Advisory Opinions - Bob Bauer Still Thinks Robert Hur Was Wrong

Episode Date: August 15, 2024

Former White House counsel Bob Bauer joins Sarah Isgur and David French to talk about his new book, The Unraveling: Reflections on Politics Without Ethics and Democracy in Crisis. They also discuss the role of a presidential attorney, whether Special Counsel Robert Hur crossed a line by reporting on President Joe Biden's cognitive decline, and what it was like to prep the president for his fateful debate. The Agenda: —The impact of undergraduate majors on job prospects after law school —Geofencing raising Fourth Amendment concerns —Do universities have legal obligations to protect students from discrimination, including religious discrimination? —The unraveling of democratic norms and institutions —The role of the Supreme Court in democracy —Should we have term limits? —Examining sue and settle policies and third-party settlements —The role of the leader class and the American people —Advice for aspiring political lawyers —Working with the Biden campaign —Bob Bauer on Face the Nation and Robert Hur criticism Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

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Benefits vary by card, other conditions apply. Ready? I was born ready. ["I'm Ready"] Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and we are recording this episode on Wednesday, August 14th. A savvy listener has asked us to start adding that into the intro, so we're going to do that. And we've got some treats for y'all today. We're going to talk about two different cases, one about Fourth Amendment and geofencing and another about anti-Semitism on campus.

And then we will talk to Bob Bauer, former White House counsel to President Obama, personal lawyer to President Joe Biden. He was there for the special counsel interview. He was there for debate prep. He has a new book out. We'll be talking to him about the unraveling. But also, does he regret anything he said about Rob Her? Full disclosure, Rob Her, former work colleague and good friend. But before we do any of that, David, I want to get to our question from a high school sophomore named Felicity. She's been

listening since she was in fifth grade. I know that you guys often debate the question of whether or not someone should go to law school. I would like to add a different dimension to this argument. My question is what type of major do you think is best for someone who wants to go to law school? This is so funny David because there's another listener who also was listening since she was in high school and is now in college. And she's texting me about what major she should be picking. And so what better way to answer these questions than to turn to David.

By the way, since I teased this last time, we also got an email from a listener who was an orchestra conductor for eight years before going to law school. He's about to graduate at the end of this coming year. So there's lots of different majors one can have, David. I sort of thought of breaking this up into three questions. What's the major that will help you get into law school?

What's the major that will help you perform well at law school? And what's the major that will help you, you know, get the job, the best job after law school or summer associate or clerkship or anything like that? Like, do majors have any effect on that? So tackle any or all of that as you see fit. Those are three good questions. OK. Major that will help you get into law school.

Number one, I would say I'm going to go out and I'm going to say as a general matter, stem majors, as a general matter, a STEM major. And I'm gonna say for this reason, one is the STEM majors are also have, one of the benefits of a STEM major, say mathematics or physics is a lot of it is logic, especially in mathematics, et cetera, you're learning logic.

And if I have any advice for people who are preparing to take the LSAT, for example, the single best thing that I learned to take the LSAT was I took a short version of my dad's logic class. He wrote a logic textbook and he gave me a bridged version of his course. And that logic course was the best thing that I took. So a STEM major has two benefits.

One is it sort of stands out. You're gonna get a lot of political science majors, a lot of history majors, so it stands out a little bit. And then the other thing is there's a kind of inherent respect for the academic rigor of some of these STEM majors, and there isn't as much inherent respect for the academic rigor of other majors. So I would say on the answer to number one,

it is a STEM major, but not by much. I do not believe that a major is a major factor. A major is a minor factor. Question number two, what actually prepares you? Here I'm gonna say I'm gonna repeat part of the previous answer, which is a major that teaches you to think logically That teaches you to engage within arguments with logic, more logic than feeling. So a good rigorous philosophy program, for example,

should prepare you, I think, quite well. Obviously, some of the math or some of the STEM majors I've talked about, but I don't think, again, that the major matters in prepping you for law school as much as logic matters in prepping you for law school. And then the major that's most attractive to employers, that is almost entirely irrelevant, except let's suppose you want to be an environmental lawyer, and you have a law degree and you have an undergraduate or you have an environmental engineering degree.

In that circumstance, if you know, you know going out of law school, I want to narrow cast into this specific technical field. If you have an undergraduate degree or even better, a master's degree in that specific technical field and then you have the law degree, I think you're better set up. But 999 times out of a thousand, your undergraduate major is exactly, precisely, totally irrelevant to your job prospects.

So I think by and large, your undergraduate major is totally irrelevant to everything if you end up in law school. But with a few caveats. One, of course, having a major that you love, you are more likely to do well in that major, and you are more likely to get a higher GPA. The GPA does matter to getting into law school. So to the extent those are correlated, do something that you can get a high GPA in that isn't just because there's great inflation. It's because you love it and you grind those extra hours out

even when you could be going to the frat party. So that doesn't matter what the major is, it's just something you love. Second, and perhaps contradictory to that, be different. Don't do pre-law if you wanna go to law school. And there's a lot of reasons for that for me. And by the way, that includes poli sci and sort of things that are like pre-law adjacent.

You're about to do three years of law school and then be a lawyer. So setting aside even like what helps you and when it helps you or why it helps you, just do something different so you can have some different experience in life and be exposed to different writers and ideas and things of that nature.

Surely you're interested in something else. If you know going into undergrad that you're definitely going to law school, I think it's a mistake to do a pre-law-ish major. You're way better off having a music major or, I don't know, a French major or something. It doesn't matter. Expand your world. Don't focus on the law.

The last thing is what you were saying about logic, David, in terms of what's the major that's going to best prepare you for law school. It's interesting. There's actually this in the Journal of Empirical Legal Studies from 2016, what predicts law student success, a longitudinal study correlating law student application data and law school outcomes. And it found that STEM majors actually were more likely to perform well in law school, but they note that this is self-selecting, right?

It's not all STEM majors, it's the STEM majors that are choosing to go to law school. So I think there's definitely something to the idea of the sort of rigor of a STEM major, how much grinding that takes and discipline to do well in a STEM major to begin with, like sort of the things you are learning about studying are going to apply nicely in law school. Maybe similarly that if you're not a STEM type person, I think things like philosophy are helpful because they're teaching logic, but also unlike a STEM major,

reading and writing are very important in that major and learning how to read large amounts of material and absorb it quickly, that will help you actually succeed in law school. Funny thing, David, this study also found that the high LSAT, low GPA applicants or admittees were the worst performing at law school. It me! So, bummer that, in fact, the reverse was a predictor of success. The high undergraduate GPA, low LSAT people do pretty well. Now, the problem is there's actually a lot of me's who get into law school, the high LSAT low undergraduate GPAs, and there's very, very few high GPA low LSAT people. I know that should be true.

Yeah. And so those people are special in some other kind of way. They're not randomly selected. There was something about them that the schools thought would be successful. There's few of them, and then they turn out to be pretty successful. So for example, from my, when I was on the admissions committee at Cornell Law School, so what you're saying is, from my experience on an admissions committee is 100% the case, the way it was that high GPA plus something else that gave the admissions committee confidence,

and the plus something else wasn't necessarily related to academics. It could be something extremely interesting about them, division one athlete or in one circumstance, like pilot of Marine one. So that, but the high GPA gave the comfort that they could do the work, even if the LSAT wasn't up there. But yeah, that's an absolutely true statement

that the high GPA plus low LSAT often needs something else, something else. Okay, so punchline on what I'm hearing is your major doesn't really matter in terms of like the substance of it at all. I don't think any of us think that. But what matters is your LSAT and GPA. So to the extent your major is going to affect your GPA, okay, then it matters.

And the things you are learning outside of the content, the substance of your major, matter. So for instance, the rigor of studying in something like a STEM field, or the writing and reading and logic of something like a, you know, maybe economics, philosophy, math, things like that. I know math is STEM, whatever. So yeah, that about sum it up, David? Summs it up. Let's do some geofencing. So this is a fifth circuit case. It always is, man. It's unanimous and it's now created a circuit split. And I do think this one has a good shot

at going to the Supreme Court. Judge King writing for the panel, Judge Ho with an interesting concurrence. Basically these guys commit a pretty brazen robbery. And for a year, the police can't find who it was. They then sent a subpoena to Google for the cell phone data from this 92,000 square foot circle around the place of the robbery for the hour in which the robbery took place. Google sends them that information. There's not many people around at that point at this exact location.

