All Enemies, Foreign And Domestic

>> Richard Epstein: Yeah. That's good for me cuz I have a heart out at 132, well.

>> Troy Senik: Okay.

>> Richard Epstein: At 132.

>> John Yoo: Mine's at 129 now.

>> Richard Epstein: Okay.

>> Troy Senik: Price is right rules. Welcome back to the Law Talk podcast from the Hoover Institution. Coming to you, as we always do, in the faculty lounge of the Epstein and Yoo School of Law, where the Christmas party always ends in someone drunkenly reading Justice Pitney decisions aloud.

I'm your host, Troy Senik, a White House speechwriter co-founder of Kite and Key Media, and moderator of a macrame subreddit. And I'm joined, as always, by the Donner and Blitzen of the conservative legal movement. They are Richard Epstein, the Peter and Kirsten Bedford senior fellow at the Hoover Institution, the Laurence A Tisch professor of law at NYU, senior lecturer at the University of Chicago.

And John Yoo, visiting fellow at the Hoover Institution, the Emanuel S Heller professor of law at the University of California-Berkeley, and former deputy assistant attorney general in the Bush administration. Okay, this is the first time I've spoken to you guys since Thanksgiving, which means there is one burning question.

We need to get out of the way up front of the traditional Thanksgiving dinner items, which is the most expendable? You have to get rid of one. It's bringing down the average. What's on the chopping block? John, I think you have the strongest feelings about food here, so I'll start with you.

 

>> Richard Epstein: Good.

>> John Yoo: Anything that's a vegetable has to go. Only turkey and starches.

>> Richard Epstein: I don't like mashed potatoes. I would tend to get rid of some of the potatoes. The yams and the regular potatoes keep the gravy. And it turns out the most variable item is surely the stuff that you put inside of the turkey.

Sometimes it becomes truly subliminal, or sublime rather. And at other times, it's really very, very bad. So what you have to do is you have to guard the dressing and guard the stuffing.

>> Troy Senik: I'm really surprised that neither one of you picked cranberry sauce.

>> Richard Epstein: I would like cranberry sauce.

 

>> John Yoo: Yeah.

>> Troy Senik: Guys, I mean, it's-

>> John Yoo: Especially those kind that comes out of a can. That's the best kind.

>> Troy Senik: It's like a gelatinous hockey puck.

>> Richard Epstein: No, no, no, no.

>> Troy Senik: There's no other day of the year that you'd even consider this series. It literally has the kind of texture and color coding that in nature would tell us to avoid it.

 

>> Richard Epstein: But I eat the little canberries, the dried cranberries. Those are the ones that are much better. So you get rid of the sauce and you keep them the other way.

>> John Yoo: I like the way it comes out of a can in a solid whole. And then you slice it,

 

>> Richard Epstein: John, you're showing your total lack of cuisine excellence. But that's been a constant theme on this show. The idea that I should be the epicure in any one-on-one comparison is absolutely preposterous. But, John, every time you start to talk, you make me feel like a gourmand.

>> John Yoo: My purpose in life.

 

>> Troy Senik: I have the-

>> Richard Epstein: Made me feel good.

>> Troy Senik: I have set myself up for failure here because I now have to pivot from the ridiculous to the sublime. Let me just start you guys briefly with a bit of unexpected news. We learned shortly before we started recording that Justice Sandra Day O'Connor passed away today, the age of 93.

She had basically withdrawn from public life over the past five years due to dementia, which also claimed to her husband. And there's a strange dynamic with people who accomplish historic firsts because it tends to overshadow anything else they did in terms of their legacy. We know that the sentence that will always accompany Justice O'Connor's name is that she was the first woman ever to serve on the Supreme Court.

And, Richard, I'll start with you here. How should we remember Sandra Day O'Connor, the justice and Sandra Day O'Connor, the person?

>> Richard Epstein: Well, first of all, and the person, she was an extraordinarily nice person. I did not know her very well, but certainly interacted on her several time.

Always gracious, always looking to make somebody else feel good and better, never trying to sort of pump up her own proceeds on the Supreme Court. So she was, I think, the kind of very admirable person who never let her fame go to her head. And I think that's all to the great.

And I don't know of anybody who ever had a hard word to say about her on any dimension as a scholar or as a supreme court justice. She was always known to be the great balancer. Somebody could always see something on both sides. And balancing is a risky game.

When it turns out you really need to balance, you want Sandra Day O'Connor to be there. But sometimes you're aching for a clear rule of one kind or another, and she would not give it to you. So this is gonna be a mixed legacy. The one thing I can say, I think, pretty clearly, is that she starts off as a moderate Republican, sort of ends up as a moderate Republican, probably moving slightly to the left, as most Supreme Court justices do.

But I can't think of her ever exciting the kind of antipathy that is spoken about other conservative justices who have come and taken her place. She was always somebody who was regarded as easy to approach, always amenable. Many people often wanted to target her for their arguments and so forth because they believed that she would listen to them.

