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Newton Minow

Newton N. Minow is senior counsel in Sidley Austin’s Chicago office. He was a partner with the firm from...

Neil Eggleston

Neil Eggleston is a litigation partner in the Washington, D.C. office of Kirkland & Ellis LLP. Neil has a...

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Daniel Rodriguez

Daniel B. Rodriguez was appointed Dean and Harold Washington Professor at Northwestern Pritzker School of Law in January 2012. Before...

The Trump administration is constantly in the news but what’s going on behind the scenes? In this episode of Planet Lex, host Daniel Rodriguez talks to former White House Counsel Neil Eggleston and former FCC Chairman Newt Minow about their experiences working for past presidents and their concerns about the Trump administration. They discuss the way we elect our presidents, the failings of the media, and whether or not the government is currently experiencing a moment of constitutional crisis.

Newton Minow is senior counsel in Sidley Austin’s Chicago office. In 1961, President John F. Kennedy appointed him chairman of the Federal Communications Commission. He received the Presidential Medal of Freedom from President Barack Obama in 2016.

Neil Eggleston is a litigation partner in the Washington, D.C. office of Kirkland & Ellis LLP. He was White House counsel to President Obama from 2014 to 2017.

Transcript

Planet Lex: The Northwestern Pritzker School of Law Podcast

A Look at the Presidency with Neil Eggleston and Newt Minow

11/15/2017

[Music]

Intro: Welcome to Planet Lex: The Podcast of Northwestern Pritzker School of Law, with your host Dean Daniel B. Rodriguez, bringing it to you from Chicago, Illinois. Take it away Dan.

[Music]

Daniel B. Rodriguez: Hello and welcome to Northwestern Law’s Planet Lex, podcasting from the Northwestern Pritzker School of Law in Chicago, Illinois. I am your host, Dean Dan Rodriguez.

I have a very a special treat this morning. I am joined today by two men with incredible careers in public service and they both happen to be Northwestern Law alums, Newt Minow and Neil Eggleston.

Newt served as Commissioner and Chair of the Federal Communications Commission appointed by President John F. Kennedy. He is also a former Chair of the Public Broadcasting Services Board of Governors and is known as the Father of the Modern Presidential Debates.

He was Co-Chair of the 1976 and 1980 presidential debates and is currently Vice Chair of the Commission on Presidential Debates. He is a former Managing Partner at Sidley Austin here in Chicago, where he now serves as Senior Counsel. In 2016 President Obama awarded him the Presidential Medal of Freedom, our nation’s highest civilian honor.

Neil Eggleston is currently a litigation partner in the Washington DC office of Kirkland & Ellis. From 2014 to 2017, Neil served as White House Counsel to President Barack Obama, advising the President on legal and constitutional issues across a broad spectrum of domestic and foreign policy matters.

He previously served in the Clinton White House, as well as the US House of Representatives’ Select Committee investigating the Iran-Contra Affair in the Justice Department.

Newt and Neil, thank you for joining me here today. We could talk about so much. The focus I would like for this podcast is on the presidency. We are recording this in late October, although maybe it’s déjà vu, we could say this perhaps about any day or week in the last several weeks.

I want to ask you about recent events, but really from a somewhat more picture perspective, in the last couple of days a number of United States Senators; Senator Bob Corker in particular has raised questions about President Trump’s stability, ability to govern, ability to lead this nation. A number of other Senators and pundits and members of the House of Representatives have expressed grave worry about the nuclear trigger, about our relationships with allies and the list goes on. So I want to just throw this question out, are we in a moment of constitutional crisis and related to that, how would we know if we are? Let me start actually with Newt.

Newt Minow: Well, I think it is a very, very serious moment in American history. It wasn’t only Senator Corker who raised the issue of President Trump’s stability, it was the former Head of our National Intelligence Service who said that he was nervous about President Trump’s stance on the nuclear accord.

So I am encouraged by what happened yesterday with several of the Republicans in the Senate who are taking a moral stance and I believe that we perhaps haven’t reached the word of a crisis, but we are awfully close to it.

Daniel B. Rodriguez: Just as a point of information to situate where we are right now, by yesterday you are referring to the speech by Senator Jeff Flake from Arizona who in announcing that he would not run for a term gave, what our listeners know to be, a remarkable speech, really raising questions about the Republican Party and about President Trump. And as I recall, there was at the end an ovation, not by the entire Senate or by the entire Republican Caucus, but by Senator McCain and Senator Corker and others.