And it identifies the three guys who did it. So they challenge that on Fourth Amendment grounds that this is something more like a general warrant and the Fifth Circuit agrees that geofencing is a Fourth Amendment violation. I'll just read from Judge Ho's short pithy concurrence. Geofence warrants are powerful tools for investigating a deterring crime. The defendants here engage in a violent robbery and I likely and likely would have gotten away with it but for this new technology so I fully recognize that our panel decision today will inevitably hamper legitimate law enforcement interests. But hamstringing the government is the whole point of our constitution. Our founders recognize that the government will not always be comprised of

publicly spirited officers and that even good faith actors can be overcome by the zealous pursuit of legitimate public interests. Our decision today is not costless, but our rights are priceless. Reasonable minds can differ, of course, over the proper balance of strike between public interests and individual rights. Time and again, modern technology has proven to be a blessing as well as a curse.

Our panel decision today endeavors to apply our founding charter to the realities of modern technology consistent with governing precedent. David, this reminds me of the GPS tracking device being put on cars of potential suspects, the infrared technology to look into houses. I love these technology meets the Fourth Amendment and how you do something like originalism

in these contacts, fun times. Yeah, it's a fascinating case. And so I'm intrigued by this, Sarah, because it would seem to be that some of the same reasoning would mean that, let's suppose there's a break-in across the street from a person's house, and that person across the street has a ring camera. And under this reasoning, could law enforcement be blocked

from getting a warrant from the ring camera across the street? Because that ring camera is not just surveilling your front porch, it's surveilling across the street. And what are you doing? You're getting a warrant for, say, a certain block of time during which the robbery occurred, hoping to get a visual of the robber. How is that different? To me, I mean, here's how I will distinguish it in David French's law school class. You as random citizen have knowingly chosen to walk down a public sidewalk

where you know there could be cameras or someone could just see you, et cetera. Your cell phone pinging off a tower, well, in this case, three towers, that's how they are able to, you know, figure out where you are in your Google history is not maybe sort of a known relinquishment of your privacy rights, the way that walking down a public sidewalk would be. Well, you're out in you're at this you're out in public at the

location of it's not a slam dunk argument. I'm right. I'm just trying to distinguish them. I mean, I get it. Yeah, I know public and you You're out in public at the location of... It's not a slam dunk argument. I'm just trying to distinguish them. I mean, I get it. You're still out in public and you have your cell phone and you put location on, by the way. Location sharing is on. You're out in public.

I guess I'm just struggling with how geofencing would be different from saying every single crime show you see where the question is, do we have any CCTV footage? Right. So that's my question here. How is this different? Now, it's also individually identifying.

So for instance, you're subpoenaing Google to get the user account information. They send that back anonymized, and then the law enforcement agency is supposed to say, okay, we actually only need these, the rest weren't there long enough, they don't meet the description in terms of how often or how long they were there, whatever else. So we just need these five identifiers, and then they give them the account information and who owns that account. You know, the email address and billing info potentially. That feels different than getting

CCTV footage where like, okay, you get to see someone and like what they look like. You're not getting their account information from a third party provider. Yeah, I could see limitations on the extent of the information provided. So in other words, the fact that I was, my phone pinged at a bank at 10, 15 a.m. and there was a robbery at the bank at 10, 15 a.m. And then that therefore means they're gonna get a look at my Instagram account, you know, like that, that's a bridge too far, but to know that I'm there, just, hey, David French was there at 1015, let's go talk to him.

That sound seems not that different from CCTV footage or ring camera footage or Google Nest footage or whatever, and then facial recognition software, boom, that's Sarah, let's go talk to her. All right, David, next up, we have a district court opinion. And you and I have sort of been fighting over a key piece of this because I threatened that our entire podcast today would just be seven hours of me reading a paragraph from this opinion over and over again.

And you said that's not fair because I want to read it. Can we take turns reading it? So, I mean, this is tough, but I'm going to read it. Can we take turns reading it? So, I mean, this is tough, but I'm going to read it. You can read it too. In the year 2024, in the United States of America, in the state of California, in the city of Los Angeles, Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. This fact is so unimaginable and so abhorrent to our constitutional guarantees of religious freedom that it bears repeating. Jewish students were excluded from portions of the UCLA campus because they refused to denounce their faith. UCLA does not dispute this. Instead, UCLA claims

that it has no responsibility to protect the religious freedom of its Jewish students because the exclusion was engineered by third-party protesters. But under constitutional principles, UCLA may not allow services to some students when UCLA knows that other students are excluded on religious grounds, regardless of who engineered the exclusion. This is actually taking the form of an injunction, David, in which UCLA is barred from assisting or allowing encampments to block Jewish students from reaching certain parts of campus. You know, David, for almost a year now, we've been saying that these schools have some real, real legal liability problems, and I've been confused how they don't seem to act like they

were going to get sued for a lot of money. And yet they were acting in one way and I was like, maybe I don't know. Well the opinions are rolling in David and they're all rolling in on one side of this. Yeah, the opinions are rolling in and look, this is something that was, I was pulling what was left of my hair out of my head when we were having these discussions, like we were having discussions, not you and I, you and I were clarifying some of the misinformation, legal misinformation out there, but I was having discussions in the wider world as if universities were operating in an atmosphere of complete discretion, that they could permit the encampments or not permit the encampments,

just depending on sort of what campus politics would dictate. And I'm sitting there holding my hand up saying, no, no, no, you have legal obligations here. You have legal obligations under Title VI, you have legal obligations under the First Amendment. There are many ways in which you do not have discretion. For example, you do not have discretion. For example, you do not have the discretion of blocking a person's access to campus based

on their religious faith and specifically based on their Jewish heritage. As for your public university, you absolutely cannot permit open discrimination, religious discrimination on campus, even if it's not related to anti-Semitism, if it's just related to religious faith, period. And so this legal scenario was just being, I mean, this legal reality was just being brushed aside by these campuses as if they had total discretion to give in or not give in to the protesters, and they never did. They always had, they always had to protect these students

from harassment. And so this decision is as predictable as the sun rising because this idea that they could permit these encampments to do what they did, it was just fantastical from the beginning, just utterly fantastical. And guess what, if you're a university administrator or lawyer and you're listening now,

there was one case that came out your way so far and this was the MIT motion to dismiss. And what can you learn from the MIT motion to dismiss? The reason they were saved from legal liability, at least so far, is that every time there was something terrible that happened, MIT could point to a reaction. It did something in response to the outrage inflicted on Jewish students.

But even there, even there, now that we know that these protests can pop up, now that we know their nature, now that we know what they do to Jewish students, if you see a university permitting this to happen again, they just need to break out their checkbook at this point. Just go ahead and start adding zeros. Fun fact, by the way, Judge Scarcy,

who issued this ruling also happens to be the judge who will be overseeing the Hunter Biden criminal tax trial next month. So lots to come from Judge Scarcy. He seems busy. Yeah, fascinating. All right, David, should we jump into the main event? Let's about it. Third-party litigation funding allows investors,

even foreign entities, who have no relationship to the claimant or issues being litigated, to invest in a lawsuit. This practice drives up the cost of goods and services for every American family, individual, and business, regardless of whether you're involved in the litigation. It also impacts insurance affordability and availability. Because of that, APCIA says it's time for

transparency and mandatory disclosure of third-party litigation funding. It's time for sensible reform. To learn more about third-party litigation funding, visit apci.org. That's apci.org. And now it is my absolute treat to welcome Professor Bob Bauer to discuss his book, The Unraveling Reflections on Politics Without Ethics and Democracy in Crisis. This is Professor Bauer's triumphant return to advisory opinions. He and my former professor, Jack Goldsmith, were previously on about the previous book that they wrote together after Trump reconstructing the presidency. Thank you for coming back on for our previous book that they wrote together after Trump Reconstructing the presidency. Thank you for coming back on for our law book August. It's a pleasure. Thank you for having me and

This book it reminds me of things that I read with Jack Goldsmith when I was in his class because The class that I took with him on lawyering for the president was all about sort of those ethical conundrums that weren't purely legal questions, or rather, where the legal question is maybe easier than the ethical question. And who exactly is it that you're representing when you're the lawyer for the president or a lawyer working in government at the Department of Justice, in Professor Goldsmith's case, can you talk a little bit about that distinction? Certainly. In the government, I address some of these same issues in non-governmental political positions of responsibility. But in the government in particular, there is this fundamental question, say, for the White House counsel, who am I representing? Am I representing this particular president?

