>> Richard Epstein: I think I'm special, so I'll keep mine. >> Tom Church: Welcome back to Law Talk at the Hoover Institution. I am your Law Talk guest host, Tom Church, filling in for Troy Senick. We're coming at you from the faculty lounge of the Epstein and Yoo Law School, where the speech is free and you, the audience, get what you pay for. Here on Law Talk, I'm joined by the inestimable Richard Epstein, who is the Peter and Kirsten Bedford senior fellow here at the Hoover Institution.
He's the Lawrence A Tisch professor of law at NYU and is a senior lecturer at the University of Chicago. Of course, I'm also joined by the incalculable John Yoo, a visiting fellow at the Hoover Institution, the Emmanuel Heller professor of law at the University of California at Berkeley, and he's a former deputy assistant attorney general in the W Bush administration. Gentlemen, it's good to be back with you. Since the last time I stepped in for Troy, which was a measly ten months ago.
And we were discussing, if you'd like to take a guess, Donald Trump, which we're going to do again today, as he simply can't keep himself out of the limelight, which. Unexpected, I suppose. No, but I also want to go over. >> John Yoo: Tom, you got to up your game. Didn't have one of the Wile E Coyote and Road Runner of the law. So you got the whole show to think of by the end of this show. >> Tom Church: Boy, put me on the spot.
>> John Yoo: Yoo and Epstein are like the Siskel and Ebert or the Abbott and Costello. Notice I'm using people from Richard's generations, not ours. >> Tom Church: Not ours, right, John? >> Richard Epstein: You guys are 20 years apart. Let's keep it straight. >> Tom Church: Well, listen, I also want to go over regulation of social media, Alabama, the Alabama's IVF controversy. And again, I think there's just too much Trump stuff we have to get to.
I want to know, Richard, is there an American politician who's had as much legal trouble as Donald Trump while also maintaining as much success? >> Richard Epstein: Well, I mean, I think the answer to that question is no. I think you get rid of the word legal or presidential nominee. I've never seen such a concerted attack on one man in both civil and criminal type situations. I think one or two of these cases may have a little bit of validity, those associated with Jack Smith.
But the one that came down with respect to the 400 million or whatever it is verdict that's going to come out of that gate is straight from outer space. I really think. >> Tom Church: He's Teflon Don, though. >> Richard Epstein: This is warfare at law fares is the new term at its worst, but we're not going to talk about them now, and you don't want to bring them to the front of the show. Let me just say there's much to be said. >> Tom Church: All right, fine.
Let's actually start with the Florida and Texas social media cases. Texas and Florida passed some laws that attempted to prevent social media companies from moderating their users posts. This, of course, to me, leads to questions about what kinds of platforms count as common carriers. Richard, you've written a lot about this. How does section 230 apply? Are there legal differences between moderation and censorship? It's a question, I think brought up by Justice Thomas in the oral arguments.
Then I have questions for you on public versus private communications. Now, Richard, I talk to you all the time over at libertarian, and I know that you're at least amenable to treating social media companies as common carriers. I'm going to give John a chance to tell us why you're wrong. I don't actually know if he thinks that or not. Why Texas and Florida may have overreached here as the Supreme Court justices were skeptical during oral arguments? John, take, take it away for me.
>> John Yoo: What Richard wrong? That never happens. What are you talking about? >> Richard Epstein: I feel so relieved. >> John Yoo: So actually, I, I'm really divided about this case. I've read Richard's writings about it, which have influenced me, but I still tend, I think, to fall on the side of the idea that these companies are private companies.
And as long as you're a private company, the government under the First Amendment, as it's been interpreted, can't force you to carry messages you don't want to. The government can't make me put up a campaign sign on my lawn, it can't make a newspaper carry an op-ed or a letter to the editor that the editors don't want to carry.
I think, again, I'm really torn about this, but I think the weight of the law is still better on the side of private entities don't have to open up their property to everybody. Now, I totally see Richard's point. He says they're common carrier. Common carriers, for example, like railroads, airlines, utility companies. We wouldn't say United Airlines can't carry any Republicans, although United Airlines is so bad, why would any Republican want to fly on it anyway is what I want to know.
But these kind of networks, common carriers, utilities, they're not allowed to discriminate, they perform a kind of public service, but they're really also because they have this kind of monopoly dominant power. I see Richard's point that maybe these social media companies are at that same level when it comes to speech. There's two differences.
One is when we talk about all those other networks, railroads, transportation, utilities, electricity, cable, they're not actually engaging in speech themselves. The purpose of those utilities isn't speech. It seems to me you're really entrenching more on free speech rights when private actor itself exists for speech.
Then second, and this is one, again, I'm just really torn about this, I'm not sure whether Facebook or Google, Microsoft, all these companies, TikTok, I suppose sooner or later, whether they have achieved a lasting market dominance where they are really common carriers. Maybe they're like Yahoo or this is going to make Tom feel old because he probably wasn't around for these other companies. >> Tom Church: How dare you, I'm the Internet child.
>> John Yoo: Mister Jeeves and MySpace, and even ones called things like Compuserve. I used all of these things when they first came out. They all were dominant for a short time, then they disappeared or became small. Maybe we're just in the middle of just the ups and downs of the market and no one's really dominant yet. Unless you have that, I don't think you can treat them as common carries.
And then I don't think Texas and Florida can force these companies to carry messages they disagree with. >> Tom Church: Richard, I want you to jump in, but I want to fight with something here, because market share doesn't necessarily mean monopoly. There's a difference between UPS or the railroads physically carrying someone, that's a transportation thing, and maybe in social media companies where people are posting publicly as opposed to privately or moving something around.
Help me, Richard, understand. >> Richard Epstein: Let me say the following thing about the common carriers. It needs some serious modification. Not that it's wrong, but it's imprecise. The general definition of a common carrier is private transportation or communication from one person to another such person.
