The Good, the Bad, and the Ugly: Trump’s Cabinet and Staffing Selections

>> Tom Church: Welcome back to the Libertarian Podcast from the Hoover Institution. I'm your host, Tom Church. 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 is the Lawrence A Tisch Professor of Law at NYU, and he's also a senior lecturer at the University of Chicago.

Richard, we're one week out from the 2024 presidential election. We know who the winner is. We know who the next president's going to be. And President Elect Trump is proposing his cabinet and various other main players in his staff. And I'd love to lay out for our audience who has been nominated, not nominated, who's been thrown out there, and we'll have to go through a vetting process and who won't and what that might mean.

So I think we'll start maybe with some of the more palatable, the more, okay, that makes sense candidates, if that.

>> Richard A. Epstein: Okay, let me just sort of begin with the first sentence from the Tale of Two Cities. It is the best of times, it is the worst of time.

It is the age of belief. It is the age of incredulity. Right. We're not quite at the Spanish regulation, but the key point to understand is that the variance that we're talking about here is extraordinarily high.

>> Tom Church: It does seem to be high starting today or yesterday or so.

But let's, let's go maybe less controversial. Starting off, Chief of Staff Susie Wiles, a longtime political operative, helped run his campaign, helped run more campaigns in Florida. Any quick reaction there, Richard?

>> Richard A. Epstein: Yeah, I mean, you don't want a chief of staff to be somebody who has very strong policy inclination.

And you want her or him, as the case may be, to somebody who's an honest broker and make sure that the schedules run on time, gets the right people before, and make sure that he doesn't get blindsided on issues and so forth, and doesn't have a very strong substantive state.

She seems to fit that definition. She also seems to have his loyalty. And judging from the way in which the campaign ran, the kinds of internal snafus that you saw on the Democratic side did not seem to exist on the Republican side. Whatever she did and whatever everybody else did in the camp, they did a very, very good job.

So my view about this is I think it's an easy appointment to approve and to agree with, unless I discover something, which I don't, I don't think I will. She's been around a long time, I don't suspect that there'll be any surprises. I think in general, it's an excellent choice.

>> Tom Church: National Security Adviser Representative Mike Waltz, been a congressman for a little bit. I believe he was at Green Gray some, history of serving in combat. What do you think there?

>> Richard A. Epstein: Well, I don't know the man personally, but he's got the right kind of credentials. I mean, I think the fundamental issue that you have to face with all of the national security appointments is you want them to be hawkish.

As you now, I've been dubbed by myself and others is a libertarian hawk. But you don't want them to be over the top. I do not know the man personally, but as you listen and look to the credentials and so forth, it seems as though he's kind of where you would like somebody to be.

I mean, what has to happen is there has to be a complete reversal of the Biden approach on everything, in which it turns out that his idea was to make sure that you fought long enough so you didn't lose and long enough that you couldn't win, and then you lose by exhaustion and political division that has to go.

And it seems to me that what you need to do when you fight a war is to try to fight it in a way in which you win it. And if you think that you're winning, you'll be able to settle it on advantageous terms. And that means settling Ukraine.

It may be settling other stuff in the Middle East. It may be putting a little bit of a damper on the Chinese enthusiasm. So, again, so far, so good in the Trump administration. Others who may know more than I do may have some criticism to make, but I have none.

>> Tom Church: Secretary of State Marco Rubio.

>> Richard A. Epstein: Well, I mean, Rubio is an interesting guy. I remember he was little Marco at one time, but now he's a big boy. He's always been a hawk on China. I've always been a hawk on China. I think he's pretty well spoken.

I think that one of the things I like about him is he understands the Cuban situation intimately well. And so he's not one of these people who believes that, there's no real difference between democracies on the one hand and these other guys on the other hand. They're all the kind of same.

