Featured Guest
Ian Bassin

Ian served as Associate White House Counsel from 2009-2011. In addition to counseling the President and senior White House...

Your Hosts
Elie Mystal

Elie Mystal is the Managing Editor of Above the Law Redline and the Editor-At-Large of Breaking Media. He’s appeared...

Joe Patrice

Joe Patrice is an Editor at Above the Law. For over a decade, he practiced as a litigator at...

Episode Notes

Joe and Elie chat with Ian Bassin, the Executive Director of Protect Democracy about the unfortunately pressing task of defending democratic institutions from creeping authoritarianism. Protect Democracy is on the front lines challenging both federal and state governments as they chip away at participatory democracy and constitutional limits. As a special bonus — in the middle of the episode breaking news results in the guest beginning the process of filing suit on the spot. So that’s cool.

Special thanks to our sponsor, Smith.ai.

Transcript

Above the Law – Thinking like a Lawyer

Democracy Is Troublingly Fragile

02/19/2019

[Music]

Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

[Music]

Joe Patrice: Hello and welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. With me, as always is my co-host Elie Mystal.

Elie Mystal: We are recording this on Valentine’s Day, but my wife is sick, so I win.

Joe Patrice: Oh, so that means you don’t have to do anything just because she is sick, she is not going to notice that nothing is being done.

Elie Mystal: Maybe we’ll watch My Fair Lady.

Joe Patrice: Oh, okay, well, that sounds nice.

Elie Mystal: Yeah.

Joe Patrice: Yeah.

Elie Mystal: But like the overpriced expensive Manhattan dinner, canceled.

Joe Patrice: Hmm, nice, nice, nice.

Elie Mystal: So sad.

Joe Patrice: Who else had overpriced Manhattan, well an overpriced New York City dinner canceled that would be Amazon who decided having to leave today?

Elie Mystal: Congratulations communists, you won.

Joe Patrice: Except it’s not, it’s kind of the opposite of that right, because it was a government-sponsored boondoggle putting the whole thing, so it’s kind of the opposite of communist, but yes, finally that scourge is going to leave so.

Elie Mystal: Probably for the best, which is why that’s not what I’m pissed off about today.

Joe Patrice: Okay.

Elie Mystal: As I said we’re recording on Valentine’s Day, if you go back and scroll up on your Twitter feed, you’ll know that Valentine’s Day is the day that the Senate confirmed William Barr to be the next Attorney General of United States.

Now people, here’s the thing. I understand that Matt Whitaker was horrible. I understand that he was kind of a nightmare. I understand that he was dumb, I understand that he was illegitimately appointed as Attorney General, but the thing about Matt Whitaker because of that illegitimate appointment is that he wasn’t real, all of that that we just went through with Whitaker is a bad dream, right. And what people need to understand is that while yes Matt Whitaker might have been our worst nightmare he was a dream, a dream that we are being woken up from by Bill Barr pissing in our face, okay.

And I understand having had that horrible dream, waking up from that dream by whatever means necessary, might seem like a boon, might seem like a favor, but I’m trying to tell you people Bill Barr is pissing on your bed. He’s not doing you a favor and it’s real pee, it’s pee that will soak your bed and that’s what he’s going to do to the Justice Department.

He is going to soak the Justice Department with pee, literally he is already putting in place a plan of nepotism and corruption, where he is putting his own family members in key positions in the Trump administration, so there can be a coordinated strategy to protect Donald Trump from the Mueller investigation, which is not the Attorney General’s job.

He is the real Attorney General, he’s a real problem and people need to get over this Matt Whitaker fever dream and wake up to the problem that is now in our face.

Joe Patrice: Okay. Cool.

Elie Mystal: I’m not wrong.

Joe Patrice: No, I mean no. It might be urine analogy is probably weren’t where I was going to go with it, but I mean it, yes, it’s certainly, certainly anybody in this sort of position is problematic.

That said, I am very much on the side of as bad as it is, it was going to be bad because of the way the presidential election turned out. I got very nervous a few weeks ago when there was some inkling, some trial balloons coming out of the White House that hey maybe this acting thing is working out, maybe I’ll just not do Senate confirmation for anything anymore and just have actings all over the place. That struck me as a assault on the order of the constitutional stuff.