And since she was sort of in the middle of the distribution, she would have an extremely high level of influence, some people said. In fact, by virtue of being five out of nine on any particular directional game, she was a pivotal justice in a very large number of cases.

So, I mean, it's clear she left public life many years ago, and it's good to her. But the thing I think that was actually really classy is I think she resigned in 2005, if I'm not mistaken. And she says, time for somebody else to take over. And that was the kind of generosity, I think, that she showed with everything that she did anyway.

She also had a good sense of humor. I could remember one time when she talked about her show and she was talking about her courtship with her first husband, and she said they used to go up into the snacks and then she started to giggle. She had a very nice human side to her as well and wrote a very nice biography of her own life.

 

>> Troy Senik: John, I want to get you to respond to some of the same themes that Richard was talking about. But I'll also add this. There's an interesting piece of trivia about Justice O'Connor. She was put on the court over 40 years ago now, and it was the last time that someone who had previously held elected office became a supreme court justice.

She was a state legislator in Arizona. In fact, she was the majority leader in the state senate. That used to be more common than it is now. I actually went back and looked at the math. Exactly 50% of the justices that have served in the history of the Supreme Court had previously held elected office.

Today, of course, the court is made up almost entirely of former appellate judges. Justice Kagan is the one exception there, and the DC circuit, the one that's always most prominently represented. So in addition to these thoughts about Justice O'Connor's legacy, I asked you about that trend. Has that change been good for the Supreme Court?

 

>> John Yoo: I agree, Troy. We have been appointing less politicians, and we're appointing a cadre of professional judges to the Supreme Court. I think the downside with this is we're getting a series of judges who aren't really conscious in the way a politician would be of the political importance of their decisions, of the setting of the Supreme Court within the separation of powers and within our government.

I think sometimes, strangely, I think they sometimes play a lot more. I'm sorry professional judges might play more political games, in a way, on the court itself. So I think actually it would be much better, much healthier for us to have at least a balance with some people like we used to have, who used to be senators.

Or even former presidents like William Howard Taft becoming chief.

>> Richard Epstein: He was also a judge.

>> John Yoo: After he was president. Yeah, he was a judge at some point. But in terms of O'Connor, I think with O'Connor, she was, I think, like a politician on the court in the sense that she never wanted to have anything finally decided.

She never really wanted to follow a clear ideology or a clear judicial philosophy. She loved to balance all the factors. For her, I feel like everything was a totality of the circumstances, not deciding by clear, fixed rule. So, for example, on the other hand, that made her in many ways the most powerful woman in the country.

When she was on the court, she decided as the fifth vote the country's policies on abortion, on affirmative action, on religion, for the whole country, and on issues I also sometimes agreed with her on, like reviving federalism, reviving the role of the states in our system. But I think there's a lot of problems with having judges just decide all the cases based on the ten factors that they see before them.

Because that become the case of the court's doctrine and cases could come farther and farther distant from the actual meaning of the text or the original understanding of the Constitution, and it becomes much more the power of the judges that are enhanced.

>> Richard Epstein: I have a following reaction.

There were no Supreme Court justices were politicians when they handed down the recent case in Dobbs. They were all judges, and one of the things that people always had to ask is, if you did this, who's gonna win and who's gonna lose politically? And it seemed to me very much from the beginning that any decision to overrule Roe v Wade was a huge boon to the Democratic Party, because what it would do is it would take an issue and put it back into play.

And so there were many Republicans who were sort of conservative on economic affairs, liberal on issues like abortion, and it essentially forced them to choose. My guess is if you went back to the election that took place in 2022, you probably had a very substantial shift in the number of seats from the Republicans to the Democrats.

It may have changed the size of the majority in the House, almost certainly, and probably switched the control of the Senate with absolutely cosmic consequences. So if you had somebody there saying, look, this is a kind of a dicey sort of issue, maybe we ought to back off of this stuff and say, we'll leave it and perhaps done some more modest change, but not have the frontal assault.

Now, I think it's because none of them were politicians. Now, me, I'm completely unprincipled both ways, I don't know what to think. And so what I always used to say is on Monday, Wednesdays and Fridays I was appalled at the badness of the Roe v Wade decision. And Tuesday, Thursdays and Saturdays, I really wanted to make sure that stare decisis was respected because of the political implication.

I don't think there was any such equivocation amongst the people who voted for Roe. And I think if you're trying to figure out what the greatest Supreme Court decision is in terms of public effect, nothing comes close to Dobbs. And I don't think it would have been decided the same way if we had a Lewis Powell hanging around on the Supreme Court because of his experience in private practice and so forth.

There is a tendency on the part of judges, regardless of their political affiliation, to think pretty much the same way cuz they don't have the broad kind of experiences that other people have. And in many cases, it may be fine for that professionalism to prevail, but they're going to be some cases where I think it's going to create some unwelcome complications.