Am I representing the executive office of the president? Am I representing the executive branch? Am I representing the American people? And it's a complicated question. On the one hand, you have there in the Oval Office, a particular individual won an election and picked you to be their counsel. So it's easy for the lawyer to picture that person as, quote, the client, unquote. But on the other hand, your responsibilities are broader than that. But then deciding what that means in the context of giving particular advice can be very challenging. So often I feel like either people before they go to law school or maybe they're in

their first year of law school will think that they're super clever for finding the legal answer, you know, and they can tell their client, yes, this is legal. And here's my technical argument for why this is legal. And I think it shocks them when they read books by you or Professor Goldsmith, by the way, who there's an awesome moment where he's criticizing you and then you'll end up becoming best friends, which is also kind of a lovely theme that we try to hit on this podcast from time to time. Giving the technical legal answer to your client about how they can get away with something is actually not the job of lawyers, and it's especially not the job of government lawyers.

You mentioned a few times where you think you might have given mistakenly the technical answer, the overly legal answer, instead of giving the best advice to your client. As a matter of fact, there's sometimes a little commented on rule in the American Bar Association model rules of professional responsibility rule 2.1 and the accompanying comment that makes it very clear that lawyers serve their clients best when they provide not just the technical legal response, but raise for the clients consideration, political, moral, economic, social considerations that ought to bear on the choices that the clients make. The question isn't going to be resolved.

And in fact, the commentary, the rule makes it very clear. The question is not going to be resolved always by a simple choice between you can do it or you can't do it. Sometimes there are other considerations. Now, a lawyer has to be very careful not to confuse the client about what's legal advice and what is extra legal advice, because at some point the client will lose confidence in the lawyer and imagine that the lawyer is shipping their normative preferences in under the guise of giving legal advice, and that's a problem.

But I think lawyers can make a distinction between the two and say, in effect, here are some paths that I can defend legally that I think are well grounded in the law. But before you make your decision, let me step back and say you might be thinking about X, Y, or Z other factors that go to whether it is the most prudent or the wisest course of action. And that is a test of lawyer's judgment, a test of lawyer's experience, but I think it's critical to the soundness of lawyering in any position of public responsibility. So, I want to change gears from the legal to sort of the theme of the book, the unraveling, because I've got a question that's answered by the title of the book, but also amplified

as well. And that is, often when we're talking about this present moment, you will have people say, there's sort of two competing narratives. One says, things are worse than they have been in the past. People, there's more animosity in Washington, there's more animosity in the political class than there was in the past, it's just getting worse. And then other people will say, no,

it's always been like this. There's always been just intense partisan combat. People have always had, always been subject to personal attacks. Going back to the founding, I mean, my goodness, we had a vice president try to kill the secretary of the treasury and they made a musical out of it.

And like, stop being so dramatic. This is just the way politics is. And like, stop being so dramatic. This is just the way politics is. And because of social media, you're just more exposed to it. The book title, The Unraveling, implies that you have a side in this debate. You've been in politics for decades. Are things getting worse and how have you observed it?

No question that you're right. We've gone through some very, very rough periods of time. And periods of time, frankly, that included a civil war in which hundreds of thousands of Americans lost their lives at the hands of their fellow citizens. We've gone through periods like the Red Scare in the early 20s or the McCarthy period. We can walk through any number of periods where it seemed like anything that we would

think about as responsible democratic politics and the resolution of disagreements through democratic means broke down tragically. So I don't want to make it seem like there was a golden period and we've fallen off from the golden period. But there are certain expectations that we have developed about how our politics ought to operate, certain sort of core expectations we have. And in this flux between when they're most honored and when they're most dishonored, we're moving in this period of polarization to a point where they're being dangerously

dishonored. An example being, of course, election denialism, that one party takes a position that it can't lose an election unless the other side cheats and has no intention, or at least a standard bearer doesn't have any intention of honoring the outcome of an election, accepting defeat. Questions about, for example, whether we treat our, and this is related to that, whether we treat our adversaries in the democratic system as opposition or as enemies, not just to be defeated in a recurring competition, but just destroyed, vanquished, obliterated from the face of the political earth.

And so when you arrive at that point, and I can name a few others, including respect for law, when you arrive at that point and the deterioration is profound, then you do have an unraveling. We try to get back to a point where politics is rough and competition is very aggressive, and that's fine. But there is a moment where it tilts too seriously the other way, and we start to see things unravel under various pressures, polarization,

most recently being the obvious one. And I'll point out, you wrote a column the other day about a point at which lying just becomes disqualifying. My father used to have a saying, there's a certain kind and volume of lying in politics that is acceptable, but there's a certain volume and kind of lying in politics that isn't acceptable. And when it is no longer acceptable, when it reaches a certain kind of crescendo, if

you will, then you have unraveling. So you know, when we think about unraveling, our minds go to the current era. A lot of people place the beginning of the end, so to speak, or the beginning when the fraying fraying really started as that moment when Donald Trump comes down the escalator. I'm teaching a class this fall at Lipscomb University with the college I graduated from called How American Politics Went Insane. It actually has very much less to do with partisan politics than you might think and has a lot more to do with some of their non-political factors. So I'm saying there's a lot more to it

than just when Donald Trump came down the escalator and started to put pressure on the system, that the pressure that the system began to crack. What are some non-political explanations that you have for the unraveling? Are there significant non-political explanations at all? Are you putting the blame for this in the political class itself? That's a very good question. Let me start by saying, and I think this was also true the way

Jack and I approach the question of abuse of power in the presidency and after Trump, it is a mistake to put everything on Donald Trump. When people like Trump show up and behave the way they do successfully, they're tapping into something more profound. They're not dragging the country unwillingly into a rancid politics. The politics is already well on its way to being rancid, and then someone like Trump skillfully exploits it. So I agree with you that there are other, call them factors or forces. When I was a major in history, I never quite understood what a force was,

but other pressures that are bubbling to the surface here that are driving the opportunities for demagogues like Donald Trump. One thing I just thought of, and there are others, and I wish I could be more profound on this topic because I'm continually puzzling over the question you just raised, is what was called several years ago in a famous Law Review article, in Congress, the separation of parties, not powers. That in Congress, there is no longer a strong institutional sense. There is more a partisan sorting, if you will, that determines how people respond institutionally. And a good example of that, in my view, is the complete failure of the Congress

to respond to what Trump did on January 6th. To some degree, I regret using the example because it sounds like I'm circling back to Donald Trump again. But I think there are many other examples you can give where Congress doesn't have a sense of itself as an institution defending institutional prerogatives within a scheme of separation of powers, but rather as an institution, defending institutional prerogatives within the scheme of separation

of powers, but rather as an extension, particularly for the party and power, of the executive and a need to rally around the executive and to support the executive. And then, of course, the executive has its ways of putting pressure on its own party politically to enforce that kind of discipline. That is a contributing factor to what I refer to as unraveling. The approach I take in the book is to say whatever those forces may be, those who are in positions of public and political responsibility have to take those responsibilities seriously and make choices that ultimately help protect democratic norms and institutions because

they will not protect themselves. You know, you're kind of the Forrest Gump of democratic politics for the last 40 or so years. And I'm sad to tell podcast listeners that we're not gonna be able to get to like the full Forrest Gump, you know, three hour version of all the moments that you're there. I mean, the Clinton impeachment is an incredible story that we might get to it, but probably not.