He's much more of a realist on that. He's very well spoken. I think he's a hardworking guy. He's coming from a state where the next senator will be Republican, so it's not gonna change the majority. Again, they may have been better. I Don't know. But there's nothing about this particular appointment that raises red flags with me.

And so, so far, Trump is pretty close to three for three.

>> Tom Church: You and Ambassador Elise Stefanik? She's one tough babe.

>> Richard A. Epstein: And I think she's a very good appointment for this because I think you have to have a corrective against everything that went on under the Biden administration.

She's very tough minded. She's been a Trump loyalist for a long time and she had a material part in bringing down three presidents of three major universities who didn't have the courage to say that genocide is bad and that you really don't think this is a matter to be talked about in context.

Israel needs some very strong defenders. The UN as far as I'm concerned, has become completely indefensible in the way in which it deals with this issue issued. And you have to have a strong and powerful voice. Who's going to stand up against that? And you also have to make sure that the creeping totalitarianisms that take place everywhere in the UN are kept within some kind of limit.

I'm gonna be even a little bit older on this stuff. I'm not at all sure that it makes sense to have the UN in New York where people have excellent restaurants. I'm not sure it makes sense for the United States to contribute one-third of its budget to many dubious causes.

I'm not even sure that at this particular point the United States should be a member of this organization. The reason I like about her is I think she, she's capable of making some real tough judgments about how this is going to go. And I think that she's going to put the fear of something or other in the hands of people on the other side.

And I don't think in effect that she will wilt under pressure. So again, I'm quite happy about this appointment. I think the Biden's effort to basically broker the difference between good and evil, to say, well, we have to do something for the Palestinians cuz we're doing something for the Jews.

That just cannot be the way, every principle independent of the two parties of international law suggests there's an aggressor in this case and aggressors have to be treated harshly. And I think she's capable of doing that. So an excellent appointment.

>> Tom Church: I'll note Representative Stefanik has posted, every day I believe about the hostages still being held in Gaza-

>> Richard A. Epstein: And some of them American hostages. And it was so extraordinary. You look at the International Court of Justice, they said they should be released forthwith, and then they dropped the subject. And everybody says, it's now a bargaining chip when that's a flat violation of international law. Under every circumstance, I think she will start to point out some painful truths.

And what happens is, it's not only that she's gonna take on the UN Issues, she's gonna take on the International Court of Justice, she's gonna take on the International Criminal Court. These are derelict institutions as far as I'm concerned. They have not kept up with their responsibilities. And just as the United nations become very much a wayward organization in the last 10, 20 years or so, I think the same thing of the two of the courts.

And why is that? Cuz the judges who go and serve on these bodies are appointed by the United nations, at least on the International Court of Justice.

>> Tom Church: Indeed, Ambassador to Israel, Mike Huckabee, former Governor of Arkansas.

>> Richard A. Epstein: Again, I mean, he's a pretty able politician. I think he's a kind of a decent man.

My view is that that was vetted with Netanyahu and company. So I think that's fine. Look, I think there's a more complicated role with respect to what's taking place with the ambassador to isreal. As you know, I'm pretty much a hawk on most things, but the To me, the single greatest mistake that the Israelis could make is to try to annex the West Bank.

It's just an absolute losing proposition. What they need to do is to find a way to get some local government. And so I regard the responsibility of the ambassador as somewhat different from the responsibility of the UN person. The UN person is designed to protect Israel from attack.

The guy who's the ambassador has to give him some advice to slow down, when it comes to some of his own right wing people. Generally speaking, I think in Israel what they really have to do is to get a sensible form of judicial reform with respect to a thoroughly corrupt judicial system.

The appointment mechanism is just crazy. But you should not say that since that's crazy, that all the anxieties that people have about the role of women, about dissent and all the rest of that stuff are ungrounded. I think in effect that you have to have an ambassador who's a real diplomat, who could push where you need to push and resist where you need to resist in order to keep, make sure that the Israelis do not completely self-destroy.