 

>> Troy Senik: All right, I'm going to move you guys on to foreign affairs. We have had over the last week or so a series of short ceasefires in Gaza. This has been what a lot of progressives have been calling for because of the humanitarian cost. That's what they cite for the civilians there.

But we also yesterday had a terrorist attack from Hamas members in Jerusalem. Three people shot to death at a bus stop. There is no live ceasefire now as we're recording this, it looks like we're back at it. And yet there is still increasing pressure for Israel to ease off the gas, even maybe wrap this up.

There was reporting yesterday that Secretary of State Blinken told the IDF, look, the longer this goes on, the more pressure theres going to be on Israel and the US. Richard, I'll start with you. How should Israel be thinking about what comes next? How should the US be thinking about it?

 

>> Richard Epstein: Look, I think its a pretty clear answer to this question. You just have to ignore the publicity and press on with the original war games plan, which is to eradicate Hamas and they hold all of their leaders responsible, including assassination if necessary, which was announced yesterday. I think the politics will follow that there's going to be a huge amount of difficulty in the short term.

What Mister Blinken should do is something quite different. He says, look, you open up the Rafah gates, put people into Sinai so they're out of harm's way and cordon them off there. They're Egyptian citizens, most of the people who happen to live in Gaza, so why don't you do this?

But if the Israelis yield to this, what's going to happen? Well, right now they probably have 250,000 or more people who have been removed from their homes because of the fear that Hezbollah or the Hamas will attack them. That's a massive dislocation. If they continue to let this thing draw out, it's gonna obviously protect their ability to work on other fronts.

It's going to increase the legitimacy of Hamas and make them into victors. The worst thing that could possibly happen is somebody says, what happened on October 7th? It's just another day in the history of a very complicated relations. So I am at this point a complete hawk on that particular question, and as best I can tell from all the chatter that I've heard from my Israeli friends and so forth, is that that's the position that Israel itself has come to conclude.

Whether they could save the hostages is a big question to ask, but the hostages are obviously critical. But at the same token, there are gonna be many more military deaths that the Israelis are going to have to suffer if they start to yield to what it is that Mr Blinken is suggesting under these circumstances.

I think he has to be told a polite no on this particular point. And I think you have to keep pushing. Once it becomes clear that this thing is going to be resolved, there will then be a return to some kind of peace. The real problem is there is no obvious candidate to do the governance in Gaza that is going to be needed.

The Palestinian Authority is hopelessly corrupt. Hamas is virtually senile in everything that he wants to do. There's no UN that anybody could trust, and Lord knows who you could put together a coalition of multiple nations to handle this. So they're gonna be problems after the world, but they're not gonna be any easier if it turns out that Gaza, in effect, remains under Hamas control.

So I think, in effect, all guns pulled and you have to move, and my guess is that's what's going to happen. I do not think that this cease fire is going to be resumed, or if it is resumed, it's not gonna be resumed for a very long time, just for a short period at most, a pause, not a ceasefire.

 

>> Troy Senik: John, I want you to take up those same points, and I'll add this one as well, because you spent a lot of time writing about and thinking about the laws of war. We hear all these conversations about Israel's responsibility to get supplies or humanitarian aid into Gaza, which is slightly odd because it's said as if Israel was still the sovereign power in the territory.

When we're trying to understand the plight of the civilians that are caught in the crossfire here, where do we draw the line between what's Hamas's responsibility and what's Israel's?

>> John Yoo: That's an excellent question, really difficult, and it is part of this Whole campaign, I think, against Israel. And one way to understand what's going on is that Hamas is deliberately using the laws of war as a tool against Israel.

And the reason I make that claim is because Hamas actually wants there to be more civilian casualties. You might remember, Israel took, I think, an extraordinary step of warning all the people in the north of Gaza, particularly in Gaza City, to move south, to get out of the battlefield.

And Hamas prevented a lot of people from leaving at gunpoint. They want to keep people around the hospital, around schools, above their tunnels. They are actually deliberately trying to increase civilian casualties. Why would you do that? First, it's unbelievable. A violation of the core principle of the laws of war, which is seek to protect civilians, treat them differently, distinguish between combatants and non combatants.

Even while we acknowledge in war that there are going to be incidental harms to civilians who are near military targets, it can't be helped. And actually, I think western armies have worked a great deal to try to reduce civilian loss of life as much as they can. But think about what Hamas is doing.

They are trying to upend that. They not only made civilians the targets of their attacks on October 7 in Israel, but they are trying to use civilians as a shield, not just to protect them, but to increase public pressure on Israel. What they are trying to do is portray Israel as the violator of the laws of war to change international public opinion, and I think in particular, to target the United States.

And I think what you're seeing out of the Biden administration shows that their strategy is working. You see the secretary of state, Anthony Blinken, saying, as he did just in the last day I came to Israel, and I've asked the Israelis to reduce civilian casualties when they resume hostilities.

