The New Yorker Radio Hour - Jeffrey Toobin on “The Most Important Supreme Court Case in Decades”

Episode Date: November 3, 2017

Jeffrey Toobin tells David Remnick that, despite the mounting indictments against members of Donald Trump’s Presidential campaign, Trump is almost certainly safe from impeachment. Republican House members, Toobin says, have no incentive to moderate their support of the President—despite his low national poll numbers—because the only competition these representatives face is from the right flank of their own party. Gerrymandering, assisted by the latest computer modelling, has allowed the party in power in each state to lock itself into a nearly unassailable majority of votes. The Supreme Court could conceivably change that in a redistricting case called Gill v. Whitford, which Toobin has written about; he tells David Remnick that it is “the most important Supreme Court case in decades.” Hinging on the swing vote of Justice Anthony Kennedy, the Court will decide whether it can act as a check on gerrymandering, or whether a functioning two-party system can fade into history.  Plus, the fiction writer George Saunders talks about the inspiration for his recent novel, which is set on one very dark night in the soul of Abraham Lincoln. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

These are just anecdotes, but it's building up into something more coherent. I think it would be interesting to really try to unravel what his ties. There's a sort of country-city divide for their own convenient, and it's not clear where it goes next. From one world trade center in Manhattan, this is the New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to The New Yorker Radio Hour. I'm David Remnick. We're more or less one year out from the election of Donald Trump. and that election continues to raise a lot more questions than answers. Let's put it that way, at least for now.

Last week, we saw the first charges come down from the Robert Mueller probe, and from what we gather, we've only seen the start. So I wanted to start with Jeffrey Tubin, who's been watching the investigation very, very closely for us. Jeff is a staff writer at the New Yorker and a legal analyst for CNN. Jeff, I'd like to begin by talking about the election last year, very much in the news by way of indictments. I want to get a sense from you what you think that Robert Mueller has.

I know some of it is conjecture, but where you think his strategy is going when you look at what happened early this week. David, I also work in cable news, so conjecture is my business. I think in many respects, the most interesting thing that was said all week was something that came out in one of the papers, court papers that was unsealed in the Papadopoulos case. where the prosecutor said in describing the case to the judge, this is a small part of a much larger investigation, which certainly suggests unless the prosecutor is completely blowing smoke, which I doubt, that we're going to see a lot more cases. We're going to see more indictments.

We're going to see more guilty pleas. And as for where that's going and how, I don't know. But I think, you know, Mueller certainly served notice this week that this is a major investigation that is far from over and may just be beginning. When you look down the line at this, how vulnerable is the presidency of Donald Trump at this point? I'm not talking about the fates of Michael Flynn or Manafort or some of the others, Carter Page. Donald Trump, how vulnerable is he? What did this week's events indicate to you? You know, for obvious reasons, I've been doing a lot of reading about Watergate. And one of the

things that I think in the historical memory of Watergate doesn't get enough attention is that Richard Nixon, this Republican president, got into trouble when both houses of Congress were in the hands of the Democrats. And, you know, while it wasn't as polarized a partisan environment as it is now, Democrats had no brief for Richard Nixon. So you had Sam Irvin chairing the Watergate Senate committee. You had Peter Redino chairing the House Judiciary Committee. What's so different now. Democrats all. You're right. Is that Trump's own party controls Congress. And I don't see any scenario with perhaps one exception where this House of Representatives will impeach Trump for anything. The only conceivable act that might trigger that would be if he fired Mueller. If he had to not only

fire Mueller, but fire Justice Department officials down the line, who refused to fire Mueller, and then he fired Mueller. Other than that, anything related to the Russia investigation, anything related to obstruction of justice in connection with the firing of James Comey, I don't see any way this House of Representatives votes to impeach him. The analogy here seems to be not so much Watergate as something you know even more about, but rather Iran-Contra, which had all kinds of secret machinations. It had hearings and let's say less than forthcoming generals and diplomatic back channels, the Reagan administration committed serious crimes but was not impeached, not put in so serious jeopardy of its

existence. It seems a little bit more. I think that's a closer analogy. I think maybe this is because I was one of the prosecutors in the Oliver North case. I like to remember that as a bigger victory than perhaps it was. And Reagan was damaged politically. I mean, he did not, the, the, the, the, the, the country case basically went from late 86 to, uh, through 88, the end of Reagan's second term. And he didn't get much done in those two years. So, Jeff, if your best guess is that so long as the House of Representatives is safely Republican, Trump is pretty safe from impeachment, what are the odds and what has to happen in order for the House to turn? Democratic. Well, you have to have close to a political earthquake for the Democrats to pick up the number of seats that they need. Like actual competitive elections. Right. And the reason why that is so unlikely is because the congressional district are gerrymandered to such a degree that the out party has very little chance of winning seats that the majority party holds. Right. And the issue, The issue of gerrymandering is before the Supreme Court in a case called Gil versus Whitford, the big Wisconsin redistricting case. So what's at the core of this case and what's it all about? How does that affect things?

