The Professors Strike Back: The 1st Amendment on Campus, ICC's Overreach, and Presidential Immunity

>> Richard Epstein: John, I can't bear looking at you.

>> Tom Church: Welcome back to Law Talk at the Hoover Institution. I am your law talk guest host, Tom Church. Still filling in for new father, less than new father Troy Senik, recently still new father. We're coming at you from the faculty lounge of the Epstein NYU Law School.

And I'm joined by the stars of the sixth best legal podcast for non-lawyers, according to some people on the Internet. That is starting with Richard Epstein. Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, he's the Laurence A Tisch Professor of Law at NYU and Senior Lecturer at the University of Chicago.

And of course, the other half is John Yoo. John is a visiting fellow here at the Hoover Institution, he is the Emanuel Heller Professor of Law at the University of California, Berkeley, and he's a former Deputy Assistant Attorney General in the W Bush Administration. And John, I actually want to start with the People's Republic of Berkeley because of course, a few weeks ago, the law school dean Chemerinsky had a bit of a dust up at his house when some invited law school students tried to start giving a speech and protesting and he kicked them out and it led to quite a kerfuffle.

But John, I'm here to blame you a little bit because you teach these students. I want to know how do they not understand what constitutes free speech and allowable protest?

>> John Yoo: I have to say I don't recognize any of those students as ever having taken any of my classes.

 

>> Tom Church: So they avoided your class, okay.

>> John Yoo: That's probably not surprising. That's probably not surprising. But if they had been there, I'm sure I would have said things that would cause them to go even more crazy than anything Erwin did. Although I'm not Jewish. And gosh, I really think if you look at the-

 

>> Richard Epstein: You're not?

>> John Yoo: Their poster, although I wonder, I'm Jewish adjacent, I think is the technical term, having grown up in the Philly suburbs and enjoyed dining out at many Jewish delis. But I really do think this is anti-Semitic. If you look at the poster that was put up about that showed Erwin as this kind of bloodthirsty, yeah, bloodthirsty, yeah, it was terrible, terrible.

And I really think that revealed what's really going on behind these protests.

>> Tom Church: Richard, yeah, help me out here. I mean, in terms of will there be any sort of punishment here or are they just going and getting a stern talking-to?

>> John Yoo: Can I just say one last thing about that?

I did go to see Erwin Chemerinsky the next day and I said, I imagine you're not going to do this, but as a faculty member, I demand the expulsion of all the students who are there.

>> Tom Church: Wow. Richard, do you think it's reasonable?

>> Richard Epstein: I'm a very hardliner on all of these issues, and I'm even harder liner than most of the people who are in charge of it.

This situation that we have at Berkeley is similar to one that's now existing at the University of Chicago. And there is, quote unquote, as tendency, as was stated by the President of Chicago, Paul Alivisatos, his name is. He says, you always want to give the greatest leeway for free expression.

I don't think that's right. I think you want to give the proper scope of protection for free expression. But if you start talking about giving leeway, then it turns out that trespass under somebody else's property may, under some circumstances, be justified because it doesn't involve the immediate destruction of the property to which the entrance is made.

And so what happens with respect to Alivisatos in Chicago is, he said, well, before the encampments became big, I was willing to live and let live, even though they were clearly in violation of the time, place, and manner rules. But now it's gotten to the point where it's a health hazard, disruption, and so forth, so I'm going to throw everybody off.

I think he's right to do it now. I think he should have done it sooner. The longer you wait, more people gather, the more likely there is for disruption in the interim and for violence at the time that it ends. And so I think that the good news about Erwin's situation is that it ended then and there with the dustup and did not have any direct physical ramifications.

But I think what happens, you have to make a very strong statement that you can't do things like this in order to make it very clear that the principles of freedom of speech have to respect the principles of private property. The two are perfectly reconcilable, and what they're now trying to do is to say that speech is so important that it overrides property interest, and it doesn't work that way.

The moment you allow that to happen, you're going to see trespass, and then you're going to start to see worse, and it's going to lead to violence. So my view is, the old expression is the moment that there's a wrong, that is the trespass. You nip the situation in the bud by opposing sanctions at that particular time.

You don't want to wait until the thing becomes unmanageable then you're going to have the kind of situation that happened at Columbia and NYU and lots of other places, Indiana, UCLA, and so forth. So you need a clear boundary line, and good fences make good neighbors is the principle that you ought to apply.

And the students who don't comply with this after being told to leave should be subject to sanctions. Certainly within the university, the difficulty is that not going to be sufficient because there are many people who enter the premises who are not students. And in fact, at NYU, I think a majority of the so called protesters were, in fact, outside agitators, to use the famous phrase.

And that is, they were not affiliated with the university, which makes things even more complicated. Because if you open the doors, all these people are going to come in, and then you give a complete misimpression as to the level of sentiment and support of the protesters on the campus.

So I think, in effect, a strong, prompt response is always needed. And Erwin is, his own First Amendment stuff, much more pro-speech than I am. And it turns out, in this particular case, I'm happy to say, he basically intended to reverse gears and started to favor the per se rules about elimination of trespassers.

