Immunity Idols and Chevrons

Transcript

Charles Cooke: [00:00:00] Welcome to Law Talk, a production of the Hoover Institution, hosted this week by me, Charles C. W. Cook, Senior Editor of National Review, and I'm here with John Yoo and Richard Epstein, and goodness me, did Troy Senec choose a week to miss. On Monday morning, we got the bombshell decision in the bombshell case of Trump vs.

United States. It was 6 3. Sort of 6 3. We'll get into that. The court ruled that American presidents enjoy immunity for official acts and no immunity for unofficial acts. That's the base headline. Richard, I'll start with you. Before we get to the various details of the decision and the criticisms that have been made of it, including in the dissents, what do you make of the basic reasoning here?

Is it correct.

Richard Epstein: Let me put it this way. Nobody knows where this comes [00:01:00] from in the sense that all doctrines with respect to immunity are made by judicial implication from a text that doesn't even speak of the problem. And when I first looked at this stuff, I thought that mainly the issues would start to talk about not presidential immunities on a separation of powers basis, but rather would address the thing in concerning with his first amendment privileges of one kind or another.

And so just to see the shift in emphasis blew me away, and I think basically the intuition is clearly right here. And let me explain why it is. Before we had this recent decision, there were a lot of learned discussions that were clearly incorrect, saying that the issue of presidential immunity always had to be lodged in the sitting president, and so that once you left office you were vulnerable.

And this of course is absolutely crazy because it means that something can be protected while you're in office and afterwards the guy who likes you least can manage to harass you most. So what you have to do is to make sure that the privilege starts to go down with the [00:02:00] man rather than remaining with the current incumbent.

Then you have to figure out exactly what kind of definitions you're going to use on this. And there are two cases. One of which I still think they got wrong. The wrong case, I think, is still Clinton against Jones, where what they said is so long as the activities took place before you became president, while you're in office, they could still conduct depositions and other situations.

My view is there's no presidential privilege as such. But given the need to run the office courageously and so forth, I think the correct rule is you stop all civil litigation put every document under frozen hold as a way of the statutes of limitation and basically defer until the president's out of office.

Otherwise you're going to get what happened with Clinton. Once you're in office, I think that there isn't a better line that you can draw than the one that you start to have here because the incentive effects are really so strong. What is, I think, a little bit surprising to many people is that [00:03:00] activities like Essentially going after your vice president, insisting that he told the line is part of the administration.

Get the absolute privilege because most people started to think that was not inseparable from his duties. And now we have a very strong line which says that it's integral to them. In the end, I think this is the correct judgments to make. I've long been of the opinion that so long as you are running elections, you do not in effect and should not have any case in which the judiciary can impinge upon the political judgments that are taking place in this case.

And I'm going to ask John the hard question, or you could answer it. We noticed in New York that they decided to postpone the sentencing date for Trump because of this case. And the hard question is if this case is correct, and he was engaged in getting himself elected back in 2016 before he became president, is that close enough to official acts that we have to give him immunity from suit under an extension of the [00:04:00] current decision that we had with Trump?

So that the fact the entire Bragg trial. is going to be upended. I think John and you can answer that question better than I, but I'm a little bit dazed by this decision. But in the end, I think it's close enough to the truth that any criticisms that I haven't are completely different from those that are raised by people like Larry Trime, who simply says, Oh, we really want the nation to have a trial before the date of the election.

I can't think of a poorer excuse for having a trial than trying to inform the on issues that they have known about. nonstop day after day for over three years.

Charles Cooke: John, what is your view and your response to that?

John Yoo: Charlie, I hope you're going to step in as the true Libertarian on the podcast. But I tend to be a Libertarian here.

I'm not a great believer in immunity. And I hate to say this might be the only time I will ever say this in public. I think Justice Sotomayor's dissent had the better of the majority when it came to the text and [00:05:00] original understanding. But what you have, because the constitutional text doesn't discuss immunity, it does discuss immunity for members of other branches.

And when you look at the impeachment clause and you look at the statements that the founders made, particularly Alexander Hamilton at the time, I do not think that the founders thought that there would be immunity from federal criminal prosecution for former presidents. I don't know if it really crossed their minds.

But the here, it's all very, things, little statements here and there. I think they go the other way from the court. So what I think of the court doing, and I say to my liberal friends, I like to joke around is you guys are such critics of originalism. Ah, you want to have a non originalist conservative court?

I don't know if you really want what you're asking for. And now they see what it is because this is a court that was driven by functionalism. rather than formalism or originalism, they were driven by what they thought made good sense. All the things Richard just said are about good government. If [00:06:00] we were ourselves, the three of us, the founders, we would probably put in a clause that says you can't be prosecuted in the future after you leave office as president.

But the founders didn't do it, so the court did it anyway, as they have in other immunity cases and other kinds of questions. And I see it as a response to the breaking of norms by the Biden administration. They're the ones who crossed the constitutional Rubicon and prosecuted a former president for the first time in 230 years.

And the court in a way responded to it and said we're going to restore the norm. That's what the court's decision essentially does is it restores things to the way they were before Biden took office. Now I don't think the court would have been so negative and suspicious on lawfare if the Biden administration had used their judiciously, but what the court saw.