Well, you know, this is, I think, the most important Supreme Court case in really in decades. And what it comes down to is this. Every 10 years following the census, state legislatures draw the lines for the House of Representatives. federally and the state legislative bodies. Technology now exists so that the party in charge can draw lines with such precision that they can basically guarantee that certain seats will go to certain parties, that they can eliminate the possibility of competitive elections, and the party in power can protect their majority with exquisite precision. But gerrymandering itself has been brought to the Supreme Court before, and how has the court historically dealt with the issue and what do you expect to be the outcome here?

Is Justice Kennedy yet again on the brink? Even more than most cases, Kennedy is really the holds the outcome because there is very little doubt, and I was at the oral argument of it. Four justices basically said, this is politics as usual. We should not get involved. four justices said we think this is just an outrageous undemocratic process. That's the liberal wing. That's the liberal wing.

And Kennedy, in the earlier gerrymandering cases, has said in effect, look, I don't think the case before us is one that requires, you know, the Supreme Court to get involved. But if it gets bad enough, I think we could, the Supreme Court should get involved. So basically the- It's a matter of degree, then. It's a matter of degree. So when Justice Roberts, Chief Justice Roberts, refers to sociological gobbledygook, what's he talking about? Well, he's raising the hardest question for the plaintiffs in that case, which is, okay, you say this partisan gerrymandering is unacceptable. What's acceptable?

We have to have the legislatures draw the lines. That's their job. What's the standard? What are they supposed to use? and this is a big problem for the plaintiffs. The plaintiffs have proposed some mathematical formulas, which are not exceptionally complicated, but the Supreme Court is made up of mostly liberal arts majors,

as far as I can tell. And they don't know, they look at it, oh, it's a Greek letter. I don't know what that means. And so this is a big problem for the plaintiffs in that case. How are things, why is it more of a mess now than it was then? Because of technology. It's just the power of computers. Yes, but that's a bit of,

more precise carving up of the turkey. Right. And as Paul Smith, the lawyers for the plaintiffs pointed out, it's gotten considerably more sophisticated since 2010 the last time there was a census. So if the Supreme Court doesn't intervene in this case, after 2020, the gerrymandering problem is going to be worse than that. So I understand why gerrymandering keeps people in power and works to the benefit of the majority party. Correct. How is it responsible also to any degree to the horror? state of politics that we have. Because when there are no competitive elections between the parties in most districts, congressional districts, state legislative districts, the only thing

that incumbents have to fear is primaries from more extreme versions of their own parties. There is no incentive to compromise with the opposition party because you're not worried about losing the election to the opposition party. You're only worried about protecting your flank in your own party. And there is no doubt that all of this gerrymandering is responsible, at least in significant part, for the extreme polarization of legislative bodies. And that flies in the face of what the framers intended, which was to reflect the changing moods of the country. In the not so distant past, how many seats would be competitive or change hands in a

an average election year as opposed to now. Well, I mean, you know, in the past, you could have 60 or 70 seats up for grabs out of the 435 in the House of Representatives. And now how many might we see? 20 would be a lot. The Demer is 20 out of the whole house being competitive. Well, I mean, yeah, I mean, there, it's 20 switching hands would be a lot. It's virtually inconceivable that this, that even in a landslide, midterm election, that many seats will switch, particularly because, you know, the 2010 election, which was such a disaster for the Democrats, and many important states, Florida, Pennsylvania, Wisconsin, Michigan, Ohio, became entirely controlled by Republicans. So they have drawn the lines for the last 10 years in those at least

theoretically competitive states, that has locked in the Republican advantages in those seats. So are Republicans better at this than Democrats, or it's just that they've been winning lately and therefore been able to take care of what you're describing as the technological revolution? I think it's a combination of things. They are, they are. And money's involved. They're better at it.

They have more money. They're also, as you go back, particularly in the 1990 and 1980 census, Republicans made alliances with African-American politicians who wanted extreme incumbent protection. So what happened was in many states, especially in the South, Georgia, for example, the Republicans who were in control of the process said to the African-American politicians, we're going to give you super, super safe seats. So all the black voters, thus all the Democratic voters, were in a handful of seats where the incumbent's one with 90% of the vote. But that meant that all the rest of the seats were drained of Democratic votes. So what you see throughout the South now is you have a handful of African American Democrats and almost everyone else in the legislature is a white Republican. So that figures into this as well.