Newt Minow: That’s right and I believe that there are a lot of Republican Senators who in their heart know that Senator Flake is right.

Daniel B. Rodriguez: Neil.

Neil Eggleston: So I think we are probably not yet to a position where I would say that we are in a constitutional crisis. To date, he has been a lot of talk, but not much has actually happened, obviously almost nothing has happened on a legislative front.

I think we are seeing the other two branches of government starting to stand up a little bit. I was proud frankly of the judicial branch in connection with particularly the travel ban. I don’t know how Travel Ban 3.0 is going to turn out or not, but the judicial branch was pretty good at pushing back on what I thought was plainly an illegal attempt by the President to restrict entry into the United States.

The administration has also tried to undo a number of Obama regulations and courts have made it clear that the only way to get rid of a regulation is with a regulation and has been quite tough on them. So I think the judicial branch is starting to step up a little bit, and I appreciate that.

And maybe, just maybe seeing people like McCain, Corker, Flake and hopefully there will be others begin to speak out as Republicans, hopefully we will begin to see some of this.

(00:04:48)

I think that, as Newt said, the members of Congress have to be nervous about the erratic behavior of this President and have to be wondering what they can do to constrain it.

Senator Corker, I got to know quite well actually when I was at the White House; on foreign relations matters he was Chair — is chair of the Foreign Relations Committee of the Senate, I also dealt with him on judges, and thought he was a very solid citizen. But I think the Republicans have just got to start thinking more and being more outspoken as a constraint on the actions of this President. I hope that that happens.

Daniel B. Rodriguez: Can I just press you on, when you began by saying you don’t think we are in a moment of constitutional crisis, how would we know when, God forbid, we were in a moment of constitutional crisis?

Neil Eggleston: Well, so that’s a good — I think that’s a really good question. I guess we have not yet seen much activity by him that’s irreparable, although I will come back to that in a second. I think obviously some of the actions that he has taken, undoing Obama-era policies, getting out of the Paris Accords, apparently trying to get out of NAFTA, not going through a TPP and the like, were really destructive to the country and frankly to the people who voted for him.

But we are not — anyway, we are not quite yet, I think, at what I would say would be a constitutional crisis. But you are absolutely right, it’s hard to know, it’s hard to know what he is going to do tomorrow, what he is going to do next week. And we, depending on what he is thinking about, we may be there and really not know it yet.

I mean I think we can all say we have never seen this level of erraticness in a President, certainly in my lifetime, and this level of lack of respect for the institution of the presidency and for the other institutions of our society and that concerns me enormously.

Daniel B. Rodriguez: Newt, you have been in and around politics for a good long time, certainly a student of American politics, known many Presidents and observed Presidents going back quite a long time. Do you agree with Neil’s assessment that we really haven’t seen this kind of erratic behavior?

Newt Minow: I agree completely. We have never — I have been lucky, I have known — I figured it out the other day, I think I have known nine or ten Presidents, and I have served in one way or another for six, so I have known them, and there has never been anybody like the current President, who has no sense, in my view, of the constitutional process of our country, of American history, and it’s a very dangerous thing. The Twenty-Fifth Amendment is relatively new in American history. It’s never been exercised.

Daniel B. Rodriguez: This is the amendment that deals with presidential succession or more specifically presidential disability, I guess.

Newt Minow: Well, it’s really fitness, and it could be physical, it could be mental, it could be is he able to do the job. And as I understand it, under the Twenty-Fifth Amendment, it has to be initiated by the Vice President and the cabinet, who if they determine that the President is not able to handle the office, they then go to Congress and Congress then makes the judgment.

Now, in this case a lot of people are beginning to talk about it. It is highly unlikely I think that the current Vice President will initiate it, because it will look like he is trying to take over the presidency. But if it becomes very serious, you have generals who are patriots in the Department of Defense, who is the Chief of Staff in the White House, who love this country and I wouldn’t rule that out happening.

Daniel B. Rodriguez: It’s just remarkable that we are talking about the Twenty-Fifth Amendment in that context. Now, we are going to circle back to the current predicament, the current presidency, but I want to pivot, if I can, and take a step back and ask you two gentlemen about your own incredible experience and of course it’s wide-ranging, but I want to focus in on two particular ones.