Was a special counsel who may not even be legally appointed, who didn't charge Trump for insurrection, didn't charge Trump for [00:07:00] sedition. He charged him with fraud and destroying and tampering with evidence and depriving all Americans of their voting rights simultaneously. All three of these charges are dubious, weak, almost bordering on the frivolous.

And I think the court saw that, saw the way that this administration was misusing the Justice Department with this weak theories of prosecution to punish their political enemies and responded by saying, no, we're going to restore the system to the way it was before 2021, even though we don't have any real basis in the constitutional text and history to do it.

Richard Epstein: Charlie, should I answer or do you want to participate?

John Yoo: I want to hear what Charlie has

Richard Epstein: to

John Yoo: say. He might be my ally on this one.

Charles Cooke: I do broadly agree with you, John. Yes. I think as you probably know, I took the view from the start that the absence of a clause in the constitution that conferred anything approximating [00:08:00] immunity was important.

And especially because there are immunity clauses in the constitution. One applies to Congress. I think the majority opinion is probably a good idea, as you say, if you were writing down the the best system for the United States, if this conversation were taking place in 1787, I think it is a good idea, but it bothered me at oral arguments.

that so much of the debate was about what is a good idea and what is necessary and not what the constitution actually said. Now the dissent bothers me probably more than it does you, John, because I think it gives too short shrift to the separation of powers issue and that's why I liked Justice Barrett's partial concurrence.

She says in it that she largely agrees with Roberts's majority opinion but she doesn't write that. What she effectively says is there's no immunity. And that's because the Constitution doesn't contain that. But there are, of course, [00:09:00] separation of powers issues when it comes to the congressional regulation of the executive branch.

And it's totally reasonable for the executive to say, That law can't be passed. That law can't apply to me. That can't be criminalized. on a, on an individual as applied basis, but that's different than immunity. I don't know where this word immunity comes from. There's a big difference between having immunity from something and having the normal role of a citizen, but with some exceptions because of the separation of powers problems with the office that you held.

So I was with Justice Barrett. I was somewhere between the two, but the majority opinion just struck me as probably very good law, but not great constitutional law.

Richard Epstein: I disagree with both of you. I think in effect, when you start dealing with the Constitution, it's wrong to think of the notion of originalism as being a field of textualism.

I'll give you the most conspicuous example that before we come [00:10:00] here, if you start looking at the Constitution and try to figure out where the police power limitation comes with respect to every structural provision on the one hand, and every substantive provision on the other hand, nothing whatsoever is written into the Constitution.

But if you do this the way I do and figure out What the parallels are between the way in which private parties interact and what changes when the state takes the place of one of the private parties, every single private sentence of the salt, which says freedom of speech, they're always going to be prima facie cases, and they're going to be exceptions to them based on force and fraud, which is what the police tower is about.

You want to get a little bit closer to this. I take somebody like Al, Alvin Bragg. I don't think he's a particularly good prosecutor. But he has under the American system, absolute immunity for everything he does with respect to private lawsuits. And the basic argument is always been. You can't do this on an individual cases because then every prosecutor will be prosecuted.

And so what you do is you introduce the [00:11:00] immunity as a matter of constitutional implication and leave it up to the political branches and other institutions to figure out ways to discipline the guy, not in connection with an individual case, but with this overall course of conduct. And I think that's, what's going on here.

So what One of the things that both of you, I think, understate, which I think is important, was this sort of injunction which said, we're not just deciding a single case. We have to figure out what the ground rules are for a very long period of time. And that means you spend a little bit less time worrying about the particular abuses, as John did, of the administration in this case, and more about the long term structural implications about how this thing will run.

And so the strongest part of the Roberts opinion is the tit for tat notion. He can go after our good friend, Trump. Trump gets reelected. He could go after our good friend Biden. And so I think the separation of powers argument is in a sense a desire to create some kind of constitutional peace over time.

And since I'm much less of a textualist, And more of a structuralist when it [00:12:00] comes to originalism, I'm not as alarmed by that. And John always knows where my first implications come. You take a little time at Roman law and read the lexiquilia, the statute dealing with the question of when it's wrong to destroy a slave or a herd animal and so forth, and half the text is about things that aren't written.

They're about defenses of one kind or another. So this is a tradition which long antedates the constitution. And to my mind, that's the tradition that we have to bring over. And it was a tradition that came through the English common law and through the canon law at the same kind of time. So I think they got it about right.

But what happens is What the Constitution does is it tells you have to develop a doctrine of sovereign immunity, and then it doesn't tell you how to do it. And so that means you're going to have, even in the most rigorous system, some degree of improvisation about the way in which these things are going.

And so I, I respect the Barrett opinion. I respect all the opinions. I don't respect the Sotomayor [00:13:00] opinion because I think it was based too much on a vendetta. She was sure that this was a case of treason. John just told you what the charges are. This all a compound. And indeed, although the issue did not come up here if they wanted to charge insurrection at this case given the fact that both the impeachment and this are federal offenses the double jeopardy provision becomes much more serious at this particular point, they managed to duck that entirely.

