The Revengers: Predictions Of A Possible Trump DOJ

>> Tom Church: Welcome back to The Libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined, as always, by the libertarian professor, Richard Epstein. Richard is the Peter and Kirsten Bedford Senior Fellow here at the Hoover Institution. He's the Laurence A Tisch Professor of Law at NYU, and he's a senior lecturer at the University of Chicago.

Today we're going to be reading the Tea Leaves a little bit and talking about a second Trump presidency. Now, Richard, for the last month or so, the betting markets and the polls have shifted away from Vice President Harris and back toward former President Donald Trump. And that's led some to, let's say, hand ring some hand wringing for many, many people, including the good folks over at the New York Times who've written this article that I want to talk to, talk through with you today.

The story is titled why Legal Experts are Worried about a Second Trump Presidency. And it cites a few things. It cites a survey of many members of the DC legal establishment who are worried about Trump and his threats to his adversaries. It cites this recent tweet from Trump where Trump threatens to prosecute those who opposed him, especially in 2020.

And I'd like to read two key parts of that tweet to you. He says about the 2020 election, which of course he claims and says, you know, was stolen. When I win, those people that cheated will be prosecuted to the fullest extent of the law, which will include long term prison sentences.

And he ends the tweet, with those involved in unscrupulous behavior will be sought out, caught, and prosecuted at levels unfortunately never seen before in our country. So, Richard, my question to you is how worried should we be about Trump's ability to wield political power, to punish his opponents, to use the Justice Department in ways that I think he's claiming the Justice Department is being used against him?

>> Richard Epstein: Well, this turns out to be a very complicated question because there is, of course, the same problem on the other side. If you look at the way in which the system has been, been done by Biden, everything that they claim is going to be done by Trump is stuff that they've already done.

They've had a couple of impeachments that I thought were pretty groundless. There's relentless prosecutions that have taken place. There's a tendency to take all sorts of people associated with January 6th and give them very steep terms. There was the Mueller report, which I regard as something of a scandal.

I was involved, as you know, and still am involved in the case where Joe Biden simply summarily fired every appointment that Trump had to various advisory boards, over 40 of them, I believe, who had terms remaining. And this was his argument is, I want you out of here by 6:00, and if you don't quit by 5:00, I'm going to fire you.

So, I mean, I think that these things do it. The other thing about Trump is that he is a man of immense bluster. And so you go back to the past record and do ask yourself the very question. He said many stupid things during that election. I think it's just part of his persona.

I don't think you could get it out of his DNA. And so the great question is, how many prosecutions in the first four years between 2017 and 2021 when he left office did he make of that particular sort? And I try to think of some. And the answer is I can't think of any.

What I can think of is situation where he's talked off the rails. Rod Rosenstein, or whoever it was, simply said, you can't do this, Mr. President. And what we have to do is to try to figure out how to decipher a situation in which he may have wanted to do this, have somebody talk him down.

And you're trying to figure out with Trump, who's so erratic in so many other ways, whether he really meant to go forward with it, or whether he wanted to just put the fear of God and everybody else on the earth. So I just don't know. I do know there's something else which is very disturbing about this letter, is, I mean, if you wanted to figure out who are these 50 people, A, you start with DC and that already gives you a very powerful skew in the direction of anti-Trumpers.

And then you have people on that list of people whom I regard as simply beyond the pale. Mike Luddig was a distinguished judge on the Fourth Circuit. He worked as a general counsel at Boeing. Since he's retired from that job, he's been a madman with respect to everything that Trump has said and done.

And so when he starts coming out and saying that Trump is going to do really terrible things, I'm thinking of a man who thinks that the way in which you deal with a potential president is what you do is you get various secretaries of states and various local officials to basically try to force Trump off the ballot and then force the people who want to get him back on to litigate.

And the Supreme Court rightly said, at the very least, there are many other objections. But at the very Least there has to be congressional authorization for that. And so this morning, I did a show with John Bachelor, a good friend of mine for a long time, and the story that he heard, he couldn't verify it.

He thought it was incredible. He hoped that it was wrong. He says there are some people who are saying out there that if in fact, Trump wins on November 6, the Attorney General, Merrick Garland, will arrest him under charges of insurrection and then basically precipitate a constitutional challenge.

Ideally, hope that this is just absolute fabrication, which is the way it sounds. But it turns out there's a lot of paranoia on both sides. And so then you start saying, the New York Times does this, and you ask the next question. When was the last time you read a story about Donald Trump in the New York Times which had anything nice to say about him?

Well, you tell me when you've seen it, because I basically can't think of anything in the last 12 years. They absolutely have it in for him. And if they select the people, that's fine. But if you let me select the people and have it come out on another kind of more conservative network, my guess is you'll get a very different kind of response.