Neil, let me start with you. You had the great privilege, as you have described it, serving as White House Counsel for President Obama; I know this is a kind of far-flung question, but could you describe some of your most memorable experiences in connection with that service?

Neil Eggleston: Sure. So this is going to sound a little esoteric at the beginning, but in some ways the most memorable experience was entering the complex everyday and knowing that I was going to work for the American people and I really felt that everyday.

And I have said it was a crushing job. It was seven days a week, as many hours as I could put in, but I knew I had a shelf life. I knew at noon on January 20 of 2017 it was going to be over and I tried to do whatever I could.

The experience of working for a President as decent and smart and caring as President Obama was deeply rewarding, and I sometimes think what it must be like to work for the current President, who has such a different demeanor and how much harder it would have been.

President Obama, as I said, very smart, if he was unhappy he would let you know it. But he did not yell. He was not a screamer. He didn’t demean people. He really knew that he needed his team around him in order to get the job done and he was very good at sort of rallying the team and really, really exciting, so just the opportunity to work with him.

(00:10:03)

And obviously he is a constitutional law professor for a period of time and the other part of this for me is that I was there for the last three years and a lot of the issues I had to deal with actually started before I got there. So it’s Washington and so the same issues are going to come up over and over again. And so discussing some of these issues with him was really intriguing because he was already well up the learning curve, and yet I had to get up the learning curve and hopefully a little higher than he, so that I could be adding value to the discussion.

But just working for him, the person that the public sees is the person that he is, deeply loves his wife, deeply loves his two kids, just a decent super-smart person and that was so rewarding to me to have the opportunity to work for him.

Daniel B. Rodriguez: You worked on a number of course of key issues and I wonder if you comment on a couple of them. One is, is your involvement in the nomination, the Bill faded in the end, nomination of Merrick Garland to the United States Supreme Court. Of course you also worked on, as befits your office, on issues involving clemency in the administration. Could you talk a little bit about your role in that?

Neil Eggleston: Sure. So on Merrick Garland, the recommendation to the President on who the President should nominate to be the next Supreme Court Justice, that falls to the White House Counsel, and so I led that effort and had lots of discussions with the President about who we wanted fairly early on. I don’t know that I can describe how telling a moment this was, but there was a lot being written about the kind of person that we should be selecting and all that, but early on the President said to me, I want you to recommend to me the person you think would be the best Supreme Court Justice.

So there was all this, we should pick somebody that the progressives could rally behind, and sort of all these political considerations that we are being urged to consider, but he just said, you come back to me with the person who you think would be the best Supreme Court Justice, and I think that’s what we did with Merrick Garland.

Daniel B. Rodriguez: Can I ask you quickly, you mentioned President Obama being a constitutional law professor, how was it like to have a dialogue with the President of the United States about a Supreme Court appointment when you are talking to a seasoned legal scholar about this?

Neil Eggleston: Well, so as we discussed various philosophies, which we got about the potential candidates from their writings, we didn’t really ask them the hot button questions, which just doesn’t really happen in this context, so I would talk to the President about where they stood under his constitutional issues, and let’s say I didn’t have to do much background on what the issue was before I had to explain to him sort of where this person stood because —

Daniel B. Rodriguez: But you had to be well-prepared?

Neil Eggleston: I had to be very well-prepared and be sort of 10 levels deep in case he wanted to go 10 levels deep.

Daniel B. Rodriguez: Your Northwestern Law education helped in that regard, informercial.

Neil Eggleston: Absolutely. But obviously, ultimately ill-fated, I think another blow to an important institution frankly that the Senate did not even consider Merrick Garland, although I understand what Leader McConnell was up to in some ways, because if he hadn’t refused to consider any nominee right off the bat, he would have been unable once — he would really essentially have been unable to take that position once we nominated Merrick Garland, because the country would have seen just how qualified and how much bipartisan support he had had in the past.

But I really think it was really an unfortunate impact, both on the Senate as an institution, frankly on the Supreme Court as an institution.

Daniel B. Rodriguez: Just very quickly on the matter of clemency and not to put this in any way that sounds glib, but with respect to clemency, it’s maybe an example you can’t please all the people all the time. Of course President Obama was involved in that, you were involved in that, and at the end of the day there was still grave disappointment that there weren’t more clemency petitions granted. How did that process look like, it must just be an incredibly intense part of your role?