But one of those Forrest Gump moments that I think we might get to it, but probably not. But one of those forced-gut moments that I think it's easy to forget, even though it's incredibly recent, is that you chaired the Biden Supreme Court Commission. And co-chaired. No offense to Professor Rodriguez at all. And as you may or may not know, I was like the ultimate Taylor Swift

fan girl for, you know, all of the public meetings that y'all held, the draft reports, the final report, like it's the eras tour for me. I mean, I'm all over it. In your description of it in the book, though, you start with the garland nomination, the ill-fated garland nomination that was never taken up by the Senate as an extreme breaking of norms. David and I have talked about that. We don't love it. It's one of those things that we think is legal but unwise that Republicans did. But I also did not see you really ever discuss part of the

reasons for democratic partisan attacks on the Supreme Court as an institution. You go through what their arguments are, but never sort of those motivations that they felt like the court had moved away from them in terms of their preferred view of the law. And so they have tried to undermine it as an institution and push that undermining and trust in the institution to its own people, which is why you see a distinct partisan drop in the trust in the institution that starts well before the Dobbs League, for instance, and seems far more tied to campaign rhetoric. And I wonder if you would address,

there's a lot on Trump in your book, and God knows David and I aren't gonna dispute any of that stuff. But Democrats have had their role to play in undermining institutions, and I think an entire branch of government and saying that it can't be trusted, that its opinions, I mean, you have people on the left saying at times, perhaps we should ignore those opinions.

You have President Biden coming dangerously close to saying he will ignore the Supreme Court's opinions on student loan forgiveness, for instance, that he'll just go around it, flirting with the idea that, you know, if the Supreme Court decides something that we don't like, we just, we won't do that anymore. Isn't that rhetoric pretty dangerous too? And on par with some of the things Trump has done? Yeah. Well, let me first say one thing about the book that I, I, I, I hope you wouldn't dispute, but if you do let me know, I'm happy to discuss it. There's an awful lot of self criticism in the book and criticism of my own party in the book, not to put it by the

way on any ground of moral equivalency with Donald Trump, but it's not a book about Trump. It's a book about politics generally, and it tends to look through my experiences at where a win-at-all-cost mentality pushes political actors into making very bad decisions that do support democratic norms and institutions. Let me say about the Supreme Court, as you know also,

there are many in my party who are strongly in favor of what critics call court packing, what supporters call court expansion, the euphemism. And I write in the book that I'm opposed to court expansion. I'm opposed to courts packing. I separate myself from others in the party who think that's the only possible response we can have happen to Garland. In a different chapter that went on a greater length, I would have dug into other circumstances. I'll give you one example where my party was clearly driven by feared outcomes into taking positions, say, on nominations like, this goes back a long way, even before Bork, the attempt to bring down Clement Hainsworth as a nominee to the United States Supreme Court. He was a well-respected Fourth Circuit appellate judge. It seemed like he was on a course to being confirmed, and the Democrats basically turned him back with the argument that he'd engaged in some disqualifying

unethical conduct. Nixon was infuriated, and he thought it was driven, and he was probably not wrong in its entirety, that it was driven by the Democrats' fear that this was part and parcel of Nixon's so-called Southern strategy, that he was picking this conservative, I believe I'm correct, from South Carolina to go on the court. And the Democrats took this otherwise distinguished jurist, I don't remember his record in every respect, and I don't know how I would have voted as a Democratic senator, but it was a pre-Bork. It was a pre-Bork. It was a pre-Bork. And so each side, when the stakes are high enough, will engage in activities.

If they view the outcome to be critical, the stakes to be existential, they will push in ways that do have long-term corrosive effects on public respect for institutions. I don't dispute your point at all. I think that is true. Now, people are going to argue there was something particularly heinous about what happened with Garland and then the decision subsequently to rush the nomination of Amy Coney Barrett before the election. Do you agree that you only get to complain about one of those? Like, because I have people

from the Democratic side tell me that all three seats are stolen because it should have been Garland, Kavanaugh shouldn't have been confirmed. I don't know how they think a Democrat was going to get confirmed to that spot. And then somehow, Amy Coney Barrett, though, even though Garland should have been confirmed, Amy Coney Barrett shouldn't have been because that should have waited till the election because it was so close. I've had smart people make this argument to me. Tell me how you get both Garland and Barrett. There's a lot of inconsistency in this question about, when is it no longer appropriate for a president to move into a Supreme Court nomination?

When is it too late, if you will, because the election is around the corner and it's a 30-40-year appointment, which is why I favor term limits. I'd like to take some of the passion out of these arguments. There's an argument that, you know, given the stakes involved in the Supreme Court nomination, a president on the way out of office ought not to be making a pick like that. We got testimony at the Supreme Court Commission level, very good testimony based on a bipartisan study of the views of Democratic and Republican senior aides with experience in the Senate confirmation process that suggested that August 1st ought to be the cutoff date. That August 1st of the election year ought to be kind of the last date by

which a nomination is put forward and treated in the ordinary course in an election year. Whether that's a good idea or a bad idea, it's a conversation we should have. But you're right, there's an opportunistic quality to these arguments. I won't dispute that either. It seems interesting to me, you know, at one point, Democrats had all nine seats were Democratic appointees in the wake of FDR and Truman. And obviously, the Eisenhower administration and even heading into Nixon didn't like some of those.

And then you had eight Republican nominees at one point on the court. President Clinton got to replace one of those. President Obama got to replace two of those Republican appointees. So when I think of norms, it's normal for the Supreme Court to swing pretty wildly back and forth

because of course it mirrors those times when the presidency is held by one party for long lengths of time. And yet it feels right now that we seem to think and we keep sort of having this assumption that somehow the court should be five, four, or there should be a certain amount of fairness instead of it being this like lagging

reflection of public opinion about who controls the presidency. And you know, the only time the court has been 5-4 since 1972 was 2010 to 2016. That's it. I think what you're discussing here is this extremely important question of democratic accountability on the one hand versus judicial independence on the other. In what way do we want to guarantee independence for the court while at the same time having the court mirror democratic preference in some reasonable way? And that's why I'm opposed to court packing. I think that's a race to the bottom and will ultimately destroy public respect for the court. But I very much favor and have for many years, long before these controversies, I wrote my first piece on term limits in 2005. So I'm innocent of any sort of partisan driven motivation. I think it's a mistake to have judges, justices serving

and pick so they can serve 30, 40 years. I think it creates enormous pressures on the court, pressures on the body politic. It undermines the court's authority in many respects. It seems to distance the court from democratic choice, if you will. And then you have circumstances where Donald Trump has multiple choices, Jimmy Carter has none. The whole thing just doesn't really make a whole lot of sense from a democratic theoretical perspective. We start purting junior high students on the court. That's right. Yeah.

A 70-year career. Yeah. Outside, outside student, you know, outside organizations are going to come in and there'll be this careful vetting of ideological acceptability, but also pick so that the records can't be easily sort of pulled apart and confirmation won't be too much of a complication. That's very bad for the court. I think that just undermines the court standing with the public and it really needs to be fixed.

So, you know, I have written in favor of term limits and we've talked about this on the podcast. And Sarah has raised the best objection that I've heard because, you know, an 18-year term, an 18-year limit where the only removal is, you know, impeachment is you are judicially independent. So you're judicially independent if you have a single 18-year term. So I'm not persuaded by people who think this is a threat to judicial independence, but the point Sarah has made is, okay, if you have a 18-year term limits and you have it where its presidents are picking two Supreme Court justices per four-year term, aren't we going to just see

things like essentially a complete ticket running every four years? Here's the president, here's the vice president, and look, behold, my two nominees to the Supreme Court, these impressive people. And you could almost imagine like four, no, eight, the four, the president, vice president, two Supreme Court justices and the four spouses, at the convention.

Hey guys. As the balloons fall. Yeah. As the balloons fall. So what's your, my response to this has been we're kind of getting to the campaigning for the court stage already because of the end of the filibuster means that if some of these circuit court judges are sort of openly, it appears to be openly pursuing auditioning for the higher court, and that seems to be a problem.

But what's your response to, wait a minute, won't this just pull those two picks every four years right into the political fray? Couple of things. First of all, we're getting close to that as it is because Democratic and Republican candidates are increasingly under pressure to start giving examples of the sort of people they would nominate.

And I think in Trump's case now twice, he's released lists saying, this is a list from which I will pick. Though funny enough, Gorsuch wasn't on that list. Curiously enough. But in a way, you can say, you know, given how long they serve and given the court's tendency to pick up some of the most divisive issues in the society, they're not getting resolved through the political process. Maybe that's exactly right.