There is a very strong segment and some people there who think that Eretz Yisrael means that Palestinians don't belong. And maybe that's right in some Arab aspect, but in the reality of the world you just can't think that particular way. And so what you have to do is you have to be much more pragmatic in the way in which you try to adjust the government structure.

At the same time, you have to resist the notion that you're gonna get the UN and a group of quote unquote moderate Palestinians to run the place. So what you need to do is to basically restore, in some coherent fashion, the kind of settlement that you had with respect to the West bank before October 7th, 2023.

And I think Huckabee has his work cut out for him. I wish him well. I have no reason to think it's a bad appointment, and it's best again I'm saying it seems to be okay. So far, in effect, I'm reasonably comfortable with the Trump appointments. I'm not gonna call for his resignation because he's made these suggest suggestions.

>> Tom Church: Last easy one for you. CIA director after Kash Patel was floated, it's instead looking like it's going to John Ratcliffe who was the former, I believe Deputy DNI. What do you think there?

>> Richard A. Epstein: Well, I think it's better than Kash. I don't like people who are too much political and too much in the limelight.

I think the essence of being a good chief is first that you have confidence in your employees, and they turn out to have confidence in you. That what happens is you don't grandstand. What you try to do is to prevent big swings from taking over both public perceptions on the one hand and internal operations on the other.

I don't know too much about this man, but at least everything that I've heard so far does not raise any warning flags. If it had been cash, it would have raised warning flags with respect to me. I mean, I think there's a certain point in which anonymity and efficiency are much more important than flamboyance.

I think that's also true with respect to presidents, but that, at least for the moment, is another matter.

>> Tom Church: We'll pause here on nominations, and I'll mention Mike Pompeo and Nikki Haley are not on the list and won't be receiving any spots. I'll also note that Rick Scott did not win the election for Senate majority leader, which was Trump's pick.

So yes, instead it's going to John Thune. I'd love to hear your reaction there as well.

>> Richard A. Epstein: Well, I'll give it to all. Look, I think Pompeo and Nikki Haley are both splendid public servants, and you know, in many ways, I made no secret of it. I preferred her as a nominee to him, mainly because I thought there was no baggage and I thought she was clear eyed and sensible.

I had the same general views of Ron DeSantis. What happens is Trump has something of a revenge streak in him. It doesn't last forever because remember, look, Marco Rubio's in the cabinet and so forth, but I think in effect he's cut himself off from a serious cabinet. And I think this is part of the 2028 politics which has already be given.

If you keep Pompeo out, you keep her out. It basically improves the prospects of JD Vance. And I'm very uneasy about Vance in many cases because I think he's probably too much of an isolationist on too many of the kinds of issues, including the Middle East and Ukraine.

So I'm there. I think it would be wise for Trump down the road if another opportunity opens up to reconsider what he's done in the banishment. Not even clear that both of them would want to serve. So it may well be I don't want you and they don't want him.

But I very uneasy about people of that caliber being sort of cut out of the loop preemptively because of a run in with respect To Trump. If he's a president, the thing he has to remember is he can't hold grudges against able people. It's too important that his administration run well, and they have to learn to make bygones be bygone.

Look, I'm not asking him to appoint Judge Merchan to the Supreme Court or to basically make a federal district judge or a federal district attorney out of Alvin Bragg. But when the people on his own side, I do think, in effect they deserve, deserve a bit more respect than Trump has given them.

>> Tom Church: All right, let's ratchet things up just a little bit. Let's go over to the EPA. Lee Zeldin, someone I'll confess I don't know a lot about. And I'm curious if you've got strong opinions, Richard.

>> Richard A. Epstein: I don't have strong opinions. I mean, I think anything you put in there is better than what was there.

I think Zeldin was a professional administrator. He tried to run for Congress, and then I think he was there, and then I think he went. He seems to be a quality guy. But like with everything else, you have to see the way which the agenda is going to start to look.