 

>> Tom Church: So, John, help me out here, because one thing Richard said was time, place, and manner restrictions. And I know that's an established doctrine, but can you help me wrap my head around that simply on what that means you are and are not allowed to do as a school to prevent protest or your stifle speech?

 

>> John Yoo: Yeah, that's a great question also bears on this issue of what's appropriate for protests and also what happened at Chemerinsky's house. So time, place, and manner. So there's basically two approaches to reviewing restrictions by the government on speech. There's what's called content based. If the government is punishing your speech or restricting your speech based on the content of the speech, or even worse, the viewpoint in your speech, those are almost always struck down.

Those have to survive what's called the compelling government interest test or strict scrutiny test, which used to be, there was a great phrase by, I think, maybe Justice Frankfurter, who always said, it's strict in theory, fatal, in fact, usually every line. Yeah, great line. But then there's a different kind of speech regulation which is not subjected to strict scrutiny, is intermittent intermediate scrutiny, which is basically is the government's interest here outweighed by the speech interest?

That's really roughly what the court's doing. And this is. This applies to restrictions which don't, which are not based on the content of the speech. And the most common one is what you referred to, time, place, and manner. Is the restriction on speech based on the timing of it, the place you do it, or the manner of the speech?

So the classic example given by the Supreme Court is a city is allowed to say, you can't drive trucks with loudspeakers on them in residential zones after 6 PM or maybe not at all. Even if you are a presidential candidate, you can still be prevented from creating a lot of noise and ruckus.

So this, I think, is important for not just Erwin's house, because you're a private property owner, you don't have to allow anyone. On your private property to speak. And in fact, when, you can basically see Irwin, unfortunately, getting very upset in the video and his wife getting upset, basically saying, this is our home, you're guests, this is not a free speech zone.

You have to leave now. And weirdly, the ringleader, the student, says, I've consulted lawyers and we're allowed to come here and speak.

>> Tom Church: Boy!

>> John Yoo: I'm like, wow, who did that lawyer have for constitutional law? I hope she doesn't say Erwin,

>> John Yoo: But she might well have. But then if you apply it to the university context, actually, it's obvious universities are constantly restricting speech.

Generally, when Richard and I teach a class, we get to decide what's a legitimate speech or not. We don't say, we're going to have a class on torts, and then other people can come and say, no, I want to have it on contracts and we decide what's read and discussed each class session.

Students don't decide what's going to be read and discussed. I mean, that's a restriction on speech, though. So the university actually has lots of restrictions on speech just by the mission of education. So most universities, Berkeley, too, I don't know about Chicago, but what we usually do is we say there's an area, the area we have is in front of where the, unfortunately, the Vietnam war protests were first launched.

And Sproul Plaza, it's called, right in front of the administration building where we generally allow speech. It's a public forum. We allow speech, we allow protests. That's where our large encampment right now is going on. But we don't allow speech all throughout campus and every campus building whenever students feel like it.

 

>> Tom Church: John, is your encampment large and preventing people from moving around? I mean, Richard, University of Chicago, I think the letter said something along the lines of, it's created systematic disruption of campus. Stanford's is quite limited and doesn't prevent anyone from moving. UCLA's was obviously much more aggressive.

John, how was it at Berkeley?

>> John Yoo: I was going to say Stanford, would you even notice there was a protest there?

>> Tom Church: About 20 but it doesn't block walking paths, right?

>> John Yoo: I mean, it's five-tenths of it. Looks like a science experiment over there. That campus is so vast.

I mean, so yeah, I think the general rule is right, I agree with you. I think most campuses have this rules that you can exercise your right to speech, you can even stand up and demonstrate, but you can't do it in a way that blocks or prevents the speech of other people in the same place.

So if you had an occupied zone and you physically excluded other students from entering it, then I think you're in violation of university rules. So I think we're getting close to that point. At Berkeley, we do have a bigger encampment. There are all these tents. There have been reports I've been seeing this week of some of the people in that encampment using physical force to prevent, say, I don't even know if you would say they're pro Jewish students.

There are students who've tried to enter the area and just videotape what's going on.

>> Tom Church: Right.

>> John Yoo: If that's true, then I do think at some point you're going to see either the university police or the Berkeley police be called in to remove the encampment or enforce order.

We are not anywhere near where UCLA and Columbia are.

>> Richard Epstein: No, and you don't want to get there. And that's why sort of prompt action begins to take the decisive role in all of these cases. Look, let me go back and put this within a general framework. The key element to understand about speech is not only it is a complement to property, but the two of them are subject to the same kinds of restrictions on what you can do.

You're not allowed to create nuisances, and you're not allowed to trespass. When you use bullhorns, it's a nuisance. When you enter into property and set up an encampment, it's a trespass. And what you need to do is to enforce all of those rules. Now, if you're a private university, you're not subject to government.

And so one of the further things that you could consider, you're not obliged to do it, is to say, we're going to shut down this protest at Sproul Plaza at this particular point in time, because we think that the situation too unstable and inflammatory, so we don't want to do it.

