The Law Of War

>> Troy Senik: Dean, can I call you back? I'm doing the Law talk show in two minutes. I'll call you back. Okay, bye bye.

>> Troy Senik: Welcome back to the Law Talk podcast from the Hoover Institution. Coming to you, as we always do, from the faculty lounge, the Epstein NYU School of Law, the one institution where the faculty protest the students.

I'm your host, Troy Senik, former White House speechwriter, cofounder of Kite and Key Media, and sorry, I'm just being handed this, apparently, I'm also the new Speaker of the House. And I am joined, as always, by the Norm and Cliff of the conservative legal movement. They are Richard Epstein, the Peter and Kirsten Bedford senior fellow at the Hoover Institution, the Lawrence A Tisch professor of law at NYU and Senior Lecturer at the University of Chicago.

And John Yoo, visiting fellow at the Hoover Institution, Emanuel S Heller Professor of Law at the University of California, Berkeley, and former Deputy Assistant Attorney General in the Bush Administration. Fellas, good to be back with you. Slightly weird to be back because we've had to do this show against the backdrop of a lot of terrible events over the dozen or so years we've been on the air.

But I probably none as grisly as these terrorist attacks that Hamas unleashed on Israel about ten days ago now. So legal issues, not most people's primary focus here, but let me start with the one that does come up all the time. The media is always at the ready, particularly when the subject is the Israelis and the Palestinians, to talk about war crimes, to talk about proportionality, to talk about the restraints of international law.

For instance, we had this hospital in Gaza that suffered an explosion last night. I saw a reporter on real time on ABC, immediately rushed to say, well, if Israel did this, this is a war crime. And this was before we learned that actually seems like it was a rocket that came from the Palestinian side.

Today we learned it doesn't even really seem to have hit the hospital. Anyway, the broader point, John, I'll start with you. This is an area you've written and thought a lot about. When the rubber really meets the road in a situation like this, what kind of teeth does international law actually have?

And what would these considerations about proportionality mean in practical terms for a country in the position that Israel is in right now?

>> John Yoo: The only force it has is that which the nations themselves choose to give them. The United States and Israel actually are more scrupulous than most other nations in the world in enforcing the laws of war on their own troops because they have a court martial, a military justice system that's charged with policing the troops to make sure that they follow the laws of war.

And in fact, it's the other side in this conflict, Hamas, Hezbollah, behind them, the Iranians who violate the laws of war. In fact, the way that they fight is a way, is a violation of laws of war in this respect. There's basically the most important principle of the laws of war.

It goes all the way back, efforts in the Romans and the Greeks is to distinguish between combatants and civilians. That's a principle of distinction. And then not to target civilians, although you understand, and this is where you get into proportionality and necessity, that when you attack military targets, you may have collateral damage caused to civilians just because of the nature of war.

You're not targeting civilians. But if they're close in on the targets, it may be unavoidable if you are pursuing a real targeted military necessity. Now think about what Hamas did and its attack. First of all, they don't wear uniforms. They don't distinguish themselves from civilians. They try, actually, as we saw with this hospital attack, which appears to have been caused by a failed missile launch by a terrorist group that had the missile located in the hospital.

Think about that. They are trying to blur the line between civilians and combatants. They're trying to hide, to take advantage of the West and its obedience to the laws of war. Then look at the attack, they launched attacks deliberately designed to hit civilians. This massacre at the music festival in Israel had no military necessity to it.

There were no military targets. They deliberately went out to kill civilians. And then they also deliberately kidnapped civilians, using them as human shields. Those are all violations of the laws of war. There's no justice system that's going to hold them accountable. So in a sense, the western nations, and this has been the case fighting terrorists for many years, are fighting with one arm tied behind their back, because the lawyers and the military justice system in Israel, in the United States, are going to ensure our side follows the laws of war when they're fighting an enemy that by design is trying to violate the laws of war.

In fact, I've heard it argued that in the history of fighting by Muslim nations, they don't really even believe or follow the laws of war. That's not really a concept that fits into islamic notions of just warfare.

>> Richard A. Epstein: This is very optimistic, John. Let me start to put this in a slightly different way.

There are two notions that you have to worry about when you're dealing with self defense. It's not an absolute right. Limitations of excessive natures of use of force and proportionality. Suppose example, that you have a situation where there are only civilians, and you decide to attack them. This is not a proportionality issue.

It's simply excessive force, because there's no legitimate military topic, and the force that's used is not pertaining. The really nightmarish part comes when it turns out that you have not just pure military, where anything goes, but where you have civilians that are gathered around. And they could be gathered around for several different reasons.

The first is they simply are in close proximity. So if one goes back to the second world war and starts to think not only what the german attacks were, but of the allied responses and so forth, they attacked cities like Dresden in early 1945, and they managed probably to kill 75, 80,000 people in a single night, many of which were civilians, women and children, and so forth, all of which were firebombed as a part of an effort to disable the entire military production.

Nobody thought that that was a war crime. Nobody thought, although you might disagree whether or not to do it, that the attacks on Hiroshima and Nagasaki, which use atomic weapons, whether they were, in fact, a disproportionate force. The essential rule seems to be that in these mixed cases, if what happens is you use extraordinary amounts of force against the military tomb, which is designed to kill you, there are no limits to what can be done.

The second variation on this is it's not just people who are there, but the Hamas tactic of taking their own children and using them as shields, which they have done. So during the previous 2014 situation, the Israelis would announce that they were prepared to attack some given building, and what Hamas would do is rush to put all sorts of children and women on the top of the building in order to frustrate what's going on.

You'd be silly to fire in those situations if you had better opportunities to deal with the military. But that itself is a war crime by Hamas against its own people. People, and it is quite clear that when you're starting to look now at the various installations, it may well have been that the missile they're talking about was fired from the hospital, which meant that it was embedded in civilian sorts of areas.

And it turns out that that's a war crime, because now you know that retaliation is going to require that you kill your own civilians. So if you're trying to figure out what's required, Hamas, which will never do this, would have to separate it. Now, there's also the question of what you'd do with the captured Hamas individuals.