So what is the basic situation? I mean, everybody has to make up their own mind about this election. And all I will do is report on the tendencies, which is the salad days, not the word salad, but the salad days for Kamala Harris are over. She had a high when Biden was dropped out, was forced out.

She had a high at the convention, and she had a high at the first debate, where she did pretty well. Since that time, it's been straight downhill, absolutely handed, rigorous, condescending. There's nobody that she's been able to reach, evasive on all major issues. And Trump, much to everybody's amazement, has had some political triumphs, including eating at McDonald's and going to the Al Smith dinner.

And so it seems to me that the polls reflect this shift. And I think what's really going on here, I'm sorry, at say, is the New York Times, and the liberal press is in panic mode. And so what they're trying to do, since they can't seem to beat Trump in any other way, is to basically throw this stuff around.

There was a nice column this morning on Friday, October 25th, by Kim Strassel, and she says it's Hillary, too. They don't know what to say about the issue. So what they do is they besmirch in every way possible, Donald Trump, calling him every dirty name from a fascist on down.

And so this is the same newspaper, the New York Times, which is also dealing in those kinds of situations. So, just to finish up on this rather sorry topic, it seems to me that you have to take this story with a grain of salt. And the real tragedy is I can think of so many things that are wrong with Donald Trump, including his absolutely obdurate stance on tariffs, where I think he's completely off the rocker, that there's so many places where you should correct him on the record, and they won't do it.

And one of the reasons they won't do it is, if he's terrible on trade, so is Biden. And so they're in this funny position. They could denounce him for doing things that they're doing, and they don't want to do that. And so they don't wanna take up issues like the high cost of global warming in a coherent way.

So they're reduced to basically, name corning in the final ways of the election. And you always remind yourself and everybody else when you have a target audience, they're not the only people who are listening. And if he thinks that she thinks that they're going to rouse the anti Trump vote, I suspect they will.

But they'll also increase the pro Trump vote because most people who are independent or on the fence will regard this as sort of dirty tactics and they will see, I'm pretty sure, or the New York Times article is just a continuation of that campaign by other means.

>> Tom Church: All right, so it's not surprising that this is coming out of the New York Times, right?

We're not seeing it out of the New York Post. We're seeing the New York Times.

>> Richard Epstein: By the way, the post, did they endorse Trump?

>> Tom Church: Yes, they did, but there are some people who you would expect to be Trump supporters who, of course, aren't saying positive things about him.

I mean, there's something running around on the Internet right now forty of Trump's 44 cabinet members have said negative things about his prospects of him running again or winning again. I mean, Bill Barr is not something is not a New York Times loving subscription and is clearly not a fan of Mr. Trump, so.

But he did endorse him at one time, God knows whether he's changed his mind. Right, but this is what I want to get into. So, we're not surprised that the New York Times run this stuff. What are we to think of the many people who served with him who are also people of integrity, who have changed their minds?

I mean, what the, the question I'm getting at really is a second Trump presidency. The first one he came in, he was surrounded by a lot of solid people, a lot of establishment Republicans and a lot of people left because, of course, he fights with and fires everyone.

And so now the question is, what does a second Trump presidency look like? Do we think that there's another category of establishment Republicans who are gonna show up and hold them back?

>> Richard Epstein: I mean, some of the people from the first administration are gonna stay with him, like Mike Pompeo.

And the Washington establishment is very deep. And the ability to get a major position in either administration on defense or on treasury will always bring somebody out. And so the real question is, will he have the good sense to pick the right people or the bad sense to pick the wrong people.

But I don't think that what's going to happen is if he wins the election, that people who want power are going to simply stay on the fence. One of the difficulties with Trump, and this is well established, is you may be able to work with him for a year or two, but sometimes his behavior is sufficiently erratic that you have to quit because you can't take the tantrums anymore.

And this happened the last time. But there are many people who think, and I'm one of them, he actually did better with a second set of cabinet officials than he did with the first. And Rex Tillerson versus Bill Barr, Mike Pompeo versus whatever his name is, Rex somebody, rather, from the Exxon company.

I mean, some of these were upgrades. You know, Scalia was an excellent Secretary of labor and so forth. So I'm, I'm less concerned about that because I think if you could find 44 people who won't take the job, I could get you a list of 400 who will.

And I think he will then put them in there. I think he will burn through some of them. Who knows? Because, I mean, let me put it this way, how much of a handicap is Trump to the Republican Party? In the Richard Epstein survey of his own psyche, he has come up with the conclusion that if Trump were off the ticket and Kamala Harris had to run against either Nikki Haley or Ron DeSantis, he'd be behind by 10 to 15 points.

And so, I mean, all of the objection to Trump takes hold, but it's against the context of somebody who's been a complete stumble bump in the last month and a half. And so, I mean, the current situation is Trump seems to be ahead by what, two, maybe three points in the polls.