The reason why you're going to balk at the common carrier definition, and this is that all the stuff that we're talking on media are posted by one person and then they're broadcast to the rest of the world, which is not how common carriers work. But I think what John misses is that the monopoly issue in this case is much more serious than was done when I listened to the oral argument, or rather read it.
I just could not believe that all the really difficult questions were shoved under the rug by everybody in terms of the way in which it goes. So let me mention to you some of the kinds of questions, some technical and some much more practical. On the technical side, when you have something like these network situations, there is the following. Tendency, which is everybody wants to be on the network with the party, which has the largest kind of carriership because of the greatest influence.
So there's a very strong tendency for one or two companies to survive. What happens is occasionally, when they survive, they die, at which point the transformation tends to be relatively complete from one old network system to a new old system, and that happens all the time in this industry. So that's the first point. But the second point is, is there a monopoly in this particular case? And you can't get it by just looking at the Tornillo case in this kind of silly way.
What you have to do is to recognize that one of the most important features of that case was its reliance on a case called the Associated Press against the United States from 1945. Which says, all of these companies which have monopoly powers are not immunized from the antitrust law by the First Amendment, and they go in great lengths to explain why that was. Now in Tornillo.
There wasn't a Wisp market power and a monopolization case, but of course, what you did is you have one guy running a tiny paper restricting his rights to apply on his own paper. There's no market significance in that. But when you had the Associated Press case, it was a whole group of newspapers getting content on the one hand and then excluding the others, and it was found to be that way.
Well, you look at this particular business, and there are very strong signs of monopoly control above and beyond the fact that it's a network industry which leads to aggregation and congregation. The first thing to notice under these particular circumstances is that Google and Apple and other companies, you have to do business with them in order to get on the wet at all. So there was the case of parlor, which started out going gang buses.
It said some things that the powers that be did not like with respect to the events of January 5 or 6th, and everybody, the three guys refused to carry, they cut it off. Now, if the three guys who are in this industry supplying backup web services all exclude you, you can't get back on. And Paula died, and not only that, but no new network of a conservative nature has also ever come forward.
So if you're trying to ask whether or not there's some kind of durability in this market, given the fact that there is basically a blockade on entry into the business by your competitors through this backend system, it's a much more serious case. And in fact, I think it's a case that really deserves very close consideration.
They kept them off entirely, their definition of violence was a report with respect to a controversial event that they didn't like, it was a form of viewpoint discrimination. Pretty grotesque point in a situation we had real powers to exclude. The second point is these guys were not acting independently, they constantly collaborated with each other. And to make it worse, they collaborated with each other with both the promises and the push coming from the federal government.
Who said to them, if you don't carry this stuff, we're gonna be sanctions against you, and if you do carry this stuff, we're gonna give you various kinds of benefits. Well, in fact, if you get a collective situation governed by the government, that creates a very different situation where you have independent, autonomous agents, each doing its own thing in its own way.
So I wanted the monopoly issue to be seriously discussed and nobody, but nobody in the particular case gave any attention to it, so if John's assumptions were right, individual carriers, it's fine. The other thing that was really odd about this is a lot of the stuff that they want to prohibit. God bless. Even if you're talking about common carriers, you could keep loudmouths off a train, you could keep drunks off a train and all the rest of that stuff.
So you could do the same thing even if common carriers, even if a monopolist with respect to those kinds of content. But everybody in this argument wasn't worried about obscenity and so forth. They were worried about the questions, whether or not the critics of the administration's policies on vaccines could get on or could they be kept off in coordination with the government. And, I will tell you my substantive view, which is the CDC has done a reprehensible job on this and it's very powerful.
The same with respect to the FDA, and to have them work in cahoots with the government to make sure that nobody else is gonna be able to talk about it. People like Jay Bhattacharya, who's an eminent authority in the particular case of Martin Kulldorff, that's a very different cuddle of fish. Now, what's the remedy? It's not very difficult to say, they can't remove their post unless they give cause.
There was a suggestion that the government get information from every private carrier about every post they carry, which I regard as burdensome and downright stupid. But the particular remedy that was come for the particular evil is very non-interventionist and it's extremely important. I think the way in which John characterizes the case is just at odds with the really essential issues.
And if the case is based upon the oral argument, the common carrier company or these carriers, these companies will win if you recapitulate. >> John Yoo: Richard, you have to confess, though, you have to confess you are pushing the law beyond where existing precedent is, there's no. >> Richard Epstein: Well, but no, I'm not doing it. >> John Yoo: Cuz part of it is the technology is new, but you're proposing quite a radical expansion of government power over networks that we haven't had before.
>> Richard Epstein: That's wrong, I mean, the controversial argument would be the network aggregation argument. But the other two arguments, it's relying on a 1945 case and on the general fact that if you have the sole power to keep somebody off of the air and do so because of their views, that's a pretty terrible thing that's happening. I regard my case as quite conditional, what I think is that nobody, nobody wanted to address those particular issues.
I have no desire to go after situations or otherwise, it just made me the last point you mentioned something about we don't know how durable these things are. And the correct answer to that is when you get new entrants, then you relax all of these requirements, but you're not gonna get new entrants for the reasons I stated. The keys to entering the market are held by their competitors.
And it's not a particularly radical theory to say that if you have the ability to keep your opponents or the people who disagree with you or people who have different points of views off the market. Then you have to have a correlative duty, and that's the source of the monopoly power. This is not, technically speaking, a common carrier, that's the way the government argued it, that's not the way I would argue it now, at least.
But it turns out that any mistake they made, if they made a mistake, is utterly harmless error, given the structure that I've talked to. And there wasn't a word in any of the oral argument that I heard which actually addressed these things. And the way you frame a case will determine the way it will be decided, and if the argument basically goes the way it went, it will be a case in which the efforts of Texas, Florida will lose.
>> John Yoo: I think I've got to take over your libertarian podcast because you are not being very libertarian, Richard. >> Richard Epstein: Well, I am libertarian- >> John Yoo: You're the greatest libertarian in the country that I know, and you want the government to expand its power over the private companies.