That they have to do differently now than they did before the pause and respect civilian life more. With the implicit threat that maybe the United States might reduce financial aid, might reduce arms shipments, might reduce intelligence and logistical support. That's why I think Hamas is really a threat to the western rules of war that you asked about, Troy.

 

>> Richard Epstein: Yes, it's getting a very serious type of situation. Has anybody ever asked Hamas, please do not fire your rockets at random civilian locations. Please do not fire rockets that can hit hospitals as they already have. None of this has been done. I cannot think of a single request that Hamas change its kinds of behavior as part of the situation.

And it turns out that when you see, for example, in the New York Times, they give you a death toll. They're just taking the words from the Gaza reports issued by Hamas and its affiliates, and they never have any critical second judgment. So one of the problems that you have in the United States is the coverage on this thing has been all too pro Hamas, as far as I can understand, and for all the wrong particular kinds of reasons.

The trope that is gaining force in the United States is that we as a country were settler colonialists with respect to people in the country, Native Americans and so forth. The Israelis are the same thing nd so what they have to do is the narrative is they have to be gotten out.

And so there are many people who won't answer the particular question, what does it mean, essentially, to have a Palestinian state? Are you going to deport 7 million Jews or try to kill them? They don't want to answer that but the statements that they make it pretty clear that that's the ultimate aim that they're taking.

And in the face of that kind of threat, to ask Israel to essentially temper its response in order to give Hamas a break, in order to suffer more of its own casualties. So that it can put more people in the line of fire, it strikes me as a very bad piece of advice.

And so the Biden performance, which was very strong in the open days after opening days after October 7, has become very wishy washing. One doesn't even know who's in charge of this, but it seems clear that within the Democratic Party. The left wing is having more and more influence over a president whom I don't think has enough, shall we say, individual strength, enough health and enough vigor to be able to resist.

 

>> Troy Senik: One final point on this before we move on. And, Richard, you're the only one here who can speak to this. John, of course, is Korean. I'm a moor lock of Jews have been saying for the past couple of months that they cannot recall any time in recent history that they felt so unnerved.

Not just because of what has happened to Jews in Israel, but because of what they feel is a growing atmosphere of antisemitism in the United States and in the west more broadly. A feeling I think felt most acutely when you see the number of people who are uncritically voicing support, not just for the Palestinians, but in many cases for Hamas.

What's your perception of this climate?

>> Richard Epstein: Well, I live in the Upper west side of New York much of the time, and I think it's one of a genuine fear. What people do is they don't feel as though there's any immediate attack. But every single thing that you do, do I go into the subway station, do I want to go to a movie theater.

There's always this undercurrent of unease that takes place because you don't quite know who or what is going to take after you. There's been a huge public transformation as well, which expresses itself in the United States most vividly in connection with universities. You could look at any great university in the United States, and this is what you see.

What happens is we take neutrality with respect to the beheadings and so forth. We're interested in trying to keep peace on our particular campuses. We don't take sides between anti semitism and islamophobia. What we do is we just remain passive. To the American Jewish community, this is utterly unacceptable.

What they wanted to hear from universities is, don't tell us about the two-state problem. We understand that's difficult, but at least condemn the slaughter that took place on October 7. I am not aware of any major university which is actually explicitly and solely talked about that what you constantly hear is pairing up.

There's this difficulty with that difficulty on the other side. Richard Saller at Stanford said something like that exactly the other day, as if, if you looked at the Stanford campus. It was a situation in which titanic battles were taking place between Jewish and Palestinian supporters. Wasn't that at all?

The Palestinians essentially run the campus. They violate all the particular rules in question about permits and distancing and the use of various kinds of microphones and bullhorns and so forth. It's really a very, very dangerous type situation. And what's happening is the money is being cut off. I think virtually every major university is going to have a very, very substantial hit.

Some people are gonna say, I'm giving you a dollar to let you know exactly how little I respect you. Others will cut it off. This is not just going to be Jewish donors. There are many other major foundations that are gonna take this principle because what they see in the United States is nobody, but nobody who's neutral doing this.

There are exceptions, and these exceptions are, well, Chuck Schumer finally came out of hiding the other day and gave some very forceful speeches. If you start looking at the House of Representatives and you have a speaker of the House who turns out to be very strongly Israeli. You also see, ironically, that deeply conservative governments around the world, in Argentina and Italy, are taking exactly the same kind of position.

What's happened is the American Jewish community has to face the unhappy reality that it's home in the day. Democratic party has been taken over by many elements that are hostile to it, and that conservative christian fundamentalists and their allies turn out to be the strongest supporters of Israel.

So there's a psychological reversal that's going on, and nobody quite knows what to do with it. I would summarize it in a sentence. There's much less competence in Biden, but a great loathing, deep, intense fear of having to vote for somebody like Trump. And if that's the way in which you feel about it, you're going to feel somewhat isolated.