So the idea that they’re getting somebody who has at least been confirmed, hopefully will mollify that and we won’t start getting a bunch of acting people running everything all over the place.

So on that front, I’m comfortable, but yes, obviously whoever he was going to nominate was going to be bad. I’ve kind of came to grips with that.

Elie Mystal: I mean that’s fair. And to be fair I mean look, Bill Barr will be better than Kingpin cosplaying as Attorney General which is what Matt Whitaker was doing.

Joe Patrice: Right, and while he was in that office he got some very important — like important things go through the Department of Justice office and sometimes he might have missed a call, which brings us to — see how seamless that was.

Elie Mystal: That’s perfect.

Joe Patrice: Are you missing calls, are you spread too thin, interruptions kill your productivity but clients demand a quick response. The US-based professional receptionist at Smith.ai help law firms screen new clients and schedule appointments by phone and website chat, plus Smith.ai integrates with your software including Clio and LawPay. Plans start at just $60 per month, get a free trial at Smith.ai.

(00:05:10)

See, that was professional there, that is what you get when you’ve been hosting a podcast for a long time.

Elie Mystal: You sir are a gentleman and a scholar.

Joe Patrice: Yeah. So what are we going to talk about today, Elie?

Elie Mystal: We’re going to talk about democracy. That thing that Bill Barr is pissing on.

Joe Patrice: Right. So it kind of — it flows in well.

Yeah, so we are joined by the Executive Director of Protect Democracy, Ian Bassin. Welcome to the show.

Ian Bassin: Hey guys, Happy Valentine’s Day.

Elie Mystal: Ian, tell us a little bit about Protect Democracy and tell us a little bit about the project that you guys are doing right now to kind of assess where democracy stands two years into the horrible nightmare that is the Trump Administration?

Ian Bassin: Well, the first thing I would say about Protect Democracy is I think we all should wish that we didn’t exist and that we could just go away, because we shouldn’t need an organization in the United States of America in 2019 called Protect Democracy. We should maybe have one that is Perfect Democracy, maybe one that is can we make our democracy better, but we shouldn’t need one that says, protective.

But unfortunately we do, because we’ve got a situation in this country and it’s not just in this country, it is around the world where the very notion of liberal democracy is under assault and being questioned. And so Freedom House which is an organization that studied democracies since the end of World War II has shown that democracy had basically spread to more countries, improved in the countries that it was in, and a pretty upward trajectory through the latter half of the 20th century until about 2005 and then starts to go in retreat, and lo and behold November 2016 we realized well it can happen here too.

And so, we formed an organization, liberals and conservatives, Democrats and Republicans to prevent our democracy from declining frankly into a more authoritarian form of government, that’s what we set out to do.

Elie Mystal: And how is that going for us?

Ian Bassin: Well, the good news is the organization itself is quite robust. We’ve filed I think more than four dozen lawsuits and are gaining traction on a lot of them. We have had some important victories. Recently we forced the Department of Justice to admit that its propaganda report that immigrants are the cause of domestic terrorism was littered with errors. We’re challenging them in court to retract it.

The Chair of the House Homeland Security Committee has requested of Secretary Nielsen that they retract this report. There’s a not pretty history when you look back into the annals of history when governments put out misleading information about vulnerable populations and try to scare people about them. That doesn’t tend to go well historically.

So important that we actually have laws in this country that don’t allow that to happen too easily. We sued under something called the Information Quality Act, lo and behold such a statute exists that says when the government puts out statistical data it’s got to meet some baseline methodological requirements.

We succeeded in getting the so-called Watergate roadmap unsealed. This is a document that had been under seal for more than 40 years that the Watergate special prosecutor Leon Jaworski had his grand jury transmit to the House of Judiciary Committee laying out all the evidence the grand jury had assembled against Richard Nixon and we wanted to get it unsealed because lo and behold, it’s a pretty interesting precedent for Robert Mueller if he wants to get information to the House of Judiciary Committee without having someone like I don’t know William Barr say, you can’t do that.

So on the organizational front, Protect Democracy has been doing, I think humbly, a lot of important work. Of course, on the broader national front ah, not so great on the protecting democracy front. I think as much as there are aspects of our system that have held well in the Trump era, the fact of the matter is, he is doing all of the things that our expert Board of Advisors, who have studied autocrats around the world have said, look out for these things because they are signs of an autocrat trying to dismantle democracy and he’s been doing all of them in his first two years.