>> Richard Epstein: To tell them that they can't ban things on a viewpoint basis when they have a monopoly power over the market, and they do have a monopoly power over the market, that's the point. And monopoly is not a basic, it's a new context in which it arises, but if you look at this, for example, all the stuff that was raised in Biden against Missouri with Bhattacharya and a lot of other people. Never mentioned, in this case, not a word.
>> John Yoo: That's a different issue, I think [CROSSTALK]. >> Richard Epstein: It's the same issue [CROSSTALK]. >> John Yoo: So I think if the government actually secretly goes to a newspaper, say, and says, do this, don't do this, or goes to a TV station or Internet provider, then at some point, the government and the private company are so intertwined that the private company is just acting on behalf of the government. I think that's different. If the government says, suppress [CROSSTALK].
>> Richard Epstein: That's what happens, in this case. >> John Yoo: Yeah, not this case. I'm talking about, that's a very different kind of case. >> Richard Epstein: No, I'm saying those- >> John Yoo: From forcing networks to carry all kinds of speech and not exercise their own editorial judgment. >> Richard Epstein: I did not say that.
I said when they're competitive positions and you express your view and at the assistance of the government and with the cooperation of your other media companies, what you do is you don't allow them to go. It's a monopoly case and a public action case. This is not a case involving a particular broadcast and so forth. This is a question about the structure of the industry. And when you look at what these people have done, it's really terrible. I mean, I watched all of these decisions.
I've never seen anything quite as totalitarian in my life. Libertarians are very suspicious of monopolies, classical liberals even more so. I'm not trying to be inconsistent with my position. I think what happened is the way the case came up, you were talking about obscenity and all sorts of a robe, and this is where the companies are absolutely right. So I wanted a very tailored remedy.
I think those other statutes are too broad and I would rather them confine it to the situations where I spoke or if they strike the statute down to say, come back with a narrow statute. >> Tom Church: All right, so predictions for this one? We'll get the ruling, what, in the summertime? Is it six-three, is it eight-two or eight-one, what is it? >> Richard Epstein: Probably six-three, in favor of the government, I mean, of the companies. >> Tom Church: In favor of the government.
>> Richard Epstein: No, I misspoke, I misspoke. >> John Yoo: Yeah, well, the government can make you misspeak on the Internet, apparently, Richard. [LAUGH] But no, I think I agree with Richard on this one. The government, I think Florida and Texas are gonna lose just based on what I heard at oral argument. Again, it's not an easy case. It's a close case. But the other thing I could see the court saying here is, what do we know?
Why don't we just keep our hands off, keep the government's hands off, let the industry develop more maybe the kind of regulations Richard's calling for may be necessary, but that would be in the future. We can't make a judgment now about the industry. I could see that as being the reason why, especially some of the moderate justices on the court choose not to uphold the state laws.
[CROSSTALK] Go ahead, Rick. >> Richard Epstein: I wanted a narrow statute when this was drafted because the only thing I care about is the rival speech. Everything else, fine, and don't wanna do it. And that's the way I wrote my brief in this particular case. But the problem is you don't want people who are vengeful to take over and then throw on your face an overbroad statute, which is what they did in this case.
And so if it turns out they wanna strike it down, which I'm against, but they should do is say, and if you have a statute directed to the very thing that I mentioned and we're gonna consider it very differently, I think that would be a very useful thing to do. >> Tom Church: Well, I'm looking forward to a few years from now and we have the same discussion, but it's whether companies are allowed to have AI decide how to moderate our content. We'll get to that then.
Let's shift gears a little bit, cuz I do wanna go to the Alabama IVF case. It's really interesting. I think it's got implications, of course, in the post ops world where states are now allowed to set their own limits on abortion, the status of life and the rest of it. So a very quick summary for listeners. In Alabama, several couples used IVF to get pregnant, and in the process, produced additional embryos, fertilized embryos that were frozen and stored in a hospital.
Now somehow a patient got into the cold storage facility and ended up dropping some of the embryos, breaking the containers and destroying them. Now forget the normal lawsuits against the hospital. The plaintiffs, the couples, sued under Alabama's wrongful death of a minor act. And the Alabama Supreme Court came back and ruled in their favor, saying that destroying frozen embryos is a kin to, it's not even a kin. It is killing a child, even though unborn and not in utero.
Now, in response, several IVF facilities in Alabama have paused operations because they're obviously worried about liability. The Republicans are looking at this maybe as a pro life win, and obviously Democrats are taking it and looking at the election this fall and running on that. So, so many questions here, John. Maybe I'll go to you on this one. I mean, is this something that we're gonna end up having the Supreme Court take up? I mean, are there merits to this case?
And I want to know, [LAUGH] if you create additional embryos, how are you ever allowed to dispose of them in Alabama or other states that take this ruling? >> John Yoo: Tom, I think your second question is a lot harder than the first question. I think, I don't really see the Supreme Court taking this because this is one of the clear consequences of Dobbs. >> Tom Church: Right. >> John Yoo: Remember, Dobbs, right, says there's no constitutional right to an abortion. It's up to the states.
So the states get to decide when does life begin, and the states get to decide what legal sanctions there are for ending a life for abortion for something like this, wrongful death for. [LAUGH] Richard, I haven't even finished yet, you're already sighing or [LAUGH]. >> Richard Epstein: I'm not mad at you yet, okay. >> John Yoo: [LAUGH] Or wrongful, that's statute. So it could be the case under Dobbs that Alabama or Mississippi could have a law like this that says life began at conception.
And if you harm that embryo, even if the embryo is not viable at that point, even if it can't survive without outside the womb, that's still illegal, could even be criminal. Whereas in California, California, I would disagree with such a law. But California, you could say life doesn't begin until the baby's actually delivered. And so anybody who kills an embryo or harms a fetus before that, it's not illegal.
Or it's just like, I think people in California, fortunately, probably would agree this, it's something like being in a car accident or something, but it's not that the mother might suffer, but it's not like there's an independent human being in the fetus that would suffer. I think that Dobbs says that's up to each state. So if that's the case, I don't see why the Supreme Court then has even the right, unless someone still ruled DOBBS and go back to the real world.