People should know who they're gonna put on the court. Why shouldn't they? Why should it be a black box mystery? These justices are so powerful, they serve for so long, that the question of how the president will approach the choices, whether they give examples or whether they actually pick somebody out and say, that's the person I would love to put on the court,

just informs the electorate about one of the most important choices that a president will make. So I'm a lot less worried about that than I am about something else that appalls me, which is the tendency toward highly competitive state judicial campaigns that are heavily financed by outside interests. That's vastly worse. That's a much more politicized form of judicial politics. I'm not really troubled, as little as I like to disagree with Sarah, I'm not terribly troubled by that criticism. I think that just goes with the kind of institution it is and the natural interest in what the president will do

with this powerful court. And continuing on the term limit issue, there are some folks who have a theory that, wait a minute, we can do this without a constitutional amendment. That what we say is you're appointed to the court, you've got your 18-year term, and after that, statutorily we're removing you to senior status. That might mean that when one of the nine is conflicted out,

one of the active nine is conflicted out, you would sit in so that there's always a nine, et cetera. But you don't need a constitutional amendment because we're making them senior status, we're not ejecting them from the court. Others say, that's, I think that, some Law Review articles would say that's bonkers town. That's such a fundamental change.

You've got to go through the amendment process. Where are you standing on that? I know, and the Supreme Court Commission addressed what the arguments are in support of the constitutionality of a statutory change, I favor a constitutional amendment. My own view is that that sort of change requires a public buy-in, acceptance. You do it by statute, it can be undone by statute. And then we're back into the business of Congress whacking away at the court, if you will.

In some cases, it certainly can add justices and take justices away, that's for sure. But I think attempting to affect such a fundamental change by statute is going to be doomed. It just won't last. If one party jams it down the throat of the other, I think the outcome is going to be pretty predictable. And by the way, the other thing is I'm not a big fan of this argument, oh, we can't do it by constitutional amendment. It means you're not serious, constitutional amendments never occur. Let's have that discussion and either there'll be

a constitutional amendment or they won't. But this is the right forum and the right platform for that debate. Okay, I wanna talk about some other norm bending that I think is not mentioned in the book, but you were there at the time and this is like a extreme treat for me. So forgive me for digging into past stuff. But David and I have talked about on

the podcast, sue and settle issues and third party settlements that if they didn't originate in the Obama administration, blossomed in the Obama administration. And sue and settle is when a friendly group sues an administration to basically say they're not enforcing a policy enough or something of that effect. The administration settles with this friendly in order to lock themselves in to their preferred policy. Third party settlements are sort of an interesting other side of this coin. There's a lawsuit that the government wins and some outside group now owes the government $100

million. Part of that is that they say, you know what, give us $50 million and then as part of your restitution, you will also pay these nonprofits money as well. And those nonprofits during the Obama administration often aligned with democratic partisan priorities, though I want to be very clear, obviously they were nonprofits. That on the right felt pretty extreme, very politicizing, breaking a norm of the non-political Department of Justice. When Trump won and I was at the Department of Justice, there was a memo that said, no more third party settlements, for instance.

That memo was then rescinded in the Biden administration so they could start doing them again. How am I supposed to think about that norm breaking? By the way, when you said, I wanna make sure I understand something, you said in the Obama administration, the money was allocated to groups that aligned with the partisan priorities of the administration. Did you mean partisan priorities or policy priorities of the administration? I actually meant partisan. I think of electoral impact. Yeah, I mean, there were several groups that were electoral impact groups, I'm thinking some of the voting groups that are nonpartisan, but obviously align with the Democratic Party in terms of their voter registration targets, for instance.

It's a very interesting question. You're right. I don't address it in the book. So one thing you said, by the way, I want to be clear. That's part of what makes this book so interesting to me because you are very self-critical in this book. I think more as I was turning the pages, I was thinking, would I be able to be this self-critical as I reflect back on many of my roles? And I struggled with that. I wanted to be able to say yes, but I don't know that I could have been,

and not for wanting to be. I just think you have a lot of self-reflection in here and I wanna give you a lot of credit for that. So that's why I feel comfortable raising this stuff with you is because obviously you're very thoughtful on this stuff. Well, I appreciate that. And by the way, it may be my capacity for self-criticism has increased with age. So when you're 72, you might be as self-critical as I am, then you have a long way to go. Okay, so you can enjoy this period of self-confidence before you become self-critical. The issues that you have just raised are ones, and frankly, I was just

reflecting back on my experience as White House counsel that I am not deeply familiar with, so any view I give you here is going to be pretty uninformed. The one thing that comes to mind is the following, and let me use your second hypothetical first. That's the one that I can connect with most immediately, and that is there's a settlement and the government gives the other side a break so long as it allocates money to certain groups that align with their policy or electoral impact priorities. That

strikes me as, other than a very interesting legal question that I would want to delve into, that strikes me as also a question like the ones I address in the book. Once you have the law squared away, once you've decided there's a legal path to doing what you suggest, what then is the right thing to do? How do you think about that from a broader small d democratic perspective? Is it something that is consistent with the use of power legacy that this particular administration wants to establish? And those can be very profound questions.

I can imagine that coming up in just the case that you cite, which is somebody says, my God, they basically turned their enforcement power toward a political purpose. They took a settlement and instead of sharing the money with the taxpayer, they shared it with private groups that align with them politically. If you put the question that way, then I think there are all sorts of pretty profound questions to ask once you get past the legal question about the wisdom of the choice. It seems to me that both sides, it's funny, I feel like, I think I was always bilingual in liberalism because of the institutions, you know, college and law school, etc., that I was brought up in, but I was not native, if that makes sense.

And I feel like in my post-operative career, I now am becoming a little bit more native in both camps. And I'll have these conversations and these worldviews where I will talk to, again, smart, thoughtful Democrats who have no idea that Republicans feel so aggrieved, for instance, about sue and settle policies or third party settlements, and that they think that that norm breaking repeatedly, where like, basically, you know,

a Democrat breaks that norm, the Republican refuses to do it in the next administration, then the Democrats just start doing it again by rescinding the change in policy so they can start up again, is like, well, then we have to fight fire with fire. We have to do it, but worse than they do it, because they're going to do it worse the next time.

It's sort of the filibuster fights and so many other, the confirmation wars, everything else that we've seen. And then on the right, I think that there's this sense that, you know, our team is fractured, but their team is unified. The right seems to have no concept that Democrats have their own internal political battles sense that our team is fractured, but their team is unified. The right seems to have no concept,

the Democrats have their own internal political battles and groups that are ideologically in the front or fighting to get traction and the repudiation of Obama's legacy during Biden and the neoliberalism and all of that that's going on. The water looks very calm if you're sitting on the right and you're looking over at the left. It is a problem because it gives both sides a permission structure because the other side must be defeated at all costs. Then you get back to that legal problem. If it's legally acceptable, don't worry about the ethics. Don't worry about the norms because the other side will do whatever is legally acceptable and then some of what's

not legally acceptable to do what they want. Right, and by the way, I wanna hone in on the phrase legally acceptable, acceptable to whom. One of the things that I, and I don't think I did address this in the book, but it always sort of struck me as something, I mean, frankly, it got under my skin. And that was the different ways that, quote unquote, acceptable legal theories were discussed. frankly, got under my skin. And that was the different ways that quote, unquote, acceptable

legal theories were discussed. And one way of describing a far out legal position, a position that somebody could take, at least in their own case, looking in the mirror with a straight face, was to say that a path, while it was not a slam dunk, while there wasn't a lot of precedent to support it, where it seemed maybe inconsistent with the statute, textual objection, whatever, it was somehow quote unquote legally available. I heard that when I was in the government. I didn't know what legally available meant.

I think the lawyers would do it, right? You'll see that actually in some of the literature. I discussed this, I wrote a lot of your articles years ago about legal decision-making during periods of national security crisis. And I talk about this range of views from the best view of the law, which is a very stringent position on what legal pass are available to the administration, the so-called best view, all the way to legally available.

