>> Tom Church: This is the Libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined by the libertarian professor Richard Epstein. Richard 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.
Now, Richard, we've just found out that a few classified documents were found in President Biden's private office in Washington back in November. And then a few days ago, a few more classified documents were found in his home and his garage in Delaware. Now, all sets of documents date back to his time as vice president. They're not current to this term as far as we know. Now, all sets of documents were voluntarily returned to the National Archives, and the Department of Justice was notified.
And then on Thursday, Attorney General Garland appointed a special prosecutor, Robert Hur, who's a Trump appointee, to look into Biden's handling of classified documents. Now, the obvious starting point here has got to be figuring out the differences, if any, between President Biden and these classified documents and former President Trump and his handling of classified documents at Mar a Lago. Can you take us through that? >> Richard A. Epstein: Well, I can try.
Given the fact that the record in the second case is very sketchy. The one difference that's most apparent is what happens when the improper placement of the documents is discovered. The Biden administration and his lawyers have immediately sent them over to the National Archives and Records Administration and has purged themselves of the doctrine. It seems perfectly clear that they have promised to do exactly the same should any more of these documents start to come.
Whereas with Trump, it was all very evasive. He said, I had them in a locked place, don't have them, whatever. And he is certainly subject to a possible risk of punishment for obstruction of justice, not because he took the documents in the first place, but because what he did when he had them and was known to have had them, he just prevaricated, or may have prevaricated in the way in which he treated them.
So, I mean, this is a serious difference, but there are a lot of similarities that have to be taken into account as well. And the most obvious question is, how did these documents get to where Joe Biden had access to them in the first place? And if there are two sets of documents that have been found, are there going to be a third or a fourth set that are going to become found? We need to know how they got there.
I assume because if they were consciously transferred to these locations by Biden, knowing that they were in fact government property that had to remain after he left office. That itself is a very, very serious concern. If it turned out that these documents were put into a large box with a bunch of other documents and sent over inadvertently, it's going to make this thing sound a lot less difficult and a lot less troublesome. We have no idea.
Then once the documents got there, the question's going to be exactly what did he do with them? Did he read them? Did he use them? Was he allowed to read them? Was he allowed to use them? Did he share them with anybody else? And did he share them with people who were security risk or only people who were not? There's just a whole variety of things that could start to come out of all of this. That's why you appointed the special prosecutor.
And then the question is, what do we think about the special prosecutor? This man her, is a trump appointee, but some of the conservative sources said he was a Trump appointee who sounds more like a Biden appointee. He seemed to be comfortable with the Mueller investigation, with the Steele investigation, and so forth. So this raises the kind of question that one has always raised about Merrick Garland.
To what extent is he an independent operator who's willing to take on the president of the United States? And to what extent is he somebody who takes either suggestions or influence from the president or from somebody in a political office inside the White House? None of this stuff is perfectly clear at this point in time, but we can be pretty confident that a lot of information is going to come up in the next several days and weeks to figure out what's going on.
At this point, in my judgment, this is not the kinda scandal that could rock the Biden administration to its foundations. But if surprises are lurking, the situation could become much more serious than it currently is. My guess is that it will not. I think that the Trump situation is going to be much more front and center.
But I don't want to prejudge the situation where we don't have the evidence, because by the time Monday of next week or Tuesday of next week comes around, it could be a very different picture. >> Tom Church: One quick follow-up. Does it matter that much that these documents are from when Biden was vice president and Trump was president at the time, and the ability to handle classified documents, to declassify them, is different with those positions?
>> Richard A. Epstein: Well, I mean, they are different in some ways, but I'm not exactly sure what these differences are. But the point to understand about Trump is it is not correct to say that he had the unilateral power to simply declassify these documents and to treat them as though they were perfectly innocent statement. I think there was a way he might have been able to initiate a process that would result in that particular outcome, but that's a very, very different thing.
I have no idea exactly what it is that Biden would have to do in order to declassify, but it's very clear, just to finish this out, if there is a process, he made no effort whatsoever to use it, so that that cannot count as a point in his favor. But on the other hand, if he's as disorganized as I am from time to time with papers, he could well have had them in his possession and not even remembered that. So he'd have no particular reason to seek out what's going on.
That's why it's gonna be really important to see exactly how he got these documents, whether there are gonna be more troves of documents that are gonna be discovered, the ways in which they've been used, and the ways in which they've been shared. A conscientious report will try to follow all that stuff up. But at least at this point, I don't see any evidence in the documents that have been released which say that the next round of disclosure is going to be more damning.