John Yoo: I disagree with what, how you put it, Richard, but I think there's a distinction. Actually, this is Charlie's area. I think there's a, there's something in English constitutional law, which is similar to what you just said, which is you have a constitution and I think they call them conventions, but I think we would call them norms.

You don't have to put in the constitution that you shouldn't prosecute each other after you leave office. That's just the norm that you follow. That's the thing. Norms can change. A constitutional text cannot. And so Richard, I think a lot of what you said makes sense in a British or Roman system where you [00:14:00] have one system of government and you don't have the idea of a limited Enumerate a limited constitution of enumerated powers.

Then I think you can play with the common law or play with conventions and move towards a more efficient rule. But I don't think that's our constitution. Our constitution is limited. And so if the founders did not want to give, and the people who ratified the constitution did not want to give the president that immunity, I don't think we can read it in, even though it may make the best sense of Like it might make the best sense of all to get rid of the Senate.

It's non representative. It plays this. No. Retarded function in government, but that doesn't mean we should get rid of it. And I don't understand how you can say we should therefore vest things in other branches because we think it may make the most rational sense as a matter of efficiency.

But if the text doesn't authorize it, we can't

Richard Epstein: do it. No, let me tell you why. You certainly can't fight the text, but Chisholm in Georgia is a perfectly good illustration. What you do is you have a brand new constitution. [00:15:00] And what happens, it was widely understood at the time that if you sue anybody in their own state court, what happens is that the sovereign immunity defense attaches to it.

And then what you do is you now sued them in federal district court on a diversity jurisdiction with a foreign country or a different state and what they said, Oh, there's no protection here. And everybody but everybody went bonkers because the thought was, We know what the convention is and nobody but nobody believed if you looked at article three and created diversity courts as original jurisdiction, that meant when you sued in a diversity court your sovereign immunity defense was waived.

And then what they did is they put it in the 11th amendment and it's a fucking lie. Funny amendment because the key word there is construed, which means in effect, you just read this thing wrong. And so I disagree with you. I think in effect that this whole structural federal constitution, time after time, not only allows but requires other [00:16:00] adjustments to be made.

So The privileges and immunities cause only deals with state, right? But if it turns out you still wanted to bring suits in federal courts and you have some of these issues, what you really want the rules on full faith and credit and other things to apply in federal courts.

John Yoo: The 11th amendment is a good example of what I'm talking about.

The court made a mistake, said there was no sovereign immunity, and then the people amended the constitution. Now we've got, I actually, I'm not done, not, I'm not done, but people tend to misinterpret. We have a misinterpret the 11th amendment to create a far broader type of sovereign immunity than what was authorized by the people in the 11th amendment.

And if the court continued to interpret. So there's no sovereign union, no sovereign immunity outside diversity. Then the people could have amended it again and clarify what they wanted. I actually I don't think that the wholesale creation of immunities, I think they're great ideas, but we should all admit that what the court is doing is almost like a [00:17:00] Warren court as freelancing far away from the text in history.

Richard Epstein: No, they are doing it

John Yoo: because they believe it is just good policy.

Richard Epstein: No, this is much closer to the way in which, having worked in this tradition my whole life, it's like that. And the danger of your strategy, John, is what they did is they blew it when they drafted the 11th amendment. They didn't get it right because they treated it as a jurisdictional issue as opposed to a defense.

Yeah. No, I agree.

John Yoo: Then we fix it. But then you have to fix it now by

Richard Epstein: judicial interpretation, which goes against the text.

Charles Cooke: Isn't one of the problems here, though, that neither of the originalist approaches is satisfied here? I take your point, Richard, about blunt textualism, where you just literally look through the words and you divorce them completely from the tradition or what it was that the framers were trying to achieve or what assumptions were extant at the Constitutional Convention and so forth.

So I'm not making a a sort of [00:18:00] stupidly textualist argument in that sense but there's also very little original public meaning support for this decision, even though it might be a good idea. And unfortunately, because I think she's usually wrong, Sonia Sotomayor actually makes that point fairly persuasively.

If you look at the Federalist Papers, which is the way that the founders explicated their work, you don't find discussions of immunity. And in fact, there are a whole bunch of references in there from Alexander Hamilton to presidents being prosecuted.

Richard Epstein: Even that is there, but the 80, the Federalist 81 certainly does refer to sovereign immunity as something that was incorporated from the basic text.

And of course, I can give you all sorts of reasons why the president can be prosecuted. So give you one illustration that was just told to me by one of my friends, what's McCall, Ulysses S. Grant, he's speeding with his chariot and somebody prosecutes him and gives him a speeding ticket. And the reason why that's okay is the ticket is not going to be done by incarceration.

They're going to fine him and you could keep [00:19:00] that particular case independent of everything that's going on. You

John Yoo: know, Richard, Ulysses S. Grant was many things, but he was not a Roman emperor and he did not have a chariot.

Richard Epstein: He had a sweat, a carriage of one sort or another.

John Yoo: He's not like Ben Hur going around the stadium.

