Between now and the spring, the Supreme Court will rule on at least three cases involving Donald Trump. Two questions: What should the Court’s rulings be? What will they be? To answer those questions and more, we turn to our in-house legal experts: NYU Law School’s Richard Epstein and Berkeley Law School’s John Yoo.
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Peter Robinson: Between now and the Spring, the Supreme Court will rule on at least three cases involving Donald J. Trump. Two questions, what should the court rule, and what will it rule? Richard Epstein and John Yoo on "Uncommon Knowledge" now. Welcome to "Uncommon Knowledge". I'm Peter Robinson. Richard Epstein is a Professor of Law at New York University, a Professor of Law Emeritus, and a senior lecturer at the University of Chicago, and a fellow here at the Hoover Institution. John Yoo is a professor at the University of California Berkeley Law School, and like Professor Epstein, is a fellow here at the Hoover Institution. Professor Yoo served as Deputy Assistant US Attorney General in the Office of Legal Counsel during the administration of President George W. Bush. I should note that Richard and John are old friends, having appeared together for more than a decade now on "Law Talk", the Hoover Institution Podcast. Much of the time they agree, but when they disagree, it is King Kong and Godzilla.
John Yoo: I'm Godzilla.
Peter Robinson: Oh, I was wondering.
John Yoo: He's King Kong.
Richard Epstein: I'm Fay Wray.
Peter Robinson: All right, boys, will you pipe down now? Each one of these requires a bit of a setup. I have to explain the case, but then off you go. Trump v. Anderson. Here's the background. Last December, the Colorado Supreme Court ordered former President Trump's name removed from the ballot of the Colorado Republican Party, which will hold its primary election this coming Spring. The basis for that ruling? The events of January 6th, 2021. The Colorado Supreme Court held A, that Trump's actions before and during the attack on the Capitol amounted to insurrection against the United States and B, that the 14th Amendment, this is the amendment ratified in 1868, that the 14th Amendment disqualifies anyone who has engaged in an insurrection against the United States from running for President. Donald Trump appealed the Colorado Supreme Court's decision to the United States Supreme Court, and as we sit here, just last week, the court announced that it would take the case. We're recording this program in mid-January. The court will hear oral arguments on February 8th. Former federal judge Michael Luttig, long considered a leading conservative and originalist, "Section three of the 14th Amendment simply could not be any clearer that the former president is disqualified from the presidency just as the Colorado Supreme Court held." John Yoo?
John Yoo: What?
Peter Robinson: What should the court rule? Is Luttig right?
John Yoo: No, he's wrong.
Peter Robinson: Is this a slam dunk?
John Yoo: No, this is not a slam dunk. It's a close case. In fact, two very distinguished originalist scholars were the ones who came up with this idea, that you could disqualify a president under the 14th Amendment, Section Three, which was written right after the Civil War, and of course is primarily aimed at the people who join the Confederacy, but not limited to the people who join the Confederacy. I think that the US Supreme Court will quickly overturn Colorado. I think we're gonna see lightspeed in terms of how fast that opinion comes out for several reasons. One, I don't think that the founders, the people wrote the 14th Amendment and I certainly don't think the Supreme Court will think that there should be 50 different states all interpreting the 14th Amendment differently, all applying their own standards.
Peter Robinson: Since the Colorado Supreme Court's decision, the Maine Secretary of State took it on herself to kick Trump off the ballot, so this is,
John Yoo: And you've got three other State Supreme Court saying, "No, Trump isn't disqualified on the ballot.
Peter Robinson: Including California, by the way.
John Yoo: California's Secretary of State, so if you think about the kind of disorder and chaos that could arise if each state is allowed to say, "We're gonna choose our own disqualification standards, and we're gonna start kicking people off the ballot." It's also not just the president you're talking about. You're talking about people who run for Congress, for Senate, members of state houses. The list of officials this provision applies to, so that's what the second thing is, I don't think the provision applies to the president. It doesn't say the word president. It doesn't seem to apply to people who were president, who might have engaged in an insurrection, and it doesn't seem to prohibit people from running for president, so I think there's really two strong grounds that the Supreme Court can use.
Peter Robinson: But one of them is pure policy prescription, I'm forced to point out, Professor Yoo.
John Yoo: Policy?
Peter Robinson: You're saying that the Supreme Court won't permit this to stand because it wouldn't work well. That's not a legal argument at all.
John Yoo: No, no, but that's a legal argument because that is one of the reasons why you have a single Supreme Court to impose a uniform interpretation of the Constitution throughout the country.
Peter Robinson: Okay, I'm coming to you in just a second, Richard, but first listen to this. Adam Liptak in the "New York Times". The point here is that this case is even bigger than it sounds. "The sweep of the court's ruling is likely to be broad. It will probably resolve not only whether Mr. Trump may appear on the Colorado primary ballot, but his eligibility to run in the general election and to hold office at all." We have a number of polls over the last few months in which Donald Trump leads Joe Biden. Yeah, I just looked at a poll the other day where Trump leads Biden by eight points. Now there are other polls, but in some polls he's leading. Is it conceivable that the Supreme Court could choose to tell Trump voters in their tens of millions that the final decision about whether Donald Trump may or may not run for president sits with the court and not with them?
Richard Epstein: No, it's not conceivable.
Peter Robinson: It's not.
Richard Epstein: The question is how you reverse this situation, and there are many grounds that you could use, but there's only one that works. What you must do is to simply say that this is an issue which is a political question, and the courts have nothing to do with it. Let me sort of elaborate on some of the things that John said. You misstated the problem when you gave it to us. You committed legal malpractice.
John Yoo: Well, it's not the first time.
Richard Epstein: Nor is it the last time
Peter Robinson: And not for the first time, I'm thinking to myself, "Thank goodness I don't get a grade from Richard at the end of this."
Richard Epstein: Well, I mean, but what happened-
John Yoo: He has a grade for you. He's just not telling you what it is.
Richard Epstein: Well, but no, this is a common mistake, that you just said is that it disqualifies any person from president for an insurrection. That's not the way the amendment reads.
Peter Robinson: But that's what the Colorado Supreme Court said.
Richard Epstein: I know, but they made a very serious make.
Peter Robinson: Ah, well at least I'm-
Richard Epstein: I mean what you do is you have to start with the beginning of the provision, which says when you're talking about a senator, or a representative, or a presidential elector, they are going to be subject to this, and then there's this-
Peter Robinson: And that's clear in the language of the?