As far as I'm concerned, every one of them committed a war crime. And so the question really is, does Israel want to try them as war crime victims? Everything that they've done suggests that the punishment of death is too kind for the kinds of atrocities, mutilations, brutalities and rapes that they committed even before they killed these people.

And it seems to me it's a very fair question as to whether or not they should be subject to that. And the same thing, of course, would apply to anybody whom they captured, as these hostilities go on, who had ordered or facilitated these particular attacks. Which means there's probably a very broad swath of people who, in fact, are war criminals, subject, I think, to death kinds of penalty.

What's so crazy about the current debate, and it's the thing I cannot get my head about, is that the people in this particular case would say, well, let's just have a ceasefire, bygones be bygone. I'll mention one story which happened, I think, about 10 or 12 years ago.

There was a picture in the New York Times of two young girls and their prom dresses, both of whom had been killed. And it was trying to say, isn't it a tragedy? Well, it turned out that the Palestinian young girl had actually carried a suicide bomb and blown them both up.

And so to say that there's parity because there is death misses the fact that there's no parity because of the concept that brought it about. And the most distressing thing about this debate is everybody with respect to Hamas side, seems to say that be bygones, and then treat the situation as though the only thing we have to do now is to get an immediate ceasefire, which is absolutely not required by the rule of law, any more than it would be that the United States should agree to have a cease fire with Japan on December 8, 1941, the day after Pearl harbor.

 

>> Troy Senik: The notion of moral equivalence here would probably be an upgrade relative to some of what we have seen on elite american college campuses, which has at times taken a tone that's more like moral superiority on the Hamas side. And I'm curious to get the reaction from the two of you as professors at law schools.

I mean, a lot of this has centered around elite law schools. I mean, we saw the statements that students signed out of places like Harvard. It's now occasioning a backlash amongst the donors for schools like Harvard and Penn. You are seeing certain elite law firms saying that they're going to be unwilling to hire students who have affixed their names to these kinds of documents.

And this sort of weak T criticism that you're seeing from this on the left is, boy, you guys hate cancel culture until it's somebody that you really wanna cancel. This is just pure hypocrisy now that somebody is spouting a view that you don't agree with. John, I'll start with you, how do you react to that kind of criticism of this response to these kinds of law students?

 

>> John Yoo: First, it's not cancel culture of the kind we've seen waged against conservatives, which have been designed to prevent conservatives from speaking on campus. No one's stopping pro-Palestinian students from speaking. In fact, the pro-Palestinians don't want to speak because they've all taken this pledge. They won't share a debate stage with anyone who believes in the existence of the state of Israel.

That was something that came up last year at Berkeley. Instead, I think, and this, I think, is perfectly legitimate, is that what you're seeing are the consequences of speaking taken by other private actors. So, yeah, as you said, Troy, you've seen these law firms, some prominent ones, like Davis Polk and Winston and Strawn, rescind employment offers to officers or people who've signed these pro-Hamas statements.

One of them happened at Richard's law school, at NYU Law school. I'm curious to hear what he thinks, but there's nothing that says your free speech right includes the right to force everybody else to like what you say. In fact, I think it's part of the idea that free speech is taking place in a marketplace of ideas, that other private actors can respond by acting as they are allowed to.

They can speak against you. They could stop donations, as you're seeing at Penn, at Harvard now. And they could choose not to hire people cuz private actors can discriminate against people they choose to employ and associate with based on political views.

>> Richard A. Epstein: Now, I'm gonna disagree with John a little bit.

One of the things to understand here is that there are two sources of authority that have to be reconciled. One of them is the government, which tries to impose restrictions on speech. And I think that John is basically referring to the rule which says that if you make all sorts of horrific remarks, no matter how offensive, no matter how ugly, unless there's some kind of an immediate threat of force and violence, those things could not be enjoined, but could only be met by some form of counter speech.

And I think that's probably the right rule with respect to government. But the universities, at least the private universities, are not government entities, and so they're not bound by the First Amendment. And so what they have to do is to figure out what it is that they think is the appropriate set of sanctions to deal with this.

And on this thing, I actually take a very hard line. I'm quite a supporter of the Kalven Report from 1967, to the extent you have honest debates about serious issues on which decent people can take both sides. And so in 1967, people were worried about citizens in the south.

They were worried about entering the Vietnam War, they're worried about apartheid in South Africa, and what kind of responses you take to all of these things. And you could see very strong situations of disagreement. Indeed, when I was at the University of Chicago and spokesman for the faculty, we had a very serious and intelligent debate over the question of whether or not divestiture from south african ventures should take place.

It was done orderly and it was decently, but there are no two sides to this. The university is supposed to be a place in which we seek to advance and expand knowledge, to impart it to the next generation and so forth. There's nothing about a speech which says, we hold Israel entirely responsible for the venture, in which it turns out that their people were slaughtered and killed by somebody else.

The university, I think, therefore, can do two things. One, I think it is certainly entitled to speak collectively about this issue. And indeed, what the Kalven Report says is when there are effective crisis issues, the heavy burden, which is the heavy presumption in favor of freedom of speech on campus, can be overridden to deal with this particular kind of crisis.

And so I think it's really important for universities to speak out. And one of the things that clearly has happened is its failure to do so. The bumbling statements, for example, that come out of President Claudine Gay at Harvard, people are gonna be really angry, and what they're gonna do is they're gonna withhold their funds.

Well, why is that? Because if somebody's a president, says, look, we know these atrocities have happened, but we think the appropriate remedies for the two sides to sit down and talk earnestly to resolve their differences. I do not know what it is you're supposed to say to somebody who's tried to murder everyone.

In addition, if their faculty members are speaking, I don't care where they're speaking, on or off campus, and so, They have real powers over the students. And to announce in advance that you think that Israeli students or colonialists or American Jews have to be isolated from the pack in one form or another means that these people cannot effectively function as teachers within the classroom, because they're targeting, in the most bigoted way, some of the students.

And the fact that they say it outside of the classroom, it's very clear that there's a threat of it happening inside the classroom. And I don't think any student should be tried to attend a university in which this kind of thing starts to take place. So I think the universities are, in fact, entitled to sanction students and faculty member who do this.