He didn't, but he did basically,

Richard Epstein: he did speed around Grant's tomb during his lifetime, I think is the way in which I would put it. But those things are there, and John, what you said is right. If you start having low level prosecutions for the kinds of things like traffic tickets and so forth that don't interfere with what's going on that's caught by Justice Roberts when he says, I'm not going after private acts.

The problem is in this particular case, everybody was after everything. It was only because of the electoral politics, and at that particular point, I think he just has to call a stop to it. And let's put it to this way, John, I think if you can make sure that the comedy conventions hold, you don't say anything, but the moment they break, then you have a second best world.

Either you [00:20:00] let this go berserk, which is what had happened in this case, or what you do is you introduce a doctrine which tries to salvage as much of the good sense of suits against the possible. And as I told you, I'll ask both of you. Do you think that Paula Jones and Clinton was rightly decided when they let the deposition go forward while Press Kenton was still president?

I thought it was a disaster of the worst order.

Charles Cooke: I think it's a disaster, but I think one of the reasons it's a disaster is that the nine nothing court that wrote it tried to come up with a good plan rather than consult the text. And they thought they'd done that, but actually it turned out that they hadn't because Bill Clinton ended up lying.

You never let anybody undergo a

Richard Epstein: deposition. As somebody who's actually something of a litigator, depositions are more dangerous than trial.

Charles Cooke: I know, but what I'm saying is that I think we've ranged here into the fundamental problem that John and I have with this, which is that we're once again talking about what is a good idea.

And I actually think the three of us agree on that. [00:21:00] If we were the Madison of the convention, if all three of us were sitting around debating it, I think we would probably agree on that.

Richard Epstein: No. Look, I am saying that the constitutional tradition was in fact to do exactly this kind of thing. And that was also true in the English law where,

John Yoo: where did that true to constitutional tradition come from pre 17?

You don't see it in the state constitution. You're talking about things that existed before the state constitutions and the founding and you need to show

Richard Epstein: similarly, the English no, but.

John Yoo: But you have to show that those came into the constitution.

Richard Epstein: Every, all of these rules essentially are that way.

And when you start looking at the state constitutions and so forth on issues like standing and whatever, they were much more open ended and flexible and so forth. To give you one illustration, there is no takings clause in the New York constitution. And yet, when it came to city against, city of Newburgh against Gardner.

John Yoo: Richard, those are common law systems where the [00:22:00] courts are allowed to make policy. The federal constitution is fundamentally different.

Richard Epstein: He said this is a constitutional decision that he made, essentially, Kent did. And he said, I can do this because it's against all the principles of natural justice for anybody to take property without just compensation.

And so he read the constitutional provision into the state constitution. And if you go back and read all the stuff that Jim Ailey has put together on this at the state law, this was not an unusual decision. It was just the most explicit authorization. That's why I wrote this very long piece.

Remember the one that on natural law tradition. And you do it. For example, to take something about the 14th Amendment, there is nothing in the 14th Amendment which starts to talk about birthright citizenship. And you can draw it out of the stuff about subject to the jurisdiction. But if you start looking at the general background norms associated with constitutional stuff, it's pretty clear that the standard rule was Sojourners do not get citizens for themselves or for their [00:23:00] children.

And so that the rule was everywhere different from the one that was developed in the United States. And now And when it was that, when it was developed in the United States, it was correct because the guy was lawfully there. And then all of a sudden the scribes and the commentators say, it doesn't make a difference whether you're here legally or illegally, which of course is the most fundamental distinction of all.

So we have a very different constitutional tradition than the one that the two of you subscribe to. And it comes out of the English tradition. It comes out of the international law tradition. And it comes out of the state law

John Yoo: tradition. The way you are reading this is what allowed the Warren court to do what it did, because they thought they were, yes, they thought they were doing the same thing you did.

They said, they thought that in the constitution was this value for human equality and dignity and that they had to fill it out through decisions, through things like privacy and so on. And you could take your view and you could apply it to things like taking structural things. They would just say, I'm going to do.

What you're doing [00:24:00] just on the values that I, that the values that I care about. You do it on the values you care about, but what you have is this kind of judicial supremacy then that allows judges to freelance meetings into the constitution because they believe whether in your case, it's efficient or in their case, it leads to greater human dignity value.

But you're giving this, I don't know why you would write text out in your case. You should just let it be more English.

Richard Epstein: No, go back and read something like the pocket cabana and so forth on the question of what are the powers of a sovereign in connection with a privateer and so forth. The opinion is crystal clear that what happens when I just make citing

John Yoo: these obscure case, they're not, these are not fun to the pocket.

A Habana is a fundamental case. The color versus Maryland. or Marbury or fundamental cases, but he can't justify your point with these obscure weird cases. Let me

Richard Epstein: say it again. What they did is they asked the question in the opinion, [00:25:00] can you trace this back to the body of law associated with the development and international law of the norms of statehood and the Warren court never cared about that.

that. But somebody like myself cares about it very much. So I'm not trying to make up something out of whole cloth. I'm trying to identify a tradition which has been built and elaborated over years. And in fact, in that case, what they said is I'm not doing this. As you look at the tradition of international law as getting reflected in all the great treatise writers from Vettel on down forward, it's much more uniform and coherent than you think.

think it is, and you can't deviate from it. And that's example for exactly the same problem. You start talking about what the definitions of a public right and so forth. You have to deal with a lot of other problems, but this is not making it up at a whole court. That's what the Warren court did, but I would never want to do that.

