tv ACLU Membership Conference CSPAN June 11, 2018 8:42am-10:04am EDT
trump. as you've heard, i am tracey higgins, law professor and founder and director of the center for international law and justice, but more importantly for our purpose this morning, and proud to serves chair of the aclu centennial. [applause] is a nationwide effort to ensure that this great organization has a critical resource that it needs not only to respond to the urgent threat that we face today, but at the same time to continue building a more just, vibrant and inclusive future for our country. i'm especially pleased to introduce this morning's plenary session because it is the perfect topic to start off our first full day at this conference. perfect because on our first were addressing the foundational print all of our american
republic that ours is a government of law and not of women and men. today the principal is being challenged so vital to the rule of law are being eroded. what challenges precisely does our democracy face in such a time? to answer that question we have the benefit of the best and most highly experienced legal minds in america. the first is a prominent constitutional law expert a veteran as many supreme court cases in the national legal director of the aclu, david cole. [applause] joining him, former acting assistant attorney general and the sn currently president and ceo of the leadership council on civil and human rights. [applause] also with us, law professor from
the university of minnesota in chief ethics lawyer in the white house of president george w. bush, richard k. fair. [applause] finally, we have an experienced litigator and federal prosecutor, former u.s. attorney for the northern district of alabama and currently a distinguished visiting lecturer at mott the university of alabama, joyce lake van. and to guide us through this discussion, we have an award-winning legal journalist and commentator who's been covering the supreme court for some 20 years. she's a senior editor at slate and host of the publication podcast in the case. [applause]
♪ [applause] >> well, good morning. let's try that again. good morning. so, i want to welcome you to this plenary panel and i want to welcome him at his are listening also and they want to just say how honored and thrilled i am to be moderating this panel at this moment. i think i want to start with the lightning round, panelists. i want to ask you a question that has been on my mind for the last couple of days that i've been thinking about this panel, which is the words rule of law have almost entirely lost meaning to me in the last year. it is a phrase that made things
to me throughout law school, throughout my career. role of law now is a notion that could mean everything from respect for the constitution, ontological truth in language and words. it can mean belief in an independent judiciary. i don't know what rule of law means. and so, i think it would help this conversation for folks to have some sense when you in your head think about, this is an erosion of the rule of law, what does that mean to you? vid, let's start with you. >> i guess i think the rule of law is about the concept that power must be constrained and that must be constrained to protect those who do not have power. for me it is the notion of checks and balances, which at the end of the day are there to
protect liberty and to protect those who cannot protect themselves through the political process. >> so, i think one of the core types of the rule of law is this notion that no individual person is abovehe law. we don't make it up as we go along. we have a set of rules defined in an area and everyone knows what is fair game, what kind of conduct they can engage in and what is prohibited and we don't move those goalposts for one person mica president of the united states who wants to move them. so yes. [applause] >> david and joyce have said it and i think it's important to remember that for so much of this nations history and for right now, the rule of law has been a source of oppression. to get back to david's point,
communities have always depended on institutions in order to changehose in that right now, with the corrosion of almost every democratic institution from the courts to political power and economic power in communities all over the country to attk on the federal judiciary and the lake, these very core institutions are fundamental to being able to have a robust conversation and struggle around what the rule of law means, what democracy means for the most and least among us. they are being transformed in ways that are going to make justice that much more difficult for people to achieve and reach. that is why we are in an unprecedented moment around these issues. >> what does the role of blogging in your head?
we need to value and that is not what is going on right now here in washington. the >> so richa and want to start with you because chronologically you made the word amalia mccool before anyone knew what numb all you met was. i think scott pruitt, there is some question about sending security staff out to get expensive hand lotion. they put the amalia's into the amalia's club. i've been waiting to make that joke for a year and a half.
the >> thank you, scott pruitt. >> and were done. i think that the lands that you have kind of offered into conversation about law and norms in the rule of law is that of corruption and self-healing. i wonder if coming in no come as lawsuits progress, and if you have a sense that this is salient for people coming that people understand there's a foreign and domestic clause, and that there are long-standing norms around divestment and openness. i mean, this is something you have put front and center a year in. do you have a sense that folks are registering that this is urgently important as a rule of law constitutional issue or is it just way too complicated?