If it's just another third set of documents that we find somewhere else and he returns them promptly, the case makes him look a little bit sloppier than he was before. But I don't think you're gonna get any criminal prosecutions coming out of ordinary negligence. It's going to require some kind of conscious willingness to defy the statutes, on the one hand, preferably for some kind of purpose, which we would not regard as legitimate.
>> Tom Church: Richard, the response from the republican side has been, well, I guess what you'd expect, which is, I think maybe trying to make this more serious than it is. It's very serious, obviously. But you just mentioned it doesn't look like a conscious effort to take classified documents or hide them. If you're Attorney General Merrick Garland, does this change or lower the chances that you might decide to file criminal charges against President Trump?
Talk to me about the political implications. >> Richard A. Epstein: Yes, I mean, look, first of all, there's a clear difference here. It's gonna be highly unlikely that Garland is going to appoint somebody who is going to decide to prosecute the president of the United States while sitting. He can't be prosecuted. He has to be taken in by impeachment.
I think it's almost no chance whatsoever that he will be subject to that kind of a prosecution, particularly since the Democrats control the Senate, and they could raise a real stink in the House. I just don't see that, the issue's gonna be is there some kind of parody that takes place? And I think the answer is there are both similarities and differences. This clearly complicates Garland and Smith.
If they're trying to decide to make something like this go forward as a criminal prosecution, to my mind, it shouldn't make all that much difference. I think Trump is a complete fool on so many issues, but I am not in favor of trying to prosecute him at this particular point in time, because I think the vendetta issue is so large. And one of the things that's likely to happen is if they go after.
Trump in this particular way, we're gonna see a lot more efforts to take on the president directly, including trying to link him very closely to the documents that were secured from the Hunter Biden computer. Which suggests that the big boy was in there on part of the deals during the time that he was out of office as vice president and before he became president.
So what I see is a more likely consequence is that the Republicans will treat this as an occasion to step up the Hunter Biden kind of situation. And then try to do something which I think is perfectly legitimate but very controversial, which is to try to subpoena the president, to ask him to reveal all the documents that he had in correspondence with the sun.
So they can make an honest assessment of whether or not he was telling the truth when he said that Hunter Biden's activities were completely separate from his own. Most people have a whiff of skepticism about that, as do I. Seems to me if you're gonna be traveling with somebody for 10 hours on a plane to China, you could spend a lot of the time talking about the weather.
But the thought that you would spend no time talking about the issues of common concern to you sort of, I think, challenges credibility. And I think that's the problem that the president has to face in this case. If you look at what went on and during the campaign, every one of the major media outlets essentially decided to coddle the Biden`s by refusing to follow the story. Twitter suppressed the New York Post when they tried to put it forward and they don't have that luxury now.
And so one of the things that we've learned, which I would have never thought was very important, say, 20 years ago, is who controls the House and who controls the Senate means who conducts the investigations. And these investigations are more and more like vendetta than they've ever were. Think, for example, about the Trump tax papers. What the man should have done is just simply release them the day they were requested. Nobody could work their way through the opaque situation.
And there's certainly, at this particular point, lots of statements. This may well turn out to show you that real estate's a very bad business, but I don't think there have been any allegations, correct me if I'm wrong. Saying he systematically misfiled the information, so as to claim tax benefits that he was not entitled to.
And I think at this particular point, if you know that you can't get Trump on that stuff, my view is just let it all ride, let it go through there and try to get back to politics as normal. Look, Tom, it's a frightening situation, when you can see that every vote that's gonna take place in the House of Representatives is gonna be 221 to 211.
Straight partisan line is the old statement is there's no Democrat who is to the right of any Republican, and no Republican who's to the left of any Democrat. Seems now to be true with respect to the House of Representatives, which means that when it comes to all these particular investigations, it's gonna be a huge fight one way or another.
I think, in effect, we can expect the attorney general and his assistants to be drawn in because the January 6th commission, they made all sorts of references for criminal prosecution, which was outside the purview of their situation. And I can see no reason why it is that the Republicans won't try to embarrass the Democrats by making the same request of Mister Garland, who is, of course, a Federal employee subject to the will of the president.
And as we all know, in a situation where the attorney general is not independently elected, you have a situation where his independence from the president is always going to be subject to some degree of questioning. And in this particular case, that level of questioning is likely to be high. Merrick Garland does not project the image of a man who's in charge of his own office.