Elie Mystal: I want to circle back to the International outlook in a second but before we get off this point, one of the reasons why I’m excited to have you on and wanted to have you guys on is because you guys actually sue. There are a lot of people who kind of talk oh this is so horrible, oh this is — this is — I can’t believe there ought to be a law. You guys go and find the law, you’ve sued, you’re the guys who sued over Whitaker’s illegal appointment. You’re the guys who sued over Sheriff Joe’s pardon. I imagine that if Trump invokes a fake national emergency, you guys will be there to sue him for that too.

So from a kind of a lawyerly perspective, how do you go about kind of like choosing your cases and thinking through the legal arguments, like how do you pick your — which legal arguments you’re going to try to go for, because as we know, not every norm breaking thing that Donald Trump does or thinks or says is actually illegal.

(00:10:07)

So how do you go through the process of distinguishing what’s kind of an illegal action for which there might be a legal remedy versus kind of bad stuff that he does that we just have to suck up?

Ian Bassin: Well, first and foremost the way that we’ve been able to do a lot of this is boy, do we have an incredible team of lawyers who have come forward to work on this. So I think at this point we’re probably up to about 14 or 15 of our 30-plus person staff or attorneys and they are incredibly impressive. We have a former Deputy Chief of the Department of Justice Civil Rights Division. One of the former Office of Legal Counsel attorneys who recently laughed and published an op-ed in the Washington Post about why she was leaving and felt that she really couldn’t uphold her oath in the job given some of the things that were taking place in the administration and came here.

We’ve got a Harvard Law School Clinic of students that also support the work and pro bono relationships with several dozen of the nation’s leading firms, so, a lot of legal firepower that we can bring.

In terms of what we choose to work on, I mentioned earlier that a set of experts who have studied the rise of autocrats around the world, have helped us understand look Turkey, Poland, Hungary, Venezuela, they’re further down the road to autocracy than we are and so we should be able to look at what’s happened there and say, okay, so that’s the — basically that’s the roadmap, okay, let’s prevent that here.

And they’ve all identified about six things that we need to prevent from happening here if we’re going to achieve this incredibly ambitious mission of preventing a slide into authoritarianism, and here’s what they are. And as I tell you the six of them think to yourselves have we seen that happening in the last two years? Okay, so here’s the first one, prevent these autocrats from politicizing independent institutions like law enforcement, the civil service, the military, that’s one.

Two, prevent them from spreading disinformation through the government.

Three, prevent them from aggrandizing executive power in the hands of the executive and trying to undermine the checking ability of institutions like legislatures or so-called judges or enemy of the people media or the private sector, I don’t know Amazon, Harley-Davidson.

Four, prevent them from quashing dissent and now we think of that as something, well, yeah but our First Amendment has always done that, that’s true with respect to things like straight on government censorship. But what a lot of these modern autocrats will do, is they will use more subtler means of trying to suppress dissent, perhaps not the direct hand of the government censor, but I don’t know maybe a big media owner who owns the Washington Post could be pressured in certain ways to change the post editorial coverage by perhaps I don’t know messing with the postal rights of one of his companies or even finding a way for a newspaper tabloid to put out some compromising pictures of him.

Fifth, one thing these autocrats all have in common, they try to delegitimize vulnerable populations. This has been written about in the academic space about how a lot of these autocrats come to power with plurality support, not majority support and then if that happens how do you actually prove that you have a mandate and claim a mandate, say I don’t know, you lost the popular vote by 3 million votes. Well maybe you just say that 4 million brown people voted illegally in but for that you’d have a mandate.

And then sixth, they corrupt elections, because a lot of these modern autocrats they know they need to hold elections and so in the last two years Viktor Orban, Vladimir Putin, General el-Sisi, Erdoğan in Turkey, they’ve all won elections but not really, right, I mean these weren’t real elections. They oftentimes would have a puppet from their own party run against them.