>> well, the word a monument is somewhat strange. it just means profits of benefits. it is something the founders understood that would be very easy for foreign governments to corrupt for the foreign government and this is a topic i wrote about long before donald trump came along. they love foreign government to infiltrate our democracy with our without donald trump. i've written a book about this early in 2016, didn't even mention president trump. our founders anticipated this threat of foreign governments using their money to infiltrate
our governments taking back the money and the american revolution and it is qte clear what is going on with donald trump and that is why pointed that out in 2016. i used to live in new york when i was a lawyer, much younger and all i know about donald trump is you borrow a lot of money from people around new york, so we know he's borrowing money from somebody somewhere, dependent on somebody. this is exactly the problem that matters. we need to take it very, very seriously and ask ourselves basic questions, which is why does our president suddenly start tweeting about jobs in china right after he gets a good business still from china. >> to other folks on the panel have thoughts about whether of the rule of law issue this has
traction with the folks out there think that this is an incandescent crime of corruption or is this just something that is not tracking are resonating with the american people. anyone have a thought? >> i think that initially it did. when trump had been elected then the question was what was he going to do with his asset and what's he going to divest them and put them in a blind trust or was he going to basically go from his office in the interest of his business. but he has done so much since then and this could be said of almost everything he's done. he's done so much since he did the last thing that deserves outrage that we lose sight of the outrage before. i do think it is core and critical because one of the aspects of the rule of law is separating out public office and
public service from private interests and private gain. donald trump just doesn't understand that those two are two different things. the rule of law is designed to reinforce that an essentially impose a kind of impulse control. again, donald trump doesn't seem to understand the concept of impulse control. so i think it deserves our continued attention. i am grateful that richard's crew has been litigating this issue and it could be -- there could be and i still think there may be a tipping point in which these things all come together and people really stand up together. >> is a different piece of this, too, which is really important. i think this notion of self dealing and corruption, there's a lot of people in this country
who are very confused by all the things that the president is getting away with. in fact, scott truitt. i cannot imagine another administration were scott pruitt would still be running the agency. everything has come out about this man. what i think is so dangerous about the moment we are in what kind of all of these things coming out. this was like the first big thing that came out another is like 1500 scary aspects of our democracy, that what i worry about the most as we begin to legitimize staff. it is just too much on a daily basis and that kind of absurdities that this administration is getting away with. not because folks are suing in organizing, and by the way you guys are my family. to see all of you organizing, david deal.this is a young crowd
and a diverse crowd and i'm proud of you for all been here. the main things that this becomes a jedi mind in normalized because we can barely keep up with the pace of what is happening. but when you think about it in your staff to focus on scott referred, any one of these would have been a massive scandal in another administration. that is on all of us to figure out how do we keep this focus, how do we refuse to let any of us ever become normal? >> is a very practical lesson here, which is the last point. we have norms that seemed like they could never be broken. the idea the president with cells deal, that ivanka trumpeted trademarks in response to government policy. but we have to do at the end of this administration is put new laws in place to make sure that
presidents release their returns, the self dealing is more explicitly made so that folks like richard will have better laws to litigate against, unthinkable to really finally become thinkable. because there have been so many different corruption issues, one on top of the other, our institutions, our rule of law does not have the teeth it needs to deal with them. that is one of our big challenges, making sure we bring to the law. [applause] >> so at me ask you this -- this other big framing question that i enter into this debate with and that is we do have constitutional remedies in that we have impeachment as a remedy, the 25th amendment as a remedy. there is a conversation going on right now, have written a book
suggesting that impeachment may or may note required to legally and constitutionally, but it's technically not smart right now. i think the question i want to ask you, you are all very good lawyers. what is the constitutional offramp here? is there a constitutional offramp or is the offramp -- a choice, you are nodding. >> i think we vote. each of us accepts the obligation to share with our friends and neighbors what the truth is, what the objective truth is and then we go out and do our duty as americans and we vote. one thing important to know. we are in washington. i suspect that many of you like me live in cities. i live in birmingham, alabama, which may not seem like a huge metropolitan area, but it's much larger than many other cities in
birmingham. .. . >> does anyone have a thought whether the constitution is the solution here? it seems like we have a lot of people who think about the constitution on this panel. >> well, i think the constitution is the solution in this sense, the constitution envisions an autocratic leader and designed with checks and balances with an autocratic leader and did not envision one party control. when one party controls the house, congress, supreme court,
and those formal checks and balances aren't as effective as they are in times of divided government, but they also envisioned and recognized the importancefivil society as a checking function of the citizenry coming together in organizations like the a.c.l.u., to stand up for the rights and values that are under attack. the press, a right which can stand up andob is to stand up to power and to disclose wrongdoing and the like. to me, one of the most encouraging things in this period is how many people have stood up and joined organizations, like ours, increased their support of organizations like planned parenthood or crew or the leadership conference or the naacp legal defense fund. started new organizations like
indivisible and various, protect democracy and the like. that's where our salvation lies. it's ultimately up to us, but that is protected by the constitution. where in the constitution? by the first amendment. the right to speak. the right it associate, the right of the press, the right to assembly, and the right to petition your government. that is a check on government abuse. if we use it. [applaus [applause] >> he's absolutely right, but just doing the resistance, so to speak, for the last many months, it's just -- what's happening right now to one-party rule is that there are no checks and balances or insufficient ones at least from congress, right? like congress has basically been asleep at the switch supporting everything this president has done and to me
fundamentally, this cannot continue and it all comes down to voting in november. i cannot-- everything that we care about is at stake right now and there is a moment in november where people have to vote their values and have to come out and vote and we've been seeing this in virginia, in alabama and other places where a narrative that was deeply pong, racist, you know, led by candidates who are thinking to achieve this is soundly rejected. we've got the state where trump is remaking the course in terrifying ways. the census with the citizenship question now having been added. we've got new evidence that bannon and chris covak with behind the question and the justice department went to litigation on friday. they're going to set the rules of the debate, unless we turn this around, everything else and all much these checks and
balances, we will continue to fight, there's such tremendous energy, but we've got to translate it into people coming to the polls and shift this in november. and i know you're doing this with the work you're doing with in the communities, but i cannot put a fine point on this. >> i want to reflect on the fact that we're a couple of minutes in and nobody said robert mueller. so i'm going to say robert mueller. >> oh, yeah. >> and then i'm going to say sometimes i get nervous, i think that robert mueller is the corrective that david and bonita is talking about, and it's okay because robert mueller is going to save us and sometimes i think there's a point there's a reality show we're watching, robert mueller show and it's happening in the dark, every indictment, every leak, every whisper, every russian, every transaction swells to fill the entirety of the evening news. and so, i think i just want to
ask all of you whether we are-- we just, i think all agreed that maybe putting too much stock in impeachment is not healthy and that putting our confidence in people in voting is healthy, is putting too much stock in the magic of the mueller probe and whatever it may be, another version of putting too much faith in impeachment? are we just way too magical in our thinking that the lawyer on the white horse is going to save us all? >> well, robert mueller's charge is to focus on crimes that were committed in connection with russia. it's not a ken starr situation where he's getting into the president's sex life. he's not going stray from his core focus, which is russia. and criminal activity having to do with russia. there may well have been
collaborations with the russians, but that is not criminal, but is extremely worrisome and he's not going to be able to file an indictment over that. furthermore, there are serious crimes being committed, serious crimes on the united states constitution that have absolutely nothing to do with russia and are not within robert mueller's purview. he's a great prosecutor, don't believe the attack you hear on robert mueller on fox or wherev wherever, from so-called experts. he's doing his job and his job is a narrow set of issues and it's russia and criminal actity. surrounding that and a number of indictments. we need to go beyond that. the constitution is very clear that the executive branch does not have unlimited power and that congress has the power to investigate and, yes, to impeach when circumstances
warrant. we are well past where we were in 1973 when the house and the senate judiciary committee had hearing. i still remember sam irwin over there in the senate and in the house and those hearings when i was 12 years old. it's about time they get to business and have a hearing, we'll figure out whether the evidence justifies impeachment, and a lot of topics well beyond the mueller investigation. >> and there are no single saviors that are going to get us out of this mess and that's why i keep returning, because we are the power that we need to be, but i, look, i think that the attacks on mueller's investigations are so deeply concerning, that's why we all need to be out in the streets if trump fires mueller or if-- but i will say, how many of us are afraid of president pence? let's be honest, like this is not right.