There's nothing whatsoever about the Constitution which prevents them from taking that kind of prophylactic action. What it does is requires good judgment on the part of the campus management. And what this means is that when you want to protect private property, you're never obliged to do so. You could always let the protesters in.

It becomes absolutely critical that you have a coherent central administration that's running all of these situations. And at Columbia, for a long period of time, the president and everybody else was much too passive. And then when they get strong, it's a welcome thing and a corrective, but it's a much more jolty situation than if you had done it earlier on.

So I'm just going to say a broken record, but for one last time, the moment you see the first sign of illegality, that's the time at which you start to act, because if you wait, then things are going to get worse. And by the way, when I do define illegality, I'm not trying to define this very broadly.

So, for example, suppose people wanted to get together and say, we support divestment from Israel, and what they do is they want to sort of circulate posters and so forth. The content is perfectly protected under the First Amendment as against the government, and should be allowed on campus.

But it's not going to be the same thing if you start hurling insults and defamation statements against other people, because defamation, like trespass, is one of the sins within a libertarian universe. And if you care about speech, you have to protect it against the assaults by words or by actions of other individuals.

So violent and virulent anti-Semitism, threats of one kind or another, are all things that should be stopped by the state, and they certainly should be stopped on the campus. And if it's not by legal action in the sense of an arrest, it certainly can be by disciplinary procedures, holding back diplomas, taking people and forcing them through suspension.

Universities should not remain passive in the face of mortal threats to their particular operation. And I think the sentiment in favor of this position is beginning to grow as the amount of outrages that seem to take place on campus is increasing. I noticed there was a long story in the New York Times this morning about all the difficulties in the University of Indiana.

We do not need to have these things going on, they will end education. We do not need, for example, to have protests like this around the Democratic National Convention in Chicago come 2024 in the fall, in the storm that we had them in 1968. I mean, the maintenance of water is only trivial when it's maintained.

But when people start to talk about law and order, when there's neither law nor order, it's a very, very serious issue that goes to the society's survival.

>> John Yoo: I might have a slightly different view than Richard. That's, on the one hand, more generous, but other hand, maybe tougher on the students.

So I would permit anti-Semitic speech. As much as I abhor it, I would permit it. I would not allow it to grow into threats. But as soon as people violate the rules, I would be all for automatic expulsion. I don't know if Richard would go that far. Richard has taught thousands of students, I've taught thousands.

I think 99% of the students that we've had are good, hardworking kids. They wanna get ahead, they wanna learn, and their experience is being disrupted by 1%, maybe less than 1%, yeah. And I don't think that those people. And the other thing I think is actually, even though it doesn't seem like it to faculty and students as I've gotten, it's really precious, the community we've built in the United States, to be able to create these amazing institutions of higher education.

It's actually really hard to do. And so you rely on this less than 1% of students to prevent everyone else from really carrying on with the research and teaching functions in the university. I would expel them all automatically. See this, I don't think we should have these codes of conduct where they're varying degrees of punishment.

And let me end with this, because I think education is not a right, it is a privilege. And so I would send them all back to their parents, I would even give them a refund, here's your $100,000, here's your kid. You're responsible for this, you take them back, we don't want them anymore.

There are tens of thousands of students who would happily take their place at Berkeley or Chicago or Columbia or UT Austin or all these schools we're seeing. And let them go somewhere else.

>> Richard Epstein: Look, I think there's a complication to this, John, which is there's gonna be a lot of confusion as to who was or who was not there.

So suppose there was somebody who was claimed to have been there for 6 hours and just jumped out, and at the time of the arrest was not there, and somebody says, we saw him there. I think when you have claims like that, you probably wanna sit down, at least have a factual inquiry, did they or did they not participate in these kinds of things?

So as a matter of self-protection, I think universities want to give some kind of-

>> John Yoo: Richard, I would just trust the AI to identify them.

>> Richard Epstein: I mean, that may well be correct, in fact, I think that's exactly where facial recognition things are extremely important.

>> Tom Church: Well, they're all wearing masks, so good luck.

 

>> Richard Epstein: Well, they're not all wearing masks, and some of them, by the way, you can-

>> John Yoo: All you need to see is the retina.

>> Richard Epstein: The retina is enough to do this. I mean, have you ever gone through clear at the airport, Mister Tom Church?

>> Tom Church: I have, and I've gone through at overseas countries that are less careful about privacy, where they scanned my eyes and I thought, how did you already have that, I didn't sign up for this?

 

>> John Yoo: Tom, there's so much about you in the Chinese security database already, what are you talking about?

>> Richard Epstein: It's always the problem about identification as to whether it's gonna be done by the enemies or by the friends. So I had a friend named Ronald Hamilway, who was a hardline libertarian, and he was against license plates.

And the reason he was against them when he was alive, was that he thought that they allowed the state to get undue information about people which they could use for illicit reasons.

>> Tom Church: Sounds like.

>> Richard Epstein: And also, I mean, the Cato Institute this, I think, is a much more serious claim, is one of the reasons you don't like the income tax, is you have to give too much information to the government about your personal affairs that could be used for real illicit purposes.