Wyatt would then come in and say, no, the Constitution actually constrains a state on how it defines when life begins. >> Richard Epstein: I have a very different perspective on this case. A friend of mine named Dove Fox from the University of San Diego wrote a book trying to talk about this problem in a completely different perspective.
What happens is you have these various facilities who are in charge of these embryos and so forth, and there's a real question as to what kind of regulation do you impose upon them in the way in which they conduct their business. And what Fox said is he wanted to give greater protection to these embryos for the benefit of the parents because they're valuable properties.
And if they're destroyed, there could be cases in which somebody has their last embryo, a fertilized embryo, destroyed, and that you want to do To do it. I think that's perfectly good. My view is that the market mechanisms actually did this extremely well. And when you go back and you check the success rates of implantation with these harvested embryos, they're extremely high, whether in the woman who created this, whose eggs were used or in somebody else.
And all the case should have said was this embryo is the valuable property of this woman and this husband, and its destruction is damaged to you. There is no reason whatsoever to get to the Dobbs point on the question of whether or not this embryo has to be protected, because in this situation, you look at it in terms of the general patterns of practice. This is a thriving market. It's also a risky market in many ways because there are a lot of couples who need it. Surrogacy is very hard.
My son in law is in this business. And when you hear the tales from the front, you learn about such tragedies as a couple who's 38 years of age or SOmething like that, and some embryo is destroyed and thEy're now not going to be able to engage in this practice and so forth. It's all crazy. So the protection stuff is fine, but the idea that you're now gonna call this a person and what you're gonna have to do is violate every norm of sound behavior.
When you do this, you have to basically try to get as many embryos as you can because many times it doesn't take. So you have four of these, and you put the first one in and you get the couple, you don't use the other three now you just leave it there. Does this mean that they're now persons? You can keep them alive for a period of time. It's like everything else, which is organic, it can decay and so forth.
No. So you want to have the embryos because you actually need them because of multiple implantation. And when they can't do it, you just sort of let them sit there. In some cases, if they're still viable, you may transfer to some woman who is quite happy to carry a fertilized embryo that is not her own and then keep it as a child afterwards. And that's all fine.
But what the implication is, and people wanna extend Dobbs, is that we're gonna change the standard practice in a booming industry in a way that will essentially wreck all reproductive efforts. And I regard this as absolute madness. And I think, in effect, that it's a kind of an effort on the part of the Dobbs opponents. Say, see what this is going to lead you to it doesn't lead you there at all. When you're talking about abortion and so forth, you have to have a modicum of common sense.
And if you see a couple that's desperately trying to create human life and it's gonna fail on some occasions or find other efforts unnecessary, the last thing you wanna do is to put them in jail for criminal offenses. And I don't think the Alabama court did this. And my view is you ask about the political solution. If you're a Republican or a Democrat, anybody who's even not comatose, you're gonna overturn that decision.
If what it's supposed to say is there's now some kind of unspecified duty to either use this embryo, to keep it alive indefinitely and so forth. I don't think there's a Republican in the state of Alabama would want to give it that interpretation, and I really don't think it's necessary. So I would like them to get another case in Alabama where the judge is saying, we're just treating this as the destruction of an embryo by an alien person.
We're not treating this as a duty to somehow to keep it alive. So I just get a pit in my stomach when I see the way in which this unfortunate debate has taken place. >> Tom Church: And fixing this is, I mean, not fixing. Changing this would require just the Alabama legislature, right? I mean, there's no other remedy that people see. >> Richard Epstein: No, no, no. You could get a court that just clarifies it. >> John Yoo: Richard, I think you and I agree with this.
This is not an issue of federal constitutional law. This is an issue of state law. So Tom's question is a good one. The state, some organ of the state government can change it. And also that varies. And it can also, this rule can vary from state to state. What Richard gave was a good argument based on his views on the policy that states should adopt, but there's no constitutional reason. The rule has to be one way or the other. Isn't that right, Richard?
>> Richard Epstein: I think that is unfortunately correct. But there's also no reason whatsoever to read this decision more broadly than it was before. You want to create the general categorical duty weight to a case that is brought in that particular situation, i.e., a criminal prosecution brought against a couple after they have a child that disposes of fertilized embryos, then you could fight this battle. I just don't think that's ever going to happen.
And so I don't like the alarmism because I believe that on this issue there's perfect unanimity. This is not a Dobbs type issue at all. >> Tom Church: So, Richard, really quickly, and we'll close the loop here. I mean, are you arguing for they should have said this is a civil penalty instead of a criminal one? >> Richard Epstein: No, I don't think they should have said, they should have said it's an ordinary tort action for the destruction of valuable property. Put it this way.
Suppose it was the only embryo that was fertilized that this couple has, and then it gets destroyed. Is there no loss to a couple if they lose the opportunity of having a fertilized embryo turn into a live child? Of course there's a loss, and that's what you have to compensate for. That's what Dov Fox's book was about.
I thought he was wrong in thinking that there was comprehensive regulation that was needed for this protection, because I think the market has already outperformed everything that the government could possibly do in these cases. And that's because this is an area where there's extremely rapid technological advances in every stage of the in vitro fertilization process. >> Tom Church: All right, well, I think we've covered that pretty comprehensively.
Let's turn to the man of the hour, the man of the year, I suppose. >> Richard Epstein: Man of the century. >> Tom Church: Man of the century. I think you might be right about that. He's making headlines for all the normal reasons, I guess. Man 2024, 2016, 2020. I can't tell what year it is anymore. So there's two things to cover here. One, let's start with the legal immunity case, cuz it's the most recent one.
The Supreme Court recently agreed to take up the Trump case surrounding the issue of immunity for his actions while he was president right at the time of January 6. So it's the Jan 6 case. That defense that Mister Trump has argued has been, I'm immune. This shouldn't be happening anyway because I was president. I'm covered. Let's dismiss this. So the Supreme Court is set to hear this argument the week of the 22nd. And the reactions have been varied.