okay. i respect everybody's hand to be raised. and let's be clear what it is that-- the change that we are seeking to make and i think that the concern about mueller being fired is just that, again, it is the clearest statement that trump believes he is a king and that he does not understand the very basic functions of our democracy and he is not above the law and this justice department only survives with the notion that nobody is above the law. that is fundamental and inherent to our democracy. and so, that's why i am so deeply concerned. i know so many are so concerned about the mueller investigation. frankly, you know, whatever the outcome is, we still have to deal with a more fundamental set of issues because losing trump may just bring in president pence and then where are we? and it has to fundamentally be about our values. i care about the mueller investigation because i care
about everything it says about our democracy, who trump thinks he is, but we've got to have a much broad are-- broader view of the change we need to have in this country. >> i'm interested in this comment that you've made that mueller a magical, almost as if he's a savior who is going to ride in on a white horse. like richard says, that's won't happen. and the reason that won't happen, that's not his role under the rule of law. if we really respect the rule of law, we respect it when it helps us and we respect it when we wish it could do more than it can do in a particular situation, but mueller's job and the job of his team o investigators and prosecutors is to determine whether the criminal law of the united states has been violated. and i'll tell you, as a former prosecutor that they will not indict unless they can believe they can prove it in a court in front of a jury of whoever the
peers, beyond a reasonable doubt. it's an incredibly high standard. i know people love to say prosecutors can indict a ham sandwich. sure, you can, but what's the point if you can't convict at trial? and mueller's job, what happens if there's an increment of proof that something-- and they can pay attention to the news, which is probably all of you. and there's now increasingly evidence in the public domain that lets us know that something happened here that wasn't right. so, whether mueller indicts or not, we will have, i think, the obligation to make sure that his work is fulfilled, whether that hearing is on the hill which i think that real hearings are longoverdue, bipartisan hearings, a commission, or whether it's indivisible, whether it's how we vote in november and in
2020, but we can't let mueller be the end all and the be all. that's not his focus within the rule of law. >> so, i just want to make an observation and it is astounding to me that i'm sitting with four lawyers who say that law is going to be part of the solution, but it's not the solution. the solution is, you ow, to paraphrase what vanita just said, if mueller is fired, we have to take to the streets and i keep reflecting on, you know, the day after the travel ban. you know, you saw it firsthand, you know, every nerd lawyer with a laptop, you know, at the arrivals gate trying to teach themselves litigation law, but really they were real estate lawyers, but they showed up and i suspect i speak for a lot of lawyers when i say, i want to
know what 2.0 of that looks like when lawyers get activated. and i worry, i want to push back, vanita, to push back on when mueller is fired, it could rod rosenstein, you can scuttle this in ways that will not trigger that, okay, lawyers, grab your laptops, hit the street. and it's certainly a question i get day in and day out, and i suspect you do, too. what is there the glass moment for lawyers and what if we missed it and how are we going to know? so, there's an existential question to go with your breakfast. david, you want to take it? >> i think it takes a lot-- if you go to law school, you are accepting nation of incremental change. you are not a revolutionary.
law and revolution don't really go together. revolution is overthrowing legal regime. so i think it takes a lot for lawyers to break the glass, but i think there's tremendous amounts of lawyers that can do and have been doing and we've seen muslim ban 2.0 and 3.0 and 4.0 and 5.0 in terms of the activities that lawyers have engad in to stand up withhe suppt of the citizenry against the kinds of things at donald trump has done. and you know, we said two days after president trump was elected, we put out a full page ad in "the washington post" to say if you do the things you said you would do, we'll see you in court. court and the muslim ban was the first case, but we've sued him over the transgender military ban sd him over separating immigrant families and revocation of d daca,
denying women in rights to have an abortion. sued him over sanctuary cities, over detaining a u.s. citizen as an enemy combatant without charges and time and time again we have prevailed in the court at least at the lower levels. [applause] now i have in my twitter feed, i think i'm up to episode 121 in our efforts to fight back against the trump administration over the courts. that is that with he can fight back againstomeone who is in some sense revolutionary by reinforcing the values and laws that this country stands for at its best, not by, you know,
some sort of revolutionary means and i'll say one i think thut the see you in court. you know, there's been -- the sort of the change in the a.c.l.u. since trump hasee elected has been remarkable. as we know we went to 8 million members, we have all kind of celebrity, quest love and to do the deejaying for us, and all kinds of celebrities who want to support us, but i thought for me the moment i realized the a.c.l.u. had arrived was the week after the muslim ban, and my wife was doing the new york times crossword puzzle and she said, hey, look at this. there was a clue in the crossword puzzle, group that told president trump "we'll see you in court", and i told her the answer was.c.l.u and she was grateful i gave her the answer to a crossword puzzle clue becse usually -- but that's when you've arrived.
