>> Richard Epstein: All right, we'll talk about that later, all right. [MUSIC] >> Tom Church: Welcome back to Law Talk at the Hoover Institution. I'm your Law Talk guest host, Tom Church, still filling in for brand new father Troy Sinek. We are coming at you from the faculty lounge of the Epstein and Yoo Law School. I'm joined by, of course, the Marx brothers of lawyering and jabbering, that is the loquacious Richard Epstein.
Here at Hoover, we know Richard as the Peter and Kirsten Bedford senior fellow. Over at NYU, they know him as the Lawrence A Tisch professor of law, and at the University of Chicago, just senior lecturer. I'm also, of course, joined by the sophisticate John Yoo. John's a visiting fellow at the Hoover Institution. He's the Emanuel Heller professor of law at UC Berkeley, and he's also a former deputy assistant attorney general in the W Bush administration. Gents, great to be back with you again.
It wouldn't be a Law Talk, I think, without an update on the weal and woe of Mr. Trump's various trials. And I've got a couple things I got to run past you guys, notwithstanding what weal and woe where that actually even comes from. But first, let's do this. Let's talk about the woe first. So on April 15th, almost two weeks from now, Mr. Trump will begin a criminal proceedings over his hush money case involving Stormy Daniels. The weal, which is the good one, which is an interesting word.
Trump has been given a reprieve on his $464 million bond in his civil fraud case. He's another week to come up with a bond of just 175 million. And lastly, guys, the super weal, all right? The Trump Media and technology group corporation that is truth social, went public this week and added a few billion dollars to Trump's net worth, at least on paper. Now, Mr. Trump can't sell any of his stock for six months, so I have to ask before we get into even the weal and woe.
John, Richard, how many shares of truth social did each of you purchase? >> Richard Epstein: Thousands, no, none. >> Tom Church: [LAUGH] >> Richard Epstein: Look, I mean, first of all, I would have no idea what to do with the bidding frenzy. And secondly, until he decides whether or not to unload his shares, you have no idea what this stuff is gonna be worth. And third is, I just don't like to be involved in the most tangential way, even with these political campaigns.
So I basically took a discreet task and followed my uniform policy. I make no investment choices by myself, and generally, my financial advisors, who make all my investment choices, only invest in mutual fund or similar kinds of objects, so. >> John Yoo: Wait, wait, Richard, are you telling me that you delegate control over the vast Epstein fortune to which I have contributed working on over these many years by co hosting this podcast?
And you give them some financial advisor, Wells Fargo, to do when you were an economist- >> Richard Epstein: Well, not Wells Fargo, mine is- >> John Yoo: [CROSSTALK] Knowledge the markets and you don't make your own investment decisions? I personally have engaged in a series of complex financial transactions to short DJT. Are you kidding me? >> Tom Church: [LAUGH] >> John Yoo: We're gonna make so much money off of this thing when he leaves.
>> Richard Epstein: You're gonna make so much money off of it. Every time I've tried to make money, I've lost money. The basic maxim that Richard has is, if it's too good to be true, it's false. And the other maxim he has is essentially balanced portfolio, modest risk. And what you try to do is to beat the market by a tiny bit with slightly less risk, and you go to sleep well at night. So, John, you may take these outlandish positions, you may short DGT, and you may get your head handed to you.
I wish you luck, but I could tell you, John, I love being a joint venture with you on multiple situations, but in investing, I think we are going to go our separate ways. >> Tom Church: All right, so let's take this to the bond, the civil fraud case. This bond, we're down to $175 million. Is this a more reasonable approach in a case involving this matter, or is this still, do you think, more of an egregious penalty? >> Richard Epstein: I'll start with that one.
My own view about it is he's got a lot of real estate, it's not going anywhere. I don't think there's any reason to post a financial bond, which will require a lot of additional expense. Even if you succeed in posting the bond, it's gonna cost you millions of dollars. I think the agreement should have been, you cannot mortgage or sell any of the properties which are subject to potential judgment on that.
But you should be able to manage them yourself, because as a residual claim, that you don't want them to go down. So what I would have done is basically required that I would have gotten rid of the oversight investor, which the child judge has done. And I think I probably would have left in place, but reluctantly, the prohibition on his doing business in the state pending the resolution of his appeal.
But the great problem here is always the more outrageous the judgment down below, the more perverse it is to have any kind of a bond requirement. And so he could have made, given his theories, he could have had a billion dollars worth of damages, at which point the whole thing would have been unreasonable. So I think, in effect, it was discrete political compromise. I think he could make the bond. Lord knows what his chances are in New York court.
But I also think there are fundamental issues that are lurking in the background of this particular case. So I regard it as a positive, but not an ideal outcome. >> Tom Church: John, is this a normal course of business, do you think, to end up with a penalty like this? >> John Yoo: No, not at all. I think, actually, there are two things here. One is, I think, due process required there to be a reduction in the bond. But the second thing is also, this shows that this decision, right?
Remember, this goes back to Trump being found liable for over $350 million in damages when no counterparty was armed in his loans to fund his real estate. And I think if an appeals court is gonna drill down and oversee the exact amount that you have to post to appeal, that means this appeals court is gonna be, I think, fairly skeptical. Or look at the lower court decisions and the shenanigans that went on there, and then the attorney general bringing this case.
They're gonna scrutinize that decision, I think, far more closely than most commercial law decisions coming out of the trial courts. But here's the due process problem I had with it, and I looked at the decision. There's no opinion, that's just an order reducing the bond amount. But suppose the government imposed a fine on you for a billion dollars. Suppose it's just regular people. I don't know about Richard's vast financial empire, but I don't got a billion dollars.
So that you just don't have the money to pay the damages or appeal. I mean, that can't be possible. I mean, this due process clause requires that you have a right to appeal. But if the government imposes such an excessive fine on you and then says, and you have to post it in order to post that amount, order of appeal, then your constitutional rights, I think, are essentially forfeit.