I'm gonna be much tougher on faculty than on students. But as John said, when you have people like the student at NYU who takes the podium, there's another sin that she has committed. What she's done is she purports to speak for the entire student bar association when probably 90 plus percent of the people are against this.

This is not a protection of free speech. That's an outright fraud. Claiming, in effect, that you have the support of an institution which has no idea of what it is that you're doing. And I think that should be heavily sanctioned, both within the university and without it. The key point to remember is that the Calvin rules are designed to optimize the proper relationship with speech dispute and inquiries in a university.

If they're not two sides to an issue, I do not see why universities are required to suffer this speech to go on. And so I think that they can silence those people to the extent that they're on campus. And I also think that it is perfectly appropriate, and this will continue to grow, that any donor, in effect, can basically refuse to continue to support these universities.

I will go so far as to say if they have made a pledge in their several years of unpaid money, I think the enormity of the breach by the universities, through their collective cowardice or stupidity, justifies them withholding the remainder of a grant which is otherwise pledged. And so this is one of the most distressing situations.

I never in my wildest dreams imagine that one could hear the kinds of ugly and destructive statements. You go back even to 2014, there wasn't one 100th of this kind of bigotry that had purported to take the place. Where, in fact, it's not as though when somebody points out, as you mentioned, that something has gone wrong, people back off.

It turns out the entire strategy of Hamas and all of its supporters has been to double down on falsehood and bigotry.

>> John Yoo: I have to say on this point, I'm a little bit. I'm the libertarian and Richard is the conservative because I-

>> Richard A. Epstein: Yeah, yes, yes.

>> John Yoo: Yeah, this is very interesting.

Because I don't trust universities to make the proper decisions about what should be speech that's allowed and speech that's not allowed.

>> Richard A. Epstein: I don't trust them either.

>> John Yoo: Yeah, I completely condemn Hamas and Hezbollah, and I hope Israel goes into Gaza and just cleans them out. And I would be all in favor of them attacking Hezbollah, too, and Iran also, because the real problem is Iran.

And if you look at the strategy of what's going on here, Iran just can constantly harass Israel as it chooses through these terrorist proxies, and Israel is just gonna be on the defensive in the back foot as long as that situation arises. But I would rather not have the university decide, we're not going to have students who, even though they support and defend the most outrageous conduct and say racist things against Jews and against Israel.

I still think they should have the right to say it and then to let the rest of us condemn them rather than preventing them from speaking in the first place. I guess that means back in the 50s and when this came up with universities before, I would have allowed communists to be professors and there to be communist student groups that called for overthrow the United States government.

Even though I admit with, I think Richard is right that the First Amendment would allow you to exclude them. I don't, I still don't. And the last thing is, I wish universities and law schools did not take positions on anything. I don't think it's their job, except things that connected to the educational mission.

They should take positions on what should be in the core curriculum for undergrads. But I think we crossed that Rubicon, at least when we started allowing having universities and their leaders made comments about Black Lives Matter. The comments they were making had nothing to do with the universities and how they operated, but I wish they hadn't done that.

But once they cross that Rubicon, then how can they act in a principled way when they won't make similar comments supporting Israel against the Hamas attacks? I would rather they make no statements at all. But if they are gonna make statements, then they have to be morally consistent.

And that they have failed, which to me shows why they shouldn't be trusted to do this in the first place.

>> Richard A. Epstein: Well, I agree they shouldn't be trusted. I don't think they should be trusted to remain silent because they will do that on exactly the wrong occasions. The Black Lives Matter stuff and all of this other stuff was a complete outrage, because what on is this man was convicted in the press before he ever got a trial, and the remarks were so extreme.

For anybody who thinks that this was a clear case of murder or violence, I suggest they look not at the nine minutes and 48 seconds in which the fellow had somebody sitting on his head designed to keep the trachea open. But they look at the film, the full 20 minutes episode, without comment, prepared by George Parry, which shows a completely different story.

And so I think that, A, they violated that because there was nothing internal to the university that was at stake. I'm talking about situations where how you teach your classes. And so I find it utterly incomprehensible to think that, well, we should allow people to say these terrible, horrible things outside the classroom and then go sit in the classroom with people whom they've just assaulted and abused.

This has got a chilling effect on their behavior. When I speak to some Jewish students all the time, what I hear is it's an easy sense that no matter where they are, they feel vulnerable to being attacked by other people whom they have no wish to attack. And I think the university has to tend to its own business.

There is no First Amendment issue involved with private. And in fact, it's the local knowledge that matters. And what we see and what we know, in effect, is these kinds of double down behaviors. And it's just a form of group defamation of the war sought. Generally speaking, group defamation is not gonna be subject to a private lawsuit, but it certainly is something which justifies very strong administrative action to control the people in question.

So, I mean, I think, in effect, there's a kind of moral delinquency upon those universities who remain silent, which is why it is that you see major donors pulling out of Penn and Yale. And remember, John is certainly right about them taking positions, but Penn is the university which thinks that may Amy Wack should be banned from teaching.

Of course, she says, in effect, it would be helpful if minority students had more bourgeoisie values. And so that's the kind of thing, I think, which universities have to stop. And so long as they abuse their disciplinary processes the way Penn has done, I think it's absolutely imperative to try to get them to shake them into a situation where they're prepared to say something.

I'm gonna give you but one other point. At Penn, there was the Wolf Center, which unwisely sponsored Palestine Write, W-R-I-T-E, group. And it turned out you had 200 Palestinian speakers there talking about the virtues of Palestinian culture. There was an incident at the local halal with somebody transferred, and they all denounced it.

Well, what I would like to know is how many of the 200 people who attended that session have been paired to speak out against the atrocities of Hamas? And I think the answer to that question is no, which means that you're a SAP to want to sponsor these people and let them come in if, in fact, they're gonna be as two faced as that happened.

And so anybody who had the courage to say that, I think I think that we have a cultural issue that we want to defend, but deplores what Hamas did is, I think, something of a hero, and I would want to praise them. But I have yet, maybe, John, you could correct me, Troy, I have yet to see any pro-Palestinian group or individual come out and attack the initial attack on 10-7 with respect to the music festival and the kibbutz.