when you are the answer to a clue in the new york times crossword puzzle. [applaus [applause] >> so i'm not going to burst david's bubble and i love the a.c.l.u. and what a.c.l.u. and other groups have been so vital. the courts aren't going to save us unless we're satisfying the courts. right now they're radically reformed and remade and litigation is in reaction to something and it's important that we've got the constitution and we need to be defending it, but it is not necessarily the thing that it going to build power in our communities for the change and public values that we kind of need and that's the work that all of you and all of us are called upon and so, i'm not-- obviously litigation remains the vital, vital pool in this, but i really think that so much of what we're seeing right now,
millions of people who never thought of themselves as activist, we're going to the streets, becoming plaintiffs in a.c.l.u. lawsuits, they're donating to organizations in ways that they feel like we are fighting for the soul of our country and that's what people are called to do right now. and so, we can't-- thisn't one tactic-- we' we've goto save the courts so they can save us. we've got to fight for the census because redistricting will be determined by the census and we'll live with the consequences as we have since 2010 because of the radical remaking of state legislatures around the country through redistricting and gerrymandering, this is about organizing more fundamentally right now to me, it's really about getting out there and usi usi using every tool we have and
it's vitally important. but at the end of the day we have pea got to fight for the values that we believe in. that to me is what's at stake. >> i would add one-- go ahead, she's right. [applause] i would add to that, it's such an important point, vanita, i think it has two prongs and i'd love to hear what you think about the second. the first prong is we are going to have good judges on the court. if one thinks about the kinds of judges who are not getting through the senate judiciary committee, you know, you have to have overtly written, explicitly horrifying racist things or not know what, you know, basic rules of evidence are and that's disqualifying. everything else gets through. i think something upped what you're saying is so important is that contracts don't tweet back. courts doesn't respond to
attacks and when the president delegitimizes an entire branch of government or goes after one judge or calls, you know, a so-called judge. if we don't bolster the idea of an independent juciy, not just judge by judge, but the whole notion that courts are not in a posture to defend themselves, i think that's a place where we have not always stepped up because, ag i think there's magical thinking around courts protecting themselves. . >> i totally agree. it's one one of the biggest sources of stress for me right now is the fact na progressives just have not understood that the courts are not-- the infrastructure of the courts is not going to protect itself. you know, when roy moore was running for senate in your grit state, joyce, in alabama, there were voters, like i remember reading a washington post articles saying we don't like roy moore, but, man, do we care about the supreme court. you just don't have that volume on the progressive side where
the right has been 25 years ahead of us in terms of funding. we're playing an asymmetrical war for trying to protect for a fair and independent judiciary. everything we care about, everything that david just talked about is playing itself out in the courts right now and i just think that we, as a community and as a movement has really understood what we're going to have to do to protect it and frankly, the racist nominees are making it through. the only ones that have been-- that have been withdrawn are the folks that didn't know what a motion in limine was and one said that some children were satan's spawn and withdrawn. but we have nominees refusing to say that brown versus board of education was correctly decided. that's the level at which we are at. and the swift speed with which
this is happening, i mean, it is kind of the boiling of the frog that we are watching this happen on our watch and we will pay, we will be living with the consequences of this for generations. >> does anyone else on the panel have thoughts about how folks who don't necessarily have a great idea how to protect an independent judicial branch, and i single out the judicial branch although of course we know the fbi and the justice department and everybody who's being delegitimized have the same concern, but i think the asymmetry you're talking about with respect to the courts really does frighten me vicerally. are there thoughts about what the message is around an independent court? particularly when every judge, including republican appointees who votes against trump, gets tagged as a judge of the resistance. how do we try to continue to message that even in these polarized times the courts are different? >> well, one of the concerns,
and i've had this concern for decades. there's been a lot of thoughts left and right about how judging is really just a political act. and that there are politicals biases between these and the judges and teaching that in law schools. yes, there is some of that. judges are not going to be entirely neutral in everything, but if you describe judges as being somehow just another political branch, politically motivated, you know, that is very dangerous. junction have an obligation, as best they can, to uphold the law, not to further the interest of their own particular religious group, or whatever it might be, and there's been way too much of that rhetoric and we need to stand firm for an independent judiciary. and for objective truth. there is right and wrong.