And I think that's what the appeals court here also realized, is that they were getting into violations of the due process clause and the excessive fines clause just on this preliminary procedural matter. What do you think they're gonna [LAUGH] do when they review the $350 million judgment amount itself? >> Richard Epstein: Look, John, the reason why this case is so frightening is twofold. One, the basic stat pattern that is used in all of these cases was, in fact, followed by Trump.
And there's this very strange disjunction, when the man talks about his cases out of court, he sounds slightly deranged, as does Judge Engeron. But if you actually look at what his lawyer said in the case, they were playing a perfectly conventional and straight game. What they said is we basically gave them the papers, that's the first approximation. But then they basically took all that data, and they vetted it themselves and came out with their own independent result under due diligence.
You can't do these things any way other than that. No bank in its right mind would ever take even the most scrupulous statement of what the situation is, and lend hundreds of millions of dollars on that without giving it a check. So everything they did was overseen. And now, if it turns out that Trump has done something illegal by following standard procedure, then every single banking transaction in New York can be attacked by somebody on exactly the same ground.
What he said in the judgment was thoroughly irresponsible. He says it's only a matter of dumb luck that his bogus papers have not resulted in losses to anybody else. This is not dumb luck, he's filed 20, 30, 40 of these things. The reason there was no loss is they always followed the right procedure. So the man who's guilty of a huge mistake is anyone. I can't stress enough how horrible that judgment was on every single element.
And so what happens is he cannot do this, and then he has to show the gains to disgorge, but there were no gains given the transaction. And what he did was he relied on a statement which says, you don't have to produce reliance in order to win on one of these cases. That's true for establishing liability, but he didn't even show the fraud. But it doesn't establish what the remedy is. The remedy, if you lied and nothing happened, is you simply enjoin illegal practices.
Nobody's gonna enjoin the practices that everybody does within the state. But you can't have disgorgement unless there's something to disgorge or there's nothing to disgorge. So the remedy stage of the case was completely wrong. This was arguably the worst single opinion I've ever read in my life in a matter of this side, and it was drenched in political stuff. The clue, he describes Trump as pathological. That's not what you say in a judicial opinion.
And the reason he was pathological is he disagreed with Judge Engoron through his lawyers. This is a travesty of due process. That statement alone is enough to disqualify the case and to start over, and then pile on top of that all the political vendetta associated with Tisha Graham's. And you have the making of a genuine horror story. >> Tom Church: Well, here we're talking about a case that's still proceeding, we're still going back and forth with judge.
April 15th, the criminal proceedings for the hush money case to start up. I have to know, gentlemen, it's a criminal case, we're gonna get a jury. What does that jury selection look like? I mean, we're actually going to how Mr Trump's been party to many, many trials. But now we're actually going to have a jury decide this, how is that gonna go? >> Richard Epstein: Ask John. >> John Yoo: [LAUGH] I mean, I- >> Richard Epstein: Cuz he doesn't know either.
>> John Yoo: I mean, I guess I've been part of one or two jury selections as a court clerk in the Justice Department, I think, but, and then I've tried to get out of jury duty any number of times. >> Tom Church: Sure, sure, we all have [LAUGH]. >> John Yoo: But I always show up and I answer the questions. I almost made it as an alternate once, but I've always wanted to see what happens in the jury room itself. I have no experience with that other than watching Henry Fonda.
>> Richard Epstein: 12 Angry Men, good [CROSSTALK] >> John Yoo: [LAUGH] So I think Trump's gonna claim that it's impossible for him to get a fair trial in New York City. I think that's gonna lose. I mean, there are plenty of people in New York City, I'm afraid, who'd have no idea what's going on here and have not heard of it [LAUGH]. So, yeah, what you're gonna have is this process is called voir dire, where both sides get to ask questions of potential jurors.
And then ask the judge to knock some out on grounds, and then they get their own, what are called peremptory challenges, where they just get to strike jurors based on their own guesses. I think, based on the general jury pool in New York City, the jury is not gonna be very favorable to Trump. But I don't think it's gonna be biased in the sense that people will come onto the jury already having heard of the case, already having made up their minds.
I think voir dire will succeed in getting those people out. One thing that might sway the jury, they're gonna focus, of course, on Trump and whether they like him or not. But I also think they might worry about the status of New York City. One thing Richard has pressed home in this case is that going after Trump, persecuting him in this way, is gonna accelerate the decline of New York City as a financial capital.
If you see the DA going after people on bookkeeping charges, and you see the attorney general going after real estate developers where no one's harmed, for hundreds of millions of dollars. If you run an investment bank or a hedge fund, are you gonna locate your assets of business in New York City anymore? I don't think so. That's why everyone's moving to Florida or Austin, Texas. >> Richard Epstein: It's kind of scary. My own view about this is the case is already tainted beyond all repair.
And that a shift in venue outside New York State is probably going to be required, although it can't be done, given the fact that this is a state prosecution, and you have no jurisdiction elsewhere. Moving it upstate, I think, would have been somewhat of an advantage. But then it turns out that Bragg can't run this particular case, and taking it from Bronx to Queens or in reverse is gonna do no benefit to everybody. >> Tom Church: What about Staten Island, John, return to home?
>> Richard Epstein: Well, I mean, that's a Republican area, more or less. You have to cross the Verrazano Bridge, and it might make a difference. But what's gonna happen? >> John Yoo: What about Canada? Why don't we just move it to Canada. A part of Upstate New York? >> Richard Epstein: But this is, I think, what's gonna happen. If you simply ask the question, do you have any knowledge of this case independent of this? And somebody answered no, you'd say they were a liar. You have to say, yes.