So when we look at what sorts of behavior we’re trying to check, it’s behavior that falls into one of these six categories. So we ask ourselves first, is the thing that the President, and sometimes it’s not just the President, sometimes it’s members of this autocratic movement, so we sued Brian Kemp in Georgia and Rick Scott in Florida because they were trying to use their government offices to unlevel the playing field in favor of their own candidacies for office. We got a really interesting and strong opinion in the Northern District of Florida that behavior like that violates the Due Process Clause.

So we ask is what — any of these actors doing kind of falling into one of these buckets that modern autocrats use and then two, do we have a clear legal theory of change grounded in the law and the Arpaio case that you mentioned, were actually Amici in that case most of these were actually plaintiffs or merits parties were Amici in that case, but is there some area of the law that allows us to harden the norm or harden the line. And there it’s been a really fascinating both legal position that we think is really strong, which is that the pardon power has to be read in the context of every other clause in the Constitution, right, it’s not the only clause in the Constitution.

If someone came into office of Jimmy Carter and tried to pardon every White draft-dodger from Vietnam but none of the Black ones, well wouldn’t that violate the Equal Protection Clause? I mean the Pardon Power is not the only power.

(00:15:02)

And so that’s really the substance of the argument there, but in order to make it we needed to make sure that there was a party in the case that had standing to make these arguments and appeal them. And so there’s a Federal Rule of Criminal Procedure that says if the Department of Justice is not going to prosecute a criminal contempt claim referred to it by the judiciary, that the judiciary must appoint a private attorney to do that.

So we weighed in and we persuaded the Ninth Circuit to do that. They have appointed a private attorney to do that. And then of course, we look at whether we have capacity to do it and oftentimes we don’t. So we’re hiring, if you’re out there listening check us out at protectdemocracy.org.

Elie Mystal: How are you funded, because I imagine that a lot of our law student listeners are thinking man, I want to do that and then of course they’re going to end up working for Skadden, but between — between now and when they realize that loans cost money, I am like how are you guys funded? How would — how would you find you if you’re hiring and you’re interested in doing that kind of work?

Ian Bassin: Yeah so first off we’ve been very lucky in that a lot of patriotic Americans have come forward to help fund this work. So when we announced that we would be launching back in February of 2017, POLITICO ran a story about our launch by Edward-Isaac Dovere that went viral and managed to pull in about $250,000 online right away from more than 2,500 donors I think in all 50 states. We have more than 3,000 small donors in all 50 states. And then we have a lot of support from foundations and from individual philanthropists, and both people who are liberal and conservative.

So we’ve been able to put together a decent amount of funding to do this work and that allows us to at least pay people a reasonable amount. We are not going to pay the same amount as a private law firm, but I think if you want to do nonprofit work we’ve tried to make it so you can actually do this work and raise a family, because I don’t think you should have to martyr yourself financially to try to do good in the world. We should reward that sort of career and behavior and we try to do that.

Elie Mystal: Howard Schultz, if you’re looking for someplace to spend that billion dollars, to actually help —

Joe Patrice: Yeah.

Ian Bassin: There may be some other things he could do to help democracy, agreed.

Joe Patrice: So one thing that obviously there’s a lot of attention on Trump, because he makes a lot of attention beyond himself. But for some of us, he’s — for me I think where Elie and I kind of divide politically is I am less concerned about Trump as an individual character and more concerned about the broad movement that he’s been a part of. And so, one thing that I wanted to get into about the work you do, is sometimes it’s not just the Federal Government. There are state governments that have been hijacked by certain groups to execute kind of an anti-democratic agenda, whether it’s voter suppression or killing off unions, whatever it is they’re doing things in these states to kind of I guess the line could be like laboratory of un-democracy. Like what — what stuff, I think that’s a — that’s actually a thing that you’ve all said, what do you do with these states to kind of keep the pressure on them to live up to what their obligations are?

Ian Bassin: Yeah, I mean you’re starting to see these ideas bubble up in the states that if they start coming up to the Federal level, they are going to be really dangerous. I mean so just to name three, earlier I mentioned the efforts of people like Brian Kemp and Rick Scott to use their government offices to help their electoral candidacies when they were running for office and also overseeing the elections in which they were candidates. I mean to Elie’s point earlier, like there should be a law, right. There is, it’s the Constitution.

Joe Patrice: Yeah.