>> Tom Church: To your point, Richard, about straight party lines, the Republicans did create a new select subcommittee in the House called the subcommittee on the weaponization of the Federal government, which they're going to use to look into alleged abuses targeted towards conservatives. So this is, Democrats can do one on the other side when they're in control, but it seems to be the way things are going. Do you wanna talked about that a little bit?
>> Richard A. Epstein: Well, I don't think there's really very much to say except that we know what's happened is that there is essentially no middle block on both sides, which is prepared to as it moderate the extremes on both passions. We know that the Republicans now have a united front after the battle over Kevin McCarthy. We're also quite sure that there are differences amongst them on how they think of any particular issues.
But the imperatives of particular political discipline are so great now that nobody on that side is gonna speak out against the speaker. And when it comes to the other side, you're gonna see exactly the same thing. It is not a case of any Democrat deviating from the party line. >> Tom Church: Well, all right, let's get back to, actually, I wanna talk about Attorney General Merrick Garland. Just a little bit more, because it is January 2023. It's been two years since President Biden took office.
It's been two years since Attorney general Garland stepped up and took control. I think it's a good time to maybe give a midterm grade if seeing if he's going to stick out for another two years. Tell me how you think Merrick Garland has done in the position, and I wanna note it's a hard job. And I wonder if there are comparisons to other attorneys general that would be helpful to give some context for how he's done.
>> Richard A. Epstein: Well, I think basically he does not get a very strong report just to watch him. You get the sense that this is a man who is not in charge of his own office. You get the sense that he's somebody who can be influenced by people coming out of the White House, and that's not very strong. If you try to look for high points in the administration where he stood up with something that was very, very important, I don't think I could identify one.
If you start looking for low points, I think it's possible to find them. The earliest one that I recall was when he gave credit to the teachers unions, when they said, you have to be aware of these parents engaging in terrorist acts, when they go to school board meetings, challenging local unions. And he actually issued something, which he promptly withdrew, which sort of indicated that there might be something to those charges.
When you make something like that and then you correct from it, what it does is it essentially creates the situation where people on the other side of the political spectrum, for you, do not believe that you have an independent authority over your office. Or if you have it, that you're willing to exercise it in a kind of a bipartisan or neutral fashion. So I would think that one of the problems that Garland has, he looks like a weak personality.
And it also looks as though he has been utterly unable to gain any trust or any influence or any level of confidence on the part of the people on the Republican side of the specter. It's also clear that when it comes to the commentariat, lots of people writing stuff, the only people who write nice things about Garland are, in fact, the natural Democratic allies. You don't see anybody from the Republican side sort of praising him as having done his job in a particular way.
So you then look at the more recent things, the appointment of Jack Smith, it turns out to be a real terrier going after Donald Trump, that's a mistake, right? You want to put somebody under an investigation. The last thing you want to do is to have somebody who's a partisan on your side with a reputation of being a real bulldog when it comes to investigation.
To run this, you wanna find somebody who's kind of neutral and above the fraye, very strong experience in Washington affairs, but no allegiances and an obvious way to either party to run these things. And you don't get that when you saw this latest appointment, well, what do you see? You see the man with somebody who was involved in the Steele Dossier and working with the Mueller Investigation Team, even though he was appointed by Trump.
None of this gives me any confidence that this thing is going to come out right. This is not as though there's some black mark or scandal with respect to what happens under Garland. This is not a case of betrayal of office. This is just a case of kind of consistent in the indecisiveness, delay, and kind of a weak kneed kind of policy. And that's not what you need in this particular office. He has got to be some kind of a leader, and I've just not seen.
Seen him exert anything that looks as if it's a leadership role. I don't see any reason to believe that Biden will want to get rid of him. He has nothing whatsoever to embarrass that particular administration in terms of his own investigation. But I think it would be better for the country if we did have somebody who's a bit more forceful and a bit more independent doing that role. And I expect that given who Biden is, that that will not happen. >> Tom Church: Richard, I want to end on this.
>> Richard A. Epstein: Do you have any favorite attorneys general from the last 50 years to look to and say, hey, there was someone who did a good job with hard- Well, I've always had an extremely soft spot for Edward Levi. Edward Levi was the president of the University of Chicago, the entire justice department was in a complete shambles, nobody had any confidence in anything. He leaves the university, I think it's in February of 1974.