I think there are some choices to make about lawyering here even before you get to the ethical choices, but once you get past the ethical barrier, then the question is, should we do it? What are the effects of taking this position? And particularly in the book that I've written, it's with respect to the sorts of things that we nowadays talk about in our tales of democratic woe, which is corrosion of democratic norms, corrosion of democratic practices, corrosion of democratic institutional respect. What are we doing here that could have a long-term deleterious effect? You know, I am again, taking the taking the with the understanding that nobody here in this podcast will ever be accused of insufficient opposition to Donald Trump.

What would you in hindsight. So that was that is a background that we're baseline that we all understand some of the consequences of these last nine years. But if you're looking back at your own tribe at your own team, are there any key moments where you would have put, like now 2024, Bob, would go back to 1998 or 2006 or whatever, and put your hand on the shoulder of the Democratic Party and say, don't do this one. It's gonna have bad effects. Surely it's Harry Reid and the filibuster, surely. Yeah, are there any points where you would look back

at your old colleagues and say, this was a bad call, guys? The examples I give in the book, by the way, are less admonitions to my party than to be fair. They are decisions I was involved in where instead of pointing my finger retroactively at others, I could point the finger at myself. And where I can do so without violating

the attorney-client privilege or client confidentiality. I can do that. There are a couple of examples that I give. There are two that come to mind right now. A number of examples that I give. One was in the early 80s, after the Reagan victory shock. 49 out of 50 states losing Minnesota

barely by 100,000 votes. You know, the Democrats began to look back at what happened and they decided it was really an anomaly. That's by the way, that's a lack of self criticism. It's really an anomaly. And there are just structural problems that we have to attack. And one of them was money in politics on the assumption Republicans always had more money than Democrats did. And the advent of independent committees

engaged in negative campaign advertising, which took a real toll on Democrats. And this was a minor episode because it didn't go anywhere. But at some point, and I testified before the Congress, the Democrats in the Congress supported an amendment to the tax code that would have denied the then available tax credit for small contributions to any organization engaged in negative campaign advocacy. The IRS in the middle of arbitering political issues.

I mean, what a dreadful idea, not to mention this was only four years after Richard Nixon resigned. And of course, one of the arguments was, one of the findings was that he was prepared to use the federal government, including the IRS, in ways that were designed simply to advance his political purposes. So what in the world were we thinking? Now, I picked it because it didn't go anywhere.

And as a matter of fact, I remember, I write in the book that the chairman of the subcommittee, that her testimony commended me on showing up to make an argument that everybody else thought was implausible. But I made the argument on behalf of the Democratic Party. Bad mistake. Another example was a racketeering suit that the Democrats filed against then-majority whip Tom DeLay, who was blustering about how he was going to do this and that to maintain Republican control of the Congress.

He had a scheme for raising money outside of federal campaign finance limits. The Federal Election Commission was useless to try to police that. Justice Department was not available to try to police that. And so we filed a racketeering suit against him. At the time, there were some Democrats, and I write about this, they thought, wow,

that's an escalation. It was an escalation, and it was a bad idea. And I look back on it at the time, I thought, how ingenious. And it was in many respects, in a key respect, it was actually a successful action because it sort of froze things in place and the Republicans walked away from that particular proposed scheme, but not a good idea. So whether it's in the courts or in the Congress, whether it's court packing or some innovative legal attack on the way the other party finances its activities, the question always has to be, has the will to win or the perception of the stakes being existential overcome your better judgment about the right thing to do in these circumstances.

Cause there's always more you can do that you shouldn't. So one of the, another one of these questions that I think I don't know that we're gonna have the definitive answer for it, but some of my own thinking has changed on this. And this is how much of our problem is top down. In other words, how is the leader class influencing the people?

And how much of this is bottom up? In other words, what we're seeing is the political class is actually mirroring what the public wants from it. And so therefore, a lot of these arguments about, well, if you just get rid of Donald Trump, or if you just get rid of this or that toxic politician, nature will start to heal. Where are you on this debate?

How much of the unraveling is really due to the American people are ready to be at each other's throats, and how much of it is you have an American people who don't want this, but the leader class is failing? I do think that there are sources in the political culture that sources of stress, if you will, that do drive political officeholder and candidate behavior.

I think we see this particularly, we see this, for example, in primaries where voices of reason are treated as voices of treason and candidates who right? And candidates who take responsible positions are thought to be weak, weak-willed and unable to carry the fight on the matters that the voters care the most about. So I don't take the voters off the hook by any stretch of the imagination. I don't take party leadership off the hook. It is a, and again, this is what makes these kinds of historical and contemporary

historical accounts so complicated. There's an interaction here, if you will, I don't know how else to describe it, some some kind of interaction, mutually reinforcing that ultimately makes it impossible to say it is primarily the one rather than the other, that it is more X factor than y factor. But I will say this, it does have a tendency to select for certain people to go into politics who recognize and are willing to exploit these fissures in the body politic,

these pressures in the political culture, and they make it worse. And a good example, of course, and incidentally, he's not the only demagogue we've known in American politics, but a good example of that is Donald Trump. He's got this canny ability to see that that's something he can utilize to his own benefit. That's the definition of a demagogue.

In one way, the people are following, but in another way, the demagogue is leading. Excuse me, I meant that the other way around. I apologize. I meant in one way, the people are leading, but another way the demagogue is sort of leading us even more into the Briar Patch. It reminds me of the French, a possibly apocryphal French revolutionary quote. There go the people. I must follow them for I am their leader.

Yes, exactly. Exactly. Yep. You were working closely with the Biden campaign through the last several months. It's hilarious to me, like shocking. You published this book June 18th of this year, about a week before the debate. You've been a busy man this year. I want to go back to something you said in February on Face the Nation. You were describing Rob Herz's special counsel report about President Biden's mishandling of classified information and potential charges on the willful retention of classified national security information.

And you said, it's a shabby piece of work. He made misstatements of facts and totally inappropriate and pejorative comments that are unfounded and not supported by the record. Anything you wanna take back there? Not a thing. And I'll tell you why, not because I'm digging my heels in, not at all, but because I think critiques have to be distinguished here. He was a special prosecutor.

He saw and heard from Joe Biden for a total of five hours and we released the transcript. And the transcript didn't support what he said. I was there. I went through numerous preps with the president. The president came, by the way, had the option of canceling the interview because of the Mideast War.

He came off of a series of conference calls about the Mideast crisis on the date of the interview. and then he went in for five hours with, I think, two short breaks and answered their questions. And we put the transcript out there. The transcript is public. And so my view was that Mr. Herr exhibited very poor judgment in a couple of respects. First of all, in the substance of the report, which we don't have to get into, there are huge problems with the report itself. But at the end of the day, I was relieved that

he reached the only conclusion that I thought the law provided for, which was that there was no evidence to support, in my view, the judgment that President Biden had violated any of the statutes that were under scrutiny there that were being applied and examined. But secondly, the commentary in the report was just not consistent with DOJ policy, in my view. He had no basis upon which to say what he said. And I think the transcript underscored it. If there's a separate debate about whether a president should

serve from 81 to 85 or 86, a separate debate about whether President Biden is too old to run for reelection. That's a separate debate, but that debate is not informed in any way by Rob Herr's experience or the special counsel's experience or work product here. It's just not supported by that. There's two separate issues in my judgment. A lot of reporters have, though, said that they feel gaslit by you and others who were increasingly narrowing the circle around President Biden at this time, went out and criticized the special counsel's report.

We had stories that residential staff wasn't even allowed near the president, that people who worked in the West Wing on policy were no longer meeting with the president. And then we have this debate. And for a lot of those reporters, they feel like the debate vindicated Rob Her's assessment that Joe Biden was a well-intentioned elderly man

with a poor memory and that a jury seeing the guy that we saw at that debate stage, trying to defend himself as to why he was telling his ghostwriter that he had classified material in his basement that he was going to allow the ghostwriter to review, that him saying, I don't remember doing that would be really believable to a jury. And that's why he was including that information. And you have a lot of reporters saying that they regret not taking the special counsel report seriously and that if Democrats had taken the special council report more seriously

at the time, they would have been able to have a more fulsome primary as well. But that folks like you out there saying it's just false, Joe Biden's as sharp as he ever was is part of why the Democrats have ended up having to change nominees in July, 100 days before the election. There's a lot there. Let me see if I can take a couple of people. I know. Take as much time as you need. you know, having to change nominees in July, 100 days before the election. There's a lot there. Let me see if I can take a couple of... I know.