Ian Bassin: But then you’ve got these cases like North Carolina, Michigan and Wisconsin where essentially what has happened is the legislators in those states have tried to void the will of the voters by saying, oh wait you elected someone from a party different than ours. Well we’re just going to strip that person of power so they can’t do anything.

And so we actually are part of a lawsuit in Wisconsin to nullify the lame-duck legislation in Wisconsin which essentially tried to undo the will of the voters there. And then the other thing that almost happened and thankfully it didn’t, if you recall the Roy Moore episode from last year.

Joe Patrice: Yeah.

Ian Bassin: Governor Kay Ivey in Alabama was under a lot of pressure to postpone that election so that Republicans could replace more on the ballot because they thought he was going to lose. I mean think about how scary a President that would have said if just because one side was going to lose, a Governor from that party postponed the election to avoid that result. And I guarantee you if she had done that, the person who would have been watching that incredibly closely, sits in the Oval Office and would have thought about, well, if she can do that, right.

Joe Patrice: Right.

Ian Bassin: So we actually were prepared to challenge in Alabama there and thankfully we didn’t have to and so instead we published on our website sort of a how-to guide for why that would be unlawful and unconstitutional and how to challenge it.

So I think we definitely need to be paying attention to, as you noted kind of these laboratories of un-democracy in the states because that’s where these bad ideas are going to start to bubble up. But the other thing that we’re focused on and maybe I can — if you guys will allow me to play a little sort of a marriage counselor between the two of you is, I don’t think it’s a mutually exclusive choice between we need to be afraid of Donald Trump on the one hand, we’re afraid of kind of the general sort of movement on the other.

(00:20:09)

I think it’s both, right, and the way that we think about it a lot is yes, Donald Trump poses an acute threat to our democratic institutions but he is symptom not cause and if we’re not careful, the worst thing that could happen is he could lose in 2020 and we could all say wow, we survived that great, wipe our hands of it and walk away.

And if that happens, Trump 2.0 is coming, right, because you know someone is out there, watching what’s happening now and saying scratching their chin oh, so the American people are open to this strong man style of governance but that guy is pretty incompetent. I can do it better, right?

And unless we use this moment as an opportunity, this crisis as an opportunity to strengthen the guardrails post Trump, that person is going to come along and do a lot more damage than Trump was able to do and so as an organization we don’t just litigate, we actually have an agenda that we put out called our democracy 2020 platform that lays out an agenda for the next president.

And we are reaching out to all of the candidates to say you are going to have a opportunity and a responsibility after Trump sort of like what happened after Nixon, well you had this host of reforms that sort of came from 1972 to 1979, where the country kind of said what the heck was that. How do we prevent it from happening again if we don’t cease that moment, we’re going to be in a lot of trouble five years out.

Elie Mystal: Talk a little bit about, now circling back, talk a little bit about the International aspect here, democracy as you point out is not just under threat here, it’s under threat all over the world. I believe Britain is still trying to punch its own self into the ocean, Venezuela is on fire, Poland is on fire, like what’s going on beyond our borders?

Ian Bassin: Yeah. There’s a lot of interesting writing about what’s happening globally. I recently read Edward Luce’s ‘The Retreat of Western Liberalism’, which I recommend to anyone who’s trying to understand this global dynamic. But he starts his book with what is now sort of famously known as the elephant graph, right, which shows that over the last several decades, economic growth has fallen to the poorest of the poor in the world, right.

We’ve seen a lot of success at bringing people out of poverty in places like China and of course, the 1%, the 0.1%, the 0.001% and the place that growth is really stagnated has been in the middle class in the developed world in the West, right. And so, you’re seeing that in the United States and in Western Europe, a lot of that cohort is saying what’s happening.

We used to be the people who were assured to live a better standard of living than our parents and that’s no longer guaranteed. And I think from Washington to as you know, London to Stockholm to Budapest, you’re seeing people say maybe the system isn’t working anymore. And then of course, stepping into the breach are people like Marine Le Pen and Donald Trump and Geert Wilders, who are saying I can bring you back to a time when you had prime of place.

And I think that unless, we as a society in the West come up with a compelling response to the Trumps and Le Pens of the world, we’re going to be playing defense. And then I think the other thing that may be more unique to the United States than just this global dynamic is in case, you didn’t notice, we just finished eight years of having an African-American President.