If you had an anonymous sales tax or a value added tax in which you could collect the money but not know its origins, you can avoid that kind of risk. So in these days, where surveillance is a tool that is more powerful, it is a tool both for good and for evil.

And so what you have to try to do is put some process in to find out what's going on. There have been many people who have objected to the legitimate uses of these various identification techniques. I've not been one of them, my own view about it is you keep these things in the closet and you need to get some kind of a warrant or a showing of reasonable suspicion before you can activate them.

And this would apply to police cameras and to a lot of other things going on. The reason I'm in favor of all this stuff is if you put it under the correct auspices, it will make your determinations much more reliable. And if they're much more reliable on the question of fact, they're much more legitimate on the question of law.

 

>> Tom Church: Gents, the Columbia law students, I wanna say it's a law review, has called for the suspension, actually, the cancellation of exams and passing grades given to everyone or in the alternate, at least a pass-fail system. So what do you think is gonna happen at Columbia? Grades pass-fail or just hold the exams as needed?

 

>> Richard Epstein: I think you hold the exams and if they flunk, they flunk.

>> Tom Church: John?

>> John Yoo: Exams already so cushy as it is, I mean, we let them take the exams at home, on computer, whenever they want in the exam period. They're getting to pet llamas, eat free food.

I mean, how much easier are we gonna make exams as it is?

>> Tom Church: I went to college at the wrong time.

>> John Yoo: Here's what I've got to suggest for our very competitive Columbia Law Review students is how about we give all the Columbia Law Review editors a pass and let all the other students take the grade?

I bet they wouldn't go for that.

>> Tom Church: Wow.

>> Richard Epstein: Well, I mean, we had this problem back at the University of Southern California in the spring of 1970, after the invasion at Parrot Speak in Cambodia and the killings on Kent State. And what happened is Norman Thomping, who was a great strategist and the president of the university at that time, he did cancel examinations or allow them to be taken on an optional basis.

And I remember somebody asked him why? And this was the story was told to me. He said, these kids are in so deep now that if we do not allow them to take a pass-fail or no examination, or they're just gonna keep on rioting. And then in LA moment, he said, but if I basically say you don't have to take the examinations, what's gonna happen?

They're all gonna go to the beach. And he said, better at the beach than in the classroom. There are here two things, one, at Columbia, they've stopped the riots, so they don't have the beach problem. At that particular point, I think what you want to do is to keep going.

And if you looked at that letter, what distressed them was not the riots, it was the fact that the police went in there and in a very clean operation, removed them. If that's what they're upset about, the maintenance of law and order, then I don't wanna give them any kind of excuse under these circumstances.

Because, as best I can tell, the police did an extraordinarily good job overall in that you had no illustrations of excessive force, no illustrations, demonstrations of abusive behavior in any kind whatsoever, and a relatively clean removal. And the other lesson you learn is this is the domestic version of the Powell doctrine.

If you're gonna have a fight, you want it to be one with overwhelming force. You don't wanna be there sending in a group of policemen who are small enough that they can actually be beaten up by the protesters. And the New York City pieces to be congratulated, and their excellent behavior is not a reason to postpone examinations for the students.

 

>> John Yoo: Look, if you're an employer, would you want to hire someone who can't take exams because of what's going on in the world? I mean, would you say, if this student can't take exams, they would make a fine lawyer to represent me in court? Might get really upset if something happens in the Middle East and needs a timeout and can't file the brief on time.

 

>> Tom Church: I'll be interested to see what future law clerks, look like coming from these schools selection. And then even like if, said John, future jobs.

>> Richard Epstein: There are many judges who will not hire students like this. What I have told some of them is that you don't punish the student at the school where this behavior takes place, you figure out which the students are, and then you could select on that basis as a kind of second-tier sanction.

And many judges will start to do this. My view is that probably some judges say, you participated in these protests, that's a reason to hire you. I mean, it is very clear-

>> John Yoo: Really, do you think there are judges out there who would say-

>> Richard Epstein: I have no idea-

 

>> John Yoo: I want a mask.

>> Tom Church: These students will become judges eventually, this has likely been happening for a while, right? So some people-

>> John Yoo: You think a judge would sit there and go, I love that mask-wearing, goggle-wearing, keffiyeh-wearing disruptors, fighting with the police would make a fine law clerk, can't wait to read their bench memos.

What do you think they're gonna do to the judge? They're gonna protest the judge, too, when they don't feel like doing any work?

>> Richard Epstein: Look, I'm not saying who they are cuz I don't know any people who are this way. But, I mean, if you start looking at who Biden is likely to appoint, anything becomes possible.

And that's what's frightening about it. And many of his judges are quite excellent. I mean, you can't do this on an anticipatory basis. If there's something that's gonna happen in chambers and you have to deal with it, thank God I have not seen any evidence of that with respect to hiring clerks.

But on the other hand, and this is a kind of a nice segue to trump the trials, it seemed to me, involve real kinds of excesses and abuses. The most notable one is Judge Merchan doesn't seem to want to recuse himself from a case in which his daughter is an active participant, an antitrust movement with an elite list of clients.