Richard Epstein: Yes, that's what they say. They don't mention the president, but they mention the presidential electors. So the first question you wanted to ask, is this just an omission, that somehow they didn't think of it? No. What they were trying to do is to make sure that any state official coming from the South would not be corrupted by the various sorts of insurrection. So what they did is they went after the members of the electoral college because those are chosen on the state level, and if it turns out you get all of the insurrectionists or rebellion people out of the thing, then when you run the electoral college, you have the right bunch of people and they will make the right kind of decision, and so-
Peter Robinson: They didn't want a bunch of former Confederate officers-
Richard Epstein: determining who would be the-
Peter Robinson: In the electoral college, choosing the next president.
Richard Epstein: But if they're not there, yes. And if they're not there, then you have a perfectly normal electoral college, and you let the political provisions go. Luttig is very irresponsible in this, because they never take these words into account, so that's our first problem. The second thing is there is a very technical decision that is hinted at by John is there's one thing to talk about the president having an officer, and there's another thing to talking about the president being an officer, office versus officer. The R makes all the-
Peter Robinson: Office versus officer, all right.
Richard Epstein: Yes, the R makes all the difference, because if you then look at the appointments clause of the Constitution, it says that all people who are appointed as officers have to be appointed by the president, and so what you do is you're saying if the president is an officer covered by this clause, it means that the way he gets chosen is in fact to appoint himself as president. And so what Michael Mukasey said some time ago is,
Peter Robinson: Michael Mukasey, former Attorney General, and a very fine lawyer.
Richard Epstein: And what he said is that, if you look at the remedial provision, Congress has the veto power that it can waive, two thirds of the people say you could do that. What clearly is this is about a point of offices, because that mechanism could not possibly work for the president who's chosen through a very different system on the electoral college.
Peter Robinson: So the court will say, "We want nothing to do with this." And it will decide it on such narrow grounds that it will come down to the letter R.
Richard Epstein: Now it won't come down to that. There are lots of other things, but yes, it's an important,
Peter Robinson: But they'll choose the narrowest ground possible, 'cause the Chief Justice wants everybody on board.
John Yoo: Hopefully it would be a unanimous decision. I don't expect it would be, but that would be ideal, and this would be, in a way, democracy enforcing, because then Trump stays on the ballot and the people can decide.
Peter Robinson: People get to decide.
John Yoo: The one thing about going the other way, and I agree that I can't see the court upholding Colorado because it wouldn't just be upholding Colorado. For it to uphold Colorado,
Peter Robinson: Every other state.
John Yoo: Yeah, the Supreme Court would have to say, "Not only is this something we can decide, not only does it apply to the president, but we also have to find Trump engaged in the insurrection on January 6th." And so the Supreme Court would actually remove Trump from the ballot in all 50 states.
Peter Robinson: Yes, that's Liptak's
John Yoo: I can't see that happening. I can't see that happening.
Richard Epstein: It's not gonna happen.
Peter Robinson: All right, and you said you expect a decision with lightning speed? The Republican party in Colorado holds its primary on March 5th, which is Super Tuesday. It's a big day in the electorate, but we'll have you think we'll have a decision by then?
Richard Epstein: Yeah, absolutely.
Peter Robinson: They'll be hearing oral arguments on February 8th.
Richard Epstein: Look, this is either you will or you won't, but what the Supreme Court will surely do is to say you have to have two ballots. He's on one and he's not on the other if we can't decide the case before then. That's a very small alteration, but you can't possibly let the system run under the current situation, and then the Supreme Court says that the Colorado Court is completely misguided, so they're gonna have to make at least some adjustment. But then on the question of what's an insurrection, their definition is one of sheer madness. What they said in effect, if you have two or more individuals,
Peter Robinson: They, meaning-
Richard Epstein: The Colorado Supreme Court, the four in the majority, right? Two or more individuals who threaten or use force in order to determine the outcome of an election is engaged in essentially an insurrection. That means every time you had somebody in the Jim Crow era blocking black people from voting to change the outcome, it was an insurrection.
John Yoo: Under this definition, Peter, you've been an insurrectionist almost every four years.
Richard Epstein: No, no.
John Yoo: Gone back half a century.
Richard Epstein: Yeah, but it's just crazy what- you look at real serious insurrections. I mean, for example, I've been studying the Spanish American War and insurrections lately. Don't ask why, but it doesn't matter, and it turns
Peter Robinson: Separate show, separate show. Alright, go ahead.
Richard Epstein: It's separate show, but what you do is you have a situation where we conquered the Philippines, take it away from the Spanish, and there was a full scale insurrection out in the mountains with generals and teruels and everybody fighting, and so what happened, McKinley said is, "I'm gonna tell my Secretary of War," Elihu Root, "Put down this insurrection." That's an insurrection. This is at most a riot, and it's not even that. This is basically-
Peter Robinson: Can I also ask just as a- my legal knowledge goes back to Dartmouth College quite some time ago, but isn't a basic?
John Yoo: You don't have a law school, so how'd you get in?
Peter Robinson: Well there was a great constitutional lawyer who taught con law at Dartmouth.
John Yoo: You studied with Daniel Webster?
Peter Robinson: Almost.
John Yoo: You look like it.
Peter Robinson: Almost, almost.
Richard Epstein: It's a little college, but those of us who've been there love it.
Peter Robinson: All right, all right. Okay, thank you very much. Enough of that. But the notion is that juries are finders of fact. This question of whether Donald Trump engaged in an insurrection has never been before a jury.
John Yoo: You've put your finger on a really important legal issue.
Richard Epstein: That was the decision.
John Yoo: Which also the court can use to escape
Peter Robinson: This professor likes me. One, go ahead.
John Yoo: The court could say the 14th amendment section three does disqualify certain people for being involved with an insurrection, but it's up to Congress to implement it. When Richard just said, oh, the Colorado Supreme Court just made up its own definition of insurrection.
Peter Robinson: It certainly did.
John Yoo: And applied the to the facts of the case without ever having a trial where Donald Trump could appear and get due process and right to counsel, a jury trial. So an important way that the court could, I think, escape having to make a decision and say we, it's related to Richard's political question point is this amendment is still good. It's in the books, and it's up to Congress to define what's an insurrection. It's up to Congress to decide how you prove it and so on, and until Congress does that, we, the courts, have to stay out. That's not a very dangerous thing to say. In fact, that's something the court regularly says when it comes to other provisions in the Constitution. It has to be executed by Congress first. And so then your point is good, Peter. There is an insurrection statute that Congress has passed. Donald Trump has not been charged with it, despite President Biden's speech kicking off his campaign where he accused Trump of being an insurrectionist, where he accused Trump of attacking democracy. His Justice Department has not charged Trump with insurrection even though there's a statute sitting out there. In fact, the only word we've had from any body of the federal government, whether Trump committed insurrection is that he was acquitted of insurrection in the second impeachment trial. That's the only definitive word out there right now.