And the agenda with this stuff has to change. I mean, the global fixation with global warming on the part of the Democrats and so forth is just way over the top. It's becoming completely counterproductive. He's going to have to be strong enough, and I think he will be strong enough, to deal with people like Gavin Newsom who want to sort of carve out California as an independent entity.

I have Alvin impose standards on automobiles and everything else, and then try to use that to lever the control over the rest of the country. And I think they basically have to cut those down to size. And on the global warming issues, I mean, and the extreme, it's not an issue of pressing existential crisis as has been pretended.

And it turns out when you think it's a crisis, you go to extreme solutions that make no sense. So the immediate situation is you have to recenter the entire debate about fossil fuels and so forth, not to favor the electronic vehicles which run indirectly fossil fuels anyhow. But to defend improved internal combustion elements and also to basically keep the hybrids very much on the screen.

And so he's got a lot of work to do with that. On climate change, there's also permitting, which is an extremely important process. What happens in the United States today is inferior services and facilities are kept in operation, because you can't get good permits to put in newer and better facilities.

So the net effect of being very tough is that you prevent improvement in the name of preserving perfection which is never attainable. And so he's got a huge amount of stuff to do under NEPA, the National Environmental Policy Act to deal with these things. He wants to make sure that the definitions of pollution are tight and crisp so that you don't want us treated pink house as though it's a form of pollution or extend these definitions.

And what you then have to do is to make sure that the EPA coordinates its activities with other branches like the SEC, so that you don't get climate warnings coming out of other places on stock exchanges that you really don't need. It's a job that needs a fixing from top to bottom.

The man Reagan who was there before him as best I could tell did nothing good. He wasn't particularly energetic, so the situation wasn't as bad there as it is another kind of agencies and of course. Because one of the things that we're gonna have to talk about, I hope, is what you do with the head of the SEC, what you do with the head of the FCC, and what you do with Powell as the head of the Fed.

So he's okay, as far as I can tell. I'm not really an expert on him, but I've never heard anything that leads me to doubt that particular choice.

>> Tom Church: All right, a reversal of fortunes may be for Kristi Noem, South Dakota governor, who is being put up for homeland security.

>> Richard A. Epstein: That's an awfully big job, and it's a job that I think should not go to somebody who's been a governor. Whether or not she killed the dog, I don't care about that. It's a huge branch of operation. She comes from a very small state. She doesn't have any foreign policy experience or dealing with this.

So essentially, I think she's an able woman, but I am very skeptical that she is gonna be able to run this thing in the method in which it goes. And the reason it's extremely important is that whole operation has been a complete mess under Biden. And I think you have a better shot of getting it under control by having somebody who's been engaged in that particular area and can work better with it.

So this is not an appointment that I would have made. There may be another place for her in the administration. It's not something which I'm gonna gnash my teeth about. But if I were asked whether or not I'd vote to confirm it, I'd have to think long and hard before I would say yes.

And at the very least would wanna hear a fair amount about her to make sure that she can do it right. That job is too important to give to somebody who doesn't have real experience on the problem.

>> Tom Church: Let's stick on immigration because Trump has put up for his border czar, Tom Homan, who has said some things about Trump's plan to deport illegal immigrants who've committed felonies, notably very recently.

What happens if those people are related to or married to permanent residents or US citizens? And his reaction was, easy, we'll just deport them, too.

>> Richard A. Epstein: Well, and the latter, I don't think it's particularly good. Again, in general, I think this complete shambles under the Biden administration with respect to this.

In fact, it was so bad that not only were they not keeping people out who were illegal, they were getting them into this country with all sorts of complications. I think there's a danger of trying to go too fast, too far in the other direction. When you inherit a mess, you can't cure it and make it appear that it's never happened.

I think the proposal that he put forward to start with criminal defendants is a good one. The New York Sun basically said, well, you're talking about 660,000 people. That's already a very large number of folks. Paul Krugman said, what about agriculture? Well, none of these people are agricultural workers.