All whom would be quite happy to see Donald Trump put in jail for life, it's just not the kind of appropriate behavior. Same thing with Judge Engoron, crazy behavior, and Brown and Bragg. So at least in the Trump Derangement syndrome, we do have a large number of people who express the kinds of views that I think should disqualify them from taking the case forward.

John, do you think that these cases should go forward? What do you believe in the old rule about an appearance of impropriety is enough reason to disqualify somebody from hearing your case.

>> John Yoo: I'm gonna defer to Tom to let him restore his control over the host function.

>> Richard Epstein: That's good for you, Tom.

 

>> Tom Church: I'll make him answer a little bit later, I do wanna talk about Trump, but since we've gone through a lot of Israel protests, hang on for a second, let's end with that. But I wanna zoom out a little bit on the Israel position, because some reports in the last week or two about the International Criminal Court looking into arrest warrants against Netanyahu, other senior politicians in Israel.

And I step back for a second and said, what's the jurisdiction here? Because I guess I had missed that the ICC in 2021 said, all right, Palestine isn't a state. They tried to accede as a state party the Rome Statute in 2015, but in 2021, a two to one ruling said, we're not arguing or we're not issuing a statehood ruling.

We are saying, for all intents and purposes, they fit the vibe of a state in a sense, and so we will let them accede to the Rome Statute. So Hamas, basically in Gaza, in the West Bank, over Jerusalem as well, any crimes covered by the Rome Statute are apparently now covered.

And so Israel's actions in Gaza are subject to review of the International Criminal Court. And the United States, previously, under Trump administration, had said, hey, if you go after after any of our allies, we are coming after you. So I'm turning this over to you two right now, do you believe that the ICC will actually follow through with this?

Do you think that Israel will stand for it? Will Biden stand for the International Criminal Court coming after Netanyahu in the middle of an operation? I mean, it looks like Israel's given Hamas another week to agree to a ceasefire, otherwise they're going into Rafah.

>> John Yoo: Let me take this, yeah, I've studied the ICC for a while.

Sadly, I think the answer to both your questions, Tom, is yes and yes, but it shouldn't be. And this is actually the fundamental problem with the ICC. And this kind of new international law that's characterized by groups similar to the ICC is that they don't believe in the traditional view of international law.

And the traditional view of international law was, when you're in a world, anarchic world, where there are no supranational courts, executive bodies and legislatures, law is based on consent. So the international law that governs you, treaties are the primary tool, are ones that you consent to. So here, as you notice, Tom, the ICC, I'm sorry, Israel has not consented.

So the ICC has not joined this, neither has the United States. Neither have most of the large countries that fight wars. One, because they don't think that these group of officials who are from countries that never fight wars should be in charge of reviewing what they do. And the case of Israel and the United States in particular, they don't feel that they need an ICC because we have robust military justice systems already that punish soldiers for war crimes.

 

>> Tom Church: Well, so the ICC operates according to complementarity, right? So it's, if you're going to be investigated at home, we don't have jurisdiction, however, these are kind of more macro level accusations.

>> John Yoo: Well, they have, yeah, I mean, that's the thing the ICC says, but then they also say, if we don't think you in good faith conducted your investigation, then we're still gonna investigate you.

So this is the thing again, and this is why the US has traditionally not only refused to join the ICC. But from generally under Republican administrations, actually actively opposed it, is because we don't think that our soldier should be subject to the review of this international body. When we think we have our system that actually is better than anything that they would produce.

Now, the reason why the ICC is gonna go after Israel is because they want to claim power over every war in the world, no matter whether someone's joined the treaty or not. And the fact that it's Israel, so most of its investigations have been into African countries. So third world countries, if we could call them that, are less developed, developing countries, we call them now, protests that the ICC is a tool of the West against the developing South.

So Israel's perfect for the ICC to go after because it allows it to, say, deflect those kind of claims. No, we're neutral and they know, not anybody, people are not going to get up and defend Israel from the ICC. And look, Biden has become so, I think, so hostile to Israel that I would not be surprised if it stood aside and let the ICC come after Israel's leaders.

 

>> Tom Church: Richard, if they go after Israel's leaders, but also issue indictments against Hamas leadership, is that acceptable?

>> Richard Epstein: No, because what it does is it creates evil and good and treats them as though they're equivalent. What has happened in this particular case is that there was a prior proceeding before this court.

The one ruling that it made definitively was, of course, that Hamas ought to release immediately and unconditionally the hostages that it took because they were taken in violation of international law. Well, when you then see what follows from Amnesty International and everybody else, they don't say, my God, you people are absolutely in violation of everything and nothing should be done in your favor.

They urge compliance, and what that is treated as compliance on condition that, and then all the conditions, in fact, are, pull out of Gaza. Release these thousands of prisoners, make sure that your military never enters again. And what happens with Biden is he has committed a massive disservice, the man is almost mindless on this.

And Blinken is no better, the two of them are absolutely destructive. What they're doing, in effect, is they're waiving all the charges against Hamas and they're asking for a ceasefire right now. The Israelis will not give on the terms that they want. The Biden administration has given us proud signal to Hamas that the tougher you get, the more you ask, well, we're not gonna do anything to stop you, it's all carrots for them, no sticks.