there is a constitution, and you know, one of the great theories i had, when the far right wing discovered identity politics and what do you think, you have people who may feel very strongly about we should move the embassy to jerusalem. why agree, but that is no justification to go on cnn and protect this, defend this president and violating our constitutional rights on every other issue. that's identity politics run amok on the right wing and how about scott pruett? people tell you they're christian and he's a christian, and therefore, everything he does is okay. he hasn't read the first book of genesis, and created the earth and he's destroying it, but he's my particular type of christian, i will excuse his abuse of power, his waste of public funds, his renting of house from a lobbyist,
basically a payoff, who worked for the energy ministry, this is the type of mindset, this is extremely dangerous in a country. it's what destroyed the republic, destroy us when you identify yourself as a religious group or ethnicroup somehow being more important than a democracy. that's going on in the trump administration and going on with the people defending the trump administration whether on cnn, fox news or everywhere else. we need to stand up. it's flat-out wrong. [applause]. >> did you have a gloss on protecting an independent judiciary? >> so i just go back to something vanita said and we're so behind the conservative and republican party in creating high value for people who
believe the things that we believe, creating high value for the importance of the judiciary. because i have had the same conversation with so many of my republican friends in the last few months, and it's gone something like th. how can you continue to support this president? he's doing x, y, z, whatever they are, they'll tell you over and over, i don't like the fact that they're tearing children away from their moms at the border, but i'm willing to put up with that because aren't we getting great federal judges and look at the supreme court? and that is something that we don't fully process. we don't fully appreciate the sacrifices that the other side is willing to make in order to get the next supreme court picked. we need to take that issue head-on. we need to make sure that people understand that our values are enforced in the courts and that we will continue to lose if we have an entire generation of judges that will not stand up for some
of the most basic principles we've fought for over the years, like brown versus board education, we're letting this one slip away from us, frankly. [applaus [applause]. >> and just to be super clear, neil gorsuch was willing to go on the record in his confirmation hearing, unequivocally that brown was decided correctly. think about the fact that a year later it's possible to take the posture at a confmation hearing that best not to discuss it because it may come before me again, because the jury racial segregation is bubbling up. that's an astounding sea change in discourse around what judges do and i think you're right, we barely tracked it. it was outrage number 974 that day. so, my next note just says, just sections, justice
department. discuss. and we can-- i mean, we can start, if you want-- richard is hing a tiny little breakdown. [laughter]. >> guest: but we can start with the aca, the career lawyers declining to sign a brief in the new aca litigation and the larger pan back and let's talk about what policies on incarcerations on drugs, on prisons on sanctuary cities, policies happily and easily changing sides. david, do you want to start and just give some kind of nonbreakdown-bed assessment of what has happened at the justice department? >> sure, well, i started at the a.c.l.u. on january 9th, 2017,
and on january 11th, i testified for the a.c.l.u. in the jeff sessions nomination. we don't take positions endorsing or opposing nominees, but and so i made it very clear, i'm n taking any positions, but here are the questions that you ought to ask before you vote in favor of this nominee, and as i concluded by saying, we don't endorse or oppose the nominees, but if you had an intern applying for, you know, one of your senatorial staff positions with as many unanswered questions or badly answered questions in his record as jeff sessions has, you would not hire that person. so, they didn't listen to me or cornell brooks or anyone else who testified in that hearing, and they confirmed him and he's
active true to form and reversed so much of what was the great work that was done by vanita and under the prior administration on criminal justice, in particular. we've gone from smart justice, back to the tough on crime rhetoric and policies of the latter part of the 20th century, which led-- you know, created mass incarceration. they have reversed policy, reversed their positions in many lawsuits, in one that we're involved in in the supreme court, the ohio voter purge case, where ohio is purging voters from the voter registration roles if they don't vote. assuming that the only reason you wouldn't vote is you must have moved out of the state. when we know that 50% of people generally don't vote in every election and the justice department for 20 years took the position na you can't
remove people under the motor voter law for in kind of conduct and they joined the case on our side in that case and we won in the 6th rcui and then ohio took it up to the supreme court, trump was elected and the justice department reversed the 20 years under republican and democratic administrations. they, in the masterpiece cake shop case, which was a challenge to the public accommodations law, the justice department enforces nondiscrimination laws. and never in the history has it supported an argument that there was a constitutional right to discriminate, which is what the baker was arguing for, and here this jce department supported that. and then, this most recent event, last week, on the affordable care act is sort of, you know, the icing on the cake. here they've been trying, trump
has been trying to reverse obamacare since he came into office and he has failed because we stood up, because people went to town halls, because people insisted that we want the protection on preexisting conditions. we want insurance companies not to be able to charge you more ifou get sick, et cetera, et cetera. and he was unable to overturn that. he was able to take away the enforcement mechanism behind the individual mandate, the tax that you pay if you don't buy insurance and you're not covered by your employer. that, he was able to get that in the tax bill, really the beenble to ect and n he's he's arguing in court that the justice department can't defend the constitutionality of the affordable care act because since congress repealed that one provision of the affordable care act, they must have wanted to repeal the rest of it and so the court should repeal the rest of it and get rid of the
protection for preexisting conditions, get rid of the requirements insurance companies can't charge you more if you're sick, and you know, the rule, what they're saying the justice department,ou defend a federal statute, you know, you defend-- it's your job to defend the federal statute unless there's no reasonable argument that you can advance to defend that statute. here, there are boatloads of reasonable arguments to defend the statute and they told congress we're not going to-- we're not going to defend it. so this is a justice department that has really just turned, turned on its head the notion of justice. >> vanita. >>. [laughter] he's terrible, he's impossible. the worst possible person to have been made attorney general and when he was said to be the
person over other candidates. it's all turned out to be true. on everyevel the man is advancing narrow white supremacist view of america. i don't know who saw his interview with a conservative talk show radio show host where hugh hewitt went after him rather relentlessly about how is it that jeff sessions could stand for separating young children, infants in some cases from their mothers at the border and parents at the border and to read sessions and hear him, his responses, i don't know how he sleeps at night. i don't know how he can at all be in the position that he is and i would urge all of you to listen to that interview. it was an important moment, i think, and i hope that hugh hewlett was-- look, sessions has turned, he has turned the mandates of the justice department on their