You're gonna turn in with the number of events that you start seeing happening is very, very large on this score inside the Jewish community. But the sense of angst has not disappeared, and there's no systematic public event that has changed it. The stuff that Blinken has said only increases that anxiety.

I think American Jewry has come to believe that the only solution with respect to Hamas is its eradication, that they cannot survive if this organization exists. And on some future day, when there's some future breakdown in Israeli security, what they do is they engage in the same kind of highness activities.

It's not as though you've seen them renounce these techniques. You will not see or hear them renounce these techniques. And one has to take as a given in policy that there's nothing that Hamas will do to reign in its own excesses. There's nothing that the Palestinian Authority will do to get rid of its own difficulty.

So at this point, Israel very much feels as though it stands alone, and that it stands alone very near to a precipice.

>> Troy Senik: Okay, something I've been meaning to turn you guys to for a while. There is this ongoing drama. We just got the news yesterday that an appellate court in New York has reinstated the gag order on former President Trump as part of his fraud trial there.

This, as he has been criticizing court staff in the case, he's also been sharing posts on Truth Social criticizing the judge's wife and the judge's son at the same time. You've got a panel on the DC Circuit considering how extensive a gag order on Trump can be in the special counsel's case there.

So, John, let me just start with the fundamentals here. Where do we draw the line between Donald Trump's free speech rights and the court's right to try to maintain some semblance of order? And to what extent does the answer to that question change because Donald Trump is a presidential candidate?

 

>> John Yoo: I think the court's drawn their gag orders. The courts have drawn their gag orders. Too broadly here. In both the New York case involving Judge Engoron, this is a civil fraud case, and then the DC special counsel case, which was issued by Judge Chutkan in federal court.

I think the only grounds that the courts can provide to limit the free speech rights of people outside the courtroom. Notice this is outside the courtroom. I think judges have pretty free sway within the courtroom to maintain order, right? For example, when you say there's a time limit on oral argument, you're cutting off free speech.

We don't think of that as a free speech violation because the courts have this authority to make sure that proceedings can run properly. But the thing that's troubling here is that they're trying to block Trump from speaking outside the courtroom. And so the courts have recognized that speech that's used to intimidate, for example, jurors or people connected to the operation of the justice system, those kinda orders might entrench on free speech, but they have to be really narrow.

Personally, I'm not even sure I would agree with the authority courts to do that. But they've always had this, well, if you don't obey our orders, we're gonna issue contempt sanctions, or we'll even just issue a default judgment, and you lose automatically. But I think that Trump in particular, has a stronger First Amendment case than, say, you, me, or Richard might have.

I'm sure this is gonna be a big problem for you, Troy, in the future, being subject to gag orders. But in the future, Trump, he's not just a regular citizen. He's running for president. And I think the first amendment rights that he has are even more important. He's not.

And he's not just some crazy guy saying, I'm running for president. He is the leading candidate to win one of the two major party nominations. And so, I mean, this is exactly what the free speech clause was designed to protect, was the right of the political system, the right of our ability to write, to choose our own representatives, and for people to run for office.

So I think that the courts have gone too far in their limited ability right to prevent intimidation, to prevent attacks on jurors, to prevent efforts to interfere with the working of the justice system.

>> Richard Epstein: I basically agree with John, and let me put it in a slightly different fashion.

In order for me to have confidence that this order is needed, I want to see not just the possibility of some untoward behavior, but some actual demonstration of behavior of that kind that has happened. And what you have here is the notion, well, he's really being very nasty to the prosecutor and to the judges and the witnesses.

There's no evidence that any of them are intimidated, not being able to perform their job. And so I think what happens is there's a timing issue, which is extremely important, and you don't want to put these gag orders in before you have very tangible evidence of the kinds of abuses that are going to take place.

And it is extremely important that Trump be able to express his views, just as I think it's extremely important that I am able to express my views. Disapproving of most of much of the things that he said. The correct response in many of these cases is not an order.

It's counter speech. And I think it's perfectly appropriate for people to say, have you heard what this madman has said about getting rid of Obamacare? Do you really hear what this crazy guy says about the 2020 election and all that stuff? He's really not fit for public office.

I think that's the way in which you try to respond to this, and it may well have its effect. My own view about him is it's a very crazy situation. I think at this particular point, he has a very dominant lead, but I don't think he has a lock on the nomination because his own erratic behavior into the future could start to change things.

I think the odds are that it will not, but it may. And so I think it's important to let the political process run its course, because amongst other things, if the public at large sees the kind of exaggerated behavior that he engages in, they may well reduce his support.

And so stopping all this behavior, I think, also deprives the public of information as to the kind of candidate they're going to get in Trump. And this is a really critical issue because the guy who ran for president in 2016 is not the guy eight years later that he has once been.

And I think most of his capabilities are diminished in one sense. And I also think his exaggerated sense of self pity and inevitability are much more pronounced than they were then. I thought he was better in 2020 than he was in 2016 on these issues. But I think there's only one direction in which his performance can go, given his age, and that's down.

