A Constitutional Crisis, Due Process, & the Rule of Law

Episode Notes

Transcript

Kent Greenfield:

Because this is a turning point, and because the legal profession is the profession that’s most capable, most able to identify this moment as treacherous, as dangerous, as not normal, then we have an obligation not just to our profession, but to the entire democracy, to our entire country to speak up. So that’s what I’m trying to do and that’s what I hope my students do too.

Announcer:

Welcome to the award-winning podcast, Lawyer 2 Lawyer with J. Craig Williams, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

J. Craig Williams:

Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams, coming to you from Southern California. I occasionally write a blog named May I Please the court and have three books out titled How To Get Sued the Sled and my newest book. How would You Decide 10 famous Trials That Changed History? You can find all three on Amazon. In addition, our new podcast miniseries in Dispute, 10 famous trials that changed history is currently featured here on the Legal Talk Network and on your favorite podcasting app. Please listen and subscribe. What is a constitutional crisis? For some? A constitutional crisis is when the president defies the Supreme Court for others. It’s when the president simply defies a federal judge’s order. Under the reign of President Trump and his administration, the country has dealt with a number of incidents where judicial orders have been disregarded.

Rego Garcia, Rua, tu Mahmud, Khalil are three individuals who have taken center stage in the battle between the courts and the Trump administration and the quest for due process. So what constitutes a constitutional crisis? And are we currently in one? Today on Lawyer 2 Lawyer, we will discuss whether the country is currently in a constitutional crisis. We will talk about the Trump administration’s defiance of a Supreme Court order involving the return of Kilmar Abrego Garcia to the United States, the power of judicial versus executive branches, and the consequences of defying the rule of law. Well, to help us better understand today’s topic, we’re joined by guest Kent Greenfield, an internationally recognized scholar of constitutional law and corporate governance. Kent is a professor and the dean’s distinguished scholar at Boston College Law School. He’s an active participant in litigation matters pertaining to civil rights and corporate accountability, and was the founder and president of the Forum for Academic and Institutional Rights, the named plaintiff. In a 2006 Supreme Court case that challenged the Pentagon’s anti-gay policies, he recently coordinated a bipartisan letter signed by more than a thousand law scholars from around the country, decrying President Trump’s slew of illegal executive orders and actions. Welcome to the show, Kent. Good to be here. Well, Kent, give us a little bit of background about yourself. How did you become interested in constitutional law?

Kent Greenfield:

Yeah, it’s a great question. In fact, I was just trying to figure out how this happened, how I find myself, and I grew up in a small town in Kentucky. My dad was a Southern Baptist preacher and my mom was a school teacher. So we talked about everything around the kitchen table. And my dad was an amateur historian, so we were always in talking about politics, we’re always talking about government and public affairs and the like. And as years went by, I became less and less religious, but didn’t lose my desire to learn and know about public affairs and current events and history. And how I operationalized all of that was by going to law school. And so at the end of that process, I had this really, really amazing opportunity to become a law professor. And in some ways it’s the best job possible. I am protected by tenure, so I can read and write and think what I want. I get to teach extraordinary students here at Boston College and learn from them as much as they learn from me, I’m sure. And then I get to talk and think about the most pressing issues of the day with smart people like you.

J. Craig Williams:

Well, I’m glad to hear that and I’ll disclose it. I am also a minister’s son, congregational minister. My mom was a Southern Baptist. And so we have a little bit of familiarity in that. I read the letter, the bipartisan letter that you coordinated with legal scholars across the country. You got a thousand professors to sign on to your letter, which decries the executive actions that President Trump has been taking. And in the beginning I said they were illegal and I believe they’re illegal as does your letter. But how did your letter come about?

Kent Greenfield:

Well, in hindsight, it was pretty early in the process. I feel like we’ve gone down the road of constitutional crisis pretty far. And in some ways we anticipated how bad we thought it was going to get worse. And in fact, it’s gotten even worse than we thought two months ago. But how this really started is very early on in the Trump administration, beginning from the very first days, he started issuing executive orders that were clearly unconstitutional, clearly unlawful from his attempts to disband departments and fire people, but more importantly, to end birthright citizenship, which is protected by the 14th Amendment of the United States Constitution, giving power to people like Elon Musk to make decisions about funding and employment, which is you can’t do. And then it was pretty clear that very early on he was going to start attacking major institutions in civil society such as universities, such as law firms, and try to assert presidential power that’s clearly beyond the constitutional limits that the president has.