Peter Robinson: They did use the word in one of the Articles of Impeachment,
John Yoo: Right, "incitement to insurrection." He was impeached for that by the House, and the Senate did not convict him on it.
Peter Robinson: All right, on to the immunity case. May I go onto the second case?
Richard Epstein: You can do whatever you want.
Peter Robinson: All right.
Richard Epstein: It's a free country.
Peter Robinson: No, I can see that you wanna start telling us about the Spanish-American War?
Richard Epstein: No, I don't. I wanted to make just one little-
Peter Robinson: I've got to head that one off.
Richard Epstein: No, I'm not gonna, I just make one little point.
Peter Robinson: No, no, okay, make your point.
John Yoo: By the way, when you have him on that show, I don't wanna come. You can talk about that little war all on your own.
Richard Epstein: What you're doing is talking about removal from office. It need not be a jury trial. It could be a trial in equity, which does not require juries. So, but John is right, essentially there are no procedures that are done in this particular case that are uniform, and so what he's doing is a very clever move saying Congress has to do this, and if Congress doesn't do it, then all the states are immobilized. The key point here is what the end result is. You need to get complete immobilization. This thing has to be out. So you can say, "Oh, Colorado was premature. They have to wait until T was put on the presidential ballot before you can remove them." That would be a disaster.
Peter Robinson: Okay, so they have, all right.
John Yoo: Before you move, I just have to, one more disclosure. I'm probably gonna write an amicus brief at the court on this case. That's why I've been thinking about it a lot, so I just wanna disclose that so it doesn't look like I'm secretly arguing.
Peter Robinson: Well, I mean, if you'd like to make notes as we talk?
Richard Epstein: No, no, no.
Peter Robinson: If anything I say strikes you as worthy of the justices.
Richard Epstein: Well you keep writing that brief and I'll sign it.
John Yoo: I'm quoting you in the first paragraph now, Peter. You're in big trouble.
Richard Epstein: So what's the next thing?
Peter Robinson: The immunity case. This one is not before the Supreme Court yet, but it will be. Here's the background, and again, bear with me. I'm gonna set it up and then hand it to you. Justice Department Special Counsel Jack Smith wants to prosecute former President Trump for, and here I'm going to quote a document written by Smith's team for "unprecedented effort to retain power through criminal means, despite having lost the election." There's an indictment against Trump. It includes four charges. By the way, insurrection is, you're quite right, is not one of the charges. Trump's lawyers claim that his actions were covered by presidential immunity, and the Supreme Court has indeed ruled that former presidents are immune from prosecution for official actions even within, a term from the court, "the outer perimeter of their official actions". Judge Tanya Chutkan, a district judge in the District of Columbia rejected Trump's claim of immunity. Special counsel Jack Smith then, in a very unusual move, asked the Supreme Court to take the case and rule on it immediately, bypassing the US Court of Appeals for the District of Columbia. The Supreme Court said nothing doing with the result that the case is now before the US Court of Appeals, which heard oral arguments earlier this very week. Why am I mentioning this when we're talking about Donald Trump before the Supreme Court? Because whoever loses in the Court of Appeals is certainly going to appeal to the Supreme Court. As I say, the Court of Appeals in the District of Columbia heard oral arguments earlier this week. Here's a brief excerpt.
Judge Pan: Could a president order S.E.A.L Team Six to assassinate a political rival? That's an official act, an order to S.E.A.L. Team Six.
Trump Attorney: He would have to be and would speedily be impeached and convicted before the criminal prosecution.
Judge Pan: But if he weren't, there would be no criminal prosecution, no criminal liability for that?
Trump Attorney: Chief Justice's opinion in Marbury against Madison and our Constitution and the plain language of the impeachment judgment clause all clearly presuppose that what the founders were concerned about was not-
Judge Pan: I asked you a yes or no no question. Could a president who ordered S.E.A.L Team Six to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution
Trump Attorney: If he were impeached and convicted first.
Judge Pan: So your answer is no.
Trump Attorney: My answer is qualified yes.
Peter Robinson: All right, so presidential immunity, the judge is presenting one hypothetical after another. She ends up with that very dramatic hypothetical, and Trump's lawyer had some trouble with it as far as I could tell.
Richard Epstein: He had big trouble with it. Well, but the first thing if I would do, if I were Trump's lawyer is I would say, "In this particular case, what happens is we are dealing with situations in which he is not president as well as based as situations as president," and I think the right answer for him to make is, in this particular case, he's not acting within his official power, so we don't have to worry about the hypothetical, and the moment he says that he's doomed, so that what really happens is he loses this case no matter what answer he gives to that question.
Peter Robinson: To that hypothetical?
Richard Epstein: Yeah, the hypothetical, because this is not about official acts and the argument is, as they said in an earlier case, so long as you are dealing with the situation in which he's running for office, and trying to get it, he's not within the outer perimeter of his official duties. That's the ground on which he should lose. This would be an extra thing. But if you take this issue up, this is the way you treat it. Sure you could prosecute the president. Why is that? Well, where do you get presidential immunity from in the first place, Mr. Trump? Well the answer is you don't find it in the text of the Constitution, 'cause it's just not there. It's a judicial doctrine. Now we call it, generally speaking, to be an absolute doctrine because it's based on qualified immunity, i.e, based on malice. You could sue the president for everything every time, but the way in which you put it is that we created this doctrine out of whole cloth 'cause we needed it.
Peter Robinson: We the courts?
Richard Epstein: We the courts 'cause we need to keep separation of powers in order, but we will make an exception to that in cases in which there's been a dire emergency created by a flagrantly illegal act, and one of the judges in this case had a real zinger of a line. She said, "Look, the president's job is to take care that the laws be faithfully executed. You are telling me he's gonna get an immunity when he commits an act which is designed to make sure that these laws will be unfaithfully disregarded? Can't do that." And so the answer he should say is, "Yes, he can be prosecuted under these situations because the immunity that was given under the Constitution by judicial interpretation can be limited by judicial interpretation."
Peter Robinson: John?
John Yoo: I don't think that President Trump has immunity from criminal prosecution. I don't think presidents have this kind of immunity that Trump is seeking. What Trump is trying to do is just delay the start of his trial in Washington DC as long as possible so it doesn't affect the election. I think this is a real lose argument, but they've identified this area where the Supreme Court has never said anything because we've never had a president prosecuted before by the federal government, so it's never come up. If you really want to get-
Peter Robinson: Let's repeat that. This is the first attempt at a criminal prosecution of a former president in the history of the Republic
Richard Epstein: For acts done while he was president.