Neil Eggleston: Yes, I found it really quite rewarding. We actually did more than I expected that we would do. There is a funnel that has to go through us. I think it turned out that the early estimates about how many people would be sort of eligible was overstated. While the process was taking place the Sentencing Commission did some reductions that took some people out of the pool, if you will. So I think we did about what I thought we were going to do.

But I want to say one thing about how rewarding this was to me. People, lawyers from all over the White House, including people not in my office and the Office of the Vice President, who worked for the Staff Secretary, who worked for the First Lady came up to me and volunteered to work on that project, and they were already working very long hours, but they really wanted to work on that project.

And when it was over they all thanked me for the opportunity to participate, because it was so meaningful to all of them on an individual level to be able to really provide justice to individual people. A lot of what we do in the White House is big policy issues, but in this one I was writing memos to the President about individual people and recommending that the President grant clemency in a measure of justice to individual people, and there was just such an outpouring in the White House, as a desire to participate in that project, I was quite moved by it actually.

(00:15:07)

Daniel B. Rodriguez: Well Newt, you had the great privilege to serve President John F. Kennedy as the Chair of the Federal Communications Commission at just a remarkable time and I wonder if you would reflect a little bit about that service in government.

Newt Minow: Well, the other day the current Chairman of the FCC was in Chicago; I had never met him. He called me because he was participating in some event at the University of Chicago Law School where he went to school. So I invited him to lunch and he said, have you got any advice for me? And I said, well, first of all, remember you were appointed originally by President Obama. You were elevated to Chairman by the current President, but you are on the Commission because President Obama put you there. Most people do not know that. I didn’t know that until I looked you up On Google. But you ought to remember that because President Obama’s values are very different from the current President, who wants to revoke licenses of the broadcasters because of what they have reported on the air.

And I want to tell you a story that occurred to me. One day I was home in the evening and President Kennedy called me at home. I could tell he was very, very angry, and he said, did you see the NBC news tonight? And I said, yes sir, I did. President Kennedy was in a fight with the steel industry at that time. The steel industry had raised its prices despite what President Kennedy understood was a promise from them not to do that after he had told the unions to give up on their pressure for a raise. So President Kennedy was very angry. He said did you see what those guys said about me? I said, yes sir, I did. He said you do something about it. You do something about it. Goodbye.

So I thought about it, and of course I decided to do nothing, and I called the President in the morning, and I got Kenny O’Donnell, who was the President’s Assistant, and Kenny said, I know why you are calling, I was with the President when he called you yelling last night.

I said, well, I will be glad to talk to the President myself, but I said if he is busy, just give him my message for me and tell him that he is fortunate to have someone at the FCC who has enough sense not to pay attention to the President when the President is angry.

And I never heard anything for about a week or so, and then we were at some party and the President saw me and he beckoned to me to come over to him, and I came over, and he put his arm around me and he said, thank you.

My point is, and the point I was trying to make to the current Chairman of the FCC is that if you are appointed, you have got to live up to your own conscience of what is right and sometimes the President will get angry; every President will get angry at some point.

Now, President Obama is a very calm person. He probably doesn’t yell or scream, but this happens.

I think the biggest assignment I had from President Kennedy was during the Cuban Missile Crisis when I was called in to get eight American commercial radio stations whose signals reached Cuba to carry the Voice of America, which the Russians had jammed, and we succeeded in that and the President was very grateful.

Daniel B. Rodriguez: Interesting. Let me, as we come back into the question of the current administration, some would regard the problem, again, I won’t use the word crisis, but the problems stemming from how we elect Presidents and there is so much of course dimensions to that. So from a big picture perspective I guess I want to ask is the way that we elect and select our Presidents, the primary system, the electoral system, part of the cause of the difficulties that we face?

And Newt, I want to start with you, because of course as I noted in the introduction, you are the Father of Presidential Debates and you were so critical in that initial one. And now those presidential debates are not only alive and well, but sort of deep in the DNA of our selection process. Do you have any regrets about having played such an instrumental role in getting us on this merry-go-round, if I may, about presidential debates as part of the election?

Newt Minow: Well, first, I have to say the reason the presidential debates exist is because three Northwestern Law graduates Dick Wiley, a Republican, Henry Geller, an independent and I, three Northwestern Law school graduates got the law changed, not the law, but the interpretation of the law changed at the FCC to permit the debates within the equal-time law requirements. So Northwestern Law was responsible for the debates.