Senate seems to be moving his direction. We do know that Trump voters tend to not tell the truth, and so they're probably a larger number than this. So maybe the real number is not two. It may be three or four. And then if the trend is moving like it is, and it seems to have moved four points in the last six weeks, you can expect another point or two too moving unless Trump bundles up.

So the way I see it, being a complete political amateur, it's his to lose. And so far, he's not been making the mistakes that people have counted on him to make. And she has been making mistakes that she has no business kind of making. She better let us know.

I'm giving you a simple question. You really wanna have put in these new electron vehicle charging stations, and then you wanna put them in under the current conditions where everything from gender equity to ethnic representation is gonna be there. So you spend fortunes on stuff and you get nothing built.

And the EV scam with difficulty is very acute. Why not go back to hybrids? I think those are questions to ask her. And my view about it is the EV thing is a very dangerous situation. You can't get anybody to rent an ev. You could get anybody to rent a hybrid car.

Hybrid cars are an intermediate solution, they dominate it. Why will she not say what she thinks about that? There is the medieval war or not medieval, middle eastern war. And basically, the Biden administration, which she supports, has always kept the shackles and the chains on the Israelis that has kept this thing going longer than it ought to go.

And the question is, is she really escalating when she tries to de escalate? I think the answer to that question is yes. And it turns out that if you look at Netanyahu, his decisions to defy the Biden administration and to get both Nasrallah and Sinwar have been great triumphs.

And what the Biden administration comes back, says, congratulations for doing that, but still to cease fire on any terms that we could possibly get, she has to tell us whether she believes in that policy or whether she did not. There are enough questions out there that she has to answer.

And look, my view about her is she's not very able when it comes to dealing with political issues. And that the reason why she hems and whores is she can't form her own coherent position. And that is then combined with all the political complications of running a presidential campaign, so that she's floundering very badly.

And if she's floundering very badly today, is there time to right the ship? Well, at this particular point, My guess is 10 days, 11 days to go. No, I don't think she could do it because I think she's too much hardwired into this current position of denunciation, calling Trump a fascist.

And what it will do is it will take the anti Trumpers and make them even more anti Trump. But if you get even stronger, you're not going to be able to vote twice. I don't think money at this point is the consideration. But the people in the middle who don't want to hear presidential candidates vilified by that.

There was somebody, I think, who made a comparison of Trump to Hitler. I mean, this is all crazy.

>> Tom Church: This is coming out, Richard, because of John Kelly being said in the book, which I think he's been saying for a while, but there was the new book come out and John Kelly confirmed it of hearing multiple times Trump say basically admiring Hitler's generals for being loyal to him.

And it's just a phrase that doesn't play that well,  I will say.

>> Richard Epstein: Certainly, doesn't play well to me and it's kinda screwy and so forth. But it's not the same thing as saying he was, I mean, look at his behavior. And it turns out I'm gonna just give you two broad indices.

The economic situation, particularly for the least well off, were better under Trump than they were under Biden. And foreign policy was a lot more stable when Trump was harrumphing along the stage, as it is now when Biden is trying to be prudent. And so it turns out on the two major domestic and foreign issues, Trump has badly outperformed Biden and she has not dissociated herself from him and she wouldn't even know how to dissociate herself from him.

What you're seeing here is somebody who's never had to face a political camp Campaign. She basically drops out in 2020 because she doesn't know what she's doing. And now she gets thrown back into the situation in 2024. But she doesn't have to run a primary, so she's not done the practice heat.

And I don't think she's particularly smart anyhow when it comes to these policy sort of issues. So you put it all together and she's very ham handed. And I think the Democrats realize that they have come to the conclusion that there's no way they could fine tune her speech to get her much more subtle on the policy issues.

Puts back the bashing in the style of Hillary Clinton 2016. So Trump, anything could happen. But if you're trying to place the trend, you say two things. One, we know which way the train is moving and it's towards Trump and we know that there's less time for a major reversal.

And we also know that in the last month there's no major Trump screw up, at least I can't think of any. And that adds to the fact that he's likely to win. At which point are these people gonna go ballistic? I think the answer is yes. Will they be violent?

I certainly hope not. I also think that the Republicans will probably retain the House and gain the Senate perhaps by as much as four seats, 53 or 54 point majority or vote majority may not be there. So the Democrats have a lot to come out with them and they just start doing it.

Some people are trying to run by saying, well, I'll support Trump if he does this, that or the other thing. They're running on the Democratic Party like Bob Kasey, who is, I think now behind, if I'm not mistaken, Tom, in the Pennsylvania election. So, it's going very bad for them.

And this letter that you just saw is just another effort to try and completely discredit Donald Trump. And my view about him is, God, I wish he had not run, I haven't changed my mind on that. But that's not the question. The question has he outperformed expectations or not?