And I was concerned that we as law professors had to speak up. One of the things that I’ve been thinking about a lot lately, by way of an analogy that it sort of felt like the early stages of the pandemic five years ago, we all have horror stories of our own experiences, but the profession that was giving us warning then was the medical profession, infectious disease experts in January, 2020, they were saying, look, something really horrible is coming, and I think now it’s our turn. It’s our profession who needs to be astounding, these warnings that we are in a really dangerous time. And it’s because our expertise is what’s being required now because as law professors, we are able to see this in a larger context of not only the constitution but also of history. And so I thought I’ll write this statement and see if I can get a few people to sign on.

And it’s one of these things that got released and within a couple of weeks we had a thousand over a thousand law professors signing on. And for those of you who know law professors, it’s hard for us to agree on anything like, oh, you can’t get a thousand law professors to agree that the sky is blue. But I think we’re living in a moment where I think there’s an extraordinary amount of unanimity among law students, law scholars, I should say, that this is different, that this is not just regular politics, this is not normal. And one of the things that we wanted to do is to issue that statement in order to flag that we are in a moment where we, it’s particularly dangerous.

J. Craig Williams:

It is a clarion call, but first, and this is what lawyers do, is definitions. So let’s talk about what constitutes a constitutional crisis.

Kent Greenfield:

Yeah, there’s no set definition and some people did not sign our letters. Some of my colleagues did not sign our statement because they did not think that we were at that point in a situation that could be called a constitutional crisis. But I thought it was, and I continue to think it was even then, and even more so now because the breadth and brazenness of the president’s illegality was unprecedented. He was issuing executive orders that were clearly unconstitutional, the citizenship being one, the attacks on universities being others, the attacks on law firms being others. And then around the time we were writing this letter, he put up a post on truth social that said he who saves the country cannot break the law. And the White House official account sent out a picture of Donald Trump in a crown. And that was a trip wire for me.

For us, this is not a normal administration, this is not a normal time, but I think what really constitutes a crisis in my view is anytime one of the branches is acting in a way that’s unchecked by the others, and I think we certainly are seeing that now, how far that will go, I think we’re still still up in the air, but we’ve gone pretty far already. It’s pretty clear that the administration is not acting in good faith and putting into place the Supreme Court’s order from last week about Gel Garcia, and it’s pretty clear that the administration’s lawyers are lying in district courts. It’s pretty clear that administration officials are disregarding district court orders, and it’s pretty clear that the Congress does not have any interest in checking the president for their part. So we’re in a position where courts are really the only check, and it looks increasingly like the judicial checks are less sure than ever.

J. Craig Williams:

It appears that the judicial checks are failing when we have an administration moving immigrants from one district in Texas to another district in Texas where orders have not yet been issued.

Kent Greenfield:

Yeah, it’s pretty bad. And when I say it’s pretty bad that clearly understates, it’s horrible, right? It is clear that this administration is trying to manipulate the process in order to evade court orders, to not act in good faith. I think the fact that the Supreme Court acted over the weekend issuing a midnight order essentially to stop the busing of immigrants exactly in the situation that you mentioned in order to put them on a plane to take them to this torture prison in El Salvador. The fact that the Supreme Court entered that order at midnight, little after midnight was extraordinary. It’s highly unusual. It does give me a little bit of hope that the Supreme Court does seem to be stepping up if you sort of trace, they’ve issued a few orders over the last couple of weeks and they’re getting increasingly stern. You’ve got the fourth Circuit writing an opinion over the weekends authored by a famous conservative jurist is very well respected, Harvey Wilkinson, and the fact that you have to have the Supreme Court moving in the middle of the night, you have conservative juries saying you can’t do this. The courts seem to be doing their job. But the question is, how far will the administration go in skirting the edges of that or openly disregarding those orders

J. Craig Williams:

At this time, we’re going to take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m joined by Kent Greenfield who’s a professor and the Dean’s Distinguished Scholar at Boston College Law School. Is there a plan or does there appear to be a plan by the Trump administration to overwhelm the courts with the emergency appeals?

Kent Greenfield:

It certainly looks that way, right. It certainly looks like that they’re flooding the zone with all kinds of executive orders, other actions that put them in the cross airs of theBar because these executive orders aimed at law firms and universities, the executive order asserting the right to use the Alien Enemies Act. All these things are pretty clearly unlawful or absolutely unlawful. And if they’re not bound by norms, if they’re not bound by good faith, the only way to stop them is to file suit. So that’s one of the reasons why I’m particularly worried about the attack on law firms, because democracy only works if, and the judicial system only works if there are lawyers on both sides. And when you attack law firms and make it increasingly impossible for them to step up in this moment, if they’re intimidated, if they’re being bullied, if they’re capitulating without those law firms, the power of a increasingly authoritarian president just grows and grows.