(00:20:13)

What I think is wrong at the moment is we’ve got to figure out some way in the future when most people say, I’m not a Democrat, I’m not a Republican, I am an independent. We have to figure out some way for an independent voice to participate.

Daniel B. Rodriguez: You mean as a third-party, we had that issue when John Anderson ran right in.

Newt Minow: Right, we faced that once, included John Anderson in the debate, we have Ross Perot in the debate, but that’s an issue which is very important, but do I think the debates are important? I think there are an essential part of our democratic process. It’s the one place where the broadcasters do not charge for the time. There are no commercials, there’s an hour-and-a-half of an open discussion, where people can evaluate not only the substance, policy, but also the personality, the character; whether you can trust a person you can sense that. I’m very proud of the debates. I think we’ll continue to improve them.

Daniel B. Rodriguez: All right. Neil, I want to ask you about the way we elect presidents, but I want you to throw you a little bit of a curveball because it’s not just what I’m getting at is how we got into electing President Trump. But if you actually go back to 2008, we elected a President, the President you served, President Obama, with very little, quite frankly, very little governmental experience. He had a cup of coffee in the United States Senate. And so, he was elected president in a ruthless primary system, and then of course, President Trump, should we look at the last eight years as it were, 12 years, and really ask the question, are we electing presidents the right kind of way?

Neil Eggleston: So I think — I’ve thought actually about that question of, is President Obama in some sense a sort of similar in the fashion in which he was elected to President Trump. He was essentially a celebrity.

Daniel B. Rodriguez: Right.

Neil Eggleston: Because as you said — yes, exactly because he did not have a lot of experience. I think the biggest difference though obviously very talented orator, very talented in connecting to people, but he continued to focus on policy, he continued to talk to people about the way they would make their lives better; both in ‘08 and in ‘12.

And he essentially portrayed a message of confidence and I can handle your problems. And he was able to kind of deal with particularly in his experience in ‘08, he was in some ways able to convince the American people that running a massive campaign in a successful fashion was itself a qualification for the job or provided a qualification for the job. But I think there’s not much doubt that he was a celebrity election.

But what happened I think though in the last year, in ‘16, was that in some ways — I’m reading Secretary Clinton’s book ‘What Happened’, which is so painful. I know her quite well actually because I served in the Clinton administration, I know her quite well. And so, as I am reading it, I can almost hear her voice as if she’s actually saying it to me, but there’s a sense in which she ran the same kind of campaign with the same sort of an old school campaign, relying on policies and trying to do the same thing essentially President Obama did to get elected particularly in ‘08. Obviously, President Trump essentially had no policies.

It was a campaign of animus, it was a campaign of tearing down other people, his primary opponents, tearing down Mexicans, tearing down transgender, and really amazingly effective use of social media, which really hadn’t — was not around at ‘08, but in some ways, it was a new method of campaigning. What I’ve never been able to tell, and I think no one will ever be able tell, is was he just smart or was it happenstance that he captured this new medium?

And of course the other problem and everybody complains about the press but they were simply terrible in covering a campaign. Their need to cover things that happened in the last four hours meant that it was much easier, it’s always much easier to cover the politics than a substance. And so, we just read, everyone of poor John Podesta’s e-mails as if they had the slightest relevance to what was going on in connection to the campaign.

We got all wrapped up in the server and all these things that really had no relevance to what was going on. But that President — now President Trump was able to take advantage of, I thought they were truly terrible in covering a campaign.

Daniel B. Rodriguez: Can I jump in on that, Newt, of course, given your vast experience and speaking of vast, your incredibly important speech more than a half-century ago, right about television being a vast wasteland. What’s your observation of how the media covers presidential elections particularly in the recent years?

(00:24:57)

Newt Minow: I give the media very bad marks because the media is only concerned about controversy. The media, journalists are going back to what’s the principle, what is news, they teach in journalism school. If a dog bites a man, that’s not news; but if a man bites a dog, that’s news. It’s the unusual.

Well, today, you have controversy in crisis every minute so people forget what happened even yesterday or what happened a month ago or what — I wrote a piece about this just recently. If you added up 10 things Trump has done, most people don’t even remember.

For example, at the very beginning he gave the secrets, the confidential national security secrets of another country to the Russians.

Daniel B. Rodriguez: In that Russian ambassador visit.

Newt Minow: Right. Who remembers that today, because the media jumps as Neil said, they want to cover what happened in the last four minutes or last four hours, not in the last four months or four years, and that they’re concerned only with the immediate thing.