And what he does is he becomes the attorney general of the United States. And Edward knew absolutely nothing about being an attorney general. He was a great president of the University of Chicago, known for his delphic manner. And so he had a secretary named Maureen Campbell, who's highly intelligent, and he would give her his speeches to read. And one day Maureen came back and said, Mr. Levi, she said, this is different from most of your other speeches, I can understand this one.
And you know what his response was? Well, I better change it. A great story, right? And Edward was always like that. So he goes in there and sits in the office and somebody comes to him, and says, Mr. Attorney General, I would like you to sign this particular document, since we need your clearance so we could do this particular step. I don't remember who the person was or what the step was, but I do remember what Edward did. He did something which changed the complete tone of the department.
He took the document, he said, thank you. He put it in his briefcase and he says, I'm going to read it tonight and I'll come back and talk to you about it tomorrow. And that sort of subtle little act meant, in effect, that this was not a guy who is going to preside over a vast army by allowing secret agents to do whatever they want whenever they wanted to. He was going to essentially try to do something in order to rein them in.
And I think that managed to restore the sort of the integrity of the particular body and its respect outside the world. And so Edward was, I think, a great attorney general. Now, does it come within the 50 year limit? Barely, right, this was 1974. [LAUGH] [INAUDIBLE] We make it in there. We can't do it. But, I mean, we've had a lot of unfortunate attorney generals and so forth. Eric Holder, I think, turned out to be not a particularly strong attorney general.
I wasn't a great fan of Jeff Sessions when he was attorney general. So I can't think of, Janet Reno, she was sort of, okay, not great. But I certainly had nothing about her, which I now remember saying, my God, we shouldn't have trusted this woman. So I think they've been up and down. I was always a fan of Ed Meese, and now that I'm going through it, let me explain to you why. This is, again, a very different kind of situation. Meese was, of course, he's still alive, a very storied figure.
He was sitting there in Alameda County when they had all the political unrest when Ronald Reagan was governor back in the 1960s, he becomes Reagan's attorney general. And the thing I like best about him was that he was a real intellectual in a way that most people would not understand. He was something of a devotee of the founding period, and he was a strong believer in natural law as an organizing principle, which it was in the period which we're talking about, the founding period.
And one of the things that he did, which I still thank him for, is he asked me to come one day to the White House. And he said, Richard, or at least his subordinate told me that, you've already given us your views on the taking scores, and they're kind of revolutionary. So why don't you come down here and give us your views on the commerce power? That is, the two great transformations of the New Deal. Moreover, economic liberties on the one hand, and federal power on the other. And I did that.
And I went down there and I gave the particular paper. Then I marched off to the University of Virginia, where I gave another version of it. I got some very powerful comments by my friend Ed Kitsch, who at that time had just moved to Virginia from the University of Chicago and ended up publishing it there.
And so the reason why I am extremely fond of Ed Meese is when somebody sparks in intellectual work on your behalf, that results in the publication of an article which is consciously revisionist about what thing that's going on. I think that's a very good feature. And indeed, I would say this more generally. What I liked about Mies, he actually did care about the intellectual life, and I was not the only person he did this with.
I can't conceive Merrick Garland actually wanting to run that kind of an operation out of his office. So I have a source of, But Meese, who of course did serve, I guess, for the full term, he was very kind of respectful of his own rule. I remember one time I had lunch with him and we were talking about the president. And he says, you have to understand the way the attorney general sits with respect to the president.
Ronald Reagan comes into the room and he has the cabinet, and it turns out they could vote whatever way they want, but it's only one vote that counts, the president's. And he was very much aware of his subordination to the president, but he was not so much in a period where he had the kind of situations where it was truly awkward. There was Iran Contra-gate and a couple of things like that. But I don't think the country was nearly as polarized in the 1980s as it is in the 2020s.
And so, I mean, I look at these people and they're better and they're worse, they have good days and they have bad days. But I don't think there's going to be anybody who's going to come and say about Merrick Garland, given his current performance, that he sort of belongs in the elite. Those individuals in the office who have covered themselves with distinction because of their ability to articulate a public position, to assert their own independence, and to make the tough decisions correctly.
>> Tom Church: You've been listening to the Libertarian Podcast with Richard Epstein. Make sure to read Richard's weekly column, The Libertarian, published over on Defining Ideas at hoover.org. If you found our conversation thought provoking, please share it with your friends and rate the show on Apple Podcasts or wherever you're tuning in. For Richard Epstein, I'm Tom Church, we'll talk to you next time. [MUSIC]
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