What's gonna happen is, and they're gonna have to go through this. The defense will try very hard with rather extensive cross-examination to pick out the people whom they think are genuine troublemakers. But the real situation is gonna be, after the trial starts going, and you listen to the kind of evidence that get puts in. And if you get any information after the trial and the verdict about jury behavior and tampering or whatever it is, it will come up again.
So I think, in effect, if you were serious about independence, you can never assemble a jury. But if you were then serious about reviewing the verdict, you're gonna have to be able to figure out to some extent, by whatever means possible, how things went on in the jury room or what the particular charges [CROSSTALK]. >> John Yoo: Okay, I have far more faith in the ignorance of New Yorkers than Richard does.
>> Richard Epstein: Having studied- >> John Yoo: Having grown up there, Richard thinks that New Yorkers, all New Yorkers, think they're all knowing and have an opinion on everything, which Richard himself, of course, does [LAUGH]. >> Richard Epstein: No, that's WQXR, the know-it-all New Yorker. And we do have that thing, but I think the serious issue is, it's impossible under these circumstances, given the exposure, to have anybody who doesn't know anything about it.
And in a state or a city which is probably 85% Democrat, it's impossible to ignore the real situation of a vendetta, given that's the way in which Bragg operated anyhow. So you're gonna convene the jury, and then afterwards, or during the course of the trial, it's going to be subject to extra scrutiny in order to offset the fact that it's likely to be in some way necessarily biased in favor of the prosecutor in this case. I don't think there's any way to avoid this, but I think John is right.
It's gonna be another version of what happened with respect to the civil fraud judgment. Extra scrutiny is gonna have to be leveled at Every age, at every stage of the trial in order to make sure that real bias does not get through. It's a very live possibility. But there's a rule, and that's the one that's gonna apply here.
If it turns out that bias is a problem, but there's no way to get somebody who isn't biased because of necessity, then what you do is you run the trial and have extra scrutiny at the above level. And that's the way I think this is gonna have to play out. And at this point, it's anybody's guess of what will happen, cuz we don't know anything about the order of witnesses, the rejections, whether or not you're allowed to cross examination and so forth.
So hang on to your hats, this could be a very long trial. >> Tom Church: All right, so luckily, no jury on the 25th. Instead, you've just got nine Supreme Court justices hearing arguments about presidential immunity. So, Mister know it all New Yorker, I won't ask for, for estimates. >> John Yoo: I just want to make clear, I'm from Philadelphia. >> Tom Church: So a suburb of New York City, you tell me. >> John Yoo: My God.
>> Richard Epstein: You must be from California [INAUDIBLE] >> Tom Church: How dare you Richard, as a Michigander. >> John Yoo: You are lucky you are on the west coast, don't ever appear east of the Mississippi river. >> Tom Church: [LAUGH] >> Richard Epstein: No, but he's from Michigan. >> John Yoo: We're on you [LAUGH]. >> Tom Church: We're too nice over there, we're too nice. No, but this is gonna happen, we're gonna get this argument.
Do you think that this is going to delay Jack Smith's cases involving Mister Trump? The I think what's gonna happen is, judging from the Senate, is that the global train of presidential immunity will fail on the grounds that he's not acting in the role of president. The other argument, which I think over time has gotten greater power in my mind, although it's not going to win. Is that just suing people for acts while they're president of the United States carries with it such political risk.
That if you allow this one, then when Joe Biden is gone, there are gonna be lots of actions against him. And what we'll do is we'll have a kind of kangaroo court mentality in which ex presidents can be sued for work that took place during their immunity. I don't think they're gonna say that in this particular case, John and I have had a disagreement on the double jeopardy issue. That's not up at this time, I believe in the case.
But when it goes back down again, I think that's an appealable issue and I think you'd have to appeal. John, to correct me if I'm wrong, if you say there's double jeopardy, I think you get to appeal that immediately. Because I don't believe that you should go through an entire trial if it turns out the double jeopardy clause says you cannot be tried at all.
John, as the author of a book about president, a recent book about presidential power involving Mister Trump, please tell me what do you think is gonna happen here? >> John Yoo: I expect Trump is going to lose. I think he's gonna lose on the immunity case just as much as he won on the disqualification case out of Colorado. And part, I think- >> Tom Church: That big?
Yeah. >> John Yoo: Yeah, yeah, I think it could be unanimous, in fact, one reason is, I think, the text and history, that constitution don't support it. The constitution has a provision in it that talks about impeachment, and the provision seeks to make clear that impeachment is not criminal in nature. It's only about removing someone from office. And that criminal process, indictment and judgment, is for someone's out of office, in fact, the text says that.
And Richard's saying that, well, that still could be a double jeopardy issue, I don't think that's the way the founders saw it. I think Richard's making a stronger argument based on current double jeopardy values, but I don't expect that to prevail with these justices who are so attached to the text and original understanding. But the important thing, I think the real is, I think this is what might confuse people.
And I think maybe this is in part Trump's fault, is that he has some very good constitutional, illegal defenses against the indictment. Immunity is just about whether he has to show up in court at all. I mean, if you're immune, that just means you can't ever fall within the power of the court. I don't think that's the case. He'll still have to show up in person, but then he has very strong arguments to attack the prosecution.
For example, the idea that he committed January 6 was some kind of fraud committed against the United States, the kind like a defense contractor does it commits when they overcharge for a hammer. Or that this was an effort to interfere with a congressional investigation or that Trump was violating the voting rights of every single person in the country simultaneously. I actually think Trump's gonna lose on immunity.
But then the trial court has these serious constitutional issues to address, and I think Trump very well might win either there or at least on appeal, all the way up to the Supreme Court. And then that's when he'll get his due. >> Richard Epstein: So this is a funny element, all these cases start talking about something being done deceitfully. And you need to put that element in there, because if you don't have deceit, then it becomes protected speech.