Peter Robinson: For acts committed while he was president.
John Yoo: So why would you ever have to face an immunity question? So there's no Supreme Court case that clearly addresses this. You can make inferences from various opinions of the kind that Richard are talking about, and if you took those inferences properly, I think the lower courts have been correct here actually, or they've said-
Richard Epstein: Not close.
John Yoo: They've said there's no Yeah, I don't even think it's a close question, but the reason why there's still important Constitutional-
Peter Robinson: The Court of Appeals is going to uphold Judge, I'm sure I'm mispronouncing
John Yoo: Chutkan.
Peter Robinson: Chutkan, thank you. The Court of Appeals will uphold Judge Chutkan, who said, "Yes, the prosecution may go forward", and the Supreme Court will then uphold the Court of Appeals.
Richard Epstein: No, no, no. That's not quite correct.
John Yoo: I actually think that's correct.
Richard Epstein: Because what happens is the double jeopardy issue, and that's a much closer question.
John Yoo: What double jeopardy issue?
Richard Epstein: The double jeopardy issue that's been raised of course, and was just by Judge Chutkan is that Trump had gone through an impeachment trial. He had been acquitted in that particular trial. It was a criminal offense, and so any event that could have been prosecuted in that January 6th trial is going to be covered by double jeopardy, and if he had been convicted, there's a procedure which says how further punishment's going to be done after he's out of office, but there's nothing that says what happens when he's acquitted.
John Yoo: He's gonna lose that one too.
Richard Epstein: I think he should win. That one I think he should win.
John Yoo: Really?
Richard Epstein: Yes I do. I think it's right.
Peter Robinson: Hold on, hold on, hold on. So we have the presidential immunity. The courts made that up because they needed to make it up to keep separation of powers in order.
Richard Epstein: Yeah, got it.
Peter Robinson: Trump's team is claiming too much. John says they know they're claiming too much.
Richard Epstein: That's just
Peter Robinson: But then there is a totally separate question in the same case. Somebody give me just a brief definition of double jeopardy.
John Yoo: Well, it's actually wrapped up in the immunity question.
Richard Epstein: It should be.
John Yoo: In terms of Trump's arguments, but it's not right, in fact there's a lot of arguments that Trump can make, but they're in the wrong place, which is this issue. But the claim that Trump is making is, "I was already tried for this. I was impeached by the House in the second impeachment trial for incitement and insurrection and I was acquitted by the Senate." That's, according to Richard, like an earlier criminal case, and there's a clause in the Constitution against what's called the double jeopardy clause, which prevents the government-
Richard Epstein: It's the Fifth Amendment.
Peter Robinson: The principal of common law.
Richard Epstein: No, it's also, well, common law less so.
Peter Robinson: Oh, okay, all right-
John Yoo: Can I just say why I disagree with Richard is 'cause the founders, I think made quite clear that impeachment is not a criminal proceeding, it is just a proceeding on whether to remove someone as president. Then there's something called the criminal law, which is about trying someone and putting them in jail for things they've done, and I think the founders thought those were two separate, totally separate procedures.
Richard Epstein: I disagree. This is called you're convicted and it says of a high crime or misdemeanor, right, and bribery, so those are all criminal offenses, so I think this is a criminal trial. What happens is-
Peter Robinson: And the DOJ drew up its list of charges in a manner that makes them too close to-
Richard Epstein: Yes to this because-
Peter Robinson: To the impeachment?
Richard Epstein: Yes, because what happens is double jeopardy has a very subtle situation. Suppose you have a single event like J six and there's six different offenses. You could put A, B, C, D, E and F. And what you do is you only charge A, B, and C, and the guy's acquitted. Then they say, "Oh, we could come back and go after D, E, and F." Well, at that point you could slice this course of action into an infinite number of cases, and destroy the presidency, but this is not a civil proceeding. This is a criminal proceeding. It says, "Punishment shall go no farther than removal from office." And there's no double jeopardy protection in the case of a conviction because you're supposed to be tried criminally for everything else, but if there's an acquittal, that's the same thing as an acquittal in an ordinary criminal trial. What it doesn't do is protect them for anything that goes on in Georgia, but it certainly protects him from everything that goes on there. I read Chutkan's opinion. I thought it was very weak on that point, and why they raised the-
Peter Robinson: You think the Court of Appeals is gonna be better on that point?
Richard Epstein: Who knows? I mean, as John says, this is terror incognitive.
Peter Robinson: Isn't the court of appeals generally considered the second most important court?
Richard Epstein: Yes it is.
Peter Robinson: So we have talent on that court.
John Yoo: Well, generally the DC Circuit is a better court than the Supreme Court.
Richard Epstein: Well, don't say it.
John Yoo: No, it is, I mean now a lot of the judges on the Supreme Court came from there, like you know, Warren, Scalia, Ginsburg, they all came from the DC circuit.
Peter Robinson: Okay, so two questions then. We know how you think the court should rule. Trump's immunity claims should be struck down.
Richard Epstein: They will be.
Peter Robinson: Or refused. But we have a split decision right here. I mean, we just have the two of you and you're coming up with a split decision on the double jeopardy business.
Richard Epstein: Yeah, I think John's wrong.
Peter Robinson: So here's my further question. The further question is, John made the point that everybody knows, including Donald Trump's team, that this is a delaying action. Are courts permitted to take that into account? Are they going to move with extra dispatch because they don't wanna be used in this way?
Richard Epstein: No, because it has been true in every criminal case that's ever been brought.
Peter Robinson: All right
Richard Epstein: So what happens is now this is a situation. Look, the real abuse in this case was Jack Smith going to the Supreme Court and asking them to circumvent standard processes in order to get an early date.
Peter Robinson: But Jack Smith had an argument, or at least-
Richard Epstein: No he had no argument.
John Yoo: Yeah, he had actually no reason.
Richard Epstein: No reason why.
Peter Robinson: The reason is
John Yoo: Because his case is very-
Peter Robinson: Because we're facing a presidential election. Whether this man is guilty of these charges or not is material information that voters ought to have before they cast their ballot.
John Yoo: That's not something the courts should take into account when they schedule trials. This is actually a problem that's not just created by Jack Smith. It's also created by Judge Chutkan, 'cause they set an irrationally fast date for the trial to start, the day before Super Tuesday, because they obviously want the trial done before the elections really get going, the nominating conventions. But this is really, I think, taking away Donald Trump's right to put up a full and fair defense.