head. he's largely abandoned the civil rights division and completely stopped police reform in its tracks and done worse by embolening law enforcement against the very kinds of things that a lot of law enforcement leaders were beginning really remote after ferguson and black lives. when trump gets for the johnson pardon. and i'm going to give the people at a.c.l.u. credit because they're highlighting mass encores ration and kudos, yes, he should, but he has meanil put in place an attorney general who has not only stopped all of the criminal justice reform that was underway that had begun to reduce for the first time in decades the federal prison population, but he has now massively increased the federal
prison population and put back in place private prison, he's reintroduced solitary confinement and withdrawn every piece of work that attorney general holder and loretta lynch tried to put in place to finally begin to address what has been one of thon's most shameful crises of mass encars ration. you can't speak out of one side of your mouth and watch what this attorney general is doing. i think attorney general sessions on lbgtq rights, and issues we care about, voting ghts, a man who called the voting rights act intrusive. this is a man who is fundamentally remaking a lot of the work that we care about and look, jeff sessions knows where the levers are power were. he was a u.s. attorney and he, unlike many others, it's not a question of incompetence, he knows what levers to push and pull. he knows what the funding streams are and what the bully
bull pit-- pulpit is. while in washington we have to resist his agenda, there's no question in the states now, the work and mantle to carry criminal justice reform, on lbgtq rights is that much more important and work you're doing in your community. we can't ignore the tremendous power that they have goose the country, but at the same time we've got to be able to fight back in our states against what i think, i think he's out of the norm even of his own party with a lo the of this stuff and push back on that. and i think if something doesn't change in november, it's only going to get worse. >> richard. >> i think it's important to
separate out the policy that many of us have with attorney general sessions and his violations of the rule of law, a subversion of the constitution. once again,ant to emphasize the importance of those, focusing on the rule of law. we may have disagreements over policy issues, that's one set of problems. the second set of problems is when you have an attorney general who is violating the rule of law as set forth in the constitution by this country and i will say this attorney general is one of the worst we've had since attorney general mitchell under president nixon and attorney general palmer in the waning years of president wilson when the president was incapacitated and he would round people up. this attorney general lied under oath when asked a question by senator frank been his contacts with the russians. he lied under oath.
that's what happened there and senator franken called him on that. i then wrote an op-ed in the new york times calling for his resignation because he had lied under oath. that's what happened. he decided not to resign, but to recuse from the russian investigation and now i'm in the very difficult position of having to ask myself should attorney general session, one of the worst attorney generals we've ever had be fired. and having to reach the conclusion the answer to that is no. why? because he goes, robert mueller goes, that's what's going on. so, i detest this attorney general. he lied under oath. he has subverted our constitution and nothing to do with all of these other issues that people may disagree or agree with him about, but we're in the very, very troubling situation where we have to keep this man where he is at least for the time being to prevent
this president from subverting the rule of law and i ask how did we get into this horrible situation, it's a tragedy. >>. [applause] . joyce, do you want to talk about the just sea change at the justice department? >> it is so tempting just about every day to play this game, imagine if barack obama had done whatever. and i find myself playing that game a lot, although i try to avoid it with the justice department. can you imagine if eric holder had lied under oath about contact with the russians during his confirmation hearing? right? i mean, these are very, very troubling concepts. a lot of what's happening at the justice department isn't quite that public. last week, there was a story, some of you may have seen, attorney general sessions brought on-line 311 more
assistant united states attorneys, prosecutors across the country spread across do j's 93 u.s. attorney's offices nationwide and what did that mean? that means that jeff sessions will have greater capacity to carry out his role as attorney general. and to frankly increase numbers of prosecutions. eric holder and then loretta lynch made qualitative decisions when they implemented smart on crime policies. they said prosecutors should think about doing fewer, but more significant cases. go after public corruption, go after white collar crime. do big drug cartel cases, do civil rights prosecutions, do immigration cases, but do the right ones. and so, under the obama administration prosecutors were largely directed to consider
prosecuting cases involving immigration that involved, for instance, folks whoere involved in violent crimes, or to prosecute folks who were trafficking human beings. the approach that's taken under this justice department is very different. let's prosecute people who illegally re-enter the united states after being deported once without doing more, with the first wave of that and now we're prosecuting people simply for being illegally present in the united states. we are prosecuting misdemeanor crimes and using that as the rationale for separating parents from their children and this is what jeff sessions is devoting his resources to. low level drug cases, a return to the war on crime. overfilling federal prisons, this is not movements forward. this is movement back to perhaps the 1950's, based on an
ideology of of fear and hatred and if there's one thing that i learned in 25 plus years in doj, it's that politics happen, every four or eight years, there's a change and then the career employees at doj collectively sigh and continue their work forward. and new administrations, they change the names that they call things by. they have to give it their own brand, but the work moves forward on a linear track, based in large case on data, not ideology. that's not what's happening here. jeff sessions is taking us back to an old ideology that's failed. there's data that indicating that the approach he's taking on criminal justice is the wrong one. there's so many horribles, we can't focus on all of them. in my judgment this is one of the worst that we're seeing. so, i want to point out that every one of you in some form or another, some form or another, every one of you has
said something about asymmetry, that there's a problem here, whether it's an enthusiasm in asymmetry or focus in asymmetry and there's another asymmetry that i want to point out and that is we keep talking about truth. we keep talking about norms. we talk about ethics. we talk about the constitution. it seems to me that if one is fighting a two front war, you're fighting and you're also fighting to preserve institutions that you believe in. and you're fighting to preserve them because if and when this ends, we still need a functioning justice department. we still need functioning courts. we're going to need a functioning fbi. and i think that that dilutes in some sense the message. i mean, i think the two least effective words you can say on cable television are, "yes but" or "yes and" and you've lost.