I mean, this is supposed to be maybe a legal podcast, but I need to ask about the political side of it too, because I'm reading online pundits on the left think it's a conservative Supreme Court that has said, great. Here is the delaying, stalling action, which means this case will not be tried before the election. And on the right, the pundits have said, hey, there's evidence that this is the Supreme Court out to get it. Why are we even.
Why did they not slap this down and say, yes, he's immune, and just go from there? So, I mean, I need to know, John. Richard, is Mister Trump being treated normally? I mean, is this a case on the merits, or is there political favoritism from the conservative dominated court? >> Richard Epstein: Ask John first, cuz we disagree on a little. >> John Yoo: Do we? Unlike the other. >> Tom Church: Let's find the daylight, yeah. >> John Yoo: Episode [LAUGH].
Maybe the thing about is process and substance. I think on process, the Supreme Court had to take the case. It's a fundamental issue of constitutional law that's never been decided. And I don't think the court could leave this up just to the lower courts. If the constitution is going to be read to say the president has immunity from criminal prosecution after he's left office, then I think it's got to be the Supreme Court that approves that, or not, in the end.
And so in terms of process, also, I think this achieves probably Donald Trump's tactical objective, which was to just get this trial delayed as long as possible. I'm not surprised the court took the case. I'm not surprised about the briefing schedule. There's time in the year for the court to get full briefing. As you said, the oral arguments are the end of April. And so you'll see a decision by July 4 weekend, which is when the court usually closes up shop.
You could have trials starting maybe sometime in August. There's still lots of legal issues. You know, people seem to fail to understand that if Trump loses on immunity, he still has lots of other legal claims to use in his defense against his prosecution that may prevent any real trial from actually going until after the election. Now, on the substance, I actually think Trump's gonna lose. I don't think actually that the precedents are for him.
Presidents do have an absolute immunity against damages actions brought by private people. There's no precedent on this because no one's ever prosecuted a president before. But I think the Federalist Papers and the material from the founding are pretty clear. They talk about prosecuting presidents after they leave office.
Trump's lawyers have tried to wiggle out of those comments by making it seem like, presidents could only be prosecuted for things they did in office for which they were impeached and convicted for, of impeachment. I don't think that's the right reading of the Federalist Papers and Alexander Hamilton. I also don't think that just makes a lot of sense. It would just be kind of irrational for the founders to have created that kind of rule.
So I think that, you know, the court will hear the case in April and they'll decide by end of June, but I think they'll say presidents don't have immunity from prosecution after they leave office. Now, one other important thing people I think are missing is that this is only from federal prosecution. I actually think the case for a kind of immunity from prosecution by states is stronger. Because if you could show that states like what we're seeing, I think right now, Georgia, right?
The Manhattan DA are bringing prosecutions under state law in a way to kind of harass federal officials there. I think the court might recognize a kind of immunity not just for presidents, but for all federal officials, even though they might not recognize it for immunity against federal prosecutors. Right, but the Georgia one is for actions while he was president. So that would apply, but the New York one was for actions before, right? So it wouldn't apply.
Well, this is, the interesting thing is, I think even Trump concedes that everything he does as president while he's president isn't presidential. So, for example, even in the case I was talking about absolute immunity from damages. Say there's actually a case going on now by Capitol police officers harmed on January 6 who are suing Trump for money.
So even there, the courts have said presidents have immunity, but sometimes while they're in office, sometime between 2016 and 2020, Trump was doing things he wasn't the president because they weren't official actions. This is the holding of a lot of cases.
So the court could say, the Georgia court could say, and in fact, I think the DC circuit has suggested this, that when the president is running for election, when he's doing political things, like giving a speech at a political convention, a president is, per se not acting as the chief executive. He's just a private citizen. >> Richard Epstein: Well, on the last point, John and I are in agreement. I think the argument that Trump has to make is a very different argument.
He says that so long as I'm president in office, if you allow any suits to be brought against me for any reason whatsoever, it will disrupt the operation of the office and will offend the principles of separation of power. I think the court came back with the argument saying that this is not something that he did in the course of his duties, no matter how broadly consumed. And so therefore, particularly if he's out of office at the time that the suit is brought, there's no protection.
So you can make a distinction which says they couldn't sue him on January 19 because he's still in office, but after he leaves, then, in effect, there's no interference with the operation of the system. He could be there. Now, the second argument that John and I had a debate about when we talked about this at Berkeley about a month ago was on the double jeopardy claim.
>> John Yoo: By the way, the students didn't try to stop Richard from speaking like they just did with another speaker here two days ago. >> Tom Church: They let him speak. >> John Yoo: Nice [LAUGH]. >> Richard Epstein: They let me speak. >> John Yoo: Yeah, they let Richard speak. >> Richard Epstein: I mean, not only they [CROSSTALK] >> Tom Church: No one can stop Richard speak [CROSSTALK], the students are falling. >> John Yoo: [LAUGH] That is true, that is true.
Even the students who brought down this event at Berkeley two days ago couldn't stop Richard. >> Richard Epstein: They didn't even try. >> [LAUGH] >> Richard Epstein: And that's because they didn't even understand, in some cases, what the stakes were. But the double jeopardy argument is an extremely complicated one. Talked about it, but it hasn't been taken up yet. And it has to do with the very simple question of, what form do you have to be in order for double jeopardy to apply?
And there are three relevant forms or four that you could actually mention here. One is, it turns out, and there's a lot of, uneasiness about this, if you prosecute somebody for something under state law. That does not create double jeopardy, if it turns out they tried to take a similar offense and thus charge you under federal law. The theory is that it has to be the same sovereign.
Then on the federal side, when I taught military law, I'd learned that if you prosecute somebody in the military system under very different rules with very different purposes from those in the ordinary civil justice system, the criminal system, that does count as double jeopardy. Now, the question is, when you start looking at this impeachment trial, it seems to me it's also very different in terms of what it wants. But it's the same set of events operating out of January 6.