 

>> Troy Senik: One more question for you guys on this, and then we can move into the Supreme Court. Topics. John, you and I are both veterans of the Bush 43 administration, an administration that put a very high premium, especially as time went on, on democracy promotion. You can go back and read President Bush's second inaugural, and there are some very noticeable quasi-Wilsonian overtones in that speech.

It is worth remembering that the people of Gaza elected Hamas in 2006. Now, predictably enough, yeah, they never got the chance to vote again. But at the remove we're at now, and also considering what has subsequently become of places like Afghanistan and Iraq. How do you think about the wisdom of democracy promotion in these kinds of illiberal, underdeveloped countries?

And is it different than how you thought about it during the Bush years?

>> John Yoo: I think at the time, I thought at the time, and I still think today, that the Bush administration went too far in the democracy promotion idea. I think there are, unfortunately, some regimes that become worse under democracy, like the election in Gaza, which was a democratic election, and Fatah, which is no collection of saints, lost to, lost to Hamas.

So there's, I think, one good thing about democracy promotion, which is that stable democracies tend not to go to war, tend not to go war with other democracies. They actually tend to be actually more warlike against autocracies, according to the evidence. But I'm not so sure. Look at Egypt, for example.

They had a democratic election, and they put the Muslim Brotherhood in charge, right? And Hamas is a sort of offshoot, is a member of the Muslim Brotherhood. So unfortunately, I think it actually goes to show what some, I think, sociologists have argued. Which is that democracy really doesn't work unless you reach a certain minimum of material stability and wealth.

That once you get into the middle class, then you emerge into a democracy. Then the democracy tends to be more liberal, small and liberal and stable, like you see in places like Taiwan and South Korea and Japan. But when you've applied it in places where you have a great deal of poverty, when you don't have a lot of the per capita income is not up to lower middle class standards, it actually can be an invitation to a worse regime.

 

>> Richard A. Epstein: Look, I have a slightly different view upon this. The question of government is as follows. First of all, you have to figure out the ends that you wish to secure, and then you have to figure out the means that are best able to do it on the ends.

I think that the general view that the purpose of government is to protect life, liberty and property of its citizens, to supply essential services and to protect them from violence, both internal and external, is in fact correct. It is a subordinate question, not a clear question, as to whether or not the democratic form is something which is able to do that.

And if it turns out you had a hereditary monarchy which had worked with a great deal of success, and a lot of radicals want to turn it into a democracy. The purpose of which is to essentially overthrow the regime that serves these essential Lockean-like purchases. Then you don't wanna be democratic because what's gonna happen is the introduction of democracy today is gonna lead to more mob rule tomorrow.

And if you go back, in fact, to the Greek classification, democracy was always regarded as an excessive form of abuse. The proper form of government was always thought to be republicanism. And that form of government did not have the election of anybody by popular majorities. It had an interlocking system of checks and balances and separation of powers.

And the hope was that if you kept that thing in place, then the mobs could not take over. And the judgment of the Bill of Rights is you need both structural protections and individual protection. So with respect to Hamas, it seems very clear that the moment they won an election policy, they killed their opposition and they took over by force.

And at this point, I don't even know if there's a parliament. I don't know the name, if there is a person who's the prime minister or anything like that. You look at what Palestine has happened in the West Bank, and Fatah has been ruled by Abbas. And he's been around there since 2004, 2005.

And there have been no new elections, and there never will be. And so under those circumstances, it seems to me that the correct response, ironically, is that israeli control over the essential functions from the outside, with the ability of local forces to deal with local issues of government, commerce and trade, is in fact a better system for Palestine than as a system in which they're entitled to elect the government.

That government is entitled to form a nation. That nation is entitled to bring in foreign, foreign troops to sit on the israeli border with the hope of exploiting them I'm not in favor of democracy under those kinds of circumstances. In the United States, when you start thinking back at the end of world War two, we weren't in favor of democracy instantly either.

There was an occupation force. And it's only when you have confidence that the local political institutions are going to work that you turn back the powers to the civil governance. And as somebody said in a recent editorial, where are you now when we need you, Konrad Adenauer? That is, who is going to be the leader that can take over Gaza and bring it back to respectability?

You name me that person, you give me some odds, confidence that he can or she can take over and run the situation, then I'm all willing to talk about it. But at this particular point, the problem is that there are only two kinds of people that you see in Palestine.

Those who speak out and rejoice all the atrocities that they commit on other people, and those who are so frightened for their wits and for their lives that they remain silent lest they be butchered by the Hamas forces. Neither of those two populations can deal with what's going on.

I don't know if you want to have an occupation. That's just a prudent kind of question, but I think probably you don't. But stationing people in fixed towers to watch over everything is not going to work because they'll just be attacked or ignored. And so what you're gonna have to do is to say, yes, here it is.

You run this. But we want you to understand that the following things happen. We're coming back in with full force. That's not a democratic type situation, but it's better than democracy, given the fact that the Hamas government and the Abbas government are not capable at this point of dealing with democratic institutions.

That's emphatically true with respect to Hamas, which is why they must be eliminated. And it's all too true with respect to Abbas, who has to essentially yield to a successor with the hope of getting anything sensible to take place.

>> Troy Senik: Credit where credit's due. That Conrad Adenauer comparison that you mentioned, Richard, I read the same piece.

It was from Daniel Pipes.

>> Richard A. Epstein: Good for Daniel Pipes.

>> Troy Senik: A former professor of mine. That's why it stuck in my head, which was probably the lowlight of his career.

>> Richard A. Epstein: And he's the man, isn't he, in charge of some Middle east institute?

>> Troy Senik: The Middle East forum, I believe, is the thing.

 

>> Richard A. Epstein: Yeah, so, I mean, I regard him as a knowledgeable sort of fellow. I mean, there are a few people who managed to speak genuine sense out of this. But even with too many people, the anxiety about future violence or force is so great that they lose all sight of the current enormity.

And that will lead to a paralysis of american policy, which could only compound the. Disaster that has already taken place if allowed to run its full course.

>> Troy Senik: Okay, for the remainder of the time we've got left, I'll steer you guys over to our more traditional issues. I wanna start with one that we talked about in the last episode, which is the newly voguish theory that Donald Trump could be kept off the ballot in 2024 under the disqualification clause, 14th amendment, for engaging in an insurrection.