But if Trump believes, perhaps because he's a little bit off his rocker on some of these issues, that in fact, he really did win the election. And that he really was entitled to bring these particular chains in the exercise of his First Amendment right, it's gonna be hard to prove the particular deceit. So you have to allege it, but proving it is gonna have to be done. Well, he had to have known, because everybody knows that he is, in fact, wrong on that case.
And I don't think that you can make a deceit case out about somebody's mental state by proving that everybody in the world. Particularly those people who disagree with him, think that he had to be lying, because nobody could be that stupid. I think you're gonna actually have to find something around there in which it shows that he said, I'm gonna raise this argument even though I know that it's false. Here's a letter from counsel which told me this and I knew that that was false.
It's gonna be very hard to win this, particularly if you're gonna have a really serious defense. And look, my impression from a distance, and I have no inside information whatsoever, is everything I've seen from Trump's lawyers in terms of published documents. Have been very much in the way of traditional legal defenses and so forth, done at a very high and very pricey level.
So it's not as though you're gonna have Trump handling his own case in the courtroom, and his job is to be quiet until spoken to. And that, for him, has proved to be a long term impossibility through his own life. The only person who could convict Trump, I think, very comfortably, is Trump himself by going on some kind of a rant.
Which is gonna be treated as a concession that he was fraudulent in the way in which he approached January 6. I don't think that's going to happen, so I think John's right, this is gonna be a real tussle. >> Tom Church: Let me follow up on that logic then. Does that mean downstream, anyone who was involved in the alternate slate of electors, sometimes called fake electors, would use the same defense? We thought that we were gonna be verified electors, and so that's why we got together.
>> Richard Epstein: Yeah, I think it's even stronger than that. I think they're gonna say, the only way that you could mount the challenge, if you think that the current slate is void, is to put together an alternative slate. Otherwise, it turns out you're asking for a right for which you can't supply a remedy. So I think their case is even strong on this particular point, and it's only gonna be if we have that the mentality is, we know that Trump is so egregious that we have to get him.
But in polite company you're not allowed to say, wholly apart from challenging the election in court, that I thought that things were highly improper, and I think it's perfectly appropriate to do that. And what should have happened after January the election is that there should have been an independent congressional investigation, not by the J 6 committee. But by some impartial views, to see whether or not the claims of irregularities in the election and give rise to a need to change practices.
Particularly with respect to this constant system of early voting, collected in undisciplined ways. Particularly with respect to the way in which ballots are sent out for people knowing that at least 10% of them are not going to find their recipient because they're dead and moved. I think there are a lot of things That you could raise about this particular situation.
The great tragedy is if you try to raise it after Trump has been hysterical on this thing, it's gonna be very hard to get anybody to take this thing correctly. So as usual, the man is his own worst enemy. This is a perfectly legitimate issue for oversight, but the way in which he's politicized it makes it impossible for anybody to touch it. He's made the entire inquiry toxic with respect to everybody on the other side of the case.
>> Tom Church: All right, last topic on this related subject before we change gears a little bit. This week, a judge in California recommended that John Eastman, a former Chapman University law school dean, be disbarred for his part in the challenges to the 2020 election. I'm wondering, that's now almost four years ago, or three and a half or so with the lens of history to kind of analyze the record. Maybe I'll start with John. What more is there to say about this next step for Mister Eastman?
>> John Yoo: So I'm glad you raised this case, Tom, because I appeared as an expert witness on John Eastman's behalf. I've been friends with him for a long time, more than 25 years, I think, now. And there's two ways to look at what happened. And one of them actually goes to Richard's last point about when John made factual statements about the election being stolen, how much did he believe them?
The state bar judge here found that it was impossible for John to have believed that the election wasn't free and fair. I'm not sure about that at all. The second part, and the part I didn't testify to that, cuz I actually happen to believe the election was fair. I agree with Attorney General Barr. If there was any election monkey business, it wasn't enough to change the outcome of the election.
But the second point was whether, as a lawyer, John has the right to advise his client to take what positions that other people disagree with or even might seize extreme. And this was John's advice, that president Trump could ask Vice President Pence to stop the electoral count, pause it for, I don't know, like a week or so. And ask the states to recertify their electors rather than count the votes.
Again, that's not my legal view on how the system works, but because this is an issue where there had been so little, there's like no cases, there's very little example of anything remotely like this having happened before. I didn't think it was outside what a lawyer could advise a client. And I actually said at the hearing, and think about Thurgood Marshall. Think about the lawyers who fought against Plessy versus Fergie and against segregation.
At the time they're making their arguments, they're arguing against settled Supreme Court precedent of many decades, against the whole social system in place for many decades. I wouldn't say Thurgood Marshall could be disbarred because he made such arguments. And that's my worry that that's what's happening with John Eastman. >> Richard Epstein: Look, I'm very complicated. John was one of my very best students.
And one of the things that's so ironic, if I had to sight on scene who was a better master of constitutional law, whether it was the judge who tried the case or whether it was John, I think would be hands down John. I've seen him work in so many situations, utterly apart from all of this kind of controversy, in which his knowledge is as great as anybody as I've ever meth. So the presumption is there's got to be something going on here, I think he did make a terrible mistake.
I think the problem that John has is that you work for Trump, and he's always dangling, indirectly, something in front of you, and you could take a lapse in judgment. I don't think the arguments that he made were correct. I don't think they were even, quote close to correct under these circumstances, because the vice president only had the power to open the ballots. He didn't even have the power to count them.
And the entire precision was one to make sure that there's a real chain of custody, so that nobody could flim flam the way in which the system worked. Given the very important constraints on irregularities that were built into the 12th Amendment passed around 1804 or so forth? And so I think that it was that way. But on the other hand, as John, you said, there was no precedent on all of this stuff.