and i think sole searching by democrats and progressives, saying, if democrats ever gain control of the senateudicia committee we will certainly instate the filibuster, we reinstate the blue slip. we will go back to all the things, the norms and the rules that make our institutions great and i think the question i want to ask each of you or one of you is what does it mean when one side a still fighting for truth and still saying words have meaning and institutions matter. and the other side seems to have not a lot of compunction about burning things down and maybe that's not a fair characterization, and if it's not let me know. but i think it's exhausting of the work of trying to advance your interests and also prop up institutions that really do matter, even though they may for reasons we can't quite recall at this moment. is that too meta? does anyone want to take a
crack? >> well, you're right about the-- however you want to switch his play book, with respect to judicial confirmation. and i think, yes, you ought to have 60 votes for the supreme court of the united states. and maybe for the courts of appeals, but when it comes to a filibuster, which is really an end run around the usual procedures. they ought to say you ought to have 60 votes, majority to put people on the supreme court and the court of appeals. the way it's handled using fibls filibusters is irresponsible. and everyone has been talking about judging is philosophy. and now the ultra right wing is taking the message and saying we need to put in right wing judges and justices and somehow it's a christian message or whatever, once again, playing
on identity, religious identity, to subvert our constitution. and it is a very dangerous trend. but once again, i think it's critically important to honor our traditions, our constitution. there is a balance of power here. the senate has a critically important role in confirming judges and justices and by the way, they should answer the questions. if you can't say whether brown versus board or roe versus wade, which is 45 years old for crying out loud, is a good decision or at least you're polling-- you don't have to be in favor of abortion to support roe versus wade. and just saying that the first trimester the government says-- >> and two justices were appointed by president nixon from minnesota. so, this is not a progressive versus conservative issue and you cannot have people standing
in front of the senate, sitting there, they're supposed to answer questions and they're saying, well, i can't decide a pending case, well, roe versus wade is not a pending case, no more than brown versus board of education. if there's one pending case i would want to hear, i'd want to hear under oath and that's citizens united. [applause] >> and talk about judicial activism. you have nine justices, i don't think any of them run for elected office, they don't know what a quid pro quo is and they're sitting there saying, gee, this is a quid pro quo in front of us, we're going to say it's a first amendment right. it's bribery that's all citizens united is. i want to hear underoath, answer the questions or no confirmation. >> anyone else to take a crack at the two-front war. >> i think that the a.c.l.u. has been fighting a twont war for virtually a hundred
years. what do we defend? we defend the institution of the bill of rights. we defend equal protection, we defend thereedom to speak. we protect due process. these are fundamental institutions that need the defense of the people. they need the defense of committed citizens. they're not-- you know, they're not self-enforcing guarantees and that is much of what we do. we are a defensive organization. that's in part why so many people have come to the a.c.l.u. in the wake of president trump's election, because they realize the need for a very strong defense. but i think, you know, it's not inconsistent to be using these institutions to advance, so, the institution of free speech, we've fought for years to protect that right in a defensive posture, when it was
being-- when the government was targeting first anarchists and then communists and then civil rights activists and women's rights activists and the like and ultimately we won by a, you know, by achieving very strong rs amend protections in this country in a series of decisions in the 1970's, but it came from 50 years of organized, engaged battles for-- to protect an institution that was in the constitution to begin wibut dn't mean what it needed to mean until people fought for it. so, i think, you know, i think it's they're part and parcel of the same thing. >> vanita. >> i would add, returning back to my first point, for a lot of folks, for communities of color, the institutions, you don't want to just overly romanticize institutions either. they have failed a lot of
communities over time and we just have to-- we haven't-- but that it's always, it is the struggle that we find ourselves in right now, which is that there's the project to make these institutions more assessable, more equal, and by institutions, you can up pack that just like you unpack the rule of law, it can mean a lot of things, but you've got the ideals of what the institutions are supposed to be and the constant struggle even in the best of times to make them accountable to everyone in the country and not just for the status quo and the powerful. we are finding ourselves in this situation where, you know, the civil rights lawyers, we have relied on the courts for vindicating the rights of the least popular and relied on being able to vote people into office that may be able to change the tenor of the conversation and the like, and those vehicles right now are being-- are most under a threat. and so, it isn't to say that
like we can do one without the other and we've got to be working on both. i've got to be honest with you, is that the republicans. the gloves are off and grassley has changed the rules on the confirmation process and they aren't rules, they're norms and traditions as he keeps reminding me. and so, you know, what happens if and when a different party comes into power. and mind you, the democrats have a lot to, would on themselves around this. it isn't to say that the party has got the answers, but, you know, are we just going to return back to our polite kin of mode of being and these are the norms and traditions and we've abided by them even when we've gotten completely royalty screwed by them. i think we've got to play a little tougher. and it isn't to say we-- we need to understand the long-term consequences of our actions in the institutions, they will always-- we've always got to imagine what it was like when somebody else is in power and i'm firmly
a believer that we've got to protect those things, but i also think that sometimes, you know, tools tactics that we rely on, you know, we want to be the rule, kind of the nice people who play by the norms and traditions and we've got to be able to think outside of the box right now and be able to figure out how can we protect our institutions, how do we continue to engage in the long battle to make them more perfect for our union and also, how do we win. and it's all, it's part of a messy calculus that doesn't have a single formula, but it's where we want to be. >> we are going to wrap up with another lightning round. you are looking at activated, passionate people, they are not numb, they are not burned out. please tell them the one thing they can do that they can take home and they can message and they can fight for with respect to the rule of law? what is something that they can't change the senate