Now you both indicated the last time that we talked that you were not persuaded by this argument. But I wanted to get your reaction to the fact that a few weeks ago, since that last episode, the Supreme Court refused to take a case on this, which is interesting, because there are at least a couple of other suits about it ongoing.

There's one out of Colorado, there's one out of Minnesota. And now, maybe this case wasn't up to snuff on procedural grounds, cuz this was brought by a very long shot candidate for the GOP presidential nomination that no one's ever heard of, as opposed to long shot ones that we've all learned in the past couple of months.

But I'm curious, guys, because we don't really have national elections in this country. Presidential election is gonna happen on 50 different state ballots, as it always does. Isn't it kind of important that the Supreme Court dispense with this argument sooner rather than later, just so we know what the rules of the game are going into the next election?

 

>> Richard A. Epstein: Yes, let me begin, you have to actually read Section 3, and I'm gonna read the first clause, no person shall be a senator, or a representative in Congress, or an elector of the president, or and vice president, or hold any office, etc. It's very clear that the first part of this starts to deal with essentially the election of local officials, that is, senators or representatives, and says, not only you can't even be one of these people or an elector of the president or vice president.

Because what we're worried about is the fact that you will then carry this forward. But if they mention the electors of the president, and they mention senators and representatives, it's quite clear they don't refer to the president. And in fact, the world hold any office means exactly what it is understood to mean at the time.

You have to hold an appointive office, whether it be an appointment by the president, not the Congress, by the Supreme Court or the head of departments, whoever it is that starts to make these things. So the clause doesn't even apply to the president at all, because the check that the nation has against him is essentially, they vote him out of office in a national election.

The danger is if you start talking about the electors in individual states and think it's 1866 or 8 or 9, whatever it is, it turns out those electors could actually be rebellious kind of guy, and try to put their people in for the electoral college, so you keep them out.

And then there's the definition of what an insurrection is. And I do not think an insurrection is taking selfies inside the Capitol building or even strutting around there, they may be criminal trespasses. But what you're talking about, if you read the word insurrection in context, shall have engaged in insurrection rebellion against the same, or given aid and comfort.

So a rebellion means massive force. And aid in comfort is designed to bring into place the treason statues, and none of that seems to apply. So I think the answer is Trump, want to clearly be clear of all this stuff, and that I regard the arguments on the other side is just downright irresponsible.

And I might add for all the people who are saying that there's an insurrection or rebellion in the Capitol building. What do they say about the occupation and destruction of federal buildings for months on end that take place in places like Seattle and Washington State? Where, in fact, there have been no criminal prosecutions at all, but just a blind eye?

So I'm very down on that kind of argument, both for textual reasons, and I think the political motivations are much too great. And much as I would do anything which was legal to prevent Donald Trump from being the republican nominee for president, I think this is a rather dubious and rather scandalous maneuver.

 

>> Troy Senik: John, are we gonna see this case get, or some version of it get to the Supreme Court eventually?

>> John Yoo: Let me put on my federal court's nerd hat here. Very heavy, burdensome hat, which is the case that you just referred to, Troy, where the court denied, the lower court said that this fellow had no standing, right?

And this is a problem for people who believe in this reading of the 14th amendment. I agree with Richard, in fact, I would go farther and just say the president isn't covered because he's not an officer of the United States. And the text only talks about officers, even though it talks about electors for president.

So they could easily have mentioned president if they wanted to. So the problem here is that the Article 3, the federal courts don't permit what we call taxpayer standing. The idea that just any taxpayer can complain about the operation of the government and then have the right to go to federal court, the court has said that is not a case of controversy that it could hear.

Article 3 of the constitution requires there be a case of controversy. Now the interesting hiccup here, and actually, I think the plaintiff's lawyers are being quite clever is that, I think the leading case, the case that's gonna be first in the queue on this disqualification coming out of Colorado.

And it's coming in state court, and this is the federal court's twist to it, is that, the case or controversy requirement which gives us standing only applies to federal courts? It doesn't apply to state courts. State courts can choose to hear anything if they want, they don't have to require standing.

California, for example, does have some version of taxpayer standing. Colorado, I believe, also has taxpayer standing. So I believe the case there is just being brought by voters, just voters who are saying, I think it's unconstitutional for Donald Trump to be on the ballot in Colorado. So the Colorado state courts aren't going to be able to escape deciding this issue the way the federal courts might.

So then there's another federal court's little twist to this, what we call the doctrine of non-self execution, which I actually have written quite a bit in the foreign policy context. And that means some portions of the constitution require Congress to pass a law to put that provision into effect.

And some are self executing, where you can just go right to court without any permission from Congress and say, I wanna enforce this part of the constitution. This is actually where I don't know what Richard thinks about this doctrine. Usually libertarians get their panties into a twist about non-self execution, because they don't like the idea that Congress has to give you permission to vindicate your rights.

But I think if there were ever a provision that was non-self executing, it would be this 14th amendment, Section 3. It doesn't define what an insurrection is. It doesn't define what rights you have to prove you weren't an insurrectionist or not. It doesn't describe whether it's a criminal or civil proceeding.

And in fact, one last thing about this non-self executing point is that, chief justice Chase, the chief justice who had been treasury secretary, and basically a pain in the side of president Lincoln. President Lincoln put him on the Supreme Court to get him out of his cabinet.

>> Troy Senik: Right.

 

>> John Yoo: Yeah, Chase issued an opinion within about a year of the 14th amendment's passage saying that, you can't just go to court and try to get people disqualified from office. There has to be some statute from Congress that defines the terms like, what's an insurrection? And creates a procedure, right, this is proven.

And you could say that Congress did that because there is a crime, right there is an insurrection crime in the federal court. There is a crime of sedition. And notice Jack Smith did not choose to charge Donald Trump for that. And when the House impeached Donald Trump for inciting insurrection, the Senate acquitted him.

So I think if you go by standard precedent, standard federal courts, you're not gonna see this case get forward, except for maybe in state court in Colorado.

>> Richard A. Epstein: I have two responses to John's remarks. First, understanding issue. He's clearly right about the fundamental asymmetry between federal and state standing, and taxpayer citizen standing does not work in the federal constitution.