And I'm not trying to do it. But the the tradition of American law as it existed prior to Erie against Tompkins was much [00:26:00] closer to what I'm saying than either you or Charlie are talking about.

Charles Cooke: All right let's move on to some of the other criticisms of the decision, one of which is that irrespective of the methodology and the argument that we just had and that the justices had, the way that the decision is actually constructed, is incomplete, that it is too vague, that there are too many questions left unanswered, that too much of the detail was sent back to the lower courts to work out, and that this is confusing, perhaps unworkable, or in Justice Sotomayor's view, will lead to the president being able to use SEAL Team 6 to murder his political rivals or his critics and claim immunity for that action.

Richard, what do you make of that?

Richard Epstein: What I make of that is the first thing is she's forgetting about the impeachment power and the political pressures. And so suppose the president decides to murder somebody, or is doing, it's not [00:27:00] necessarily a crime. We do that all the time when we're worried about targeting people in connection with the CIA.

So it has to be out of the scope of ordinary business to do this. Otherwise, every president can be impeached. And what happens is, if it's as bad as you say it is, there will be an instantaneous impeachment and a huge political response. And so I think the idea that she's right, is she assumes either there's a president, private prosecution, or there's no institutional constraints at all.

And once you put those illicit constraints in place, it's not going to happen. Now, why do I think that? Because for 200 odd years, we had this situation. And before somebody started to mess it up with these very dubious prosecution, stuff like that never happened. And what she didn't talk about is what John talked about.

These prosecutions offer the most trivial offenses. Based upon the extension of statutes in which it turns out that the real abuse is with the prosecutors. And the problem that we get in so many of these cases [00:28:00] is you basically assume the government are good guys because they're bringing the criminal conviction and that it's a bad thing to be guilty.

We know that's wrong. Trump's process, probability went up because the two cases by Angoran and by Bragg in New York were both outrageous. And I think the situation is there's going to be a huge backlash against them. And if it turned out that Trump did anything and he's never done anything remotely like this, he would be subject to the same kind of backlash.

So I think that's basically a parade of hospital. The man says all sorts of stupid things. How many times did he want to lock up Hillary Clinton? A thousand? A million? How many times did he actually bring a suit to do it? Zero.

Charles Cooke: John, do you agree with that or are you more worried by Sotomayor's parade of horribles?

John Yoo: I don't know what you think, Charlie. I'm curious. I I want to disassociate myself from her rhetoric. I agree with Richard. She was over the top. I agree with you. She's over the top. I can easily see what a court would say would be, Oh a president who orders the [00:29:00] military to actually kill a political opponent would not actually be acting within their presidential powers.

They would be acting ultra veras, the fancy phrase for they're just acting beyond their constitutional authority. And that's what the courts would do. It's playing games in a way and throws the ball back into the court to the courts to make decisions about what the real scope of presidential power is and when a president can be prosecuted or not.

So they'll say But I thought what was interesting was when the court went through some of the hypothesis. They remanded it back to Judge Chutkan to decide what's official, what's not official, but they couldn't resist the opportunity to take up some of the actual things in indictment. So they said using the justice department to investigate fake claims of electoral fraud.

That's official. And even like harassing Mike Pence to use his power as vice president to reject electoral votes. That's official. I was actually surprised they went forward and started answering some of the hypothetical questions. Then they say, this was what I thought was rather interesting.

They [00:30:00] were how would you say they were ambivalent actually about what if President Trump calls the head of the Republican party in different states to figure out how to send fake electors or alternate elector slates, even without the approval of the legislatures, they wouldn't say that was unofficial.

So I, I would have thought that clearly unofficial conduct would be conduct that you take as a candidate. Because you can't be acting officially as a candidate. I think you're, then you're just misusing government powers to your own advantage. But even in the case of, trying to conspire with people in the states to create fake electoral votes, if that in fact happened, the court wouldn't come down clearly and say that is not protected by immunity.

So after the decision, I'm not sure, the only things I think for sure are not immune are things that the president, that Trump did before he was president, like the. New York City D. A. prosecution by Alvin Bragg. I'm not sure. He maybe thinks he You know, and then maybe things, [00:31:00] some of the things he did after he was out of office, like moving boxes of classified documents around in the basement of his house, but then even there, and this is my last one, even there, the court threw in a Life preserver to Trump because it said if you prosecute even those cases, but somehow you make reference to or introduce evidence about what Trump did while president, even that might be immune.

I'm having trouble actually figuring out what it is in any of these cases Trump did. Which is clearly non official under the majority test.

Richard Epstein: I think what you're doing is imitating what Justice Barrett said about the evidentiary point. And I think that's a pretty powerful objection. I thought she was right about

John Yoo: that.