And anything that you could have raised in the first thing has to be raised in that. Otherwise, you are going to be blocked by the double jeopardy doctrine. And I think that that's actually something which is very serious. The technical law at this point, I think, actually moves in Trump's favor. And then the question is, what's the offense? It turns out, well, they did go after insurrection in January. They didn't go after it in the indictment.
If it had been the other way around, it would have been the same problem. The basic situation is you cannot define an offense so narrowly as to cover only one theory of liability that arises out of a common nucleus of facts. What you have to do is to say, if you want to go after him for the events of January 6, you have to do everything, and you get to do it once and not twice.
That argument was dismissed, for example, by the Wall Street Journal in a parenthetical sentence, which I thought was just plain wrong. So I do think that that argument is a very serious one. I happen to believe that on that particular issue, Trump is, in fact, correct. And there's nothing about this which is going to create all sorts of safe harbors for crazy presidents. I think what happens is you have to have an impeachment first.
Now, mind you, if he were convicted, there is double jeopardy that's allowed. Because the very structure of the amendment says we only limit us to getting you out of for a high crime and misdemeanor, and we want the civil system to take over. And I don't think the Fifth Amendment upsets that specific procedure. But there's nothing about that which says what happens if the impeachment trial makes you an innocent person.
At that point, I think the standard criminal rules apply, and so the double jeopardy doesn't. My guess is that this goes to court. I think Trump is likely to lose that as well. But remember, this is a marked man, and the number of people who dislike him so intensely and the number of crazy suits that have been brought against him are so great that I think it's very hard to credit the guy, even when it turns out that he's right, given the fact that many people think he's wrong so many times.
>> John Yoo: So my quick read on this is the pundits on both sides are right. So [LAUGH] the right thinks the Supreme Court's out to get him, and John's telling me he's probably gonna lose this. And the left thinks they're out to help Trump. And, you know, even if they get this through and make this decision in July, you can still probably delay it and make it not happen before the election. >> Richard Epstein: By the way, that is my in principle position on every one of these cases.
>> John Yoo: I like it, I like it. >> Richard Epstein: I do not- >> John Yoo: The people on the right, if people think the Supreme Court's out to get Trump, they're just high on something cuz the court- >> [LAUGH] >> John Yoo: The court has been the only thing favorable to Trump in all of this. If they just left it up to prosecutors and district judges, Trump would be in jail already. >> Tom Church: That's true, [CROSSTALK] against him, that's right.
>> Richard Epstein: This, I mean, I think Trump basically is being persecuted in many of these cases. And I think it's really very regrettable that people have very strong political objections to what he is, who think he's going to be a disaster to the American Republic. Now find a way, for example, just yesterday, to get some low-level judge in Illinois trying to keep this man off the ballot. And we will talk about this later.
I think it's the same thing with respect to the Willis prosecution, which I think has completely disintegrated. And the Trump civil judgment and that you've seen with respect to his real estate holding is, I regard as one of the great travesties of legal reasoning in the history of western civilization. >> Tom Church: We'll get to that, but I mean, before then, I feel like I haven't heard a lot of people talking about, well, this upcoming election is between Biden and Trump.
All right, we're there, but if Trump loses these cases, then continue to go forward, they don't need to go fast. The documents case, we haven't even mentioned- >> Richard Epstein: Sure. >> Tom Church: Slowly going on in the background. So I'd love to know. I mean, again, we can run through these cases, Richard, we've talked about this enough. John, I haven't asked you, I mean, are there any that you think, he's gonna lose this one?
>> John Yoo: Well, Josh, so if Biden wins, gosh, I think the magnanimous thing for him to do would be to drop the- >> Tom Church: Pardon Trump? >> John Yoo: Prosecutions of Trump. >> Tom Church: Drop them, okay. >> John Yoo: Yeah, I mean- >> Tom Church: Not pardon him, just drop the prosecution. >> John Yoo: Yeah, just drop them. But, yeah, not pardon, just drop them, but suppose he doesn't? So you're saying which ones are really the ones that will go?
I actually think the one that he's most likely to lose would be the documents case. >> Tom Church: Sure, yeah. >> John Yoo: Not because he had classified documents but because the government's building a case of obstruction against him. When he ordered people not to tell the FBI the truth, when he ordered people to move boxes in different rooms to try to prevent the government from finding them, that's actually fairly easy to prove. And, gosh, the evidence doesn't look good for him.
The January 6 case, I think, is really hard to prove because I think Jack Smith mischarged it. People seem to not realize that Jack Smith did not charge Trump for insurrection or sedition. He's charged Trump for- >> Tom Church: Right, right. >> John Yoo: Defrauding the government, like he's a defense contractor who charged $600 for a hammer or for obstructing process of Congress, like he's Hunter Biden refusing to show up for a subpoena.
These kinda charges are really not fitting the facts of the case. And Trump may well, you know, may well skate on those even if the case goes forward. And then who knows what's gonna happen? I mean, it may be like this Georgia case, never goes forward now anywhere because of, like I said, I wanna copyright the show Real Prosecutors of Atlanta because that has become such- >> Tom Church: [LAUGH] >> John Yoo: A reality. That is such a crazy reality show that that case may never go forward.
>> Tom Church: Of all people for it to happen to, I mean, goodness. >> Richard Epstein: It could not happen to a nicer prosecutor. >> [LAUGH] >> Richard Epstein: Look, I mean, the case itself is- >> John Yoo: Trump does have the luck of having his enemies. And then the last case- Is this DA case with Bragg, which also has really interesting constitutional problems to it. That's not a slam [CROSSTALK]. >> Tom Church: Well, it's a political winner for Trump, isn't it, I mean- >> John Yoo: Yeah.
>> Tom Church: Even if he gets convicted, right? >> Richard Epstein: We don't know on the latter point because there are so many Trump supporters who are waffling on the fence. My view is that case is also farcical. So the one case I think matters in terms of long term thing is how you sort out January 6.