I regard that as a wrong in terms of reading the clause, but as a disaster, because essentially, when there's a suit, which everybody has heard but nobody can sue, illegality can persist for a very long time. And so I take the view that was done everywhere else in England, in the United States, and the various states, which is essentially any citizen can challenge something on the grounds that the act in question is ultra vires.

The second point I wanna make is there is a remedy inside section 3, and I'm gonna read it. But Congress may, by a vote of two-thirds of each house, remove such disability. Well, that makes perfectly good sense with the kinds of people that we have here. It makes no sense with respect to the president, who, in fact, is going to be an elected officer.

So if it turns out you've got a very specific remedy, it applies to every inferior officer who could be appointed, so it fits perfectly well and it gives you the remedial structure. And it also says that it is not a disability if it's waived. Now, when they try to say the president's not eligible to run, a, they got the wrong guy, and b, they ignore the fact that everybody else who's subject to the disability could get it waived.

Then you cannot say that that's going to happen if you tell Trump or anybody else that they can't get on the ballot. So this is just essentially irresponsible constitutional interpretation. It's part of the same kind of things that we saw where else, is that, constitutional arguments are now basically being bowdlerized, as far as I'm concerned, in order to pursue rather explicit political agendas.

And this is just not gonna do anybody any good, just the way I tend to think that the prosecutions that are taking place with respect to Donald Trump, particularly those in Georgia and New York State, are just travesties. In the way in which the system is operated, I think there's more serious stuff going on with respect to some of the things about presidential records and about the efforts to illicitly influence Michael Pence when he starts to open up the balance than anything else.

But generally speaking, I think that the situation of politicization is dangerous. I might also add that one of the problems in Israel is that the prime minister is supposedly subject to removal by the vested attorney general if he does something that she doesn't like, and that limits his ability to govern.

And when you have a crisis like this, you want that have a prime minister, whether you like him or not, that you follow, just the way we have to deal with Joe Biden and support him in his international affairs, cuz we don't have anybody else who can take that essential role.

 

>> Troy Senik: I'm gonna break here for a random piece of trivia. John mentioned Salmon P Chase, the only person ever to sit on the Supreme Court and be on a piece of American currency. What piece of currency is it?

>> Richard A. Epstein: The silver dollar item.

>> John Yoo: He's on currency, no way.

 

>> Troy Senik: He's on the $10,000 bill.

>> Richard A. Epstein: But it's not on circulation.

>> John Yoo: Let me check, I got one right here.

>> Troy Senik: Are you kidding?

>> Richard A. Epstein: I don't think they're legal tender anymore.

>> Troy Senik: No, I think everything over 100 is no longer in circulation. It went up to 100,000.

The 100,000 was Woodrow Wilson.

>> John Yoo: No, was he really?

>> Richard A. Epstein: Well, I mean, he's a very pricey guy, which means if you're talking about $100,000 or whatever the number is, and you're talking about this in, say, 1920, you got to multiply that by 40. So it's basically a small fortune that you're talking about.

 

>> Troy Senik: So here are the obscure ones, and actually, this will, in a weird way, segue into my next question for you. The $500 bill.

>> John Yoo: Is this just your way of selling more Grover Cleveland books?

>> Troy Senik: Wait for it, wait for it.

>> John Yoo: I'm sure he's on some stupid bill nobody uses either.

 

>> Troy Senik: The $500 bill was William McKinley. 5,000 was James Madison, Chase, 10,000, Wilson, 100,000, as I mentioned. And yes, the $1,000 bill, my man, Grover Cleveland.

>> Richard A. Epstein: He was?

>> Troy Senik: Yes.

>> John Yoo: That makes no sense at all.

>> Troy Senik: But the same-

>> Richard A. Epstein: And when were these people put on these bills, in the 20s?

 

>> Troy Senik: Yes, in fact, this was at the direction of, if I'm recalling the story correctly, it's actually in my book, this was at the direction of Andrew Mellon-

>> John Yoo: Yes, gonna say Andrew Mellon.

>> Troy Senik: Treasury department. And in the course of writing my book, I found the original memo about this, and there was a switch made because Grover Cleveland was originally supposed to be on the 20.

They switched him with Andrew Jackson at the last minute.

>> Troy Senik: I am going to use this as my segue, because we should highlight here that one of the big cases in this new session of the Supreme Court is Moore v US, which is, for lack of a better term, the wealth tax case.

And the second most important thing about this case is its potential implications for the federal government's taxing power. But the most important thing is that this represents, correct me if I'm wrong, I believe the first time ever that the two of you have combined forces to file a brief before the court.

Now here, actually, before we get started on the substance, here's my first actual question on this. I have been in this world of policy and politics for a long time. I've worked with a lot of distinguished people in the field of con law, even though, as I think it's good to remind the audience, I am not a lawyer by the mutual consent of both myself and the profession.

However, I have had many distinguished colleagues, many of these people you guys know, and none of them seem to agree on how the word A-M-I-C-U-S, is pronounced. So once and for all is the document that you file, is it an amicus brief or an amicus brief or the weirdest one of all, amicus, which is what Justice Breyer used to say.

 

>> Richard A. Epstein: No, it turns out the first two are optional. It's like my friend Dick Posner, could be Posner or Posner.

>> John Yoo: If you took Latin, it would be pronounced amicus, you always emphasize the second to last syllable.

>> Richard A. Epstein: Now, wait a second, John is talking about modern school Latin.

I remember having a student one, and I interviewed him, and he's very interesting kid. And I asked him, how is Latin pronounced? And he says, we really don't know because we have anybody-

>> John Yoo: Well, that's true, it is true.

>> Richard A. Epstein: And so the question is, debate between amicus, and so for amicus, it's one, but hard c's, like Cicero or Cicero is another one of these debates.

People try to infer it from poems and whatever else kind of things that you have, but it's a deep, dark mystery.

>> Troy Senik: See, this is why I ask questions like this, because it turns into a discussion between the two of you about the epistemology of Latin

>> John Yoo: No, no, well, I mean, the best representation we have is the way the Catholic Church does it, right?