Richard Epstein: I'm not disagreeing with that at all. But let me mention something, which I think is more troublesome, John. Judge Martian, who's no friend of Kavanaugh, Trump announced that he was basically going to impose sentencing in September, not in July. And he says he wanted to take arguments as to whether or not the stuff that happened in the [00:32:00] immunity cases could apply to stuff prior to the particular election.

And I can easily see An argument being made that to the extent that you're involved in conduct, which is designed to get you elected and somebody decides to intervene with these civil suits, it's going to disrupt the electoral processes so the public is not going to have a fair shot of doing it. And so I think there's actually a respectable shot that they will extend the Trump decision to cover free electoral conduct, which is obviously of a political nature.

And, Given the fact that they refused to allow Brad Smith to testify on all of this stuff. I'm not sure it's a loser, but let me mention something else. A trial is going to take years to do. Because of all the stuff that goes on like this, if you want to get an impeachment, you could get that done in a week or two weeks as they did when they wanted to go after trump in the second one of these cases.

And so the idea that somehow or other the criminal prosecution is superior to the impeachment is in fact [00:33:00] not necessarily the case, given that the due process guarantees that start to kick in the jurisdictional complications and so forth. All of those things mean that you will have every one of these cases take as long as several years, at which point the deterrent effect is going to be heavily diminished.

Charles Cooke: All right why don't we cover a couple of the other cases that got a little bit buried, which is amazing, given how long at least one of them had been trailed, specifically the overturning Chevron deference the case was loper bright. The other case was relentless Greatly. Yeah, it should have been relentless.

I think the freak out of that chevrons overturning yielded was utterly extraordinary. John, do you think this is justified? The issue here was whether or not the courts in the [00:34:00] United States are obliged to defer to the interpretations of executive agencies. It's not the sort of thing you're going to see on many bumper stickers.

And yet we heard that this was going to destroy the administrative state. Perhaps the entire federal government take us back to pre New Deal America.

John Yoo: I

Charles Cooke: mean, how true is that?

John Yoo: We wish that all was true.

Richard Epstein: I think in effect that this is, it's apoplectic about what is going on. I'm not exactly sure what the right way is to do this.

Remember, they didn't get rid of Skidmore deference, which I've never understood, saying that these things have some respect, but

John Yoo: obviously next. Let me

Richard Epstein: just mention something about the unfinished piece of this. You look at Loper Bright and there were three opinions. One opinion said it's clearly constitutional.

Another one says Clearly unconstitutional. And there's another one saying in the middle, I don't know whether it's constitutional or not, but I use deference. So you get rid of [00:35:00] the middle position and now you have the two extreme positions. What I wanted to know is if it's, you're so sure that you can do this right, but I think you had to do to give us more guidance as a court was to say, This is the right answer when it comes to dealing with low bribe.

I think in effect that the issue has a narrow explanation, which doesn't require deference in a broad sense, but this invites it, which is, I just think that this was a case of trying to run an appropriation through a subordinate agency, which had to be done through Congress.

John Yoo: That's true Richard, But that's not what the court said.

Richard Epstein: I know it's not what it said, but I'm saying if you said that in this particular case, because now when you go back again, can somebody said we read what the court said. And we think by the way that it's perfectly clear that this can be done because you haven't eliminated that alternative.

It seems to me when you have a case like this, And you're saying it has to be clear and you get two guys who say exactly the opposite things on what it means [00:36:00] you believing in clarity have to indicate how it is that you would resolve the case at hand.

John Yoo: Richard, we, today, we have outed you. We have outed you as a non originalist, functionalist, and defender of the administrative state in just 30 minutes.

I'm

Richard Epstein: just trying to

John Yoo: figure out,

Richard Epstein: look, I think, what's the right answer?

John Yoo: You should be very supportive of the decision because the, and this is my answer to Charlie's point is it's not this Chevron case taken alone. It's the 20 years that the Roberts court has spent tacking the administrative state, right?

This is of a piece with their decision earlier in the week saying you can't use these administrative law judges. to deprive people of their right to jury trial. It's part of the, you can't have any more independent agencies where the heads are immune from presidential control and removal if necessary.

What they're doing, this is why people freaking out is because Chevron was one of the last One of the last major [00:37:00] administrative law doctrines that protected this progressive state from political control. And the idea of the progressive state is that we take all the major decisions in life away from politics because politicians are dirty and put it in the hands of the Of all knowing experts, and that's what Chevron did, right?

It said judges, even you judges, experts in the law, don't mess around with agencies, let them interpret the scope of their own powers, right? That's really what it was about. But look, Nemo eutects

Richard Epstein: in cows to sewer. Nobody should be a Georgian.

John Yoo: But getting the right answer. It's not the important thing. Now, I think judges can say, okay, like the Clean Air Act or some law is ambiguous.

It produces a range of possible outcomes. We're going to look at all the traditional legal sources that we would look at to decide whether what the agency wants to do is within the authorization of Congress. But if we don't find it and notice, there's also something called the major questions doctrine says, if there's, if this has a major impact on society, And we don't clearly see the [00:38:00] authorization, the statute.