They're basically single men forming gangs or living in various kinds of areas. And it turns out that I'm just not in favor under any circumstances of allowing those people to stay. For the rest of it, it's really complicated. You certainly want to think of people who've been here since their youth, who don't have a country where they speak the language, and so forth, that you have to make some kind of accommodation.

So I don't want them sleeping with too broad a brush. The proposals I've seen thus far are much less alarming to me than the name. And I do think it's gonna take somebody with a certain degree of grit to carry this program out over what may well be passionate and I think often misguided Democratic opposition.

And so I basically give him a conditional approval, kind of. And I really hope that this becomes more comfortable when he narrows his objectives and he figures out who's gonna get to execute this at the same line. But I've always thought that the illegal immigration problem was handled by Biden in a disgraceful way.

And the other thing I think that Homan has to do is to try to put back into places the kinds of devices that kept the surge from coming in in the first place. You vet these people in Mexico. You don't do it in the United States. You don't let people come across the border under free passes.

There's so many things that you can correct in addition to doing the deportation because it's every bit as important to stop this from going forward as it is to undo the damage from the home. So so far, a tentative approval, but a wary of it.

>> Tom Church: Deputy Chief of Staff Stephen Miller, I'm sticking on the immigration path.

I believe he's been previously was the architect of many of Trump's immigration executive orders in the first case, including the so-called Muslim ban.

>> Richard A. Epstein: Look, I mean, the Muslim ban I think he gets somewhat of a bad rap for because many of the people that he wanted to keep out were people that Obama had the same views on.

And what happens is the moment Trump gets in, it was a catastrophic introduction of the program. And you may remember when I was on the show with so Tenic as early as late January 2017, I said, this is such an ungodly mess. Please step aside so that Mike Pence could take the job.

At this point, I don't think that's anything that one could recognize under the current circumstances. But, I mean, Miller is somebody who leaves me a little bit uneasy because I think he's a little bit too much of a loyalist. And I think, in effect, that what Trump really needs to have is some independent forces who can stand up to him.

One of the really important qualities of a very good administrator is you have to have people who have strong opinions that disagree with your own, who are principled individuals. And you have to be encouraging people to stand up to you so that you don't become an army of yes men.

And I remember this once. The best advice I ever got about this was from no other than Jesse Jackson Jr.. And what he said is if you don't appoint people who know more about their business than you know about their business, he says, your administration will be limited to your mind.

And what he did is he put his two hands on the side of his head saying, you can't go around and do that stuff. And so what Trump has to do is essentially make sure that he doesn't have loyalists in all these kinds of positions. And so Miller is somebody who leaves me a little bit uneasy.

I'm not saying that he's like some other people like Steve Bannon and so forth, or Rudy Giuliani, who basically should be out of all kind of government administration. But I'm not thrilled with this appointment. And I don't think it's a confirmation job, but if it is, or if it's not, either way, again, I would mark myself as unhappy and uneasy, but not firmly or impossibly opposed to it.

>> Tom Church: All right, let's keep ratcheting up a little bit. The first appointment, I suppose. Appointment, when I say appointment, he's gotta nominate these people and get them past the Senate, although we'll talk about that in a little bit. But for Defense Secretary Pete Hegseth. Now, Hegseth has been, let's see, I'll back up a little bit.

I mean, he served in the army over in Iraq. He is a graduate of Princeton and Harvard. He ran a veterans advocacy group for a while. But for the last ten years, he's been a commentator at Fox News and a co-host of Fox and Friends. This was the first, I think, big question mark appointment by Trump.

>> Richard A. Epstein: Well, I mean, everybody says, who? I mean, I don't watch Fox News, and so I never heard of him in that way. I look at the credentials. I think he has the right disposition, but that's not enough to do this stuff. I mean, my view on women in combat is similar to his own.