And I think one of the other issues that still remains is, let's suppose that Trump could establish, as he may well think, that he was absolutely convinced that this thing was robbed and he was absolutely convinced that it was permissible for the vice president to send it back to the states for further review based upon a reading of some precedents which do not go entirely against him. Well, is that a First Amendment case?
I mean, if you basically say good faith stuff is protected, his craziness, in some sense, now becomes a defense because nobody wants to doubt the fact that he actually believes that he won. I mean, if they think that he doesn't believe that, then I think they're really bad psychologists. My own view about this, I don't want to comment on the merits, because I'm not sure what they are.
I thought Trump was beyond stupid in trying to make this into a legal challenge, particularly before the Georgia senatorial election, but that if somebody has said, look, there's enough uneasiness about this case. Let's have a congressional investigation through an independent committee to figure out whether or not something had happened in Atlanta, Pennsylvania, and Wisconsin and Georgia. I would say that's a fine thing to do to get it right in some sense, but he just overplays his hand.
But overplaying your hand does not necessarily mean the creation of a criminal defense. So the first rule is you ask yourself, would I uphold these charges against him if Trump were my closest friend? Because you don't wanna say, I'm only upholding them because I hate the guy, and there's a lot of that which is going on. >> Tom Church: Well, let's finish on the enormous judgment level against Trump for improper handling of business or records or reporting in New York.
It was a $300-and-some million judgment with interest. He owes the state $464 million. A judge just denied Trump's request to only post $100 million bond instead of the whole amount. Which is interesting, because I believe Mr. Trump had indicated, or his lawyers, that he had $400 million sitting around, and now he can only put up 100, so a lot to get into.
Richard, I know you disagree with this case, but also, I wanna think through this, too, because if he doesn't post this bond, the Justice Department really could seize assets. And so that means that Trump Tower could get seized, and Mr. Biden is sitting on quite a war chest. I think the DNC could purchase a new New York headquarters on the cheap. >> Richard Epstein: God, I mean, look, the decision- >> John Yoo: And we'll locate it at Trump Tower, they could put it in- >> Tom Church: Exactly.
>> John Yoo: Trump Tower. >> Richard Epstein: Next door to me in New York. It is perhaps the worst opinion I've ever read in my life on topics of fraud and restitution. Basically, what happens is there are a large number of cases for which, quote, unquote, the issue of reliance does not matter, and these are all fly-by-night cases. And so you get a typical case is that somebody runs a school, and the school promises you that after you finish it, you will get a job in the business.
They collect your money, they had no intention of placing you anyhow. And of course, disgorgement means they have to return the money to you. And you don't have to worry about how many relied on in individual cases cuz you know they did. In Trump's case, there's nothing to disgorge. What happened is they've said that he presented a term sheet to the companies that had a basically inflated his assets in order to reduce the amount of interest he would have to pay on the loan.
But this was not a case in which those term sheets ever became an offer. They just sat down and negotiated it around. The bankers came in, and they said, these were deals that we're perfectly happy with. It turns out that we got every penny of our money back. We made a lot of money. And so then the question is what you do is you order him to disgorge the money he never got, i.e., the supposed additional stuff.
The correct remedy, if you think that this is a wrong, even though it turns out to be standard practice in most New York real estate situations, is to enjoin him From doing it again. You cannot disgorge money that you have not received. And he just doesn't get that case. And then you figure out, how did he get to this damage number? He said, well, I looked at the plaintiff's expert, I thought they were really terrific, here it is, $350 million.
There was no analysis whatsoever of any serious datum, so ask a simple question. If you turn out to think that there was that, look at the terms that Trump got from Deutsche Bank. And then take analogous loans and figure out whether they're in the same ballpark or something like that. Nothing of that sort was done, every precedent was misread under this thing. And it's done because it has to be malice, what the judge said, this is his word, not mine.
He said, Trump is pathological because he won't agree with me. Well, the person who's pathological is the judge for pushing these very dubious theories. But to call somebody before you pathological is terrible. Then he says, well, Trump may have entered into 20, 30, 40 deals in New York City in his career. He says, it's just lucky that nobody lost any money. Who were you trying to kid? It wasn't luck that prevented this from happening. There was nothing that was untoward.
There's already evidence that many businesses are gonna start to leave or not develop in New York. Because the charges that were raised against Trump could be raised against every borrower and every case where you use an initial set of term sheets that nobody basically thinks is the basis for an offer. And the fact that the appellate court does this is crazy. Basically, if you need to put this thing up, what you do is you effectively block an appeal.
And all they have to say is, we don't have to take over the asset. They should say, you cannot sell this and you cannot encumber it further until we resolve the case. And there's no need to post any bond at all. This is the worst decision, the most disgraceful performance that you have in New York by a bunch of people who are utterly incompetent as lawyer, and that includes our attorney general. >> Tom Church: John, I set this episode up right. Tell me, is Richard right or wrong here?
>> John Yoo: Actually, on this one, Richard and I agree on this $350 million. I don't see what the damages are actually linked to. So that's why I thought Trump's gonna claim that this violates the Excessive Fines Clause of the Constitution. And while I'm not in favor of expanding new rights beyond the text, gosh, I gotta think an excessive fine, almost by definition, is a fine that has no relationship to anything that actually happened, so Richard's right.
If no one suffered any loss and you have sophisticated counterparties who can take care of themselves and they didn't feel they suffered a loss, yeah, they did take care of that. They didn't claim any loss, they didn't sue Trump. They made their money back. Then what's the fine actually related to? And if it's not related to anything, then isn't that excessive?
So I think that, actually, I hate to say it, but, gosh, seems to me that part of the point of this massive judgment is almost to prevent Trump from actually effectively appealing it. Because if he can't raise money for the bond, and who's got $450 million sitting around, then Trump can't appeal. He can't make the rules for appealing, and then the decision just goes forward.