You just can't do it. They might just, I would say, take the major questions doctrine and apply it to everything. That's a position that I've taken

Richard Epstein: for years.

John Yoo: Just call it the minor questions doctrine. Call it the every questions doctrine. But if you did that, then you could, that's how you, that's how you're, that's the answer to your question, Richard.

That's the method you use post Chevron to review agencies.

Richard Epstein: But look, let me give you my fear. It's, I'm not saying the decision is wrong. I'm saying that there's an incomplete part. Take a case like Bostock, in which there was this opinion by Justice Gorsuch, which I regarded as beyond wrong. And what happened is before this, it was a deference case.

And everybody looked at all the dictionaries and we say sex means this, that, or the other thing. And although it's not the dominant interpretation, we think it's plausible. They get rid of that, and they get exactly the same result by now arguing clarity. And so it seems to me that in order to make this persuasive, what you have to do is to show that there can't be two right [00:39:00] answers.

And you have to, when you're given a case which presents you two right answers, and you're saying do it, when you remand this, which way do they come down? And I think what, and I think they should have said something about this and they didn't. And that's what I've said. So I think in effect, what happens is a bridge that's going to take place and they're going to have to fight this question because everybody who used to believe in Chevron is now going to believe everything is exactly clear in the way in which they want it to be.

So a territorial sea now means if you understand what's things, it's an upland. So you get Sackett. How are you going to decide Sackett under this stuff?

Charles Cooke: I just, I don't see it like that. And I am of course a layman compared to the two of you, but I read the decision and the concurrences and I just thought it was a route.

And I thought it was a route for a couple of reasons, because there were two arguments that were made simultaneously. One is that even if there are multiple answers, even if you can see this one way or another, I'll get two different outcomes on two different days. [00:40:00] The question was, Where is that decision made?

And the Gorsuch concurrence says, judges make that decision. That's how the system of government in this country. No, I know you do, but I'm saying, so to me, that in and of itself is a public good to be able to locate that power in the judicial branch is a good thing. And then you had a practical argument, which is very John Roberts, where he's saying it just doesn't work.

It doesn't create stability because the bureaucrats change, or at least their masters change every four years or eight years. It doesn't help. The stability little guy it doesn't have stability, but it also doesn't help the little guy. This idea you hear from the left that, oh we need massive administrative state with massive power to help the little guy.

Actually, no, look at the people who brought the case. So to me, this was perhaps this is a sort of layman populist view, but to me, this was, it was a great decision because if you take all of those who voted to overturn Chevron together, what you get is. This was constitutionally wrong. [00:41:00] The power was being exercised by the wrong people and it didn't work.

And I just I'm thrilled by it. Let me explain why you're right.

John Yoo: Oh, good. What happened is Richard, the last thing the man needs is an explanation about why he's right. But I think it's important. What Charlie, what

Richard Epstein: is the weak part of the opinion by Judge Kagan is she actually referred to administrative expertise.

All you have to do is spend any time reading any of the expert reports put together by the Biden administration. And you realize that they have a level of incompetence unmatched anywhere in the civilized world. So if you look at this stuff on global warming, it's Postures, you look at their stuff associated with the Amazon prosecution or with the grail alumina prosecution or with the stuff on global warming.

It's all an abomination. There is no expertise that's going on in these cases. These guys are hacks from beginning to end. And she says it as though these [00:42:00] people are credible.

John Yoo: The reason the dissents reasonable question and our friends, all our friends who do administrative law, even if they. Except half of what Robert says, they're still, they're going to say this, a lot of the statutes passed by Congress are vague and ambiguous, make the air clean in a way that takes into account technology and economic growth.

That's basically what the Clean Air Act says. How can a court. review any agency regulation and say that's the right answer, that's the wrong answer. Because the statute on purpose is vague and on purpose tries to give the agency a great deal of power. Now I think Charlie, my answer, I think is we should then not let Congress do it.

Not let the agency do it. If Congress can't be bothered to state clearly what it wants the agency to do, then what you're really doing. And I think this has got to be the next step is after this, you've got to have some kind of non delegation doctrine that says there's a limit to what Congress, otherwise Chevron doesn't really make sense.

Cause you're just saying, okay, you're not going to accept what the [00:43:00] agency does courts. There's no way for courts to actually properly draw a line when Congress writes such vague statutes. I want to hear what Charlie has to say. Richard, before you tell me why I'm right.

Charles Cooke: No, I was just going to say, I agree with, I agree, John, with everything you just said.

And I want that non delegation decision as well. But in the meantime, before that comes, It doesn't worry me because the court is not prohibited from deferring to an agency. So if you are, do actually have one of Justice Kagan's platonic ideals, where the agency is full of the most brilliant men who have ever lived, and they do interpret the law in a way that is defensible.

And the court says, you know what? This statue is ambiguous. That's fine. There's no way we can actually perform an oversight role here. So we're just going to defer to the agency. That's fine. What this prevents is the sort of absolute nonsense that we've seen in recent years where rather than being experts, they are political actors.

They clearly bend the terms of the underlying statute. And then the court has to say we know that's nonsense, but you can get [00:44:00] away with it anyway. So even in the interim, I think that it works functionally.