 

>> Troy Senik: I have one brief follow up for you on that, Richard, cuz you do have to credit Donald Trump this. There is a real kind of consistency to this guy in that he doesn't seem materially different in the courtroom versus on the campaign trail. What you see is what you get.

I'm not sure if that helps him in the courtroom. So here's the maybe unanswerable question. If Donald Trump was your client in these cases, what's the best advice you could give him that you think he might actually take?

>> Richard Epstein: Well, the only thing you could give him is to temper down on, shall we say, eruptions and so forth.

And before you publish anything, count to ten and then start to do it. Look, I mean, one of the things that cost him the election back. In 2020. Is that in the first debate? I believe it was. He took the advice of Rudy Giuliani. And every time it turned out that Biden spoke, he interrupted him, he talked over him.

He was rude, obnoxious, and so forth. And the kind of report afterwards was that independent or Republican suburban women found this behavior so utterly atrocious that they backed off the support that they might have previously given to him. And so I want to tell them the fact that when you do all of this stuff, you may rally some of your supporters, Mister President or Mister Former President.

But what you're going to do is you're going to rally the opposition as well. They will not attend your rallies, but they will vote against you. And one of the things you say is, this is not a contest in which you're trying to get 20% of the market to sell books.

This is a market where you got to get 50% of the vote, roughly speaking, in order to win election. And if you manage to make your audience more impassioned than they were before, you've managed to expand it from 20 to 22, let's say. But on the other hand, the opponents are gonna gain five or six votes as people are gonna say to themselves, how could we ever trust this man to be president of the United States?

And I have to say, every time I see him engage in one of these random outbursts, I'm more convinced than ever that he's not fit to hold the particular office in question. And that's not what you want to have a large number of people in the public thinking.

What you want to do, in effect, is to create the opposite profession, which is that you are gonna be relatively stoic in the face of some serious abuse. At this point, the simplest way to put it is the emphasis is no longer on the excesses of the various prosecutors, or the excesses of the various judges.

It's on the excesses of Mr. Trump. And this is not an area where you want to be the center of attention. Because that attention, when taken as against the entire public at large, is going to diminish ultimately your chances of winning election, even though it might not harm your chances of getting the nomination.

 

>> Troy Senik: John, one final question on this. I want to talk about the politics of it. When the indictments started dropping on Donald Trump's head, the criticism from some quarters, fairly or unfairly, was not only are Democrats crawling out on a limb to prosecute Trump on charges that they might not have brought against someone else, but also there's a cynical component to this insofar as they know Republicans will rally around him as a result.

Trump becomes the GOP presidential nominee. Now, if that was the case, the first part of the formula certainly seems to have been proven correct. We are recording this a month and a half before the Iowa caucuses. And all signs point to Donald Trump being the overwhelming favorite for the Republican nominee.

But at the same time, be careful what you wish for. Sean Trende, who's the formidable analyst at RealClearPolitics, said a couple of days ago, not only can Trump win, but you ought to regard him as the favorite right now. So if we could go back in time and say, you know what?

Maybe just charge Trump where you think you've got a legitimate case, as opposed to just doing this display of overwhelming force for political reasons. Which of these cases do you think would have been brought, which ones wouldn't?

>> John Yoo: First, Troy, I agree with you. I think the prosecutors in these cases have really overstretched, and they are really bringing the cases against Trump because it's Trump.

I disagree with the second part of your hypothesis, was that this was a deliberate effort by Democrats to actually boost Trump in the primaries so that he wins, although that has been, as you say, Troy, the consequence of these prosecutions, in order that the Democrats can beat him in the general election.

Because he's going to lose independents, this is Richard's argument. He's losing independents with all of his antics in the courtroom. And if he gets convicted of a criminal case, I think that could really sway independents against him. So when I run down it, in my mind, the one I think is the most important, although I don't think it's charged properly, is the January 6 claim of support for insurrection by the special counsel in Washington, DC.

I think if you are going to go to the step, which had never been taken before Trump, of actually prosecuting a former president and even prosecuting him for things he did while he was still in office, then it ought to be for something important and serious. And that, to me, is the claim that he provoked, or even was responsible for, or conspired with those who carried out the attack on the Capitol that tried to prevent the peaceful transfer of power in our country.

The other ones, I think, are all more harassment. Clearly, the civil case that's going on right now about fraud, the hush money case also going on in New York City, I think the classified information case, I don't think that is such a big thing. Trump has turned it into an obstruction case that should be easy to win.

For the prosecutor, easy to win because of, again, his antics. I think the Georgia case is way overcharged. And we actually should be worried about the idea of city and county DAs prosecuting presidents, and prosecuting federal reelection campaigns is what she's doing. She's claiming a reelection campaign itself as a racketeering and organized crime organization, which I think is really overcharged.