And, in fact, many of the institutional arrangements that we used to have are changed very dramatically, just to give one situation. In 1804, there was no notion that these people were bound electors. That is the definition of an electoral college being held in each of the states, is it's a deliberative body, like the College of cardinals. And so at that point, the risk of transmission of wrong information is greater than now, when it's simply a formalistic situation.
These guys have no discretion whatsoever, they just vote as they would. They're basically messengers, so you don't have all the particular worries. The question was, therefore, what are the irregularities that started to take place in these cases? As I said, you have to have an alternative slate of electors to do so. And then it seems to me what she has to do is to say that all the authority that John put forward, all which is perhaps contrary to the text, is nonetheless completely irrelevant.
But my view is, in a case like that, if it turns out, and I have not examined the record, that there are previous practices that are consistent with John's claim, then you can't disbar him for what it was that he has said. And I'm always troubled because I'm looking into a deep blue state who has a deep red lawyer on the other side who has failed in his own efforts to get political elective office attained. So I'm just unhappy about this the way I'm unhappy about things in New York.
My view is, when you're going after people, the one thing you really want to be sure of is what you had in the Nixon case, is that people in the man's own party had decided that he had simply crossed any kind of line. If you don't have that, there's too much of a risk that it's blue against red or red against blue.
And that leaves me troubled, because I think, as John Yoo has said, it means that you can now have revenge files of one kind or another in virtually every kind of controversial situation. So I haven't read these opinions yet, I've just read the newspoint of town. And so the real question is there any limiting principle? And did she get all the facts exactly right? If she didn't, then I think it's a mistake.
I assume this thing is appealable, but I assume that the suspension is going to stay in place until this appeal. I have no idea what's going to happen. John has been depleted in multiple ways because he has this case to deal with, and he also has the Georgia case, which I regard as rotten from beginning to end in terms of its basic predicate offense.
Namely, the idea that when Donald Trump was screaming in front of a dozen people or more that he thought the election was rigged, find me some votes, that he was asking the guy to manufacture the votes. I think what he was doing, quite in a sense, was asking him to do a recount, because there were so many irregularities in the way in which things had run that you have to look closer at the procedures. And it's not just counting the votes, ballots that were cast.
You have to ask whether ballots that were cast should not have been cast or things that were in fact, done were not reported. So I think, in effect, that case is very weak, independent of Ms. Fannie Willis' massive indiscretions in the way in which she has conducted it. So I think it's kind of sad. But I do believe that there's an element of vendetta against John in the same way that there's an endowment of inveterate against Trump.
And this is not to say I agree with them, but to say, in effect, disagreements, even vile disagreements about how an election should be prosecuted and conducted is not sufficient. Grounds to initiate penalties of one kind or another. You should be extremely careful about that, and we'll wait and see exactly what happens. I make no comments on the accuracy of her opinion because I haven't reviewed it.
But I do say that there are always reasons to be uneasy about the way in which things are done when you're pretty sure that the leader, the independent judge, is probably very closely allied politically with the opposition. >> Tom Church: I'll say, let's hope that's maybe the last disbarment case involving elections that we have to deal with for the foreseeable future. >> Richard Epstein: But there is one thing which is, I think, terrible.
Is they're basically hyping up minor prosecutions in the Justice Department against people who have been in the building for two or three minutes or whatever to keep the nine of the J6 situation alive. And I think that's a real abuse of discretion, cuz I think what's happened is that Garland, who's been a horrible disappointment as attorney general.
Is keeping these in front because they want to run the election as though what happened on J6 is more important than what's happening in the Ukraine and Israel and Taiwan, on the southern border and a thousand other things. And I regard that as political persecutions, and I do not think they should be brought. And I think the attorney general should immediately stop this situation instead of saying, I'm always here to make sure that justice is done and the rule of law prevails.
Prosecutorial discretion is something. And you don't lower the boom on minor cases three years plus after things have happened on the grounds that you're just simply trying to get at the truth. These guys are political operatives and all the people who should be doubly cautious about bias and loyalties. Somebody who works for the president of the United States should be very careful before he undertakes prosecution.
Which is designed to basically highlight the indiscretions and stupidities of somebody like Donald Trump, it's not the way in which law should be done. This country is really going down the wrong path with these kinds of vengeful prosecutions. >> John Yoo: So this is where Richard and I, I think, differ, because I personally think the Justice Department is perfectly entitled to prosecute every single person who entered the Capitol building on January 6.
And I would like to see the ringleaders and the leaders of it punished more harshly than the people who entered January 6, entered the Capitol but didn't do it, we're just kind of going along with the crowd. But it was all illegal, and I don't think there's any reason it's, Richard, did you not see the videos? I mean, these are people who pushed by police barriers and attacked police officers, I mean, I can't see how you can call those political persecutions. I mean, Richard, that's outrageous.
>> Richard Epstein: [CROSSTALK]. >> John Yoo: Outrageous, and to say the Justice Department is engaging in extra-politicized prosecution, I think that is, that goes too far, I really think. >> Richard Epstein: Let me say what I said, I did not say that people who use forced criminal trespasses perfect >> John Yoo: Said people who were in the building for a little bit, their prosecution was political and that it shows the Justice Department is engaged, is totally politicized.
I think that really goes too far Richard, to get into the Capitol building, you had to blow by barriers, you had to fight with police officers, you had to break into the building. >> Richard Epstein: No, that is not true. >> John Yoo: And indeed they're not allowed to be in there. >> Richard Epstein: No, if you look at the one case that's right up before the Supreme Court, that description does not fit. >> John Yoo: Well, no, but they may be charged incorrectly.
Like I said, I don't say that they've committed fraud on the United, say they committed fraud against the United States I think goes too far. But they're certainly guilty of trespassing, many of them are guilty of, guilty of using force. Some of them are guilty of trying to interfere with the electoral count.