I'm not saying it's a violation of his constitutional rights, but it's a part of the politics that's going on here, that the being waged upon him by the attorney general. And look, this is why you don't like to have elected judges, I think. This guy, Judge Engoron and the judges above him are all elected by the people of New York. >> Richard Epstein: And they're thrilled, look, let me give you this case called Sackett that came down twice, but this was a case which had a similar problem.
Is there is this man named Sackett who wanted to build a small house above Priest Lake in Idaho, I think it was. And the government comes forward and they say, look, this house is a pollutant, and we're gonna fine you $30,000 a day if you so much as put a shovel into the ground. Well, this plot's probably worth $100,000 and so forth. And they're booming this, which means that's the fine, he can't do anything, right? And what the Supreme Court said is, sorry, you can't do that.
And I think that's what somebody ought to say in this case. You cannot have a series of preconditions for an appeal that is so onerous, when in fact, you can get all the protection you need with far less type situations in the manner that I've said, you just can't do it. So I think, in effect, that's the way in which this thing ought to be initiated. But what's so sad about, I am just appalled at the way in which the judge was positively abusive.
And the man, as best I can tell, is completely uninformed about anything associated with fraud and with restitution. And these are areas, as John can tell you, I've worked in intensively my entire professional career. And I've never seen a judgment as inept and as sloppy as the case like this, when the matters are hugely consequential, should bend over backwards to be professional. And I wouldn't accept work like that opinion from a first year student.
>> Tom Church: This is how you know I'm not an attorney, guys. This is why I talked to you guys. I'd forgotten, John, that the 8th amendment isn't just cruel and unusual punishments, that's excessive fines, that is. >> Richard Epstein: And this was a fine. >> Tom Church: And this was a fine. >> John Yoo: There's like no cases about it. >> Tom Church: I was gonna ask. >> Richard Epstein: They're gonna say is it wasn't a fine, it was a disgorgement. >> John Yoo: It's disgorgement.
>> Richard Epstein: Semantics 101. >> Tom Church: That's the word for the day. All right, last thing on this, though, because again, I mentioned earlier, Mr Biden's got quite a war chest and Trump does not because he's been paying legal bills. This judgment came out and there was immediately a GoFundMe or something along those lines for $464 million. Is this going to get paid by Trump or the RNC? Is it allowable for the RNC to pay this? [CROSSTALK] So let's do it.
>> Richard Epstein: There may be fiduciary duties on them that they can't spend for non-related purposes. Could a billionaire friend of his decide to put up the money? I think the answer is yes, but remember, you're putting this thing up. And it could well be that, given New York, Trump loses, at that particular point, the bond may get forfeited, at which point then the guy who put it up is going to have to turn to pump and say, pay me back by giving me your buildings.
This has gone so far over the top, but what happens is, I have no confidence whatsoever in the justice system in New York, the attorney general, she campaigned against this on the grounds that I want to be elected to get Trump. And that itself is a kind of animus which is utterly inconsistent with your prosecutorial duty. And then everybody else gets involved in a case which is so filled with elementary errors that it's absolutely a public disgrace.
And then you read these newspapers saying, well, we got the bad guy. We really have come to the point where we are engaged in various forms of what I would regard as, given what has happened, kangaroo justice. >> Tom Church: John, do you have any positive note to end on for us? Give me a prediction, give me something good that the Supreme Court's gonna come out. We're all gonna say, you know what, left and right, we all agree on this.
Anything with the Trump trials, anything with Mr Biden, anything with Hunter Biden, when are we all gonna set this aside and get along? >> John Yoo: Yes, I don't think this is, everyone on the left or everyone on the right is gonna agree. But I think what you're gonna see is that these prosecutions and these cases are not going to succeed in preventing the voters from deciding between Trump and Biden this November, that it really will be up to electoral process.
And I think, in that electoral process, in choosing how to vote, we can make our own judgment about how far to hold Trump responsible for January 6. how much we think whether he lies and obfuscates, whether we want someone like That as president or not. And that this campaign of lawfare, Richard called it, to use criminal prosecutions and sheets to kind of drive Trump off the ballot, I don't think it's going to succeed.
But it may well still well be that Trump will lose the election, but at least it won't be because of judges, it'll just because of the choice of the American people. >> Tom Church: All right, last question for real, guys. How many days after the election do you think will actually be called? And how many days after the election do you think the results will be accepted by both sides? How many? Over, under ten? >> Richard Epstein: No, I think it's going to be under ten.
My guess is it won't be that close. I don't know which way it's going to be not close. But there's a huge amount of uncertainty with Biden's health notwithstanding, his physicians report, and Trump's financial position and his own personal stability are always going to be an issue on these kinds of things. So it may well be you're going to get it clear. I mean, if this thing is decided by more than three percentage points, there's no way that a recount will do any good. >> Tom Church: John?
>> John Yoo: Yeah, I'm trying to think. Last time election was called within about a day, right? There's maybe two days. I would think this would be the same. And I don't think either side is going to successfully be able to challenge it on legal grounds. I think 2020 will be the high point of doubt about the actual outcome of the election and that 2024 will be much like Richard suggests. I think it'll be much clearer and less legally contentious.
Might be politically contentious, but I don't think it'll be legally contentious. >> Richard Epstein: We don't have Covid. There have been a lot of electoral reforms about boxes and so forth. Both parties are going to be on high alert for regularities. I think the real question about the political stuff and the criminal stuff is how it influences the vote. But I don't think the recount would be a dominant issue. John and I end on a note of perfect amity and harmony.
>> Tom Church: And on that note of harmony, that'll do it. >> Richard Epstein: And amity. >> Tom Church: And amity, that'll do it for this episode of Law Talk with Richard Epstein and John Yoo, the Fry and Laurie of the legal world. >> John Yoo: I got it. I got it. >> Tom Church: Well, thank you for listening. If you found this conversation thought provoking, please share it with your friends. Rate the show on Apple Podcasts, Spotify, or wherever you're tuning in.
For Richard Epstein and John Yoo, I'm Tom Church. We'll talk to you next time. [MUSIC] >> Speaker 4: This podcast is 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. [MUSIC]