And so, what happens is Hamas gets South Africa to raise these charges, then there's an indictment. And they say, well, you look at the indictment, it's just fine, but you don't look at any of the evidence and you don't look at any defenses. And what they're gonna do is continue to follow with this, and the Israelis have to say absolutely no.

Who knows what the United States will say? I've never seen a group of more amateurish politicians in high places trying to figure out how to deal with security issues. If you don't know who's right and who's wrong, if you've got everything that you said on October 8, then there's just two random combatants.

And what you do is you basically pick on the one who's stronger in an effort to equalize the strength, that's what Biden's plan turns out to be. The Israeli should ignore it, the Israelis should go into Rafah. Israelis should do everything they can to try to spare the rest of the civilian population, Hamas will do exactly the opposite.

And doubtless, we will start to see more situation where they're going to use human screens in one form or another, and continuous violations of the rule of law. Such as wearing no uniforms when they're engaged in combat, so they could be mistaken for civilian population. What Hamas is gonna continue to do is to have this non existent health auxiliary report total deaths and not distinguish between combatant deaths on the one hand and non combatant deaths.

And God forbid they should ever ask the question, how many people who were civilians were killed by Hamas either through Arrhenius or exploding rockets or by using them as human shields or something of the sort. So this is farce. You have to ignore it, and let's hope that the rest of the world comes to senses on this thing.

But I have no doubt that one of the reasons why there is so much more activity on the domestic front in terms of pro Hamas activity is they believe that they can shove Biden around and that this is a very effective way to do it. He did make a commendable statement, too little and too late, about instilling campus chaos on this issue.

But he did nothing whatsoever to change his insane stand with respect to Israel. I've never seen a president who seems to think he uses all his moral suasion to attack the good guys in favor of a bunch of people who violated every norm and engaged in unmitigated slaughter.

It's amazing how little the hostages and the turmoil of October 7th are managed today. That's sort of past history. It's like the partition of 1948 or something of that sort. The Biden policies could not stand. And, in fact, my prediction will be that if this goes a little bit further, he will lose Jewish financial support and a large fraction of Jewish voters.

He's simply gone over the edge on this particular issue.

>> Tom Church: John, I wanna turn to a little bit of history of the ICC, because Palestine, well, Palestinian Authority, Hamas, they've tried to accede to the ICC before, back in 2008 and 9 was Operation Cast Lead. Israel went into Gaza following that.

They tried to go to the ICC and say, hey, these are examples of war crimes and other areas covered by this. Ended up the ICC not ruling on this because they couldn't determine whether it was a state and whether it was allowed to refer the matter. But following that operation, the Goldstone Commission was commissioned and came out as an interesting one.

As three judges, they came out and said, listen, on both sides, they were evidence of war crimes, of crimes against humanity and the rest of it. And then one year later, Judge Goldstone came out and kind of walked it back a little bit and said, hey, knowing what we know now, Hamas didn't look into any of these issues.

And Israel has got processes in place, and as a matter of intentionality, they don't intentionally target civilians and kind of walked it back and was yelled at. But now we're at this point now where the ICC is going to have to weigh in and make actual decisions. Doesn't get to hide behind, they're not a state, and we can't do that.

And my question to you is in terms of, we've covered this before, genocide, not happening. When it comes to Israel feeding the people, trying to put tent cities up before this Rafah operation that doesn't meet the definition there. War crimes, you get exact language that reads something along the lines of willfully causing great suffering or serious injury to body or health, extensive destruction and appropriation of property not justified by military necessity.

So how can Israel stand up and say, hey, this is just a war that is being waged as opposed to these are, I mean, are all wars characterized by war crimes?

>> John Yoo: No-

>> Tom Church: I know that. But John, how does the ICC do this?

>> John Yoo: Well, part of the problem is, I mean, the ICC is trying to kind of make it up as it goes along.

I mean, there are, of course, a whole body of lawyers out there, international lawyers and non governmental organizations and un bodies that think that you can create a code to govern war that's like a criminal code that you use to govern domestic affairs. But the standards for war are really loose and require and defer to judgment at the time by the people who are fighting wars.

And so it's very easy to. And I think we, look, this is not a problem that's unique to war. I mean, think about how, you know, how hard it is to review what police officers do. We have standards that basically say police officer has to act reasonably under the circumstances when they use force and, but they use a force to protect imminent threats to their life or the lives of others.

That is not the standard for military force. And yet we still, with police, we have a lot of difficulty, you know, with litigation and standards to review them with the military is, some of it is, as you said, Tom, the standard is not, you know, imminent threat. I mean, you're allowed to attack any member of the enemy military regardless of whether an imminent threat to you or not.

You can attack people far behind the front lines, right? You can attack civilian targets that are contributing to the military effort, right. You can attack oil and gas pipelines that are providing oil and gas to civilian, but also to military forces and so on. And so in the war context, we generally think of proportionality and military necessity.