I think there's select ways in which this could be done. But I think the idea that you don't draw any sex distinctions is just crazy with respect to the military. Israel sometimes has women in common, God bless them, but they're well aware of the differences. And when you're a small nation and you make wrong choices, they could be fatal.

And so they're much more careful about how they do this. So that's okay. The problem about this is he's never run any-

>> Tom Church: Yeah, a workforce of 2 million people, right?

>> Richard A. Epstein: Yeah, and so, okay, so they're gonna say, we're gonna go after woke now. Where is woke is a kind of a difficult question.

Without question, there's a lot of woke stuff that I'm familiar with, which is in the service academies. It's one of the reasons why I was so disappointed when Biden fired all of the Trump appointees who would give advice to these things. How much of it pervades the regular army is to me a very different question.

Because what happens is, most of the people who are serving in the army, particularly in upper positions, were not trained by the current people in the service academies. They were trained by predecessors. And I think they're probably pretty able and pretty tough military types. What you're worried about is, if you've got the woke situation, everything is gonna dry up.

Because you're going to find that traditional service families will recommend that their children go somewhere else. And you will find that it's very difficult to recruit people into all of the particular services who are not going through the academy. So that has to change. I'm sure he's going to do fine by that and it's a very important element, but that strikes me as being a deputy kind of position.

The more important thing is you have to run the whole place, and you've got these millions of appointments, very complicated stuff. You have to be able to do things with professional relationships on the Hill, with other department. You have to talk about procurement and advancement and personnel and so forth.

There are lots of people who know a great deal about this. My friend Tim Kaine is one of them. And he has pointed out very systematic weaknesses in the whole system of promotion and education and procurement. You need to have somebody on the inside who knows those things.

And so my guess is, it's not that I think that, whatever his name is, right, is a terrible guy. It's just that it doesn't strike me as being the right trick. And if you have everybody in Congress saying who on this stuff, it suggests that he doesn't have much of a conviction of a support staff on the Hill.

And it could well be, I think that he's going to be facing very difficult problems on confirmation because a lot of the Republicans, I think, are very much pro military, very much anti woke, but they also are very concerned about the confidence level. And I think he's going to have a pretty heavy grilling and he's going to have to work hard.

My guess is for him to succeed, he's not only going to have to sort of show some genuine expertise, that he's a quick study, but he's going to have to let people know who it is that he's likely to put in the key subordinate positions, his direct reports and so forth.

So they're confident that the thing is going. But I don't know of anybody who says, this is the kind of guy we really wanted as our first choice. I'm not enough of an expert to say which of the other people like Tom Cotton or whatever it is might have been better but put a big dubitante next to his name.

>> Tom Church: Indeed, so this is not an official position, it looks like. But of course, President Trump, or President Elect Trump, has talked about the Department of Government Efficiency run by Elon Musk and Vivek Ramaswamy. Who have said they will be an exterior position offering advice into the administration, considering they're both still officers of many companies that do business with the government.

And I'm guessing that they're not likely to resign their positions.

>> Richard A. Epstein: Well, I mean, this is mystification. I do not know Musk, I do know Vivek, and he's an extremely smart and thoughtful guy. I think he really has a pretty good instinct about what is or is not wrong with government.

But I don't see how you run a department which is half fish and half fowl, half in and half out. If they're only giving advice to people who can turn it down, it's not gonna be, I think, a decisive situation. If they're not sitting in cabinet meetings, I don't think they have a chance to exercise the kind of influence they want.

And so, the question is whether this is a ramshackle structure, I could do it. If they were to say, look, I'm gonna ask the two guys to write a report that he can send to me on January 20, 2025 as to what you think is needed, be nice.

I mean, the Epstein responses to, just at the beginning, any new program that was instituted in the last ten years, the presumption is it's not needed. Because we got along with it for so many years. And it's also the case that, I mean one of the reasons you have to deal with this, you have to deal with Donald Trump.

