does is he turns the rule upside down on a multiple number of ways.
The point I think, that is probably more persuasive to most people is, why you would say that a general Ed that doesn't even mention Sullivan's name is oven concerning the plaintiff is something that you would be doubtful of. And what happened is Brennan decided to make that into a constitutional issue. More importantly, there was a question of whether or not you could have strict liability for false statements of fact.
And what our friend Brennan said is, no, no, no, we really have to make sure that we are going to be allowed to protect criticisms of public officials in this case, Sullivan. So the rule is one of actual malice, meaning not that you had bad will, but that you had actual knowledge or were in reckless disregard of the truth.
The net effect of that particular standard was to say that false statements, which are absolutely devastating to individuals, would be beyond the scope of redress with respect to the state. And when I wrote about New York Times and Sullivan, I guess it's now close to 40 years ago, I defended, not unsurprisingly, I suppose the common law view is that it existed prior to that particular case. DeSantis knows that he's faced with a constitutional decision.
And they introduce this rather strange statute in which the first thing they do is they denounce the federalization of the entire law of defamation through the First Amendment. It's one thing to denounce it, but if it, it turns out it has constitutional underpinnings, what you cannot do under these circumstances is to overturn it by a state statute. And so there is, in this, a kind of an appeal saying, look, we want the United States Supreme Court to reconsider New York Times against Sullivan.
And indeed, people like Clarence Thomas have already indicated there's some sense of that. And then there are other supervisions in the statute which are absolutely baffling, including one which says that if a statement is named anonymously, it will be presumed to be defamatory. Which seems very odd, because you usually tell whether a sentence is defamatory or not by reading it and seeing whom it addresses to. Whether it's anonymous or not has never had anything to do with this.
And the way in which this goes, if you write something in the federalist papers and publish it anonymously, all of a sudden you're now a potential defendant. So I don't think this particular reform is going very far, but I do think what it does is it captures an increasing unhappiness with so much of the Warren Court stuff.
Remember, Brennan wrote this decision in 1964 when Earl Warren was in charge, and so there is likely to be some effort to try to push back on this, which will take place in multiple forms. And who is going to benefit from this depends on who is suing whom and for what. Generally speaking, I think that some return to the earlier standards would be warranted, but you can't do it by the statute.
>> Troy Senik: John, so as Richard was suggesting there, I mean, when you look at this legislation, it's sort of squeezing on both ends. It would narrow the category of who's considered a public figure for the defamation cases. It would expand out what constitutes malice, it also award attorney fees for the winning plaintiffs. So representative headline here, some politico on this development, DeSantis wants to roll back press freedoms.
John, what do you make of this proposal on the merits, and how would you rate the chances of the Supreme Court ever seriously reconsidering Sullivan in this Supreme Court in the near future? >> John Yoo: I agree with Richard's description of the way defamation law works now, he's the expert on all matters tort. I don't see how a state can actually overturn the First Amendments structure for what's considered publishable speech and points of view and so on.
I mean, I agree with what some of the things in the statute itself as a policy, a constitutional policy matter, I don't think New York Times versus Sullivan was correctly decided. I don't think it was consistent with the First Amendment at the time of the founding, and I don't think it's consistent with the space allowed for common law defamation suits.
So whether the Supreme Court rule here is, as Richard said, I mean, there are one or two justices, I think, that have signaled they have an interest in reexamining Sullivan. And my former justice, who I worked for, Justice Thomas, has said as much. I don't detect right now on the court, or I haven't seen the votes line up that suggests that you have a majority on the court that would be interested. Or even really four votes to grant cert on a case like this.
So I think Sullivan has put differently. I think maybe this is the first step in a longer running campaign to try to get the court eventually to re-examine this absence of malice standard and free the constitutionalization of defamation law. But I would compare it to what Justice Thomas did with the Second Amendment or with the non delegation doctrine. He often writes these concurrences, dissents years and years before the court ever gets to such an issue.
But he's doing it just to shoot up a signal flare to say there's a problem here, and maybe that's something they should look at. Now, this is a court that does seem to favor looking back at the original understanding of the Constitution rather than being governed solely by precedents. And that's something I'm all in favor of. >> Richard Epstein: Look, I will put it the following way.
There was a huge battle over defamation law in the 1980s and 1990s in which it turned out that many people who suffered real and genuine grievances lost their major jobs because of false statements from the press. And you could show the causal connection, come into court.
And the way in which all these cases went is the plaintiffs would give this history in painful detail, and the defendants would give some general plea about the importance of the freedom of the press to inform everybody about what's going on, even as the confidence that people have in the press goes down, in part because they're not responsible for the defamatory statement.
But at this particular point, I don't think there's any sort of active constituency out there is intent upon overturning New York Times against Sullivan for the kinds of reasons I put forward back in 1986 when I last wrote about this subject matter. I'll compare this to the administrative state question, to non-delegation question, the Chevron doctrine and so forth. These things are white hot issues.
So if you're trying to figure out which particular doctrine is going to generate the greatest amount of sustained controversy going forward, it's gonna be all the stuff that derives from the West Virginia versus the EPA case. Turning the scope of the federal government to take, as Justice Scalia's famous phrase, putting elephants in mouse holes, taking statutes that look anonymous or innocuous on this state, and making them the charters of great freedom.
That's an area in which everybody is fully and 100% engaged. Same thing is true with the non delegation doctrine and so forth. So maybe in ten or 15 years, somebody will want to take this thing up in a big way. But I think, in effect, that the current agenda is going to be on all the hot button issues that have been basically coming to the fore in the last four or five years since the conservatives have taken over the majority on the Supreme Court with the six to three majority.
>> Troy Senik: All right, gentlemen, that's all the time we have for this installment. John has to go raid a Caribbean trading port. My thanks to you both, as always, to our producer, Scott Emmergut, and to all our wonderful listeners. Remember to do us a favor and rank the show wherever you get your podcast. We'll be back with you soon. Until then, faculty Lounge is officially closed.
>> Speaker 4: This podcast is a production of the Hoover institution, where we advance ideas that define a free society and improve the human condition. For more information about our work or to listen to more of our podcasts or watch our videos, please visit hoover.org dot. >> Troy Senik: Well, we didn't cover everything, but we covered enough. John, I wanted you to take off that. >> John Yoo: Yeah, I really don't like this shirt. It's so awesome.