So I think, Troy, if you're really gonna take this momentous step which the Democrats have, then, I'm sorry, not just Democrat, the Biden administration has, and these Democratic DAs have. It really ought to be for something supremely important, and that, to me, is only the January 6 insurrection prosecution.

 

>> Richard Epstein: Yes, and the state prosecutor has an extremely distressing attitude in this particular case. Because what they do is they're trying to arrest an entire prosecution on a telephone call which multiple people watched and which is subject to alternative interpretation. And I think, in general, if you're going to have an unconventional prosecution, you don't want that kind of ambiguity to be dogging the whole thing.

So the only case that's worth thinking about is, in fact, the January 6 case. But I think that's a prosecution. I think the insurrection argument, which is very different, is also extremely dangerous. And I think it's utterly unwise when you have a presidential election to allow any state or local official in a whole variety of setting to say, I think the president disqualified for running given his violations of Section 3 of the 14th Amendment.

I think these charges are extremely groundless and that you cannot allow these alternative procedures to go forward. And we've already had one of these hearings in Colorado. There'll be many more that are coming down. They're likely to contradict each other, and I think they have a really dangerous impact upon a campaign.

And I think that the Supreme Court should intervene right now and basically stop the Section 3 movement.

>> Troy Senik: The final thing I'll ask you about today is about the Supreme Court. The Supreme Court is taking up guns again. In 2022, we had the ruling that said that New York's regulatory regime for having concealed firearm was too restrictive vis a vis people's Second Amendment rights.

This time around, the justices are considering a case out of Texas regarding a man who is challenging a federal law that bars him from having a firearm because he had a restraining order against him for domestic violence, saying that's a violation of his Second Amendment rights. John, why don't you start us here?

How different, in your judgment, is the legal terrain here when we're talking about somebody who's been disarmed essentially for cause, based on past violent behavior?

>> John Yoo: Yeah, when you look at the facts of this case, and it's been argued at the court, as you said, Troy, this is probably not a guy who should have a gun, right?

He's got domestic violence orders. He's also been arrested, prosecuted for shooting the gun at people or shooting at random. In the air of trying to use guns to intimidate people. So I got no problems with him not having a gun. The problem here is that after the Bruin case two years ago, where the court said, we're not gonna relegate the second amendment to inferior class status, we are going to try to give firearms the right to bear arms the same kind of robustness and protection that we give to the rest of the Bill of Rights.

No one's really sure what the legal test is for restrictions on the possession of handguns. The court said in the Bruin case, written by Justice Thomas, that they would only allow restrictions that were similar in nature to the kind that existed at the time of the ratification of the Second Amendment in 1791, or, if you want to get technical about it, restrictions that existed in 1868 at the time of the ratification of the 14th Amendment, because it's really the 14th Amendment that applies the Second Amendment to the states.

So there's been a lot of confusion in the lower courts. I think one thing you're gonna see is that people, critics of the court have been trying to say, tried to say, the heavens are falling, because there aren't that many kinds of restrictions on firearm possessions back in the colonial period.

But the court said that are like those. So I think what you're going to see, I bet, is that the court's going to say, look, it was permissible in the colonial, early national period to take guns away from individuals because they had exhibited certain kind of dangerous behavior.

And how you figure out who's dangerous or not is for us to work out. But to say, I think, as the sky is falling, people, since we can't find any kind of domestic violence orders in 1791, or we can't find people being deprived of guns because of domestic violence orders in 1791, therefore, the second amendment and the Supreme Court's gonna strike this down.

I think that's exaggerated, I think that's really just designed to scare people into supporting gun control, cuz I don't think that's what the Supreme Court's gonna do.

>> Richard Epstein: If they did this, they'd be absolutely mad. And so what we have to do, of course, is to go back to general principles, and there's a very long set of roman traditions called damn them infective, we are dealing with questions of threatened harm.

And no matter what the particular setting was, if the threatened harm was imminent or highly likely, you are allowed to do this. So I think if you're trying to play the originalism game, you don't say well, were there child protection orders or domestic violence orders in 1787? What you say is, was there a situation there where the threat of the use of force against innocent individuals was allowable?

And would you find any jurisprudent at that particular time who said that you could not stop it? And once you put the question in that particular form, the answer seems frighteningly clear. You do not have a way to get out of a very strong police power exception by showing that your kind of violence is different from that which was prosecuted earlier on.

And if the Supreme Court would have decided this case in a way that supported this particular claim, I think it would discredit originalism, but necessarily so. So if you understand what the basic doctrines are, what you do is you apply them with a respect to the general categories rather than this particular, particular stuff.

To give you an illustration of two kinds of ridiculous arguments that you could have under, quote, an originalist interpretation argument. Number one is we can't have an air force because there's only an army and a navy that's specified. Well, there was an army air corps, and I don't think the reorganization of what's going on there means that you can't have a fort.