So over and over again during the campaign in 2016, Donald Trump would talk about how the whole thing is rigged. After the election, and I think with greater reason, the defeated Democratic candidate would talk about cheating vis-a-vis Russia or fake news or all the other mechanisms. And yet nobody before or after the election on any great national level, on the expert level, yes, but on any great public outcry, talking about gerrymandering. Why hasn't this gotten more attention? Is it too technical? It's complicated. And it's just, it's, it's difficult to explain in a way that will motivate voters. It's also not, it doesn't have a simple solution. I mean, you know, the biggest way to address it is through the courts. And, you know, you don't mobilize voters by saying, you know, we're going to file a lawsuit under the Equal Protection Clause of the 14th Amendment. I mean, it's just not something. that motivates people. So let's say Anthony Kennedy goes the way of the liberal wing of the court. What's going to change? It's actually quite simple.

What would happen is what currently happens in two states, Iowa and California, where the parties name independent commissions that are relatively neutral experts, and they draw the lines. and Iowa in particular, as a result of this, has very competitive congressional elections. California at the moment doesn't particularly because there's just no Republicans left in the state. You can't, you know, gerrymander people who don't live in the state into the state. Right. But Iowa, you know, has a really good system. And I think more states will be more or less compelled to use these commissions. But Kennedy has to vote that way.

Kennedy has to vote that way. And if he doesn't? If he doesn't, it's the outcome of the 2020 elections will be even more enormously important because the opposition parties will jam the losing party even more than the Republicans did in 2011. I have to ask you. Well, the Democrats also have a somewhat better chance than they did because they are looking better in the midterm elections of 2018. so they could elect governors of Michigan, Ohio, Florida that will give them a seat at the table in 2021, which they didn't have in 2011. I have to close with a kind of general question.

We're living at a moment when we're recognizing foreign interference in our democratic processes. We've just discussed gerrymandering and how that's distorted democracy. we're about to have a conversation about voter suppression, which a lot of people are very concerned about it, and you've written about so well for the New Yorker. One could be really pessimistic about the state of democracy and democratic processes with real reason in 2017, don't you think? Oh, absolutely.

I mean, you know, it's one thing to have, you know, changes in policy when, you know, one party comes in, the other party comes out. I don't think anyone feels there is anything undemocratic about that. But when you start to have the rules of the game change, the rudiments of democracy, you know, who gets to vote, whether their vote counts, how difficult it is to register, whether your vote counts in a district or you're districted in so that your vote essentially doesn't count, those sorts of changes really do go to the legitimacy of the whole system. And yet we have people, including the President of the United States, who think the biggest problem we have is voter fraud. And in just a minute, we're going to be looking very hard at that issue, too. Jeff, it's very good to talk to you, as always. Thanks so much. Thanks, David.

Jeffrey Tubin is a staff writer for the New Yorker and a legal analyst for CNN. You can read him on the Supreme Court's redistricting case, Gil versus Whitford at New Yorker Radio.org. And that decision will be announced probably next summer at the end of the court's term. This is the New Yorker Radio Hour. More to come. George Saunders is the author of countless short stories, really one of the great writers of our time, and a huge influence on other writers, on younger writers especially. His work is very funny and also very sad, and at the center of it is a deep concern with morality, how the world constantly gets in the way of our desire to be good spouses, good friends, good neighbors, good colleagues.

George Saunders' first novel just won the prestigious man, Booker Prize. And earlier this year, right around the time the novel was published, Saunders talked to us about the inspiration for the novel, how it came to be. The book is called Lincoln and the Bardo. So for the past five years, I've been working on this novel called Lincoln and the Bardo. And this statue has just been kind of a constant reminder that I have that at home to work on. And kind of also a bit of a physical embodiment of the kind of ethos of the book, which is Lincoln kind of at his lowest, you know, the most sad, the most defeated. It's 1862, the war is going terribly.

They're just realizing it's not going to be a short thing. And, you know, his reports are coming back. Oh, thousands of people dead in a single day. And at this moment, his favorite child dies at 11, kind of unexpectedly of typhus. And he was so heart sick, according to the newspapers at the time, that he actually went back to the graveyard. one night alone and held a body. So the book has kind of set on that night.

Yeah, so yeah, so his hands are crossed, kind of in his lap, and he looks like he just came from court maybe. He's kind of dressed up, he's got his bow tie on, no beard, and he's sitting with his knees slightly apart, his hands between his knees, and his eyes are cast down at about, you know, a spot a few feet in front of himself, in what looks to me kind of almost like a meditative posture,

I've heard that it's the only sad sculpture of Lincoln that exists. And he looks kind of contemplative and a little sad, but bummed out. Yeah, and he just looks kind of like he's working through something. But maybe, you know, it's funny, there was, you think of the Rodan, the thinker, and that guy is working it. You know, he's kind of hunched over and he looks a little constipated. And this is a different kind of a thinking. He seems to be kind of there, you know, to receive thought, but not pushing it too hard.