Elie Mystal: Did that really happen?

Ian Bassin: And it’s a really compelling and interesting writing, comparing the present era to the post-reconstruction era. The introduction to Ta-Nehisi Coates as we were eight years in power has some striking parallels between what happened in post-reconstruction of United States and post-Obama. And I think we’ve got to grapple with the fact that that is a part of the dynamic of what’s happening as well.

Elie Mystal: And I’m going to put you on the spot and I’m sorry but it’s blowing up on our Twitter feeds. As we speak, and since we kind of already alluded to this, so this will be old news by the time this podcast comes out, but we’re just getting word that McConnell is saying that Trump will sign the deal to open the government and declare a national emergency at the same time.

Now, I am of the opinion that this declaration of a fake national emergency would be if it’s declared easily the most dangerous thing that Trump has done so far. I like to point out to people that they forget that the Third Reich was a democratically elected government operating under emergency powers, national emergencies, emergency power in the executive is a republic killer, republic killer in terms of aggrandizing power in the executive as you say.

And there’s no precedent for a president declaring a national emergency because the emergency being Congress won’t give him money. What are your thoughts and again understanding that news might change by the time this podcast comes out, what are your thoughts generally on the authority of the President to declare a national emergency in order to get funding for his wall?

(00:25:03)

Ian Bassin: It’s unlawful. He can’t do it. We’ll sue him, we’ve been preparing to sue him and you’re right, it’s incredibly dangerous. Two of our advisors, two Harvard scholars, Steve Levitsky and Dan Ziblatt wrote a book this year called or last year called, ‘How Democracies Die’, where they’ve spent the last thirty years studying these international cases of autocrats dismantling democracies.

And one of the strongest warnings they have for us is beware the emergency declaration right. I mean you made reference to 1930s Germany but you can look back at 1970s India, you can look back at the 30 years of Mubarak in Egypt. Those were all national emergency, states of emergency, during which executives seized more and more power.

And I think one thing that’s particularly worrisome if this is what’s playing out now as we sit here on this podcast is another one of our advisors Yascha Mounk, who actually we’ve recently hired, wrote a great piece of slate recently where he talked about salami politics, which is actually a term that started in the BBC Yes Minister series where the foreign minister was advising the prime minister or trying to get the Prime Minister ready for how he would respond if the Russians did X number of things during the Cold War, and whether he would sort of press the nuclear button.

But what he did to make it incredibly difficult for the Prime Minister was he said well let’s just say that the Russian send two people into Western Europe, would you push the button then? Right, and of course the Prime Minister says well not quite then. He said what if it was five people, what if it was a troop, a battalion, but each little sliver, sliver, sliver and what he said is these are salami politics where what someone does when they’re trying to make it impossible for you to know how to react is never give you the whole salami but just slice by slice give you a little bit of it. So you never quite have enough to say this is the moment that they’re giving me the salami.

And I’m probably getting the metaphor a little bit wrong but you get the point here which is that the way these sort of democracies get dismantled is not with one sudden thunderclap that everyone says aha, this is the moment. It’s — take a stand now or it all falls apart. It’s in little salami slices and I think you’ve already seen just in the fact that if it turns out that Mitch McConnell, who several weeks ago was warning the President not to declare a national emergency because Republicans would stand with Democrats in opposition.

If McConnell is acknowledging that this is going to happen it’s because people have rationalized in some way that well, it’s not that bad right, he’s just going to take some pots of money and put some bricks on top of one another, it’s not that bad, it’s not all of our freedom going away, and that way of thinking about it, that frog in boiling water way of thinking about it is perhaps the scariest thing, because that really is how democracies die.

Elie Mystal: It’s also I think so cynical on the part of the Senate Republicans because the ones who understand that this — Republicans, small government Republicans, right, they don’t want this to happen but they’re hoping the courts will bail them out. The reason why they’ll say they’re going along with the president but what they’re really hoping for is that the courts bail them out, stop the national emergency, but they can still say we stood with the president and we tried to build the wall.

That’s putting an incredible amount of pressure on our courts which Trump has effectively stacked and packed with arch-conservative super executive power, in some case nut jobs. Do you have confidence that the courts are still strong enough to literally protect democracy from this kind of executive overreach?