Take as much time as you need. No, no. All perfectly fair questions. I just want to make sure I answer them in sort of, you know, the sweet pieces here. First of all, let me start at the top by saying it is not the responsibility of a special prosecutor examining potential or alleged violations of the potential or alleged violations of the espionage statutes to make an assessment of whether a president is too old to hold office. That's just not their responsibility.

He wasn't making an assessment of whether he could be in office. He was making an assessment of what a jury would think about this defendant on the stand. But he does not have a basis. And I think that's why I would refer you to the transcript. He's done the basis on the basis of five hours of exposure to the president in an interview in which the president held up quite well, did quite well in my judgment, to offer up that sort of commentary. Adam Schiff at one point during the House hearing at which Kurt testified said, look, you haven't fallen off, I don't know if you used the phrase turnip truck or back of the

truck or whatever, you knew perfectly well the political significance of making a comment like that. And that was not a comment that was well supported or appropriate for someone in your position. And I agree with the congressman about that. I think that's quite right. I just don't think that exhibited the kind of restraint and frankly, fidelity to DOJ policy that I would have expected from the special counsel team. So that's the first point. Secondly, I have to tell you the idea, I'm a lawyer, I'm in private practice, right?

I'm a law professor, that's my day job. I have a handful of legal responsibilities outside of that. I represent some clients, one of them happens to be the president. And so I can't speak to what happens day in and day out in the West. Flex, flex. But I can, you know what I day in and day out in the West.

I said that's what the kids would call these days a flex. That's like, yeah, I have a few clients, one is the president. I call them legacy clients. When I went full time onto the faculty at NYU, I decided I'm going to stick with the ones I'm really close to. It's just a handful. And he was one of them. I did not know at the time he was going to run for president. I didn't stick with the ones I'm really close to. It's just a handful and he was one of them. I did not know at the time he was gonna run for president. I didn't know at the time that he was gonna win and I've been privileged to represent him. But I will say this, I've been in and out of the West Wing and I know people well in the West Wing. This notion that he didn't interact with policy people

is complete fiction. I took him through multiple in my lawyering capacity preps for the interview and they were very good preps in which we dealt with a significant amount of information. And the president was as good a client in those circumstances absorbing the information as I could have hoped for. And I thought he did very well in the interview. And I think the transcript supports that. So I think a lot of this has gotten very, very hyped up.

I want to separate that out from what people's reasonable beliefs may be. I think they may reasonably conclude that somebody his age shouldn't be president. They may reasonably conclude that, you know, he's too old for, or he'd be president for another four years, that he's too old to run for reelection. Some people held that belief. That's a perfectly reasonable belief that he is in fact the age that he is. But I think this has gotten now dramatized to the point where some things are being stated about how he functions within the presidency that is just simply not true.

I would be remiss because we've been taking a ton of your time, but you've written a book that's reflecting on a few decades in American political life. I wanna ask you to reflect on a few days that are coming forward. In other words, you've reflected on decades in the past. Let's reflect on the next 80 some odd days that are coming up now. Where do you see the state of the race?

What do you see as Harris's strengths right now? And crucially, what do you see as some vulnerabilities? Because she's had a pretty spectacular run of the last three weeks or so of without any significant negative news cycles that can't last. So where are you seeing the next 80 plus days? Well, you're asking me to be a political pundit here,

and I don't claim any, especially- Well, you've been around it an awful lot. Yes, yes, and like other people in Washington, D.C., I have opinions. Doesn't have to say they're really well-founded. I can say only this. You're quite right. This has been an excellent run for Vice President Harris and her running mate. I think there's a lot of energy in

the party. I think there's a recognition in the party that she has the capacity to take the fight very, very effectively to Trump and to Vance. When you look at the polls, you recognize, you know, you still have a structure of the race that is competitive, but there's no question that she's performing very well at the moment. And it's very hard for me in a year. And this is, I want to say is an excuse for my maybe not answering your question as definitively as maybe or provocatively as maybe you'd hoped for. But humility is called for in a year in which an incumbent president who won every primary

and got over 80% of the votes and locked up all the delegates took himself off the ballot when there was an assassination attempt on his opponent. I mean, I think that races are not static. And so it's really hard for me to say to you how this race is going to unfold. But I think what you are seeing on the Democratic side, and that I think one could say without any puffery, is that you have a energized Democratic electorate,

ample resources behind the ticket, a presidential, vice presidential choice that's has gone over very well. And this ticket is going to be extremely competitive against Donald Trump. And you know how I expect it to turn out and hope that it will turn out. I don't need to make an issue out of that. But for me to predict what could happen in early September, middle of September, what we'll be talking about at the first of October, in light of the unpredictability of American politics and everything we've seen up to now, would be foolhardy. Will you reprise your role as Donald Trump and Harris's debate prep? Oh, I can't speak to their debate preparations. I enjoyed, well, did I enjoy doing Donald Trump in the 2019, 2020 and this year?

It's an interesting experience, especially what you consider that in the last election cycle, in the primaries, I was Bernie Sanders and then I became Donald Trump. That is a intellectual, emotional and spiritual odyssey that is hard to describe. Have they asked you to play Donald Trump in debate prep? I can't speak to the campaign. I don't address those sorts of issues for obvious reasons of good discretion. So can you give us a taste of your Donald Trump debate performance? In other words, how does Bob channeling Donald Trump begin an opening statement?

I can describe to you the approach I've taken to all debate preps. My children have asked me to give them a taste of how I do Donald Trump, but I've refused. But I will say this, and I talk a little bit about this in the book because I've done this for other candidates and other adversaries I've performed as in those settings. You do as much of the candidate's mannerisms, style of speaking, points of emphasis as you can without being overly theatrical and becoming distracting. The goal is to help your candidate get used to what it would be like to debate that particular opponent. If you decide, no, no, you think I'm going to be better

than whoever it is, the most recent person to play Donald Trump on Saturday Night Live or Alec Baldwin or whoever it is, you're not doing what you're supposed to do. I'm not a Comedy Central aspirant. I'm just trying to get it right. The arguments he's going to make. And then some of the mannerisms, some of the stylistic quirks to create at least some of the mannerisms, some of the stylistic quirks to create at least some of the atmosphere that my candidate is going to respond to in the room. I don't wear a skinny

red tie, you know, I don't do that sort of thing, but I try to give them some sense of what they're likely to confront. So I want you to assign percentages to these various groups that I'm going to potentially lay out of who is responsible for pushing Joe Biden out of the race. Obviously, there's Joe Biden, there's his debate prep team, there's the American people, there's the American media, and there's Nancy Pelosi. Give us a sense of you as someone who has been in the room where it happens. What's your feeling on it personally? I'm going to leave it at this, because it's

a complicated story. It's a very complicated story. I'm still trying to piece together what in the operation of our political party, the structure of American politics today, the way campaigns are covered, how the various threads came together to produce that particular decision. But here's something I will say that I think people understand and appreciate, but

it's important to stress it. And that is when Joe Biden had to make that decision, he was making it not just as a candidate, he was making it as a president of the United States. I'm not saying that, by the way, because I'm expecting the trumpets to now sound, but that's just the reality of it. He was the president of the United States. So he's making a decision to step out of the race and to put other considerations ahead of a nomination that he could have continued to claim, a campaign he could have continued to run. a campaign he could have continued to run. And I think that it is very, very important to stress for many years, many, many years, Joe Biden has been in public life. He's described himself as an institutionalist.

He certainly has a huge respect for the Senate, having served there for many years for the Congress and an understanding of how it works. And of course, he was vice president of the United States for eight years and dealt with many presidents when he was a senator. And to go back to a theme in the book, I think there's an institutional context in which he made the decision that should not be underrated. Would another candidate, maybe out of the current young crop, aspiring to the White House, have made the same decision? I don't know. But I think that the institutional dimensions of the choice for him as a sitting president were Extremely strong factors in the decision that he finally made because it was ultimately just his decision

So when Nancy Pelosi calls your phone, you haven't changed the ringtone to Darth Vader's, you know music or anything like that Or the theme from Jaws or no no I haven't changed. I haven't changed. I haven't changed my ringtone. I just don't answer my phone as often. All right, last question. And I hope that you, by the way, will consider coming back on the podcast

as we get close to election day so we can talk more about election integrity versus election protection and how actual election law works on the ground. I'd be glad to. Once we see some of those lawsuits and stuff coming forward, because you do talk about those in the book as well, so we can revisit the book and talk about it in more timely fashion as it's going on for this election cycle.