Peter Robinson: Oh, I see.
John Yoo: This is such a complicated case. Think of all the witnesses and facts. We can't even agree on all the initial legal issues. How is that all gonna be fairly put together, litigated, and sent up to the courts and come back, back and forth and have a full and fair trial? I can't see how this could be done this year.
Richard Epstein: And it's even worse. See, John is being kind. It's even worse than that. Suppose you were-
Peter Robinson: And he is so seldom kind.
John Yoo: I'm laughing at the idea of it.
Richard Epstein: Suppose John is right, and this thing is now solved by June.
John Yoo: You're killing my reputation.
Richard Epstein: Is that gonna end the public debate? What's gonna happen is that all the Trump supporters will say, "This is even horrible. Look what they did. They absolutely manhandled this guy." And they will go through the proceedings. You will solve nothing by getting a verdict, because not only will you have the public criticism, probably rightly done, but you'll also get a repeal on that. And so what our friend Smith said, "I get a conviction on this case. It's going up on appeal. I want the conviction to be weighted by the jurors and they don't have time to hear about the appeal." It is absolutely crazy to interact with these two kinds of things, totally irresponsible by Smith. He's a hack. Remember he was the guy who put-
Peter Robinson: Whoa, whoa, whoa. All the press, I mean half the press says this man is an extreme. He's an aggressive, but meticulous prosecutor.
John Yoo: I don't, hack's too strong, overly aggressive and has already lost nine to zero with the Supreme Court, but he's just overly aggressive, and I actually think lacks political good judgment, 'cause the best thing for our system would be for there to be an election, and then we have the Trump trial after the election.
Peter Robinson: This is the second act of kindness I've seen John engage in.
John Yoo: That would be ideal from John Roberts' perspective.
Richard Epstein: The problem is you can't have a trial of Trump when he's a sitting president.
John Yoo: That could be debated.
Richard Epstein: My view is you shouldn't even be taken in the deposition, in the civil case of Bill Clinton with Paula Jones when you have a president there. Remember what it did?
John Yoo: Oh, well you lost on that one, Richard.
Richard Epstein: I know I lost.
John Yoo: Unanimously at the Supreme Court.
Richard Epstein: Which I thought were terrible. I won't use the word hack, but one of the things I will say is any trial lawyer, and I've done a little of this kind of stuff. Those depositions are every bit as dangerous and maybe even more so than trials because you say something there, you can't take it back, and then all of a sudden it's the basis of an impeachment case. So what you do is you suspend all the proceedings, get rid of the statute of limitations, preserve all the documents and so forth, but try it later. And the reason that Smith is so wrong, I mean he has such an absolutely crazy view of this particular case on its facts, and he wants to assume that what he says in the complaint is necessarily true so that the conviction follows. But he is gonna be contested on every single point that he makes, including whether or not Trump believed what he said. Well, he's crazy enough to believe what he said.
John Yoo: Yeah, I mean, if I wanted to use the criminal justice system to punish Trump, I would still be unhappy with the way Jack Smith has done. He's really screwed the case up. The charges, think of the charges he's charged him with defrauding the government in a statute that's usually used against government contractors and hospitals. He's accused Trump of interfering with a congressional process, which is a statute that's usually used for people who destroy evidence in congressional hearings.
Peter Robinson: We're coming to that one in a moment.
John Yoo: And then defrauding every voter of the United States of their right to, so none of these charges actually fit the crime there. He could easily lose in the courts on all of them. In fact, the Supreme Court has already granted cert on that middle charge because that's the main charge against most of the January 6th protestors, and the court in the previous cases has said, "You prosecutors should be limited and humble in how you use that statute. You're overcharging it." I could easily see-
Peter Robinson: Stop there.
John Yoo: Sorry.
Peter Robinson: Don't stop. Put a pin right in it.
Richard Epstein: I know this one.
Peter Robinson: No, no, no. Stop, stop, stop. No, because this is the third case I wanna discuss, and you're denying me my big moment.
John Yoo: Oh, go ahead.
Richard Epstein: Oh, you wanna set it up? You want due process.
Peter Robinson: I would like our viewers to have some idea what you two are talking about.
John Yoo: You can see what it'd be like if Richard was a trial lawyer. He'd be like the trial lawyer from hell. He would destroy you as an opponent.
Peter Robinson: You have produced one of the great lines of all time that if Richard occupied all nine seats on the Supreme Court, there would still be a lot of five, four decisions.
John Yoo: He doesn't really get that joke, but-
Richard Epstein: I do.
John Yoo: Everyone else does.
Peter Robinson: Fischer versus the United States. Joseph Fischer participated in the riot at the US Capitol on January 6th, 2021. He was charged with obstruction of an official action under the Sarbanes-Oxley Act of 2002. Sarbanes-Oxley was intended to deal with white collar crime. That being said, prosecutors have used Sarbanes-Oxley in charging more than 1,000 rioters such as Joseph Fischer. I believe the number of rioters who've been convicted on a Sarbanes-Oxley charge is over 800. To quote one plaintiff lawyer, "The statute", that's Sarbanes-Oxley, "has been used to over criminalize January 6th cases." I wanna repeat, these people have been put in the hokey, not charged or convicted of insurrection, but charged under a statute clearly intended to deal with. I mean, I can remember when that thing was going through Congress of all the hearings were bankers and former bankers. All right, so if the Supreme Court agrees, Fischer has taken this case to the Supreme Court. If the Supreme Court agrees that prosecutors have been making improper use of Sarbanes-Oxley, then the convictions of these hundreds of rioters are likely to be voided, and two of the four counts that Jack Smith has brought against Donald Trump will also have to be tossed out. Okay, so let me put this question another way. For more than three years now, the press, the Democrats, and certain Republicans, notably Liz Cheney and Mitt Romney, have been telling us that the events of January 6th represented a direct assault on our democracy itself. Joe Biden just said this all over again in his big campaign kickoff speech at Valley Forge, Pennsylvania just a few days ago. But the best the Justice Department could do in prosecuting these people who staged this attack on democracy was accuse them of violating some subset of a white collar statute. So if the Supreme Court says prosecutors use that statute improperly, hundreds of rioters will see their convictions overturned, so-
Richard Epstein: But by the way, again, you used the word rioter as if they were rightly convicted. The correct way I think to put the issue is they were at the Capitol building, and you have to prove that they were rioters. And some of them were, and some of them were not. And so when you use a statute like this, you don't wanna prejudge the case by announcing that they were rioters. You wanna say here: there were people there. Some of them were taking selfies, some of them were rioting, some of them were educing other people to do it,
John Yoo: They're all there.