They're the institution that actually does trace it's way all the way back. So we have no precise understanding of pronunciation from that time, so the best we can do is try to infer it from the way the Catholic Church tried to preserve the understanding of Latin.

>> Richard A. Epstein: But this is 1000 years later.

 

>> John Yoo: Yeah, but I'm just saying it's the best you can do.

>> Richard A. Epstein: Well, but in fact, most people use Cicero and they use Cicero.

>> Troy Senik: I didn't to stretch you guys-

>> Richard A. Epstein: Remember, the English also has a hard and the soft c, right?

>> Troy Senik: Yes, but okay, so that aside-

 

>> John Yoo: All right, sorry.

>> Troy Senik: Explain to us what this case is about and what you two are arguing here, because the case itself, to a layperson, may seem abstruse. But the implications here are pretty important.

>> John Yoo: Well, you should let Richard do it because I still don't understand his part of the brief.

 

>> Richard A. Epstein: John is only laughing. First of all, I think the most important thing to say is the government brief, which I just got filed the other day, in which I read, and essentially, they take a very modest position in this case. And the argument that they make, which may be correct, it's actually contested, but may be correct, is that the general rule is if you have money in a partnership which is taxable to the individual, the tax is not removed.

If there is some legal dispute amongst the partners which prevent the distribution of the money. So they say that we can tax money cash, by the way.

>> John Yoo: Richard, before you say this, you got to describe what the actual issue is, which is, do you need to have a realizable event in order to be taxed under the income tax clause?

The simple way to understand it is if you have a share of stock in Tesla, it goes up 100 bucks in a year. Can the government say that $100 increase even though you didn't sell the stock, it's just in your hands. Its increase in value makes that income that they can tax.

Or does the constitution require that there be a sale, which tax law calls a realization, so that you only can be taxed when you sell? Okay, now go ahead with this partnership stuff.

>> Richard A. Epstein: What happens is, look, let me start two things. The reason I mentioned is the view that the government takes is essentially no change whatsoever in the law.

They're reaffirming cases from the 1930s. If you take what John said, it sounds very simple. Just a realization requirement, you don't have it. But John gave the illustration where you know the cost, you sell the stock and you know its value, and you tax the gain at one time.

If you are allowed to tax unrealized depreciation, the following thing happens. There is no limitation on the things that you can tax. So every asset, whether it's corporate or individual stock bonds and so forth, the increment in value in a given year can be taxed when you don't know the first number and you don't know the second number.

So you're gonna have to run an administrative procedure, which no one has to do. And essentially what you will do is increase the complications of the tax system by probably 10,000 fold or more just to make this shift. And that is such a seismic shift that nobody has done it.

In fact, the general rule under the Internal Revenue Code is that realization is a necessary condition in most, not all, cases for taxation. But that there are some cases where taxes are so ill advised as when you receive a complex interest in a corporate reorganization, that we defer the tax until sometime when you take out cash or other issues.

Now, there's a clear exception to this rule, which is a correct exception. If you have assets that can be easily valued and are not used for debt production, i.e., financial derivatives, you got thousands of these things in the portfolio. They have perfect value, they can be sold instantly.

And so what the Internal Revenue Code does, it requires you net your gain and losses on those assets only, but they won't do it on anything else. So the underlying message that John and I wanted to make, or more me than John, is it's amazing how well the basic structure of the Internal Revenue Code works.

And I think what happened is they never mentioned anything that we said. But by taking this very narrow line as the dominant piece, what happens is they're trying not to create a revolution on the income tax side by getting rid of the realization with respect to productive assets.

And they're not even talking about the question of whether you can impose a wealth tax, which essentially says that if you have a huge amount of money above a certain base. And you lose value on that stuff, you could still be taxed for the wealth that you have, even though there's no interest.

And the argument that has been made by some people is all wealth is a simply accumulated income, and so you can tax it under the 16th Amendment, which has to be bonkers and crazy. Now, there's another argument there about Pollack and Farmers' Loan. And the learned legal historian, Mister Yoo, will now explain that to you with matchless clarity, John.

 

>> John Yoo: He teed you up.

>> Troy Senik: One thing that people may realize is that this is not really about this very unusual tax provision at stake, which was part of the Trump tax cuts. It was part of the deal, if you recall, that allowed companies to bring back a lot of their overseas assets.

Basically, US companies were holding a lot of cash abroad because they didn't wanna pay US taxes on it. So the deal was, if you bring back the money, what we call repatriation, you'll get a certain low rate. And then this was just a minor, the provision here is just a sort of a minor hiccup in that.

But the real fight, why this is really an important case, one, is it has to do with the wealth tax that has been proposed by people like Elizabeth Warren or Bernie Sanders, which is really just a property tax on people. And so one thing our brief does is to look back at the writing and ratification of the 16th Amendment, which is much easier to do because we have much more modern record keeping about legislation and debates and political movements than we do about 1789.

And then the second thing is, it's an interesting question about constitutional interpretation, because it caused us to have to look back and see what was the Supreme Court case called Pollock, that was overruled by the 16th Amendment? How did Pollock understand taxation? And then you actually have to go back and look at the original provisions in the constitution about taxation, because there was this thing called a prohibition on direct, what the constitution just calls direct taxation.

But it doesn't define what a direct tax is. It says direct taxes have to be allocated to states based on their population. It was clearly provision that was meant to protect land and property in slavery, and the income tax is an exception to that. And so our argument is that the way people understood this in 1913, when the 16th Amendment is done, is that they would have thought that you could tax, say, the rent from land.

But they would not have thought the Federal government can tax the actual land itself. They had this old fashioned, I think Robert Richard would like. This is old fashioned, almost Roman law, if not common law understanding, of having a tree, and then the fruits, the usufruct, the tree, the fruits that come out of the tree.

And so they would have thought you can tax income is like the fruit that falls from the tree, but it's not the tree itself. And I think that's our argument, that that's how the people who passed the income tax amendment thought about the power of the Federal government.

 

>> Richard A. Epstein: I'll put it in a slightly different way. I think the argument they made is what the great question was, was whether or not taxing the value of land or taxing the rent from land. Whether you could do the latter but not the form. So the former but not the latter, and the Supreme Court, in a very close decision, decided that you could tax rent.