Richard Epstein: Look, the level of abuses under the so called Chevron doctrine have been legion.

And one of the great contributions of Justice Gorsuch is he gave all sorts of cases where things were read into them and so forth. But again, one of the things that I like to do, and I think that should have been done is, okay, Chevron was wrong. Ms. Chevron was a case which had to do with smokestacks and the question of what counts as a point source.

They should now decide it under the rules that they were there. And it turns out, what is a point? It's obviously not geometry. And so the question is, how do you treat a cluster of smokestacks over a factory? And I don't know anything other than a functional explanation on how you do it, but it's a functional education which is consistent with the two values that drive this whole analysis, preventing externalities on the one hand, and making sure you don't disrupt productive processes on the other.

So what I would say is if you look at the kinds of things that you are [00:45:00] talking about, if they're within a very small compass, as you shift down from one shack, one smokestack to another, the effects on the external world, the trivial, if you then figure out about production inside the plant, the amount of gains that you could get by making these alterations are enormous.

So that when you're looking at this, The presumption is that not having the government decide to do an internal review every time you move from smokestack to smokestack is, in fact, the correct answer. Whereas if you're talking about plants in New Jersey on the one hand and those in Montana on the other, it obviously goes the other way.

That's the best that I can do, but it's a lot better than what Ruth Ginsburg did when she was in the ninth in the District of Columbia, where she said I don't think this is going to be efficient and getting everything done. So I'm going to strike down the rule. She struck it down. What happened is our friend Steven says, I'm going to give it a fair chance.

And he's wrong for the reason stated. But if you're then going to have to go and do the Chevron thing under the rule, [00:46:00] the correct rule of statutory interpretation, I don't think you can do a better argument than the one that I've made. And so I'd like to hear it. And if it is, I'm happy to accept it. What I think is right about what both of you said is the Democrats.

They're always trying to expand government powers. They are much more likely to cheat. The Republicans are not interested in that. So they're not going to define the territorial seas of the United States to include the upland. That's why the Democrats are much more upset with this because they want to use the power in a way in which most Republicans do not.

All

Charles Cooke: I think we're running out of time. So who wants the last word?

John Yoo: Richard's already had it for the last hour.

Richard Epstein: Yeah, I've been very vocal. Look, I'm, I do want to say one thing, and I want, and I'll say, I think the other part of all this is jarcase is extremely important, which is the case which says that you can't essentially bring somebody into an administrative court, have the commission appoint the judge who's wholly biased, [00:47:00] and then review his decision and leave it to an appellate court five years later.

To deal with it. So I think that's an extremely important opinion. And what it starts to show is one reason why we hate the administration as it's conceived is it doesn't observe the basic norms of due power, of due process, and it allows ungodly concentration in the hands of administrators.

And so what you're worried about in Chevron, you have to worry about here. And so And the previous efforts to deal with this have just been pathetic. And so I think it's a great achievement that they did it. John, do you agree?

John Yoo: Yeah. I want to throw in a different point. And I'm curious what you both think, Charlie, I think is paid to think about politics more than you and I, Richard, but here's my guess.

about how this the debate intersects with the court. The more that the Democrats think Biden is going to lose, the more they see how, I don't know what he's, what early stages of dementia he's in or whatever, just mentally, physically incapable of the job. I'm curious how this [00:48:00] will affect progressives attitudes toward the court.

I would assume that they now really want Justice Sotomayor to resign. They really, they want Justice Kagan to resign too so they can fill them with two 40 year olds. So I'm curious, like the, after the debate, I think that's another reason why, Charlie said the left is freaking out about these decisions because if Biden loses, they think the court's their last line of defense and they can't count on it anymore.

Richard Epstein: They certainly can't. And not only that, if they expand the court and Trump is president, you'll have an unworkable 15 court, which will have essentially a 12 3 Republican advantage. These guys, look, they are a bunch of desperate individuals. And I think the point is lost all intellectual responsibility.

So I'm going to ask you again, I thought the piece that Larry Tribe wrote in the New York Times was an intellectual disgrace. Did you agree, John? I didn't read it. What did he say? We're lucky you. Because he wouldn't even tell you what [00:49:00] the charges were.

John Yoo: Richard, you know I rely on you to tell me what's in the New York Times every day.

I don't read it myself. You're the one with the subscription.

Richard Epstein: It's a pain, but the crossword puzzle, let's get the good side out. It was a painful form of apology by a man who also thought that the insurrection charges could be decided by the Secretary of State of Maine. War of Colorado. Yeah.

John Yoo: He's so gotten himself.

He's just so out to get Trump that he's, I think he, I hate to say it, but I think he has, ruined what he stood for.

Richard Epstein: I think my view is that every time he opens his mouth, he diminishes his stature.

John Yoo: There you go. That's a great last word for the podcast.

Charles Cooke: Absolutely. This has been Law Talk, hosted unusually by me, Charles C.

W. Cook of National Review. I have been with John Yoo and Richard Epstein, and I am reliably informed that normal programming will return next week. Thank you, Charlie.[00:50:00]

Announcer: 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.