Peter Robinson: But you notice I didn't call them insurrections.
Richard Epstein: Yeah, I know that.
Peter Robinson: Can I get half a point for that?
Richard Epstein: But that may be a trespasser as opposed to a rioter, right?
John Yoo: That's true.
Peter Robinson: So the point I'm trying to make is, two of the charges against Trump get tossed out, but hundreds of people, a lot of them are still in jail. People have been in jail for months and months and months for wandering into,
Richard Epstein: Well, it's completely abusive.
Peter Robinson: No, no, but what I-
John Yoo: Most of them pled guilty to this. There were very few actual trials.
Peter Robinson: So the Supreme Court looks to me, if I didn't know the background, I'd say, this is a very technical matter. How do you use this statute? How are you not permitted to use it? But it's not a technical matter at all. It's right in the middle of our politics. One party is trying to run on the events of January 6th and the Supreme Court may be about to say, "Let them all outta jail. Let all those rioters outta jail." How should the court rule? How should they handle it?
John Yoo: So first, this is another way the Biden Justice Department has completely screwed this up. If they believe the things they're saying in public, they should have charged them all with insurrection.
Peter Robinson: With insurrection and had it out.
John Yoo: Insurrection out efforts to interfere with the execution of federal law, to stop the electoral count. There are suitable charges, but as you said, they're charging them with these kinds of ticky tacky white collar crime laws. The Sarbanes-Oxley-
Peter Robinson: And that is because they looked at the tapes, they know more about it than we do. They have the FBI informants telling them and they come to the conclusion, "Actually we can't make an insurrection charge stick." Is that what's going on? Why did they come up with these cockamamie little charges?
John Yoo: The former DOJ guy, I think what they said they did, they sat down and said it would be too hard to have full-blown open trials for all these people, so let's let them plead out to this lesser charge, this white collar crime law. Doesn't really fit, but we're-
Peter Robinson: In their minds,
John Yoo: We're offering them a good deal and we're gonna process these 900 cases, and then I hope, and this is what they did focus on, the leaders, like the head, the proud boys, he was convicted of insurrection. He did have a trial because he didn't wanna plead out. And so that's the mindset of the prosecutors, but I think they really screwed up because I think in a politically important case like this, where you are saying in public that they did try to overthrow the government.
Peter Robinson: Which, three years later, a lot of people of goodwill are saying what exactly did happen there? Tucker Carlson plays tapes.
John Yoo: Well, that's part of the reason why I think it was actually important to have a full public trial, because a trial also educates the public. You get to see the evidence, you get to see the witnesses, and I think people would have more confidence if a jury made a decision about these January 6th guys, rather than having 'em all plead out and then having a bias January 6th congressional committee, and then having Biden at Valley Forge accusing them all of being anti-democratic,
Richard Epstein: All being insurrectionists.
John Yoo: and calling them-
Peter Robinson: He speak sense, no?
Richard Epstein: John is, not always speaks sense, but on this particular occasion,
John Yoo: Occasionally.
Richard Epstein: Not occasionally, but look, I mean,
John Yoo: Randomly too.
Richard Epstein: There's a serious problem here. If these guys pleaded out and then they weren't convicted, it's not at all clear that it's as easy to set aside a plea bargain as it is to stop a prosecution that's going to take place.
Peter Robinson: Oh, I see.
Richard Epstein: So, the question is there, and this is another form of complete abuse that's taking place. It's also, by the way-
Peter Robinson: Abuse by whom?
Richard Epstein: By the government.
Peter Robinson: By the Justice Department?
Richard Epstein: These people remember they were put in jail and held there prior to the time of the settlements and everything. So put yourself in the position of somebody, you know there's a more serious charge that could be made. You have no confidence whatsoever that the government is doing anything right. You plead out to a lesser charge in order to avoid a more serious sentence. I regard that as an abusive process by the government. Then compare this to the number of prosecutions that took place against the deliberate physical violence that happened in both Portland and Seattle, that the government prosecuted. As best I can tell, the number of prosecutions that were initiated in those cases was zero.
Peter Robinson: Zero.
Richard Epstein: Right, I think that's correct, John?
Peter Robinson: As opposed to hundreds, over 1,000.
John Yoo: Although that's mostly state prosecutions.
Richard Epstein: No, I mean they're attacking federal property, and they're wrecking federal things.
John Yoo: That was strangely President Trump's decision not to send in the troops and not to prosecute them all.
Richard Epstein: But sending in the troops is not, but the prosecution was made afterwards under this administration. So what happened is when Merrick Garland was asked to testify, I think this is correct.
Peter Robinson: And he's Attorney General by this point?
Richard Epstein: Attorney General, he was being confirmed. He said, "Well this was not a big deal. There were no people there." I mean, so willful destruction of property is no longer an issue when it's the property of the United States. The problem about Merrick Garland is he has been a completely politicized person, thoroughly corrupt in the way in which he approaches these things with no pretense of any kind of neutrality.
Peter Robinson: Hold on.
John Yoo: Richard is putting me in the very strange position of defending Merrick Garland.
Peter Robinson: You just defended Jack Smith and said he's not an hack.
John Yoo: I don't think he's politically corrupt. I think this is just sort of standard. First of all, it is unprecedented. I mean January 6th is unprecedented. Trying to figure out how to respond to it with the criminal justice system.
Peter Robinson: It's gonna be a problem.
John Yoo: It's hard and difficult.
Richard Epstein: They made it difficult.
John Yoo: Well, what they did, which is the mistake is they kind of used these tools, like from Sarbanes-Oxley, they stitched together all these things from white collar crime laws or weird voting rights cases that really don't fit.
Peter Robinson: They're just trying to clear the cases
John Yoo: Rather than charging insurrection, which is what they really believe happened. They say they believed it happened and they should have charged it and tried to prove it. I don't think that's corrupt. I think it's just a mistake. I think it's just a mistake.
Richard Epstein: I think it's corrupt. Then let me explain why. What's happened is-
Peter Robinson: You just made it worse. Thanks a lot.
Richard Epstein: What happens is, you talk about the past cases. What was the next thing that was said most recently by Biden, that we haven't finished with this. We are now going to give criminal charges against people who may not have been present at the Capitol building on January 6th. We're going after everybody. Well at this particular point, there's only one explanation for this. The ability of the Biden administration to sort of win on economic issues seems to have failed, and so their entire case is basically going to rest on J six. It's not even gonna rest on abortion.