So actually, it's not necessity. That's the tough phrase. There's a lot of deference given. Usually-

>> Tom Church: Usually, not in Israel, it seems like they're the only ones that don't have this deference given.

>> John Yoo: Yeah, yeah, yeah, exactly. Cuz the ICC is not gonna really defer, give deference. They aren't gonna oppose this kinda armchair Monday morning quarterback standard to it all.

But actually, the harder one is not necessity, it's proportionality. You are allowed, unfortunately, it rises in war, to attack military targets where you cause collateral damage to civilian targets or kill civilians. The question is, what's proportional? And Israel, actually, from what I've seen, I've been following, there's a great blog at West Point.

I think they have the top people who study urban warfare writing there.

>> Richard Epstein: John Spencer.

>> John Yoo: And, yeah, and if you look at their commentary, they are amazed at the low level of civilian casualties that have been achieved by Israel. But, right, you could see the ICC, given all the protests and everything, political controversy.

They seem to think, any civilians who are harmed, even though it's Hamas's fault that the civilians are being put in harm's way. Any civilians that are harmed in some way contributes to the idea that Israel has committed war crimes when under the laws of war, as they've been traditionally understood.

That is not the case, it turns out.

>> Richard Epstein: I'm gonna go one step further. What the Spencer group has said is they compare ratios of civilian casualties and military casualties by American operations or the British operations in Manila and so forth in Singapore and Malaysia. And what they find out is some of these things used to have as many as nine civilian deaths.

For every military death, the israeli ratio is closer to one to one. Nobody knows exactly what it is because you can't get reliable information on the ground of the number of Hamas dead and number of people that were killed by Hamas. But, you know, this far exceeds anybody else.

And one of the things that happened, it's not an accident. It turns out that the techniques that are available now are used to the nines. So the Israelis are able to do all sorts of very sophisticated visual and cell phone surveillance to figure out where civilian populations are and where military populations are.

Their explosives are much more effective than they've ever been before. And so you could take out the fourth floor of a building and not hit the third floor or the fifth floor, or get very close to that. All of these advances have been incorporated and they've all been ignored under these circumstances.

And again, the president of the United States has started to say, Israel has lost its way and is engaged in indiscriminate slaughter. Well, that's a charge of a war crime, if it's true, but it's just utterly false. And so what you do is you see here that the American situation is such where what we are doing is mischaracterizing the Israeli situation in order to create pressure to give them the sort of ceasefire that is wanted by us now.

The American ceasefire and the Hamas ceasefire are somewhat different, but it's very clear, every time the United States puts pressure on Israel, what happens is Hamas moves the Gold Coast. And these guys are very shrewd negotiators, they're trying to fight for their survival. And so, you then have this kind of very weird situation, what kind of ceasefire do you want to put into place that is not going to end Israel's demand for the total elimination of Hamas in Gaza?

I can't think of how you could square that particular circle, and I don't even think that you should try. The most important thing in order to get a rebuilding of that particular community under decent leadership is to get this conflict over as quickly as possible. So, I'm gonna make the same remark here that I made about this situation with respect to the riots, if you wait as long as they did at Columbia, it's too late, and the same thing is true in the military situation.

At the first sign of danger here, utterly unambiguous, you use maximum force, and you don't stop until the whole thing is over, and we just don't believe that. And the humanitarian cause that the president espouses will result through disease, starvation, collateral damages of one form or another, more civilian deaths than if you let Israel go about this business in the way in which they've done it.

The American policy on this is dizzyingly incompetent, and I basically think both leaders have to go, and they have to start over again. This is an outrage in terms of the way in which we conduct ourselves. And the ICJ is simply one part of that kind of strategy to change the terms of trade so as to allow, in the end, Hamas in some form, to survive, and if it survives, it will regenerate itself, and that's something which we cannot bear.

Remember on October 6th, there was a ceasefire in place, did a lot of good on October 7th.

>> Tom Church: Yeah, all right, let's actually turn back to former President Trump and the immunity trial. I think we'll have more to say on this in June, July, when the supreme Court weighs in.

But President Trump's claim of absolute immunity was heard before the Supreme Court. And it seems to me that the discussion centered on when a president's actions would constitute part of his or her official duties, versus when they were private actions. This affects the January 6th case that he's being charged with but implications for his other cases as well.

So, I'd love to hear from you two, do you think former President Trump is gonna walk away with this ruling that says, hey, president's basically immune from all activity unless impeached and convicted, and then we take it from there.

>> John Yoo: I am still, on the merits, dubious that there's any kind of presidential immunity from federal criminal prosecution, there well could be from state, but I don't think there's one from federal.

 

>> Tom Church: Okay.

>> John Yoo: But I think, if you think the court should follow an originalist methodology. But what struck me about listening to oral argument is that the court didn't seem interested in originalism hardly at all. I'd say 90% of the oral argument was actually fought on the grounds that President Trump would prefer, which is functionally, presidential immunity a good thing or not?

What incentives does it create for future presidents? And then a lot of discussion about how do you cabinet, if you have presidential immunity, how do you make sure it applies to the right things, but does not sweep in serious misconduct? If that's what the court's gonna do, I think they have to brush aside then the approach they took say for example, Dobbs, look first at the constitutional text.