Ian Bassin: So for the moment actually I do. Our experience in the courts has given me a good degree of faith in the courts. We, in the case, we brought against Brian Kemp in Georgia, we brought the day of the election, we brought an emergency motion to have him blocked from presiding over the vote count of a election in which he was a candidate because that’s crazy.

And we were assigned a Trump-appointee judge, who had taken office two weeks before who was the former Republican County Chair of Gwinnett County Georgia and according to what we could find was Brian Kemp’s fraternity frat brother. And we thought, are you kidding me, like could you possibly get a worse try than that?

And yet, Kemp’s lawyers walked into court the morning of the emergency hearing and tendered his resignation to mood out the case. Perhaps they and the judge felt it would just be too ugly for that to be the first thing of Kemp’s governorship and that judge’s judgeship for that to be the way it played out.

But I also think John Roberts is kind of the model of the conservative who should be skeptical of the things that Trump is doing and unlike Paul Ryan or Mitch McConnell, who have been utterly spineless sellouts to our democracy, John Roberts doesn’t have to run for Office every two years or every six years.

(00:29:54)

And so I think even in the amazing statement that he issued essentially rebuking Donald Trump’s attacks on the courts, you got a little window into the fact that I don’t think Roberts is quite where unfortunately the other four members of the conservative wing are where it’s — Roberts I think is someone that is going to be troubled by some deeply autocratic behavior. So I think there’s some reason at least for the moment that the courts are not totally dawn although we need to be really careful about to what extent Uber executive power judges get put on the courts at a time when Uber executive power is particularly scary.

Elie Mystal: Ian, thank you so much for joining us. Thank you for handling. I’m sorry to – like I said, it’s sandbag you there it’s just it was happening.

Ian Bassin: It’s the nature of the world we live in these days. I always assume that if I blink for a second the world will have changed by the time my eyes are open.

Elie Mystal: You’re not wrong.

Ian Bassin: Thank you guys.

Joe Patrice: Yeah. No, so thank you for joining us. Thank you for everyone listening. You should be, as always, subscribing to the show giving it reviews. You should be reading Above the Law, you should follow Elie @ElieNYC on Twitter. I am @JosephPatrice. You should be considering Smith.ai, our sponsors who are graciously helping us out with this show. And with all of those things said, I think that we’re done here, so that’s a wrap. We’ll talk to you soon.

Elie Mystal: In the long run, we’re all going to die.

Joe Patrice: Well, I mean, yeah but that’s — I mean, why do you have to bring us down like that right at the end?

Elie Mystal: Have you seen Twitter?

Joe Patrice: I have, but I mean, yeah, I’ve seen Twitter before. All right, bye.

[Music]

Outro: If you would like more information about what you heard today, please visit legaltalknetwork.com. You can also find us at abovethelaw.com, atlredline.com, iTunes, RSS, Twitter, and Facebook.

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

[Music]

Brought to You by
Newsletter

Notify me when there’s a new episode!

Episode Details
Published: February 19, 2019
Podcast: Thinking Like a Lawyer - Above the Law
Category: Legal News
Podcast
Thinking Like a Lawyer - Above the Law
Thinking Like a Lawyer - Above the Law

Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.

Listen & Subscribe
Recent Episodes
05/21/19
Around the Gavel

Elie remains missing in action (crying about Game of Thrones) so Joe and Kathryn are left to do another ESPN inspired legal podcast

05/07/19
Pardon The Injunction

Joe Patrice and Kathryn Rubino offer a PTI-inspired roundup of the week's legal news items in short, two-minute bursts.

04/30/19
Law School Decision 2019 (Part II)

Joe and Elie continue to offer their answers on questions from prospective law students asking “where should I go to school?”.

04/23/19
Law School Decision 2019 (Part I)

Joe and Elie answer Law Student's questions about how to decide which law school is right for them.

04/16/19
Biglaw Continues To Struggle With Gender Equity

Kathryn Rubino joins Joe to discuss the recent lowlights in Biglaw gender equity.

03/26/19
The Odd Couple

After George Conway's most recent salvo against Donald Trump, Joe and Elie discuss the curious relationship of the senior Wachtell lawyer and Trump's senior...