Peter Robinson: Their entire campaign you mean?
Richard Epstein: Yes, the whole presidential campaign is gonna rest on the, and the only way in which he could make this work is to basically have Merrick Garland bring the prosecutions that he wants to continue this situation. I regard that as corruption.
Peter Robinson: Hold on one moment because this brings me to, we've been talking about the Trump related cases that are in the court, or going to be making their way to the Supreme Court. Let me go through. We have more than 80 charges against Trump, spread across a number of different cases. We don't have time to start breaking those down, but I wanna talk about them if I can. Well you'll see what I'm trying to do. Again, it requires a setup, but this one is briefer. Manhattan District Attorney Alvin Bragg charges Trump with falsifying business records to disguise a scheme to pay hush money to women. Item, New York Attorney General Letitia James files a civil suit against Trump accusing him of fraudulently reporting the value of a number of his real estate properties even though bankers have now testified, "No we got our loans back. We consider him a good counterpart in business." Item, Justice Department special counsel Jack Smith has charged Trump with 37 felonies in connection with Trump's removal of documents. Separate case from what we've been talking about, documents from the White House when he left office. Item, the District Attorney of Fulton County, Georgia, which includes most of Atlanta, has brought a racketeering case against Trump and more than a dozen others alleging a conspiracy to steal the 2020 election. Now listen to political reporter, Byron York. "We all know the political impact of this. Immediately after the first indictment," that is Manhattan DA Alvin Bragg, "support for Trump and the Republican primary race shot upward. It rose further amid the later indictments and lawsuits. The lawfare campaign against Trump has been relentless and it will surely provoke continuing reaction in the months to come." Okay, it is clear case after case after case after case. We're now up to, I think the latest count I read was 91 indictments, and I'm talking about the cases other than those that we just discussed before the Supreme Court, and the polls indicate that Americans in their millions are looking at this and saying, "This is not justice."
Richard Epstein: Amen brother.
Peter Robinson: "This is politics." And your reaction to that is-
Richard Epstein: Amen, Brother, I regard these cases as scandalous. First of all, let's just take the number, right. What they do is they take these accounts, and you recall I talked about A, B, C, D, E, and F before, so what happens is there's now one count for sending the check, another count for signing the check, another count for hiring a delivery man to do it, and then when you multiply the cases so that you could then give the heaviest sentence on that, the standard situation and the situation that Bragg was talking about was a $200 fine. He wants 38 years. Of course it's that way. Letitia James is just utterly irresponsible. Everybody in the banking business knows that banks make their own review of these stuff, and everybody also understands that if nobody has lost any money, it's hard to say that anybody has been defrauded, and therefore it's hard to say that there are a bunch of people out there who really need to be protected by this wonderful woman against the sort of events that will never happen. So she has told you-
Peter Robinson: Trump's lenders were not widows and orphans.
Richard Epstein: I mean the whole thing about this is so utterly insidious and so utterly blatantly political that-
Peter Robinson: But what about Jack Smith and the documents Mar-a-Lago?
Richard Epstein: Well what it is is that's a potential claim, but compare it to what Hillary Clinton did in real time when she was in office. I would say this, he did commit some kind of an offense there. I think John would agree, but it's certainly not with the epic proportions that he wants to make of it. Hillary Clinton, you will recall, just to mention it, she had a live server that everybody could poach upon and she was let go with a hand. She did not know that it was criminal. First of all, that's wrong in fact, and secondly, irrelevant in law, and so she's getting the free pass, he's getting the extra treatment. People can figure out the disparate nature.
Peter Robinson: Wow, I just heard a phrase I wish I'd known when I was raising my kids.
Richard Epstein: What?
Peter Robinson: Wrong on fact and irrelevant in law. John?
John Yoo: That's pretty good.
Richard Epstein: Thank you, thank you.
John Yoo: So first, just as a criminal policy matter, I don't think it's a good idea to allow states to prosecute under state law, former presidents, former federal officials or candidates for office, because when they're openly political as the New York and Georgia cases are, you're inviting tit for tat retaliation.
Peter Robinson: Hold on, I just wanna grant that you say the New York cases, Alvin Bragg, Letitia James in New York, Fannie Willis is the name in Georgia. You are saying, you agree with this is just obvious. That is politically motivated.
John Yoo: The motivations are political. They ran for office saying they were gonna do this.
Peter Robinson: Go after Trump.
John Yoo: They're partisan elected officials and they did it. The reason why it's a bad idea is because now some red state DA is gonna prosecute Hunter Biden and Joe Biden. You open the door to this tit for tat prosecution of everybody's officials under state law. I think that's gonna be terrible for a political system. It doesn't really advance the cause of criminal justice 'cause you're not really stopping and deterring crime by bringing these cases, but that's different than the two federal cases. I do think that there are grounds for Jack Smith to at least investigate President Trump for, actually I don't even think the classified documents were the problem. What he's probably got there is a good obstruction case because you have all this testimony now. President Trump telling people, "Hide the boxes with my documents. Don't cooperate with the FBI." In fact, if Jack Smith really wanted to get a conviction before the election, he should just pursue the obstruction of justice charges of Mar-a-Lago over classified documents, but that's Richard's-
Peter Robinson: But he was right to bring those charges. Was that a correct use of prosecutorial discretion?
Richard Epstein: Conventionally no. Legally it's permissible.
John Yoo: Legally, and Richard's right, I think he did commit a crime by refusing to cooperate with the FBI, by keeping those documents, although the state of mind is important, but should the Justice Department-
Peter Robinson: But you've got what Hillary Clinton did in the background and then you also got Joe Biden where classified documents turn up.
John Yoo: At four different places, in his car, his Corvette.
Richard Epstein: So the suppression of search warrants to find others, so.
John Yoo: That's always a question of prosecution is there are people committing crimes? Which ones do you select out to prosecute in court? And I think Richard, he makes a good point. Maybe we shouldn't be going around prosecuting former presidents, former Secretaries of States for mishandling classified documents. Although we have, right? General Petraeus was prosecuted.
Richard Epstein: Yes, but that was a very different kind of situation.
Peter Robinson: All right, boys, so you have brought up, you have teed up here the last question.
Richard Epstein: God help us.
Peter Robinson: This is a question that I'm going to struggle a little bit trying to put it because you both have legal minds to put it mildly, and you're not going to want to listen to a big floppy, open-ended question. You want some definition?
John Yoo: We have been for a whole hour already.
Richard Epstein: Well that's your stock and trade.
John Yoo: Peter, we love you. Of course. We're gonna take floppy questions.