And I read Hillary’s book, I read it with great sadness. Hillary was making 10-Point Policy Plans and Trump was not caring about that. It was that people didn’t understand at the moment.

Now, I do want to say one word, the primary system, I believe, is giving us bad candidates because the people who vote in primaries are at the extremes of the right and the left.

The moderates, the center, where most people are, very often don’t participate in primaries, and that the primary system I believe is a cause of a really bad situation in picking candidates.

Daniel B. Rodriguez: Let me ask about the scandal. We wonder whether this is a new phenomenon, not brand-new phenomenon, but whether this is accelerated. Neil, you worked in the Clinton White House, you mentioned, you worked on the Whitewater investigation. You of course — the phrase has become part of a vocabulary, right, Iran-Contra and the Reagan Administration and certainly in the Nixon Administration.

Did we, as it were crossing the Rubicon with the Nixon Administration so that the next series of presidents, not all of them, but in some ways most of them, would be engaged in, a, serious scandals that often rise to the level of crimes, and b, connected to our discussion and media, things that we know much more about because of the media’s tenacity in learning about them?

Neil Eggleston: In some ways I think I would learn two lessons out of Watergate. The president never told me this, but I think that he hired me because I had an extensive background in scandal in Washington. I was not old enough to have been involved in Watergate but I’ve been involved in every single one since on both the Republican and Democrat side.

And I think he recognized that presidents in their last three years frequently are subject to scandal. And if you go back through presidents, they have scandals in their last three years or at least things that seem like scandals. We had none actually during the time that I was there.

Daniel B. Rodriguez: Part of Obama Administration.

Neil Eggleston: During the Obama Administration, yes, during the – obviously during the Obama Administration, not during the Clinton Administration but during the Obama Administration, we had none. The president gives me significant credit for that and he has done that publicly. I actually give him the credit for that because of the tone that he sat and —

Daniel B. Rodriguez: Let’s say for the record, both of you deserve credit.

Neil Eggleston: Well, okay. But everyone knew he had my back, and if I told people they couldn’t do something, everybody knew if they went to him, they were not going to get a different answer out of him and he knew as a matter of process. I do — the press is so pervasive and knows so much and has such great sources that I do think if you do something wrong, the press will find out about it.

And then will report it, obviously they frequently only have a piece of it and sort of they just report what they know, but I think that is going to continue. There’s just more-and-more people devoted. I think their sources are actually quite good, their sources at the beginning certainly for six months of the Trump administration were quite good inside of the Trump administration.

The other thing about the Trump administration is that the things I would have thought would be a scandal, there are so many of them.

Daniel B. Rodriguez: Scandal fatigue.

Neil Eggleston: If there’s a scandal fatigue, as Newt said, you don’t really — you hardly even remember them now, but they’re all pretty out front, the use of private aircraft, the notion that someone even flew from DC to Philadelphia, I take that trip all the time and I take Amtrak, which is a heck of a lot faster.

Newt Minow: To jump on Amtrak and go out.

Daniel B. Rodriguez: Cheaper.

Neil Eggleston: And a lot cheaper and a lot of what we think of scandals actually in this administration are pretty much right at the surface, when President Trump tells once again the Russians that he fired Director Comey because he needed to get Comey off his back on that Russian investigation. Usually people are not quite so upfront about really what they’re up to.

And we are just going to have one thing after another if we are with this administration because they really have no sense of normalcy and decency so we will continue to see one thing after another.

(00:30:02)

Daniel B. Rodriguez: Well, I want to turn lastly to the what is to done to invoke Vladimir Lenin, I suppose with respect to this change. Newt, you penned a remarkable op-ed earlier this month in October, an open letter as it were in ‘The Washington Post’ of the five former presidents calling upon them to exercise judgment. And I highly recommend it, it’s in October 6th of ‘The Washington Post’ and just a couple really memorable quotes.

You said, “That is why I believe that the five of you, the five living presidents working together can and should supply the leadership our country is missing. Some of you have already spoken out against Trump’s actions. But together, as a bipartisan group, you could have a greater impact.”

At the end you say, “I ask the five of you to combine your wisdom, your courage and your patriotism. You can speak out together against current abuses and reaffirm constitutional values.”

What was your expectation on what would happen with that open letter?