Well, people say, there were no telephones or railroads back in 1787, and so therefore, when you talk about Congress's power to regulate commerce, they can't regulate airplanes and they can't regulate telephone. That would also be crazy, the operative category is, is there some kind of interstate activity, whether it be in communications or transportation?

The mode isn't specified in the constitution, and so all those new developments are covered within the original grant. It's very clear that you don't want to make originalism a caricature of itself. And if you take the kinds of arguments that this fellow did, it's exactly what you're doing.

So what this Supreme Court should say, we look at this from the point of view of general, eternal natural law positions. And those have always said that threatened harm of a physical nature, is a justification for limiting the ability of individuals to protect and to use dangerous weapons.

And so long as you had a police force back in 1787 or a posse or any other aid to try to maintain local order, that's enough to support this determination here. It's going to be nine, nothing on that. I certainly hope that it is, because originalism not only has its honest defenders, but it has its basically people who put it into a parody.

And this is parody, P-A-R-O-D-Y, parody, this is not sensible constitutional interpretation.

>> Troy Senik: So here's my final question for you guys. The court exists, of course, to render legal judgments, not to make policy decisions. But is the gun issue one where their legal judgments, if we're reading the tea leaves, might actually end up pushing the policy decisions in a more coherent direction?

Here's what I mean. It seemed pretty clear, as you suggest, Richard, from the oral arguments in this case, that there is not much of an appetite, even amongst the conservative justices, to let people like this guy in Texas evade these kinds of restrictions. So, the scenario that you could see starting to emerge is one in which it gets much harder to impose sweeping restrictions on gun ownership.

And so lawmakers are forced to dedicate more effort to passing laws that actually focus more narrowly on people who we know to be violent, or at least more likely to be violent, which seems like the way you do gun policy. If your goal was really to cut down on gun violence as opposed to just trying to keep guns out of as many hands as possible.

John, is that too optimistic?

>> John Yoo: Well, it's not optimistic, that's just what you do when you recognize a constitutional right. If you don't have a constitutional right, then government can sort of go forward with these sort of blanket pursuit of the public good over some kind of individual liberty claim.

But once you have a constitutional right, you can't make these kinda gross generalizations. You're quite right, Troy, you have to be more respectful of each individual and their ability to exercise that right, and when it has to give way to a compelling government interest of some kind. And so, I think that's really the court's point, is that the regulation of guns can't be treated differently than the way we treat other constitutional rights, like speech right, like search and seizure, privacy, right against search and unreasonable searches and seizures and so on.

That doesn't mean you have an absolute right to have a gun, it does yield, as those other constitutional rights do, to reasonable kinds of regulation. But the court is saying you can't just make gross generalizations. You can't make overly broad regulations. There has to be a better fit between what the government's doing and why and the right at stake, which is what we do with things like speech and these other rights all the time.

 

>> Troy Senik: Richard, I'll let you have the final word.

>> Richard Epstein: The issue in this case, I think, is frighteningly easy. But there are other cases of much greater importance where I think the equity is run in the opposite direction. And that has to do with the question of whether we not people that carry weapons in public places, or whether we want to have soft targets up.

One of the things to remember about the Israeli situation is that large numbers of people were gunned down at a peace rally, none of whom had weapons with them to resist Hamar. If you start looking at shootings that start to take place in cafeterias or sporting events and so forth, almost always there's nobody there who turns out to be on.

And so the question is, would you want to use the whole second amendments issue to strengthen the ability of people in these public places, if they know how to use weapons, to carry them? And I think that's an extremely important situation. Because we have to understand that, in many cases, the presence of a gun in a particular situation is gonna reduce the number of deaths and the quality of deaths.

Or that there's very strong arguments in that favor, even if there's some that dispute them. And so what I get worried about with a case like this is that people will say, look, you see how crazy this is? What we have to do is basically give back complete discretion to the political party in order to protect our rages like this.

And what John is saying is clearly correct. The ability to impose constitutional laws when you're engaged in balancing requires that you make sensible distinction and keep to it. And that's what one hopes to come. And that means that even if you have broad principles, there's gonna be incrementalism in both directions.

There's gonna be something to say, well, you could certainly do this, but maybe not all of it. You can't do this, maybe not. And so what you do is you put into place strong presumptions, and what you then do is wait for people to come forward with cases in which they may be able to find principled exceptions.

This is clearly a case in which the regulation is clearly warranted, and one ought to do it that way, but not use this as a particular way of saying, we really have to reconsider everything else. This is not a time to reconsider Heller. Whatever you think about its jurisprudence, this is the time to get the right decision in this right case and not to upset the entire pattern that we've had on gun litigation over the last 15 years.

 

>> Troy Senik: All right, we are at the end of the hour. I wanna thank the professors, our producer, Scott Emmergate, and, of course, you, our listeners. Remember to do us a favor and rate the show wherever you get your podcast. We'll be back with you soon. Until then, the faculty lounge is officially closed.

>> Richard Epstein: Goodbye, John.