Peter Robinson: All right, all right. So just a few months before he died at the age of 100, Henry Kissinger gave an interview to the "Wall Street Journal" and he said this about the state of this country today, "There's no element of pride and direction and purpose left." You've both been, first of all, Richard's the one who's been talking about history, but I know you're a classical scholar. You both have a vivid sense of history, and in one way or another, what we've been talking about here is the shock to American norms. Trump is the one who's most often accused of it in the press, and Lord knows that Trump does violate one norm after another, but the notion that the legal system should be used against him in a blatantly political way, as you all agree it has been in New York and Georgia at least, if not also in Mar-a-Lago, that Jack Smith in asking the Supreme Court to hear a case immediately so it could be sped up and introduced into the middle of the political process, there are norms being violated one after the other on both sides here. Now it feels to me, I mean you read, from Caesar on and you get the Roman Republic. There's the feeling, the shock that one norm after another is being violated, and they end up in civil war, and it feels as though we've got a serious problem here. And the question is, can the pieces be put back together?
Richard Epstein: Not with the current cast of characters. Look, think of who was running for president in 1920. You get Herbert Hoover considered running for president. He was the most distinguished public servant of his era unless it was Charles Evans Hughes who was at the same time, or Wilson.
Peter Robinson: These are brilliant, well-read men who are gentlemanly in personal conduct.
Richard Epstein: William Howard Taft, Theodore Roosevelt, even Franklin Roosevelt was compared. These were all giants compared to the riff raff that we have running for presidents today, and in part it's because of the primary system which has the parties pick people who are extreme within the general public, but a median to the party, and so you get very weak candidates running very bad situations, 'cause distinguished people will not want to go through this kind of ordeal. And so we were saddled with an unspeakable number of mediocrities even in the Senate and the House relative to what it was 50 years ago. Real decline. John maybe more optimistic than I am.
John Yoo: Very much so.
Richard Epstein: But this could be a death spiral.
John Yoo: No, no, I'm much more optimistic.
Peter Robinson: Before, before-
Richard Epstein: It's a death spiral, but we can revert.
John Yoo: But Richard, you named one cause, and it's a fixable cause and it's the primary system that didn't exist before about the 1970s.
Richard Epstein: Well, it's also a bunch of woke education and so forth.
John Yoo: Well, okay, now you're opening, I mean, woke education, worsening of culture with social media,
Richard Epstein: All of that stuff, but I mean, John wants to be optimistic and he should have the last word.
Peter Robinson: Yes, no, no. We always try to end on an upbeat version. That's why you always next to last.
John Yoo: No, this is the death gasp, not of the Republic, but of your terrible Baby Boom generation that's ruined the country.
Richard Epstein: Me?
John Yoo: And Joe Biden and Donald Trump are the very last fingertips of the Baby Boomers trying to hold onto power, and they are, in order to do it, upsetting lots of norms, but I'm actually optimistic in the sense I think our institutions, despite these outrageous efforts by both of them, our institutions are still responding well. Look at what we argued about today. We argued about an effort to stop the electoral count vote on January 6th. That failed. We've argued about the misuse of prosecutorial power, but our institutions have handled it. We're not changing our basic rules of democracy, the basic constitutional system. We have responded and we're still having elections. This is all to me, just like second order fighting over the rules, but the basic outlines of our political and legal system are still intact, and I think they're going to be after this election. I actually think, my hope is after this next election that Baby Boomers Biden and Trump will leave the stage and you'll have a new younger generation of people who I think actually take the Constitution a little more seriously.
Peter Robinson: I hope you're right, John.
John Yoo: Take the law more seriously.
Peter Robinson: You'll have Tom Cotton instead of Donald Trump.
Richard Epstein: No, you'll have Gavin Newsom.
Peter Robinson: Well, that's what I was about to say. You'll have Gavin Newsom,
John Yoo: Or Nikki Haley or Ron DeSantis. I mean, you think about those people.
Richard Epstein: Those are fine people. The Republican Party has a better bench than the Democratic party.
Peter Robinson: Well, there are impressively educated and well-spoken Democrats. That's-
Richard Epstein: Well, name one.
Peter Robinson: Well, I speak as a citizen of California, like my friend John Yoo here, where one of the infuriating thing about Gavin Newsom is that he's so articulate, and so appealing, and so self-assured on camera and so thoroughly mistaken on every policy you can mention.
Richard Epstein: You cannot mention anybody dumber on substance than him. You can get close.
John Yoo: But my point is vast-
Richard Epstein: Would you care to defend another man here against Richard?
John Yoo: A vast improvement to have, I'll even say Kamala Harris.
Richard Epstein: No.
John Yoo: Gavin Newsom, Chris Coons, Governor Polis instead of Joe Biden. All of them would be a vast improvement.
Peter Robinson: John Federman.
John Yoo: John Federman.
Richard Epstein: He's a hero, right?
Peter Robinson: Yes he is.
Richard Epstein: Now that he's sober.
Peter Robinson: Now that he's come out of whatever his problem was. He was recovering from a stroke.
Richard Epstein: Kamala Harris as a president is an inconceivable situation. She couldn't even run a campaign.
Peter Robinson: All right, all right
Richard Epstein: But we don't wanna talk about that.
John Yoo: What you have with two people who are consumed with ambition, and the institutional system is responding to them, and once they leave, I think you have all those people are gonna be more responsible and our institutions won't have to be fighting so hard to prevent the distortion.
Peter Robinson: You have dedicated your life at one level or another to Constitution-
John Yoo: To correcting Richard Epstein.
Peter Robinson: Well that's a subset. That's a subset of your overall mission here. But you've dedicated your life, both of you to the Constitution of the United States, and you say that, after all we've been through in the last decade, you're more impressed by the Constitution.
Richard Epstein: By the Constitution, not Constitution-
John Yoo: But has it responded well.
Richard Epstein: Well, let me put it to you this way. John and I are a generation apart.
John Yoo: Three generations apart.
Richard Epstein: Not three generations apart. To be precise, we are 24 years apart, okay.
Peter Robinson: All right, that's a longish generation.
Richard Epstein: It is a longish generation, right, so he is praising everybody in their 50s, and dumping on everybody in their 70s and 80s. I'm dumping on both sets of individuals, so I think I'm more capacious and even handed than he is.
Peter Robinson: Richard Epstein and John Yoo, thanks a lot for, I'm not so sure what. Thank you gentlemen.
Richard Epstein: Thank you.
Peter Robinson: For "Uncommon Knowledge", the Hoover Institution and Fox Nation, I'm Peter Robinson.