And so what John said was essentially, that you could not tax the rent. The way he rightly reads the 14th amendment is he says it overturns Pollock Malone and so now you could tax the rent. But he says there's nothing in the early history which suggested that anybody wanted to text any unrealized income.

And so at that point, you could correct Pollock Loan by doing it the other way. And in fact, John is right about the Roman law stuff. Because the difficulty in park against farmers loan, is they don't tell you what kind of lease you have. Lease is a very difficult instrument, because often the landlord supplies, not only the land, but also services.

And services essentially would clearly be income, whereas the rent for the pure use of the land would not. So you have a kind of a combination asset, that's going on, and it was not discussed in connection with this particular case. So, that's what the kinda conceptual confusion was.

But in effect, our view is, that there was no effort at any point in the Pollock debate, to tax unrealized income. And so, the 14th amendment is designed to reverse Pollock, but not to allow you to tax unrealized income. Unless you could find some independent ground to do it, as you do in the very few cases, dealing with financial assets.

 

>> Troy Senik: Okay, we are right up against the end of our hour, so I'm gonna take you guys out with an exit question about something I wasn't able to get to earlier which is this sort of macro issue, that's floating above the court decision. Which is the odor that is surrounding the court as a result of this sort of clearly choreographed campaign that a number of outlets, most notably ProPublica.

Were running over the summer trying to allege these inappropriate ties between a number of justices on the court, most especially Justice Thomas, and various wealthy individuals. And this has led to a series of simmering disputes between Congress and the court. In the Senate, you've got people like Sheldon Whitehouse, who you can always find at the front of these kinds of parades, talking about imposing, ethics standards on the court.

You also had Justice Alito, in the Wall Street Journal a few months ago saying that, Congress doesn't have those powers, be a separation of powers violation. But earlier this week, Amy Coney Barrett, in a speech at the University of Minnesota, said that she was in favor, of the court adopting an ethics code, of its own in the near future.

So, John, I'll start with you. How do you think about this? Is it a capitulation for the court to do something like that, or is this a prudential way to stave off a bigger fight in the future?

>> John Yoo: I think that's a good point, Troy. There's a bigger separation of powers issue at stake here, which is how far can Congress go in regulating the courts?

And so, I think everyone agrees that any kinda ethics code would be best done, by the Supreme Court itself, so that you don't invite this conflict between the branches. And I expect that in the end, that's what will happen, that the judiciary will decide on its own ethics code.

I think the problem, the separation, I think people too easily assume that Congress can pass an ethics code, for the courts. There's no doubt that Congress can do some things, with the courts. It can decide, how many judges there are gonna be. It can decide, the size of the Supreme Court.

It can decide the structure of the federal judiciary, where it have trial courts and appellate courts and the rules of procedure. But I think it can't go so far as to manipulate that power into basically affecting, how the court decides cases. So I would say, for example, Congress could not pass a law that says, the Supreme Court must have six votes or seven votes out of nine, to strike down a federal law, as being unconstitutional.

I think that's an interference. That's a violation of the separation powers. So the hard thing about this ethics rules is, passing ethics rules, which, in my mind, the intention behind them is clearly to try to interfere with the Supreme Court's independence. Because these congressmen and women who are behind it, don't like the substantive decisions, that the court is reaching.

I think this was an idea that our political system rejected, when FDR tried to pack the courts. Cuz he didn't like, the way the new Deal Supreme Court was deciding cases. And so I think there would be a similar crisis in the separation of powers if Congress tried to pass an ethics code.

Really designed to intimidate and pressure the court into changing the way it's making its decisions.

>> Richard A. Epstein: Look, it's even worse than that. The legislation that's been proposed, says that any citizen can in effect raise a challenge and Congress could then evaluate its merits. So what is that there will be oversight with respect to each and every case, and there will be thousands of these things that can be brought.

And they could be brought by 1% of the population, completely immobilized the court. So, I think it's dead on arrival. The fact that Sheldon Whitehouse seems to be the man who's pushing this the most, is proof positive that it has to be illegal and unconstitutional. The other thing I think that has to be remembered, is that a lot of the things that are said are just terrible.

They do not say that they were legal at the time, and we think they should be made illegal. They act as though they were illegal at the time when they're not. And also, these are events that sometimes have taken place ten or 15 years ago. And it's clearly an effort of combination, either intimidation or, in the case of White House, in many cases, is even prepared to impeach on the grounds of these particular violations.

And so what we have here, is another version of going beyond the traditional rules of comedy and the way in which you deal with politics. So, I regard this as similar to the insurrection argument, in which the stable American institutions are being pushed very hard, on the progressive side to change it in an independent way.

But I also wanna say one other thing. Mr John Yoo is a Phillies fan, and the Phillies are in.

>> Richard A. Epstein: Worlds in this championship series. John, do you wish to report or should I, about how.

>> Richard A. Epstein: They've been able to deal with this particular issue?

>> John Yoo: Wait, the Phillies have dealt with the.

 

>> Richard A. Epstein: Well, they're two up, aren't they?

>> John Yoo: Yeah. No, I don't know about what the Phillies recording have to do with what we were discussing. We should not let this all pass without recognizing that my annual prediction that the Phillies are gonna go to the World Series, I think is gonna be right two years after all.

A broken clock, the favorite team of both John Yoo, and Joe Biden. No, he's just faking.

>> Richard A. Epstein: No, he's not.

>> John Yoo: I mean, that's probably true.

>> Richard A. Epstein: He's not now, I mean, I have a certain lofty indifference to this because my still favorite teams are things like the Brooklyn Dodgers.

 

>> John Yoo: Well, they don't exist anymore.

>> Richard A. Epstein: Well, that's why I support them.

>> John Yoo: Richard's a big Montreal expos fan. All right, guys, we are against the end of the hour. Thanks to you both, as always. Thank you to our producer, Scott Emmergood. And thanks to our listeners. Remember to do us a favor and rank the show wherever you get your podcast.

We'll be back with you soon. Until then, the faculty lounge, is officially closed.

>> Richard A. Epstein: All right, thank you.

>> Speaker 4: 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.