J. Craig Williams:

Well, let’s talk about some of those law firms. Some of them have caved to his requests and then found themselves in further cross hairs. How can these law firms capitulate? I mean, we have law firms that are standing up and saying, no, they’re going to sue, but what about the ones that have just decided to back down? And you may have some personal experience with one of them.

Kent Greenfield:

Well, it is a really dangerous time for lawyers for our legal profession. I’m teaching first year law students these days, and I told them this morning that I think the attacks on law firms are the second most dangerous thing happening. And the first most dangerous thing happening is the capitulation of those law firms. Not all law firms are capitulating. A number of them are fighting Wilmer Hale and Covington and Burling and Susman Godfrey and Perkins Coy general Block. So there are some really brave courageous firms out there. And then there’s a few, Skadden, Latham, Paul Weiss, a few others, Kirkland that are capitulating even before they’re being targeted, talk about anticipatory obedience. And then most law firms are remaining silent right now trying to keep their head down. And I think this is a calculation that law firms are making. How much do they want to raise their head above the parapet? Of course, that calculation is the same with universities, it’s the same with individuals, it’s the same with Republican members of Congress. It’s the same with Republican state officials. How much do you want to take personal or institutional risk in this really dangerous moment?

J. Craig Williams:

Well, you’ve stepped out there. I mean, are you afraid?

Kent Greenfield:

I’m afraid for our country, I’m afraid for our democracy. And I do think that these are the moments where individual individuals can make a difference. Individuals with knowledge, with a good heart, with courage, they can do a lot of good things right now. But of course in any of these situations, the more people who are acting out and the more acting up, speaking out, the easier it is. I think courage breeds courage. And one of the things I was telling my students this morning is I think because this is a turning point, and because the legal profession is the profession that’s most capable, most able to identify this moment as treacherous, as dangerous, as not normal, then we have an obligation not just to our profession, but to the entire democracy, to our entire country to speak up. And so that’s what I’m trying to do and that’s what I hope my students do too.

J. Craig Williams:

Let’s talk about what’s actually happening with respect to the administration’s defiance of district court orders. What’s going to happen when it defies scotus?

Kent Greenfield:

Yeah, that’s a great question and I’ve been thinking about this a lot. And I think the thing to remember, and I teach when I teach my one Ls, my first year of law students, one of the things that we realized from the very first few classes when we started talking about Marbury v Madison, the Supreme Court does not have an army. They only can enforce their acts if the other branches and other institutions and other people respect what they have to say. So I think the Supreme Court has eroded its own legitimacy and its own power over the last few years in various ways, ethical problems, disregarded precedent, not taking seriously the claims of people who petition it for aid. But I do think that if the Supreme Court issues an order and the Trump administration decides to disobey it, honestly, there are not many options.

There are political pushbacks, but those, I’m not sure how powerful those would be in the short term. I think in the end, we have to be willing to rise up as a people and take and protest and take to the streets in a sense, to protest this kind of lawless action. I think often in America, we are so optimistic about our country and our institutions that we don’t realize what we are seeing sometimes or we engage in magical thinking about what’s really going on. And so we don’t recognize the seriousness of the moment, but there are really important moments in our history where things went really wrong for a long period of time. This

J. Craig Williams:

Is not the first,

Kent Greenfield:

No, this is not the first. And we should not be so confident in our own institutions that nothing can ever really go wrong or that the politics will protect us when the political feedback loop is being undermined, when in the end, so much depends on the good faith and courage of individual. The Secretary of State of Georgia had been a different person. Georgia might have flipped in 2020, I can’t remember the gentleman’s name, but there was a Republican head of some voting board in Michigan that certified the results from Detroit, even though he was being pressured not to. These are the kinds of personal courage that is required in moments like this. So I do think that as I talk to my students about the history of the Supreme Court, let’s say when they required the segregation in the South, in the end, the Little Rock nine only got into the high school in Little Rock when President Eisenhower sent the hundred first Airborne to enforce the Supreme Court’s order. You must obey. And in the end, the Supreme Court doesn’t have an army. It has to borrow the Army, the President. And so

J. Craig Williams:

Let me interrupt here for a second of course, because what is the constitutional mechanism for the Supreme Court to enforce its orders against the executive branch? Because if the executive branch, as you said, if Eisenhower didn’t send the soldiers that order would not have been enforced. How can the Supreme Court enforce its orders?