I mean, he's a big spender, just the way the Democrats were big spenders. He may have different friends, but it doesn't follow in effect that he has really parsimonious instinct. So I hope this works out. But I have to say, generally speaking, if you get an unsound institutional structure, it's going to create real difficulties with respect to implementation.

And the other problem is if you have two guys running a program, it means that the lines of authority are going to be necessarily compromised. And even if they have perfect agreement on the general issues, when it comes to particular choices in particular areas, they may well disagree.

They may figure out, well, we'll divide east and east and west and west. And you'll worry about defense and I'll worry about domestic issues and so forth. If you could keep those lines. But it seems to me that this should be a source of some degree of uneasiness and one has to get a lot more information before you're confident that it's going to work.

And this is not meant to say that I am a defender of big government. As I told you, I think most of the stuff that we've done in recent years, it has the worst of characteristics. It's extremely expensive to do, and it's extremely destructive when it's put into place.

So it's a lose-lose type of situation.

>> Tom Church: Yeah, I'll also note, I think everyone at the GAO, the Government Accountability Office, is sitting back and going, hey, we're already here. We have a lot of recommendations for more efficiency. Two more for you, Richard. Director of National Intelligence, Tulsi Gabbard.

>> Richard A. Epstein: Again, I mean, look, we understand why he wants it, but it's the same thing like Kristi Noem. Why is she doing this? What does she know about it? You want to have people who are essentially really high powered folks to do this. And I guess to me it just doesn't add up.

She was a Democrat, she converted, she likes him, he likes her. But this is an organization which is absolutely essential to the security of the United States. And I think, in effect, that I'd be inclined to say no. Maybe a subordinate position in that office, maybe some advisory position.

And I don't know the intelligence community, but she doesn't know it either, as far as I can tell. And so I think it's a bad idea.

>> Tom Church: Okay, the big one, which-

>> Richard A. Epstein: God help us, yes.

>> Tom Church: I think everyone has had some reactions to Attorney General Matt Gaetz.

Now, before you start, Richard, I wanna know, you've had your complaints, some, a few, about Merrick Garland. I wanna know not only what you think about this appointment, but in a choice between Garland and Gaetz, who would you prefer to have as AG?

>> Richard A. Epstein: God, now, why are you putting to me such an embarrassing choice?

The very fact that you could ask that question with a straight face indicates that this is an absolutely horrible, terrible, no good appointment. He has no business doing this stuff. My guess is he will be rejected. If you remember, he was the kind of stubborn guy who forced McCarthy out of office by making outrageous demands on the Republican.

There's no sense that he's a cooperator with anybody. He seems to be in personal trouble all the time, up and down. His statements are always pugnacious. He's going to find it impossible to hire good people to work for him because it turns out he has a reputation of being some kind of a clown or as a misfit.

And I mean, I think everybody. I've heard what they do is they don't start with talking. What they do is they take their hand, and they put it to their forehead, and then murmur, doh. And that's the reaction that I have. I do not think that this appointment will get through.

I do not think disappointment should get through. I mean, if it were rejected 100 to 0, I would think that would be about right. I can't understand why he's doing this. It basically besmirches every piece of good work that he's done. And there's just nothing to say on behalf of the man.

What experience does he have? What judgment does he have? And appoint Marjorie Greene as Attorney General. I mean, none of this makes the slightest bit of sense. And so, you know, the great problem is not only is this guy completely inappropriate, but as I've indicated to you, I think there are a lot of good appointments that Trump made, particularly at the beginning.

I don't want this to put a taint on everything that he's done. So all in all, I think it's a pretty horrible, inexcusable appointment. And as I said earlier, I think Merrick Garland is one of the worst attorney generals that we've ever had, in part because three days after Trump announces that he's running for reelection, magically it turns out that we decide to throw the book at him through the federal proceedings.