And he doesn't sound old and he doesn't sound senile and he doesn't sound particularly vicious. And what people are doing and notice what's happening is they're reporting in 2016, Trump said this, this. What they're not being able to do is to show them saying it right now on a live basis.

>> Tom Church: Richard, election is in a week and a half. Early voting has already commenced. I'd like to talk about or just prepare people for Election Week. I mean, my question to you, which I'll get a quick answer for you. Do you think we're gonna know the, the who the president's gonna be on election night?

Do you think we're gonna be able to call the election that night?

>> Richard Epstein: Depends on how they count the absentee votes.

>> Tom Church: Well, you say, but I mean, places like Pennsylvania, Michigan, Wisconsin.

>> Richard Epstein: I think it, they take a long time, the answer will be no. What's interesting, though, is there's the following situation.

The predictions were that the early votes would be more Democratic than Republican. The Election Day votes would be more Republican than Democratic, and you'd have to net them out. But it's beginning to look as though the Republicans have improved their ground game. And that the basic registration in Republican areas in Nevada and in Georgia and so forth have been equal to or exceeding, in some cases, those on the Democratic Party.

And so the problem that the Democrats have is there may well be large numbers of Democrats who will not vote for Trump, but a lot of the black votes. Particularly amongst black men and even perhaps some more conservative black women, those who are religious and so forth, they may just stay home.

And if that happens, it's like a half vote for Trump. Now, I'm not a real expert on this. I'm only telling you what I read but in doing this, I can't see anything that I understand that points to anything other than a Trump victory. But my view is I don't take me very seriously, right.

>> Tom Church: How about this, Richard?

>> Richard Epstein: But I will say the following. I think that the Democrats believe the same thing.

>> Tom Church: I think everyone's, yeah. I think the last few weeks, the trend has certainly changed. Here's what I'm worried about and I want to think through. In 2020, Donald Trump declared himself a victor before we got all the votes counted.

What do we do if Tuesday night, in a week and a half, Donald Trump says, look at these votes, I'm ahead before processing and vote counting for absentee mail and votes has come in. What if he declares himself a victor again? What do we do with it? What's the legal process to.

>> Richard Epstein: What you do is you denounce them. There's no process that you can do what you say. In effect, it's utterly irresponsible and that it's a black mark against him. And if he takes the administration, even if he's right, this is a regrettable thing and it should be held against him in the political circuits.

Look, my view about Trump is you can debate till the cows come home whether there was or not irregularities in 2020. That's not what we're about. My view is that Trump was certainly right to protest them. But pick the method. What you asked to do is you concede the election and then ask for an independent investigation and that might have turned up with something.

I could certainly find irregularities that I remember on the day. And I have no doubt when I went to sleep on election night, I thought that Trump had won the election. And I wake up in the morning and I see a complete reversal on the board and I don't quite understand it.

I still don't quite understand. But it's one thing not to understand and it's another thing to basically require people's swear loyalty to you that it was stolen and do it again. So he has to, people have to really sit on this man. Look, anybody who votes for Trump in my view should say, look, I voted for you, Donald Trump, but when it comes to free trade, I'm against you.

And you saw the Rand Paul column this morning. He said, this is crazy. You saw the situations that were done by people like Phil Brand and Don Boudreau. Every sensible person understands this at this point. Paul Krugman wrote the same column. If I had a chance, I'd write it as well.

What you have to do if you vote for Trump or if you vote against him is pick particular issues where he's particularly dangerous and wrong headed and stop him from winning on those particular questions. You'd have to do the same thing with her. The difference is with Kamala Harris, I can't think of a single area where I agree with her.

And so I think it's gonna be a full court press, which is a very dangerous thing to have to do. Whereas in his case, there's some things where I think he's probably gonna be much better than XI energy policy. I think CLUE is gonna be the case. I think the stuff on the, on the Mideast is gonna be much better.

Even with respect to the NATO stuff, I think he will be able to do some controlling that will actually work. And so with him, what I do is I see a major reclamation job. With her, I see the need for an entire rebuilt engine. She has said nothing on any substantive issues that I've heard in the last month that has done anything other than to make me groan.

That is not a happy point. If you want to say, well, let's pick the opposition. She had to move for the center, and she didn't.

>> Tom Church: And we'll see what happens in a week and a half.

>> Richard Epstein: Yes, same time next year.

>> Tom Church: Same time, next year. You've been listening to the Libertarian Podcast with Richard Epstein.

As always, you can learn more if you head over to Richard's column, the Libertarian, which we publish on defining ideas@hoover.org. Now if you found this conversation thought provoking, please share it with your friends. Rate the show on Apple Podcasts, Spotify, or wherever you're tuning in. For Richard Epstein, I'm Tom Church.

We'll talk to you soon.

>> Presenter: 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 podcast or watch our videos, please visit hoover.org.