>> Richard Epstein: No, let me say all of those things are true, but the case that's right up there now doesn't look like that, somebody was in the building for three minutes, there's a dispute as to whether he hit somebody. His evidence was that somebody pushed him. He leaves the building, you don't prosecute him for three and a half years. You're not duty bound to prosecute these people. And what I'm saying is, in those particular cases, it seems to me they're minimize offenses.
And to drive these as prosecution cases when there's an obvious political motive, is highly done, these are not cases of the use of force. Many of these people were allowed to get into the building by people who hold the doors open for them. If you then compare this to the treatment that took place with respect to Seattle and Portland, where people were using systematic force against the United States and the willful destruction of property.
Much more serious offense, not a single one of those persons from Seattle, [CROSSTALK]. >> John Yoo: Mind you, that's under the Trump Justice Department. So to claim this is some kind of selective prosecution against the people on January 6, when the Trump Justice Department, we talked about this, I was with you. I was like, I don't understand why the Justice Department is not prosecuting these people in Portland and Seattle, Chicago, all these places, I didn't understand either.
But that was a Trump Justice Department that decided not to prosecute them. How is that selective political prosecution? >> Richard Epstein: I think it's just terrible, I don't care who the Justice Department is. I think it's an office, and there should be consistency across these particular cases. And I also think that it's highly upsetting in these circumstances to have essentially stop all these prosecutions for a year.
And then the moment the election campaign begins to start to bring them up against exceedingly minded players. So it may well be these people are guilty of something, there is prosecutorial discretion in this stuff, and what's happened is being done the wrong way. And you said it was the Trump people who didnt prosecute. Well, also, Biden comes into office on January of 2021, and at no point after then does he decide to reconsider those judgments and to impose any prosecutions upon them.
>> John Yoo: Because the Justice Department doesn't do that, I mean. No, no, if they look at a case and they decide to decline prosecution, they looked at it and they decline, it's almost like 99% of the time, the Justice Department will not reopen a case and change its mind on declination. >> Richard Epstein: Well, you're talking about cases of immense, really dangerous, continuous activity. That's exactly the kind of case they can re-open.
>> John Yoo: I agree with you, but for whatever reason, the bar Justice Department decided not to bring those cases. I actually think it's less political if the Biden justice department then says, we are gonna prosecute everybody who trespassed on the Capitol grounds on January 6, we will vary the severity of the punishment, right? They didn't charge these people with sedition, they didn't charge them with insurrection. They did charge just the head of the Proud Boys, I think, with sedition.
>> Richard Epstein: [CROSSTALK] sure. >> John Yoo: But that's what I mean, I think you can have not in the charge. >> Richard Epstein: [CROSSTALK] You're looking at people who are in the building for less than three minutes. They came in late, most of the other stuff had been done, there was no. >> John Yoo: These are, these are tourists, they see fighting and windows broken, gunshots, and they say, hey, let's go check this out. This is their perfect. >> Richard Epstein: That's not the problem.
The problem here is when do you enter the building and how long do you stay if you enter it on your own, after all the tumult is over and then leave, it's a very different case than coordinating with other people. And that's not what. >> John Yoo: That I agree, I totally agree with you. I'm just saying they're not innocent either. >> Richard Epstein: I didn't say they're innocent, I said, in effect, they minimist. I think there's only one reason why these cases abroad and fairly heavy charges.
Look at the cases right now in Fisher before the Supreme Court. That case is probably gonna be reversed because. >> John Yoo: On legal grounds [CROSSTALK]. >> Richard Epstein: But mischarged the cases, but what was the correct charge to make? It would have been a minor, it would have been criminal trespass, I agree. But it would not have been criminal trespass with intent to do anything except to get out of the building when it was. It was all over.
And if you let these things lapse for a year and then reverse the decision the moment the election comes heated again, it's a political decision. And remember, the Justice Department is under a duty not to basically bring its prosecutions in a way that are likely to influence the outcome of a particular election. And that's what's being done in this particular case. So it's not only that the offenses are weak, but there are also serious norms about what's going on in this case.
And I don't think Merrill Garland or anybody who worked on those cases was about them. And I think in the other more serious cases, maybe Barr decided not to prosecute. But what he did is on a blanket base. There was nobody there. And remember, Barr was the Trump administration. By the time we get to these cases, Barr was so much an opponent to Trump that he was like Biden himself, and he still remains like that.
So I do think, in effect, that it's not a particularly powerful argument to say that an anti Trump attorney general appointed by Trump let these guys go, could make exactly the same argument. He had a duty to prosecute those people, whether or not he liked Trump and so forth. So what you do is you see these really upsetting kind of contrast. And in a case like this, you unbelieve this, look what's going on.
Hunter Biden, they still have David Weiss on the case and always doing a slow walking the whole thing, whereas it turns out that Jack Smith is going hell for leather against Trump. So this is not a case in which you could look at these cases in isolation. And looking at them together with everything else that's going on, it seems to me this is an unwise set of prosecutions. I agree with you that they did commit some kind of a wrong.
I'm not trying to argue that they didn't, but I'm saying it's a modest wrong. And against all the other atrocities that happened on those particular days, bringing these things back very late in the day is a real sign of bias and prosecutorial differentiation. Using your discretion to get your enemies and not using it with respect to your friends. >> Tom Church: All right, gents, I got to jump in here so we can finish up. I need you guys to give us a preview.
We're gonna take a turn here in the conversation and kind of put you guys on the stand, because I do know that you two have, what, a brief going before the supreme Court, hopefully, beginning of next week. >> John Yoo: Yes. >> Tom Church: Nothing to do with Trump, actually. In fact, we're gonna talk, I think, climate change, and if I have this right. So, John, give me the facts here.
>> John Yoo: Yeah. >> Tom Church: It seems like it's the implications for state courts and jurisdiction over federal courts. >> John Yoo: First of all, for those of you listening, and you just heard Richard and I disagreeing about this, can you imagine what it's like when we have to write a brief together? [LAUGH] But no, actually, this is what I love working with Richard, is because we have sometimes very different thoughts and we argue them out. And it's what makes law school fun?