There's no presidential meaning of the text, look at the original understanding, my view is that the founders rejected the idea of presidential immunity when you look at the debates and the federalist papers, and then practice. But I could see the court, here's what I would float though, I could see the court based on oral argument going in this direction, which is to say if immunity exists or not.

And I think President Trump's lawyers conceded this, it only applies to official presidential activity.

>> Tom Church: Sure.

>> John Yoo: And so, we're gonna send the case back to the trial judge to go through January 6th, and first decide, is this official presidential conduct, the acts that Trump is being prosecuted for?

Or is this his conduct as a candidate, which by definition, the courts have said is not official presidential conduct. That actually might serve, I think what might be present here, which is Chief Justice Roberts' desire to make no decision on this case that would influence the 2024 election.

I think what he would really like to do is figure out a way to shimmy his way out of this so that no one can say, the Supreme Court decided the 2024 election. So, anything that could delay the January 6th prosecution, like this option, I think is something that might be the compromise that brings the court together.

 

>> Tom Church: Richard, is it a split decision or a unanimous one?

>> Richard Epstein: Split, because I think the three left judges are going to be very reluctant. I wanna start with John's last point and note what happened with respect to Justice Gorsuch, who says, I wanna get this right, I don't want it to be get done quickly.

And given the fact that the law is completely fluid on this point today, he basically said, I want to hear what lower courts have to say about this. I'm going to remand to the District of Columbia Circuit Court, and they're gonna remand it down to a District Court, and we're gonna hear about this.

And it will put it well past the election, probably by one or two years. And I think that's the right thing to do, there are some people who say, it's extremely important that we have the trial so that people know the full extent of Trumps rightness or wrongness.

I think that the people could make their judgment based upon the voluminous information already available. But every one of these particular prosecutions, as far as I'm concerned, is deeply flawed in one way or another. Wrong prosecutors, Fannie Willis, Alvin Bragg and so forth, wrong Judge Merchan and so forth.

And I think in effect, my own attitude has changed in the following way. If you look at immunity, John is right that there's no explicit statement on official immunity, nor is there any explicit statement on sovereign immunity. But when very early on in the Supreme Court in Chisholm against Georgia, when the Supreme Court indicated that there was no sovereign immunity if you brought a case under diversity jurisdiction in federal court, you got the 11th Amendment in response.

And so, what that tends to lead me to believe is that the practices on immunity that existed in England and in the colonies at that time were to some extent incorporated by implication on this particular topic. You then look at the president and the immunity, and here's the fundamental difficulty, there's no intermediate position that works.

So, if you're dealing with automobiles and so forth, you say, you're not gonna be immune from the traffic laws, and if you engage in a willful destruction of some other individual, we can sue you. So, there's not gonna be an absolute immunity, there's gonna be a qualified immunity.

But the moment the discussion turns to words, or to assertions of one kind or another, everything is presumptively defamation or something of the sort, or enticement or inducement. And so, an intermediate position crumbles, so you have to go to the one extreme to the other. Now, the way in which I think about this is which extreme gets us more abuse coming out of the problem.

And when I started about this, say six months or a year ago before the trial started to unfold, I was more sympathetic to the position of the District of Columbia Circuit court, which says, these are not official acts, they're personal acts, no immunity whatsoever. But given the way in which the prosecutions have gone, and their massive effect on the outcome of an election, I think you, You probably have to have a broader rule, because I think the sanctions against Trump are going to be pretty strong, even if he gets some immunity.

But I think that the ability to overcome a trial result is going to be extremely difficult. And I think, therefore, on the error analysis, you want to extend the immunity. And I'm not sure whether this personal official line actually works. Nobody's really sure about it, so I'm willing to listen.

First thing is to postpone this. And in general, I would probably err on the side of an excessive presidential immunity, not just for Trump. But remember, Joe Biden has done a lot of things that people can very much go after because of his own willful disregards of lots of laws on lots of subjects and so forth.

And I don't want him being a subject of prosecution after he leaves office for them. In general, I think it's a very bad practice, and it's an especially bad practice when you have a former president who's running for reelection after a split in the term. So in this case, I'm glad that it's postponed.

And if I had to decide the issue, much as I'm unhappy about doing it, I would probably support the immunity. Now, based upon the way in which the trials to date have gone, every one of them is, in my mind, a real source of potential prosecutorial abuse. Jack Smith, none of these people, it seemed to me, deserve any deference whatsoever because they're so overly aggressive in the discharge of their official duties.

So there.

>> Tom Church: So there. think that'll do it for this episode of law, talk with Richard Epstein and John Yoo, whose participation today I'm determining constitutes private actions and therefore grants them zero immunity. Yeah, no immunity for you, too. If you found our conversation thought provoking, please share it with your friends and rate this show on Apple Podcasts, Spotify, or wherever you're tuning in so that others can hear from us.

For Richard Epstein and John Yoo, I'm Tom Church. We'll talk to you next time.

>> Hoover Representative: 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.