Newt Minow: Well, there is a tradition that former presidents do not speak out and criticize the current president. And I say I know that it’s unprecedented but I don’t think we’ve ever had a situation like this one. President Obama feels — I know he feels if he did speak out very strongly alone it would be seen as partisan. The two Bush presidents I think are as unhappy as anybody about what Trump is doing.

Daniel B. Rodriguez: Can I just jump in on that? Since the time that you published this op-ed, not only did President Obama, but remarkably President Bush, the second President Bush spoke out recently.

Newt Minow: I made it a point to get that open letter in the hands of each president, which I know happened, whether that had an impact I doubt. I think President Bush himself is so upset about what’s going on that he spoke out from the heart but he didn’t need any prompting.

The one that has disappointed me the most was the interview with President Carter.

Daniel B. Rodriguez: I was just going to ask about that. That was an interesting twist on that, so –

Newt Minow: Which was in ‘The New York Times’ Sunday, I read an unbelieving what I was reading that President Carter said, that no president has been treated as badly by the press as Trump.

Daniel B. Rodriguez: Neil, do you have — one of the speculations on the media was that he is angling as it were for a role perhaps involving North Korea or others. I mean, we don’t know what’s in the mind of course of President Carter, should be treated with the same respect as befits a former president, but do you have a sense of what he might have been thinking in giving that interview?

Neil Eggleston: I had the same reaction when I read it. First, the press is not treating him any different than they treat any other president in my view. What he has done day in and day out is given them one outrage after another, and the report on it would be irresponsible of them not to do the kind of reporting they are doing and at least a little bit finally on Trump, during the campaign this was just infuriating to everybody. This sort of fairness issue meant that they felt like they had to say something bad about both sides and now I think they’re doing a better job with what we are seeing a lot lately in all the stories about the war widow, who the press pointed out that the president saying that his predecessors had not called a Gold Star Families was false. It is false, it was false and they are reporting it’s false.

And President Trump may not like that, and may think he has been unfairly treated, I think when he says things that are false and the press pointed out that that’s a responsible thing to do. So I don’t really know — I think President Trump has had a tough time with the press, some of the press, obviously Fox News, Breitbart is sort of in a different place obviously on all these. But he had a tough time but it’s been because of what he has been doing, and it’s not unjustified. So I don’t know what President Carter was thinking about.

It’s probably true Trump has had a tough time, but I think the press has been accurately reporting on what he has done and therefore it’s completely justified. It’s not been an unfair tough time.

Newt Minow: One thing the press does, it really irritates me. President will say something and then he will change the subject.

Daniel B. Rodriguez: The President will?

Newt Minow: The President will. So the press goes to the new subject that he is talking about, they forgot. For example, in his — the other day when he was talking about his conversation with the grieving widow, and the Florida Congresswoman, he said, “I have the proof”.

Daniel B. Rodriguez: Right.

Newt Minow: Those are his words, “I have the proof”. Did the press say, “Where is the proof?” Did the press say the second question, “You didn’t answer my question, where is the proof?”

Daniel B. Rodriguez: Right.

Newt Minow: They should be digging, not letting him change the subject, which is his technique.

Daniel B. Rodriguez: Well, it’s remarkable, one thing that struck me in the last couple days is when — how could be Sanders, press secretary was standing there, and the Chief of Staff, Kelly, made just a completely inaccurate statement, an untruthful statement perspective and her response was, well, he is a five-star general, you wouldn’t possibly question him and then that was the end, that shut it down.

(00:35:00)

Newt Minow: Somebody should have said, you mean you shouldn’t argue with a five-star general?

Daniel B. Rodriguez: Right, exactly, exactly. Let me, running a little on time. I want to just bring it back to, well, here is three lawyers, and you two gentlemen have served in an incredible public service as lawyers too, and so we’ve talked a lot about the media and elections as possible checks, are their structural checks available and balances available in our system to control excesses of power and to be more pointed the excesses of power that we are witnessing in the current administration?

Neil, you talked about your being impressed by the judiciary in that role in this regard, so we could just take a step back. Give us some confidence and faith if you will about our structure of government and the way in which they can check the excesses of presidential power?

Neil Eggleston: So I think that the mechanisms are available, and I think really in some ways the question is whether or not the Congress, particularly the Congress is willing to exercise them. I think with the Republican House and Republican Senate, which is really sort of quite partisan and appears to have decided we are going to pretend he is not a problem, because we are still hopeful that he will do the things that we want to do, cut taxes on the rich and the like.