And Richard and I think we both liked law school so much, strangely, that we never left, [LAUGH] right? >> Tom Church: Yeah. >> John Yoo: So this is a really interesting case. Richard is much bigger expert on what's been going on here. But essentially, cities and counties and even states all around the country have been suing energy companies.
And be suing energy companies on the ground that they have misled the public into buying not just gasoline, but any product using petroleum without disclosing to the public that this causes climate change. And therefore, they've committed a tort on the public. Now, the part of the brief, this is an amicus brief asking the court to take Cert, this is a case out of Hawaii. This makes even more remarkable in the facts.
It's Hawaii that's claiming that all these petroleum companies and energy companies have flooded into Hawaii, forcing people to buy their products, which are raising the sea levels and ruining Honolulu. But there's an interesting federalism issue, because generally, we do leave tort law up to the states.
But the Supreme Court said long ago that when it comes to things that are interstate, like interstate pollution, interstate transportation, that's where federal courts and the Constitution are supreme. And so courts have to figure out the balance between that. The second Circuit, which is based in New York, rejected these kinds of claims in a case against, I think, Chevron.
So now that Hawaii has gone the other way, and this has gone up through the Hawaii state court system, and said these lawsuits are actually legitimate. Then Richard and I argue, at least, on the federalism and judicial review issue, this conflict between two-part two courts in the country has to be heard by the Supreme Court.
Federal law can't apply differently throughout the country, where some states allow you to bring these kind of cases, some circuits don't allow you to bring these cases, has to be resolved by the Supreme Court. But then we also, and I think this is a new part that we introduce, Richard's specialty. We also attack the idea that this is even a real, or that this is actually really a legal claim at all and not some kind of political assault on these companies.
>> Richard Epstein: Yeah, look, let me take it up from there. One of the things that happens, I read this particular claim, and it's a case dealing with public nuisance. And public nuisance is a very old branch of law going back to 1535 or six. And the basic claim that they had there was one of two sorts. What you do is you block a public road and you delay people from going, or you block a public road and somebody runs into the barrier.
For the first case, what happens is an administrative remedy, but there's no individual actions for the delay, which is a real loss, but it's just too hard to compensate. And then for somebody who gets really smashed up, they bring an ordinary tort case. So we start looking at this case and they call it a public nuisance case. But it turns out it's not a public nuisance case in which they're alleging a trespass.
It's not a public nuisance case in which they're alleging any admissions that are taking place under the water. It's a public nuisance case in which they're claiming that there is misrepresentation, a false statement or a statement not to do something. Which are made to consumers in Hawaii, all of whom know the truth about the risks associated with global warming. So if you start looking at this, you say, okay, where's the misrepresentation?
Well, they've actually said nothing about global warming when they market their stuff. Indeed, they say very little to anything to consumers because most of these claims are marked, basically the disclosures or the statements are made by retailers who are not the defendants in this case. All right, so there's not that, then, was there a duty disclosed?
They're making the kind of argument which says, if you sell gasoline, you must always speak about the fact that if anybody uses gasoline, it may cause global warming. The point about this is you're telling people what they already know. You're telling the county what it already knows. The county itself is never thought fit to say, ladies and gentlemen, when you buy gasoline, do you know you're contributing to sea rise? There's just silence.
So there's no duty to disclose anything here and there's no false statement. So where's the misrepresentation case? Well, suppose you get past that, then the question is, what about reliance? Well, you can't rely on things that are told to you by other people when you already know the truth. And so the law of misrepresentation has always dealt with matters of latent defects and concealment. And this is as plain as the nose on your face. And then there's the question of what the remedy is.
The only remedy that comes from misrepresentation is you have to tell the truth, or figure out what the damage is from not telling the truth. It has nothing to do with the pollution itself. Because that was not what alleged. So suppose they had made the requisite disclosure, what would have been the reduction in consumption of gasoline? The answer is probably zero or very close to it. Why are you then responsible for raising the seas? So what happens is this is not a kind of a tort issue.
It's a bogus tort, but it's a bogus court against people who are outside the state in terms of their predisposition and there's no general jurisdiction that you can't sue in Hawaii for global warming just because you want to do it. You have to do that in the place where the company's incorporated or does its headquarters or things like that.
And so in this particular case, there's a long arm statute which says you have to have some contact with the state and the misrepresentations have absolutely nothing to do with the pollution case. And so once you then apply the federal statutes, which says you just can't haul somebody into your state because you like them to be there, that's what this situation is about and the talk about public nuisance is just blathered. So it's always been the case.
If you allege, for example, a tort of defamation, you have to prove that there's some defamation in there. And as the Supreme Court said, just alleging that there's a public nuisance or that's defamation, is it enough to attract any serious attention? You have to prove the elements. So we went through all the elements and none of them turned out to be satisfied. And so this is a jurisdictional issue has to be raised at any time.
We thought that our contributions would be two one, John took responsibility largely for the first part of dealing with the preemption issue and I took larger responsibility for the second part. And then we just thrash this thing around back between us and we hope that the two prong attack will be successful in what's going on here because if this thing doesn't work.
John had a very nice series of paragraphs saying how all this stuff is going to interfere with international negotiations on climate treaties and things of this sort. So we're not making any statement whatsoever about greenhouse gases, their potency or their danger. What we're doing is saying, this is not the way in which states can basically wrest huge sums of money from foreign corporations because if Hawaii can do it, every single state in the union can do it on exactly the same theory.
And it turns out that the federal control over the issue will die. >> Tom Church: John, what's the next step for you guys will turn this in and then what happens next? >> John Yoo: Then the city and county of Honolulu will get a chance to reply, urge, I guess, the court that, no, no, don't mind us we're not doing anything over here. Even though you read their opinion, they talk about, we're taking sides against New York.