Kent Greenfield:

It can’t. It can’t. In some ways it’s so awkward to admit, but the whole system depends on these three branches sort of legitimizing and recognizing the legitimacy of each other and obeying the law and obeying norms. So much of this of constitutional law that I teach is sort of vague, abstract principles that are enforced by way of norms. And if you have a norm breaking norm, ignoring president, the Supreme Court is out of luck. And I think one of the reasons why you see the Supreme Court hesitant to step in right now is that they don’t want to be in that position. Marbury v Madison, the first case or foundational case that articulates the power of the courts to strike down laws, the details of that case are so, because the way that it turned out, they asserted the right to strike down laws about a law that was about the court’s own jurisdiction.

So the President at that time was Thomas Jefferson, who hated John Marshall, the head of the court. The executive didn’t have to do anything, so they announced this power of judicial review in a case where only they had to obey it. So this problem is fundamental and has been longstanding since our very framing. The whole system depends on courts being trustworthy and courts being trusted. And as the trustworthiness erodes, it becomes much more likely that courts are trusted less and are obeyed less. So I think we are in a moment now. We haven’t gotten there yet. We haven’t gotten to a point where Trump openly says, I am disobeying the Supreme Court. In fact, he says the opposite. He said, I’ll obey a Supreme Court order. But there’s no magical difference between a district court and the Supreme Court. They both have the judicial power and he certainly disobeying district court orders at the moment, or at least diminishing them and avoiding them and evading them. But I think if we see in the next couple of weeks that he just says, you know what? That order is wrong, I’m not going to obey it, then we are in a full blown constitutional crisis. Because at that point, the only remedy, the only remedy is protest, is massive political uprising to protest the downfall of our democracy and our democratic system. So we’re not there, and I hope I’m wrong, but if this administration openly defies courts, then we’re in a different world.

J. Craig Williams:

Let’s take a quick break to hear a word from our sponsors. We’ll be right back and welcome back to Lawyer 2 Lawyer. I’m back with Kent Greenfield professor and the Dean’s Distinguished Scholar at Boston College Law School. Let’s talk about the driving force, about what’s got us here. It’s due process. I mean, there are currently individuals who are being taken off the streets by ICE sent to detention centers with no due process. That’s a violation of the court’s word. It’s a violation of the Constitution, what’s going on?

Kent Greenfield:

Yeah, right. I totally agree. I do think the President is asserting as robust, it’s his robust executive power to make decisions around foreign policy, immigration. There are statutes that allow the Secretary of State to make certain judgements. And I will say the immigration law, which I don’t know that much about in the best of cases, is not so friendly to the immigrant, to the migrant, to the resident because of the president’s massive power in this space. But I think what’s going on is that Trump ran on to this xenophobic rant against a migrant invasion, which I don’t think is factually accurate, but I think he, he’s engaging in some performative acts by the president using his presidential power in order to satisfy those who voted for him for that. There’s no way that he’s going to be able to deport everybody. That was never legitimately possible.

So what he’s doing, he’s making, he’s choosing to do some high profile deportations, or not even deportations, renditions to El Salvador, claiming that he’s making our streets safer and just ignoring the legal and constitutional power. And unfortunately, I think he’s probably right in that political calculation. I think he’s much more vulnerable politically on the economy, on the tariffs on firing federal workers, of which there are millions. And if you were doing that correctly, I think that our warnings about due process on the immigration front would not strike our warnings about the lack of due process in immigration and with regard to migrants would fall on deaf ears for the most part. But because Trump is screwing up the economy too, I think he has some vulnerability on this side as well.

J. Craig Williams:

Well, isn’t the worry that the due process clause is now going to be violated with respect to citizens?

Kent Greenfield:

Well, he said that, right? And I think some of the judges have been questioning the Justice Department. Lawyers in these cases have made that point explicitly. So if you can say that you can take Garcia from his home and send him to that prison in El Salvador, what keeps you from doing it to a citizen? In fact, president Trump said the other day that he wanted to try or investigate whether he can send what he called homegrown criminals to the prison in El Salvador or elsewhere. This is a slippery slope. You’re exactly right. It’s a slippery slope because what we feel like we can do to migrants, to immigrants, to legal or illegal residents, I think it’s a sign of who we are. And we’re not talking about criminals or members of the drug cartel. We’re talking about people who have lived here sometimes for decades who came here when they were children, paying taxes and living lives that are valid and respecting the law.