And it seems to me that all of those are going to collapse. I think Jack Smith is going to resign. I think Merchan's not gonna punish him. I don't think Bragg is gonna do anything to change it. The man is President of the United States, and I don't think he could form a government sitting in a state jail.

Speaking of President of the United States, this is the last bit we'll close out on.

>> Tom Church: There's been some rumblings. Ed Whelan over at National Review has posted a rumor. He's heard that in order to get these appointments through, especially some of the unpopular ones, and this is, I mean, a couple days ago, we saw posts from both President Elect Trump and Elon Musk saying we need recess appointments.

We're just, you know, we can't have any delay. We need to be able to make sure that we run, run, run things in government. Whelan has said we've heard rumblings of a plan where Trump would use Article 2, Section 3 to adjourn both houses of Congress and then recess, appoint his Cabinet.

So, Richard, I want to know, how would you react if he did that? How long would stay in office?

>> Richard A. Epstein: I mean, that's an impeachable offense as far as I'm concerned. I mean, it's just absolutely crazy. I mean, he really is trying to use it so he could shut down all of Congress as long as he wants.

No, I mean, look, recess appointments are kind of a complicated beast. But let's go through the drill. It's an exception to the general rule of appointment. And certainly with respect to anybody who's a major player in this situation where you have Republican control of the Senate, you could expect a very prompt hearing.

And if you get a prompt hearing, which is going to reject somebody like Gaetz, it would have been absolutely nuts to say, okay, now I'll make him a recess appointment before they even chance to do that. With every major appointment, the ideal pattern is that what you do is you first go through the system and recess appointments become clear.

When the other party or somebody in your own party says, we're not going to let this thing go through, and they put in a series of artificial complications and barriers, they demand paperwork at the last moment, they put in postponements and so forth. And then at that point you say, you guys are screwing around with this.

I can make a resource appointment to the end of the session. And the session doesn't mean the years 1 and 3. It means the big break between sessions of Congress, years two and year four. There are other cases. I think Brennan was in fact appointed to the Supreme Court by a recess appointment before he was appointed generally.

But if you've got everybody on the same side, nobody cares that much about procedure. But the last thing you wanna do is to treat that as though it's a precedent when you have any serious issue. So the basic line is there should be no recess appointment until it turns out that Congress, namely the Senate, has not done something in its correct fashion.

And if Trump tries to do that, this is a serious enough breach of protocol and so forth, you're gonna see me calling for resignation again. I don't think he's gonna do it. He has this kind of weird habit. Just to give the comparison, there was a boomlet a couple of days ago that maybe he'd try to fire the Benjamin Powell, the head of the Fed.

But it turns out that's an extremely laborious and stupid kind of process to go through. He doesn't have to do it. The man is basically a pretty sound fellow as far as I can tell. And he's the chairman. You've got other heads of the regional Fed board. So he doesn't have an absolute power.

I think in effect that he's not going to do that. And I don't think he should go through with this hair based screen. And the more Republicans start to denounce the possibility and say that Whelan is right in his analysis, fine. Dan McGahn wrote a piece in the Wall Street Journal about this where he had a much more nuanced view of the subject matter.

But even there, I do not want to start thinking about recess appointments until we see how it is that the Senate has malfunctioned. And given that it's on the same fine side, I think it's there. I mean, the one issue that is, I think right now a serious problem is Chuck Schumer doesn't wanna do anything with respect to this guy McCormick, and he's basically trying to steal a seat for the Democrat.

And I think that's something which is pretty reprehensible. But I don't think the Republicans should follow that kind of silly behavior by doing something much dumber themselves.

>> Tom Church: You've been listening to the Libertarian Podcast with Richard Epstein. As always, you can learn more if you go to Richard's column, the Libertarian, which we publish on defining ideas@hoover.org if you found this conversation thought provoking, please share it with your friends and rate the show on Apple Podcasts, Spotify or wherever you're tuning in so that more people can find it.

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

>> 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 podcasts or watch our videos, please visit hoover.org.