Like, they're very clear, there's a split in the law and the court will have to decide whether to grant, sir, set it for argument next year. And then I think you'll see the mother of all deluges of amicus briefs. >> Tom Church: Yeah. >> John Yoo: Anybody, right? So, the last time the court seriously took up climate change was in a case called Massachusetts versus EPA back under the Bush administration. >> Tom Church: Which was about seven.
>> John Yoo: Yeah, whether the EPA had to regulate carbon dioxide as a pollutant. I think that was actually quite a questionable decision. The court actually said it must. That's unusual. But anyway, this will be the right.
This case is really the next big opportunity for the court to address global warming and actually make clear whether there's going to be one single federal solution or there can be not just 50, because this, again, this is cities and counties, too, literally hundreds, if not thousands of different approaches to climate change in the country. >> Richard Epstein: And by the way, they're not saying they're entitled to an injunction. Nobody wants to get injunctions if you're litigating the only.
>> John Yoo: Yeah, they want money. >> Richard Epstein: Money because, you know, you get an injunction against something. So what's the injunction going to look like? Please tell everybody when you sell gasoline that fossil fuels may cause danger. Well, you want to do that. The city and county of Konolulu can simply put that as a public label on every gas tanks in town. They don't need to have the gas companies do it. And how do you give a payment for an injunction?
You give them one 6th of the injunction. On the other hand, if you get a billion dollars, one 6th of a billion dollars is not chump change. So the whole thing is cynical from start to finish. Every one of these cases is like that. I mean, I've actually had debates over the one that took place in Colorado and other situations and the description I gave is the chain of causation in all of these cases consists entirely of missing links. And I think they're all dubious.
I also say, in retrospect, judicial restraint by Justice Ruth Bader Ginsburg was a huge mistake in the American electorate case. What she did is she said, well, we preempt federal damage actions but we don't talk about state damage reactions, actions, but she couldn't figure out any reason why they should be treated differently. But she left the question open. And now we have a very different climate of opinion, quite literally on this. And so everybody's trying to pour through that exception.
They know they can't bring actions against polluters because that would make a sense but BB barred by the American power case. So what they're always trying to do is to get upstream people who didn't create the emissions responsible as if they did. And that's what's happening in this case.
>> John Yoo: The other thing Richard said in the brief, which I thought was an excellent point which hasn't been focused on as much yet is if every time you buy, sell, or use petroleum product, you are contributing to global warming, you have to make this disclosure. It's not just, Chevron, it's not just people who sell gas. Right. Everybody who uses oil in any product, like nylon, polyester, right? You know, what used to be called Chinese grocery store shopping bags, right?
Like all of them are responsible and have to pay damages for this. I mean, that just shows how ridiculous it is. >> Richard Epstein: And one of the great ironies these people all want to rely on, so called the harmless wind and solar energy but you have to fabricate panels of one kind or another, milled blades on the other and the only way you could get the intensive heat that's needed to make these materials is to have traditional fossil fuels. >> John Yoo: Okay, that stuff's not in the brief.
>> Richard Epstein: No, we didn't put it in the brief. We didn't put any of this stuff in the brief because, as John said, this is a brief over jurisdiction. It's not over the marriage. But one of the questions you're going to ask is, if God forbid, this case should go to trial, every bit of this stuff starts to become completely relevant and it's going to be completely whack on how you start to handle it. >> John Yoo: Richard, don't reveal our trial strategies.
>> Richard Epstein: We don't have trials, right? Mark Mills wrote something in the wall Street Journal and so forth about how it is that if you really try to goose this stuff up, its physical limitations and the laws of nature that it could prevent it from working, not otherwise, which is why the Biden administration has already pulled back. >> John Yoo: So, Richard, let me restrain you.
The main point, though one of the things in the brief which I do not want you to now transgress is that it doesn't matter what your view is on climate change one way or the other. This is about which government should regulate it. And our point is, it should not be a thousand jurisdictions. It should be the federal government. And then you can later have the debate about the right trade offs, and everyone will which technologies to use and which energy systems to adapt.
>> Richard Epstein: That's right and it turns out that. >> John Yoo: But Richard is not. >> Richard Epstein: I'm not debating the merits. What I'm debating, in fact, is that federal policy itself is at this point in major flux. And so to have the states do all this stuff in the federal government, even the Biden administration hasn't made up its complete mind, is, in fact, an added level of complication. >> John Yoo: Yes, that's a good point. >> Richard Epstein: And that's all I wanted to make.
I mean, actually, I mean, if we wanted to have another show about global warming and so forth, you could go on. >> John Yoo: You can count on me not being present for that. >> Richard Epstein: John is a man. He's a deeply principled lawyer. I have made a terrible mistake in my life. I'm actually trying to understand the science in these cases. And what that does is it really does bring back a level attack on you, which you don't find if you only talk about jurisdictional relations.
So I'm going to protect John by not talking about the merit. And one time. >> John Yoo: Thank you [LAUGH]. >> Richard Epstein: Then I will have a show with another moderator in another planet to talk about that so I can be the exclusive target of the abuse that's launched against people who take these views. I mean, anyhow, there we go but this is an extremely important law school. But let's remember, they haven't taken certiora yet.
>> Tom Church: You know, I think, gents, we'll leave it there for this episode of Law Talk with Richard Epstein. And John, you coming at you from, I think, the ground floor of the next big climate change case. If you found this conversation thought provoking, please share it with your friends. Rate the show on Apple Podcasts, Spotify wherever you're tuning in. So for Richard Epstein and John Yoo and you know what, and Troy Sennick. New father Troy Sennick, I'm Tom Church.
We will talk to you next time. [MUSIC] >> 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. [MUSIC]