And I think in some ways, my colleague Dan Strom, who’s so excellent on this, on immigration and deportation, and I’ve been convinced by what he says, he says, the way we treat these people, it’s a touchstone, is a litmus test for who we are as a people. Are we going to be the kind of people who live up to the inscription on the statute of liberty, or are we going to be the kind of people who throw migrants in jail and torture prison without any plan on getting them out ever? One of the things that Craig, as you and I know, both know being lawyers. Lawyers are often good at talking about the rule of law or the constitutional rights and catching everything in terms of law. But I think this is a moment where it’s also important for us to speak in terms of right and wrong and morality and ethics. I mean, it’s not just illegal to send someone without process to a torture prison, but it’s wrong. It’s just immoral. It’s cruel.

J. Craig Williams:

It goes back to the Magna Carta,

Kent Greenfield:

Right? And is this the kind of country that we want to be? Is this who we are? And I think this is one of the reasons why I think this is a turning point for us. It’s not just a turning point for us as lawyers or as legal scholars, but I think it’s a turning point for us as a people. Is this who we want to be? I thought we were a city on a hill, but maybe we’re not. Maybe we to make some metaphors. Maybe we are on the edge of the abyss, and if we are on the edge of the abyss, we don’t really know what’s at the bottom of that abyss. But it’s not good.

J. Craig Williams:

It’s authoritarianism is what it appears to be,

Kent Greenfield:

Right? It could very well be, and I think we, Americans don’t think it can happen here, but the playbook is pretty clear. It happens in Hungary. It’s already happening in Poland, right, exactly. It’s happening in Russia. You dismantle the civil service, you dismantle the ability of the media to question you. You take apart important parts of civil society like universities, like lawyers, you disabled courts, you co-opt the legislature. My colleagues who have more experience in the international field than I do, what they say is that this is following a playbook and the playbook that’s being followed here, it’s happening so much faster than anywhere else in Hungary. It took him five years to take over the universities. Trump is trying that in five weeks. So it’s extraordinary how fast the authoritarian playbook is taking place. And I don’t want to be a chicken little about this. This still could be corrected. We could reach a year from now, and our institutions could be stronger. Due process could be strengthened. Trump could back down before Supreme Court orders, the rule of law could be renewed and refreshed and reestablished. Migrants in El Salvador could be brought back to the US for due process hearings. But in a year we could be in a very different situation. It could be much worse. It

J. Craig Williams:

Could be much worse. It could be much better. Well, Ken, we just about reached the end of our program, so it’s time to ask you to sum up with your final thoughts and let our listeners know how they can reach out to you if they’d like to get in touch with you.

Kent Greenfield:

Yeah, I’m happy to receive emails. I’m at ke [email protected]. And I think my final words, I was hinting at it before. I do think we are at a turning point. We’ve made bad choices as a country before, and we really need to be mindful of the moment we find ourselves in because this could go one of two ways. And just like at the beginning of the pandemic, we have to be very mindful of the risk that we’re running. But one of the things we know from the pandemic is that you can’t defeat the pandemic by ignoring that there’s a virus. Or you can’t defeat a pandemic by thinking everybody else is going to fight it. You’ve got to fight it. And lawyers, citizens, voters, students, professors, members of law firms, members of civil society, we’ve got to fight and we’ve got to rise up in this moment and recognize how dangerous of a moment we are in because it could go bad quickly, but we could get out of it. It’s going to take collective action and firm courageous collective action.

J. Craig Williams:

Well, Kent, thank you very much for being on the show today. This has been a tremendously interesting discussion.

Kent Greenfield:

Thanks so much. It was my pleasure.

J. Craig Williams:

Well, here are a few of my thoughts about today’s topic. As if you didn’t already know. I believe we are at, as Kent put it at the precipice of a constitutional crisis, if not already in it, given that the administration seems to be defying or trying to work around federal orders, pretty much not in good faith. Obviously the 14th Amendment protects birthright citizenship as does common law well before the 14th Amendment was enacted. It’s been a foundation for practically everything else. And in fact, there’s a Latin term for it, juice Ali, which means birth on the soil, which applies pretty much in any country around the world is where your citizenship applies. So the Trump administration is working through the Project 2025 Playbook, as we’ve talked about before on the show. And it appears that it’s moving at an extremely fast pace and something needs to be done to stop it.

And I think Kent was exactly correct saying that this is the time when we need to stand up and say, enough is enough and no more of it. Well, that’s it for my ran on today’s topic. Let me know what you think. If you’ve liked what you heard today, please rate us on Apple Podcasts or your favorite podcasting app. You can also visit [email protected], where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Please join us next time for another great legal topic. Remember, when you want legal think Lawyer 2 Lawyer.

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