You know, he's letting a solution kind of work its way up through himself a little bit. At least that's how I see it. I know. He might be asleep, probably, I know. In truth, the meaningful thing about this was that it was like a physical embodiment of this secret project that for about half the time I wasn't sure would work. So I can remember kind of walking by and going, I'm trying, I'm trying, you know, I'm doing my best. You know, the book is about the night that Lincoln, supposedly Lincoln went to the crypt and held his son's body a couple nights after he was buried. So the book sort of became, I guess, an exploration of how do we function when everything's really broken. The country's turned against him.

He really is losing the war. So his son died, and it was kind of connected with the party that they had thrown. The kids were sick, and they went ahead with the party anyway. So when the kid finally did pass away, there was a lot of chatter about the bad parenting of the Lincoln's and the ambition and so on. So your son dies, you have a feeling that you maybe helped it along maybe. Then you're so grease-tricken you hold the body. Well, the next day he went into the office and he signed some big bill changing the currency or something like that. So he had some way of enduring hardship. And it was really interesting to think about what do we,

would one do in that situation where every vestige of defense that you would build up would crumble under your feet. There's nothing he could claim for himself, really. And yet, as we know, he went on. So it was funny how, as the book started to become that story, I would look out, and he would be in exactly the posture that I would imagine him being at the graveyard, and exactly in the kind of frame of mind. He looks a little bit like somebody who's just been beaten at something, you know, just lost something.

thing. You know, I never really wanted to write about Lincoln. He's like, who wants to write about Lincoln? It's like writing about Jesus. You know, it's too hard. You know, you're trying to avoid four score and seven minutes ago I came into this graveyard, you know. But it's funny how there is, you know, I think one of the reasons people love him, I think it has to do with, he just was, you get the sense anyway. He's just working through these things on a really high moral ethical level by his own lights, you know, which is really something moving about that, that he could change the world just by reasoning his way through it. The thing, okay, so the thing about Lincoln that's remarkable,

when you read through that period, he always seemed to have, in a moment of crisis, to keep his eyes up on the higher things. So, you know, there was a point where things were getting really ugly, a lot of casualties and no progress either way. So it looked like it'd be a 20-year war of attrition. And there was some talk about a peace deal. and one of the conditions was the emancipation proclamation would be struck down,

the slaves would be returned, and he wouldn't do it. It wasn't political, it wasn't expedient, but he had spoken to some of the black veterans who had fought, and he's just like, we can't do it. It's not possible. You know, at a moment when sometimes the eternal verities seem trivial or they seem impossible, that's the time to double down on them.

So if we believe that love is the answer, it is. And if we believe that vigilance is necessary, then it is. I think Twain said, you know, an untested virtue is not a virtue. You know, we like it to be tested in miniature, so we can always win. You know, we can always be confident of who we are. I mean, we don't like ambiguity. We don't like this feeling right now because it's so uncertain. Not only is an uncertain what's going to happen,

but our place in it is uncertain. And I guess what I see in his posture is somebody who knows that there's no autopilot. There's also something about him being all right with how things are at the moment. We're inclined to think that if we're sad, we've messed up or we've lost or we've been shown to be incorrect. But in a lot of Eastern teachings, you know, sadness is, that's right. Yeah, you know, you're. you're dying and you're inept while you're here and you're failing at love and why wouldn't you be sad?

George Saunders is the author of several books of short stories and one novel, Lincoln and the Bardot, which just won the man Booker Prize. He spoke with us from the statue of Lincoln outside his office in Syracuse, New York. If you want to hear more from George Saunders, you might want to listen to the New Yorker's fiction podcast. It's a who's who of the writers of our time, reading and discuss. some of their favorite stories from the New Yorkers archive. If you haven't heard it, this is a great time to dive in because we're celebrating the 10th anniversary of the fiction podcast

hosted by Deborah Treasman, who's our fiction editor. You can hear Richard Ford, Anne Enright, Nathan Englander, and Mary Gateskill, each reading a different story by John Cheever, or Antonia Nelson, Margaret Atwood, and Karen Russell explaining what they learned from Mavis Galant. We're taking a poll of your favorite, so listen and vote. It's all at New Yorker.com slash podcast. And I'm David Remnick.

We're done for today. That's it. Thank you so much for being here. And come back next week when Adam Davidson will talk about love, war, and sandwiches. That's next time on the New Yorker Radio Hour. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Yards

with additional music by Alexis Quadrado. This episode was produced by Alex Barron, Emily Boutin, Ave Cario, Rianne and Corby, Jill Duboff, Karen Frillman, David Krasnow, Sarah Nix, Michael Rayfeel, Meithelie Rao, and Stephen Valentino, with help from Emily Mann and Jessica Henderson. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.