But we try to give career advice to young law students or people thinking about going to law school. And a lot of people will tell me that they want to be lawyers in political world, on campaigns. They're describing the type of career that you've had. What advice do you have to people who want to be Bob Bauer when they grow up? What's the biggest maybe downside thing that people don't realize when they just look at your glistening, glittering

resume that maybe there's a cost to the job or otherwise it's like a bad part that is behind the scenes. I say two things. I mean, first of all, nobody should go to law school unless you're prepared to be a lawyer. In other words, you know. Oh, thank you. Come on. Wherever their career ultimately takes it, it's a significant decision to go to law school with the expectation of being a lawyer.

You ought to know what it means to be a lawyer before you undertake that vocational path. The second thing I would say is I ended up involved in party politics as a lawyer because I began practicing after the Watergate episode and all of the regulatory responses to it. In 1976, I came out of law school in 76, which is the year the Supreme Court upheld the campaign finance regulatory reforms of 74. And there were all sorts of other changes that were made to the ethics code for the government,

personal financial disclosure requirements for candidates, public corruption theories at the criminal enforcement level, and more. And so all of a sudden, politics became regulated in a way that it hadn't been for the better part of American political history and legal history. And so I went into a very niche practice. That's not, and I tell people this, I tell my students this all the time, that is not what it means, except in a frankly narrow sense, to be a political lawyer. You know, we have a tradition in this country of lawyers practicing in a frankly narrow sense, to be a political lawyer. You know, we have a tradition in this country of lawyers practicing in a whole range of fields, but being very active in the politics of their community at the state and local level, not just in

Washington, DC. And so I tend to tell people, yes, I had a career in which I did a lot of work for parties, a lot of work lawyering campaign competition and policy competition, lobbying laws and the like. But that's a kind of very niche analysis. I think a political lawyer could be a lawyer who serves the community politically, practicing law, developing a practice, small firm, big firm, solo, whatever in the government,

but playing the role that lawyers at their very best play in public affairs and civic life. And there is a role for those lawyers and we need them. Bob Bauer, author of The Unraveling Reflections on Politics Without Ethics and Democracy in Crisis. Thank you for joining us again. Thank you so much. Thank you very much. I really enjoyed it. Realizing this is approaching, as you say, David, Joe Rogan length podcast. Nevertheless, that was incredible for him to give us so much time.

Fascinating on some of the book stuff and the historical stuff and his own experiences. Also about his reflections on Rob Herr and Joe Biden's campaign and some of the current events. I was struck by a few things. So I wanna just like word vomit on you. Yeah. One, there's this thing in the book that I just loved

where he talked about the artwork in the Department of Justice, all being about the majesty of the law and these grand quotes on the outside of the building versus the artwork in the White House, the West Wing and the EOB, being pictures of the president and the first lady. And the difficulty perhaps of being a lawyer

in those two different places, of very easily being confused on who your client might be based on that sort of surrounding environment, I think it is such a cool idea. Like I'd love to see a law review article on sort of the environment in which one practices law, because I think he's really onto something there. I absolutely think it infects the culture of DOJ

and that artwork matters. And it is gorgeous, by the way, and I've said this before, but people should take tours of the Department of Justice. It is the best art museum in the city, as far as I'm concerned. Can I pop in real fast on that? It would be interesting to one day talk to somebody who might be, does this even exist?

An expert on how environmental factors in an office influence your outlook. Surely. And I'm not talking about just the things like, there's been a lot of discussion about open offices and things like this. I would be very interested. What are we learning now that more people are remote?

What is this doing to law firm culture, et cetera? I'm very interested in this because one thing I miss working from home is I actually like being in the office. I actually like that give and take of ideas. I'm also extremely extroverted. And so that's part of it. But yeah, anyway, just wanted to interject that would be fascinating to

hear from somebody. How is the office and the transformation of the office environment transforming like the very culture of the workplace? I hate people and getting dressed. So I like working from home. Okay, David, this is an idea for a future column of yours. Okay. Tom DeLay is the Robert Bork of the criminalization of our political process. Interesting, interesting.

Tom DeLay, I think there's a lot to that. I think there's a lot to that. Rick Perry might even be a better example, but I'm more familiar with his case. There were things before, sure, but that's the time where it felt like it was an intentional partisan ratcheting up of the stakes that has then been tit for tat since.

The Travis County DA and the decline of American democracy. By David Trash. Yeah, that's a good title. We didn't get to his chapter on campaign finance reform, but he also is against campaign finance reform and has long been, including his time during the Obama administration, which made him very unpopular on the left at times. And for somewhat similar and also different reasons than I think Jonah and I are opposed, but maybe we're building momentum, We're heading in the right direction.

Bipartisan agreement against campaign financial reform. Though, to be clear, it's not that I think campaign financial reform caused our current problems. I think it's sort of like land management policies where they allowed the environment when lightning did strike, that there was all this fuel for forest fires because they weren't clearing the land. Okay, last thing. When I hear people who say they want to be election

lawyers, I kind of want to like, maybe slap them in the face is the way to describe it. Because there's this, I think sense from movies that election lawyers are the ones, you know, sitting next to the candidate giving them the political advice and yada yada. No, that is not the job of an election lawyer. Bob Bauer is a huge outlier in his career and that he ends up being in both positions, which can be very dangerous for a lawyer, as he mentioned, because your job as a lawyer can sometimes be orthogonal to your job as a political advisor and vice versa. Most election lawyers do only election law. They actually are not in debate prep.

They're not, you know, doing the politics. And so I think people think, aha, I want to make money, but I also want to do campaigns. So I'll do election law. And please go talk to an election lawyer before you do that. One other thing that I'm interested in talking about is, and please go talk to an election lawyer before you do that. One other thing that I'm interested in talking about is some of the answers to your questions about Robert Herr, and it was very clear that he's Joe Biden's personal lawyer,

because those answers were extremely effective at diverting. Wait a minute, hold on, Sarah. We're not actually talking about the actual president's actual cognitive state. What we're talking about is the matching the elements of the crime and the, you know. And so it was absolutely very clear

that what he was doing is redirecting to a much more narrow question, which was, did he believe that her assessment of the interview was that an appropriate evaluation and an appropriate way of characterizing the president, which is a different question from the bigger question. And one thing that I'm going to be very interested in, because we're going to get this answer, Sarah.

And I think that a lot of people in the public think that folks in the mainstream media already know the answer to this and have been sitting on it for a while, but this is not the case. We're going to know the answer to the question of, up close, how often was Joe Biden in the debate mode that he was in on June 27th? How frequent was that? Or was that a bolt out of the blue? Or something that just was relatively infrequent and he had the misfortune that it hit,

that he was having a particularly bad moment at that time? I think that this is an answer that we actually kind of need to know over time. And it would be absolutely 100 million percent urgent to know now if he was continuing to run. But that is the question that I'm most curious about. Because when I was watching this with, when I was watching the debate when I was watching the debate

I was in Chautauqua with a lot of people who are embedded deeply in democratic politics and Their their jaws were on the floor like they were slack jawed this was not something that they were expecting to see and So I'm gonna be very interested in the answer to this question and it will emerge He wasn't guilty of this But obviously a lot of members of Congress were during that hearing, but attacking Rob Her for having partisan motives

in what he wrote for those democratic members of Congress who then later were the ones saying after the debate, ah, Joe Biden shouldn't run because he's a well-intentioned elderly old man with poor memory. Maybe some self-reflection, a little more self-reflection is due on the left when it comes to undermining institutions for the purpose of partisan gain. They were trying to undermine, you know, in this case, an independent investigation.

I would just say Robert Herr is a better man than me, Sarah, because I would just be every day posting a meme. Schadenfreude intensifies, like, but. We'll leave it there. And next time we are interviewing AJ Jacobs about his book, The Year of Living Constitutionally, if you've ever wanted to know what it's like to write all of your thoughts down

with a feather as your pet. Ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh, ooh,