judiciary committee rules, but what is one piece of advice? richard, let's start with you. something folks can do to protect the rule of law in america in 2018. >> vote. [applause] the constitution sets forth the responsibility and the right of everyone in our society from the citizens to have an obligation to vote, to elect the entire house of representatives every two years and since they amend the senate, the constitution with respect to direct election of senators, one third of the senators every two years, that's your responsibility. your friends have that responsibility, you all want to get the word out and expect congress to do its job. respect the constitution. from the first amendment to the emoluments clause, absolutely. i want to emphasize the first amendment, i became first
disgusted with donald trump, when he talked about banning people from immigrating to our country and there's some things the founders got wrong in the confusion and religion is one thing they got right. going back to the mayflower people come to this country for free exercise of religion. and to have a preside talking that way, i've never seen that type of rhetoric in a political campaign. i don't know of any in history in the united states political campaign. i do know about it in the presidential elections in 1932 in germany. we don't tolerate that in the united states we defend our constitution and that's what we're going to do in november. [applause]. >> vanita. one action that folks here can take to defend the rule of law? >> i mean, vote. [laughter] >> and it's not just in november, it's for every election in your-- locally. prosecutors and state board officials, vote so if you're
voting downstream. and the battle i will say, keep organizing. every night you're fighting in your community or washington, there is a target and be smart about it. figure out who the targets are. get organized and take action, that's all we can do right now is to take action wherever we possibly can. be smart about it, be strategic and vote. >> joyce. >> vote, take action and, so, i don't have any doubt that everyone in in room will go out and vote in november. and the issue is this: who are you going to take with you to vote. if you live in alabama, make sure your neighbors have i.d. because we have one of the worst i.d. acts in the country and hard for people to vote and make sure people in rural areas have transportation and most importantly, fight in malaise of numbness we have. when everything is bad and there are 12 horribles that happen every day, a lot of people who are just trying to
go to work and take care of their parents and their kids, they become numb, and it becomes very difficult for them to engage on these issues. so, help your friends, help your neighbors, and take them with you in november. [applause] >> david. >> so, it's going to be, a broken record, but you know, our motto for 2018 and 2020 is vote like your civil liberties depend on it. [laughter] >> and that is absolutely critical. donald trump did not win the election by getting more votes than john mccain donald msfeld, he won the election because those who care about civil liberties and civil rights didn't come out and vote on the other side and hillary clinton got substantially fewer votes and millions of fewer votes than president obama had gotten. if those who believe in liberty come forward, we can prevail and i'll just close with a
quote that i sort of the inspiration for my most recent book, and it comes from learned hand, who was a judge on the u.s. court of appeals for the 2nd circuit in new york, and he was giving a speech to 150,000 immigrants who were taking the oath for the first time to become citizens. this was a naturalization ceremony, 150,000 in 1942, so many people that they held it in central park. and they asked a judge to speak to them. that's-- they had a little different view of the role of courts. and he talked about the spirit of liberty. and he said in that speech, liberty lies in the hearts of men and women. when it dies there, no court, no constitution, no law can save it. while it lies there, it needs no court, no constitution, no law to save it.
now, i think like many great quote, this is an overstatement. i think we need courts, we need constitution, we need laws, they remind us of our better sell ofs. it's true to liberty lies in the hearts of men and women, i would say in aself to go pout and vote, encrage your fellow citizens to be as active as you are, to join the a.c.l.u. to join a people power organizing group and to engage in this struggle for liberty. because, at the end of the day, it is the citizenry who will save us not the institutions, not the courts, thank you. [applaus [applause] >> i want to thank to the a.c.l.u. for the extraordinary honor of being permitted to moderate this fantastic discussion. i want to thank david cole, vanita gupta, joyce vance, richard painter for being here
today. i want to thank all of you for the amazing work that you do and even more amazing work you're going to do tomorrow and i want to thank the good folks at amicus who are making this happen in your ear buds. i wish you all an aming, amazing conference and thank you very much. [applause] ... [inaudible conversations]
senator warren of massachusetts will address the conference at 2:30 p.m. eastern. u.s. senate gavel senate 3 p.m. eastern to work on defense programs and policies. senators will vote at 5:30 p.m. eastern on starting formal debate on that bill and if it succeeds they work on amendments throughout the week. the u.s. house will beac tomorrtoo eastern. the schedule filled with more than three dozen bills dealing with the opioid crisis. including synthetic opioids, addiction treatment and giving pharmacists guidance on issuing prescriptions. watch live house coverage on c-span and the senate on c-span2. >> tonight on "the communicators" former fcc chair tom wheeler talks about the end of net neutrality. is interviewed by david mccabe, technology reporter for axios. >> nip and tuck has shifted to legislation or some on the hill who would like it to shift.
do you think it's possible to legislate this issue? >> david, it's faceting the republican position all along very my term was this is something congress ought to decide. now when congress has an opportunity to decide with the congressional review act that passed the senate in a bipartisan way and is now pending in the house, that the republicans in the house and industry say no, congress shouldn't say. look, if the chairman at the fcc has the courage of his convictions, that what he has done is right for america and will stand up to a vote in the congress, he ought to pick up the phone, call speaker ryan and say schedule it for a vote in the house and let us see what the representatives of the american people say. >> watch "the communicators" tonight at eight eastern on c-span2.
>> this week live coverage from the u.s. and north korea summit between president donald trump and north korean leader kim jong-il on starting tonight. join "washington jrnal" tuesday and morning for analysis and your comments. watch live on c-span and c-span.org or listen using the c-span radio app. supreme court justice sonia sotomayor was interviewed recently with the american constitution society for law and policy at the organizations national convention in washington, d.c. she talked about collegiality among the supreme court justices and her new books, a memoir, "the beloved world of sonia sotomayor," and a children's book "turning pages: my life story." this is about an hour. [applause]