Daniel B. Rodriguez: Not that he has done any of that.

Neil Eggleston: Not that any of that has actually happened yet, and they have got to be so frustrated that he is picking fights. He is now is in a bitter fights with three Republican senators. He can’t lose three Republican Senators on anything, because if he does it’s not passed. And so the short-term nature of those fights seems —

Daniel B. Rodriguez: How about Corker, Flake, and McCain?

Neil Eggleston: And McCain, absolutely. So, I think the mechanisms are there but I think that absent sort of a Baker moment as happened in — way back in Watergate —

Daniel B. Rodriguez: Howard Baker.

Neil Eggleston: Howard Baker, they are unlikely to actually be implemented. I have one hope, but I am worried that it’s misplaced, which is I sort of thought that the Wisconsin partisan redistricting case, if it comes out the right way it has the possibility of structuring our government in some ways back the way it was when the two parties cooperated with each other, because we’re now in a world where members of Congress, House members it’s doesn’t have any impact on Senators obviously.

Particularly Republicans are only worried about being primary from the right, and so they can’t really engage in compromise, they are pretty much stuck, much more true with Republicans I think than actually with Democrats. But in some ways I just — I really hope that Justice Kennedy has now found one that he would like to serve — he has talked about it but I am not sure what the standard is in the prior case on this. I am hoping he has now come up with the standard and will determine that this is an appropriate case to rule that partisan gerrymandering is not appropriate.

And absent that I just don’t see what’s going to unlock this. I don’t see what the break rules really going to be. I thought maybe President Obama would be it in ’08, because he really tried. But as we now know Senator McConnell the day he was elected or —

Daniel B. Rodriguez: So we are not going to let him do anything?

Neil Eggleston: We are not going to let him do anything. We don’t want him to be a two-term president, we are going to do everything to stop anything regardless of how good it would be for the American people. To him it was only about politics, it was only about the next election which was four years off, and refused to cooperate in a way that we never really seen before.

And I had conversations with him where he would just shake his hand and say, we could have done so much for the American people, but Mitch just wouldn’t talk to me. And he famously said, when I propose things that they had proposed suddenly they were against it, but the goal of hurting him politically turned out to be the primary goal of not helping the American public.

So I am sort of worried now how are we going to get unstuck from this? Obviously President Trump is not going to get us unstuck. If anything he has created starker divisions, at least as of now, and so I am just not sure how we are going to get unstuck. Absent, I think this Wisconsin case could help, but it will take time for it to help.

Daniel B. Rodriguez: Newt, give me the last word on this. Note of optimism, pessimism or —

Newton Minow: Well, I believe that the fundamental structure of our Constitution, three branches of the government is essential to preserving democracy, and I believe democracy will be preserved through the Congress and through the courts. When you get a bad president, there will be something that will happen. Also, I think one day one of the younger Republican senators will wake up in the morning who is ambitious and who wants to be president and he will say to himself, Gee, the way I can become president is if I come out against Trump.

One day that will happen. Now that you’ve had particularly with Flake, and McCain and Corker, and when that happens I think the Republicans themselves will realize, they will come back to sanity, and the Republic will be preserved.

(00:40:00)

Daniel B. Rodriguez: That’s our show for today. I want to thank our guests, Newt Minow and Neil Eggleston for joining me on this, just remarkable podcast. It’s been a delight.

Thank you for listening. I am Dan Rodriguez on the Planet Lex podcast, signing off from the Northwestern Pritzker School of Law.

[Music]

Outro: If you would like more information about today’s show, please visit  HYPERLINK “http://www.law.northwestern.edu/planetlex” law.northwestern.edu/planetlex or  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com.

Subscribe via iTunes and RSS. Find both Northwestern Pritzker School of Law and Legal Talk Network on Twitter, Facebook and LinkedIn, or download the free app from Legal Talk Network in Google Play and iTunes.

The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Northwestern University, Legal Talk Network or their respective officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.

[Music]

Episode Details
Published: November 15, 2017
Podcast: Planet Lex: The Northwestern Pritzker School of Law Podcast
Category: Legal News
Podcast
Planet Lex: The Northwestern Pritzker School of Law Podcast
Planet Lex: The Northwestern Pritzker School of Law Podcast

Planet Lex is a series of conversations about the law, law and society, law and technology, and the future of legal education and practice. In other words, a bunch of interesting stuff about the law.

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