tv ACLU Membership Conference - Panel on the Rule of Law CSPAN June 11, 2018 11:24am-12:40pm EDT
trump. as you've heard, and tracey higgins, law professor and founder and director for international law and justice. more importantly for our purposes this morning from a this morning, and proud to serve as one of the chairs of the aclu centennial. [applause] is a nationwide effort to ensure this great organization has a critical resources that it that we face today. but at theame 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 of this conference. perfect egos on our first addressing the foundational american republic, that ours is a government of law.
today that principal is being challenged other legal norm, so vital to the rule of law are being eroded. what challenges precisely are democracs facen suche. to answer that question, we have the best in both highly asked her and legal minds in america. the first is a prominent constitutional law expert, veteran as many supreme court cases in the national legal director of the aclu, david cole. [applause] joining him as head of the civil rights department of justice is currently president who view of leadership on human rights -- [inaudible] with us, eminent law professor
from the university of minnesota and chief ethics lawyer and the white house of president george w. bush. [applause] finally, we have an experienced litigator and federal prosecutor, former u.s. attorneys in the northern district of alabama and a distinguished visitingecture ahmad the university of alabama, juries. we have an award-winning legal journalist and commentator who's been covering the supreme court in the justice system for some 20 years. she is a senior editor and host of the publication. [applause]
[applause] ♪ >> well, good morning. let's try it again. good morning. so i want to welcome you to this plenary panel and i want to welcome amicus listeners who are listening disembodied also and i want to say how honored and thrilled i am to be moderating this panel at this moment. and i think i want to start with a lightning round, panelists. and i want to ask you a question that has been on my mind for the last couple days as 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. that's a phrase that made sense to me throughout law school,
throughout my career and rule of law is now a notion and it can 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. i think it would help this conversation for folks to have some sense when you were in your head think about, this is an erosion of the rule of law. what does that mean to you? david, let's start with you. >> so come i guess i think the ru of law is about the concept that power must be constrained and it must be constrained in order to protect those who do not have power. and so for me, it is the notion of checks and balances, which at the end of the day are there to protect liberty and protect
those who cannot protect themselves through the political process. >> so i think one of the core concepts of the rule of law is this notion that no individual person is above the law. we don't make it up as we go along. we have a set of rules defined in advance and everyone knows what's fair game, what kind of conduct they can engage in and we don't movose goalposts for one person, like say a president of the united states who wants to move them. so, yeah. ..
communities have always depended on institutions and knowing the norms in order to change those, what the rule of law has been in this country. right now with the corrosion of almost every democratic institution from the courts, to the attack on the free press, attack on the federal judiciary and the like, these very core institutions that are fundamental to you being able to have the robust conversation and struggles around what the rule of law means, what democracy means for the most, the least among us, they are being fundamentally transformed in ways that is going to make justice that much more difficult for people to achieve and reach. that's where we are in an unprecedented moment in the country around these issues. >> richard painter, what is the rule of law meet in your head? >> the rule of law is
essentially about not coming to absolute power, not using governments to push the agenda of one's own particular religious sectarian group or racial group on others. to live with other people in a democracy, in a republican form of government. and what we are going through right now is a very, very worrisome challenge to the rule of law. we have had republican form of government in this country for well over 200 years, but we can lose it. germany lost a republican form of government in the 1930s after only about 15 years because of these same types of pressure where people focus on
their racial identity and the religious identity and obsess on their differences rather than cong together to support a democracy, with a rule of law. our constitution is something that we need to value and we need to defend. that's not what's going on right now here in washington. >> so richard, i think i want to start with you just because chronologically you made the word emoluments cool before anyone knew what an emolument was. [laughing] and i think i choked last week when scott pruitt, there was some question about him sendinge could step out to get expensive hand lotions, and i joked, they put the emoluments into the emoluments clause. [laughing] but i've been waiting to make that joke for a year and a half. [laughing] >> thank you, scott pruitt.
[applause] >> and we're done. >> but, , richard, i think the lens that you have kind of offered into this conversation about law and norms and the rule of law is that of corruption and self-dealing. and it wonder if, you know, as the lawsuits progress, if you have a sense that this is salient for people, that people understand that tre's a foreign and domestic emoluments clause, that there are long-standing norms around divestment and openness. i mean, this is been something that you 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 emoluments is somewhat strange to people.
it has a latin root. you look at the dictionary, 1755, it's something the founders understood that it would be very easy for foreign governments to corrupt american officials if you allowed american officials to do business with a foreign government. and this is a topic i wrote about long before donald trump came along. i was worried, and i still am worried our campaign-finance system after citizens united will allow for governments to infiltrate our democracy. with our without donald trump, i have written a book on this topic back in 2000, only 2016, didn't even mention trump because i didn'tnk jokester would get elected president. it's a serious threat. our founders anticipated this threat of foreign governments using the money to infiltrate our government, taking back money that which they could not
win in the american revolution, and it's quite clear what's going on with donald trump and that's why i pointed that out. i tried in the summer of 2016. i used to live in new york when i was a lawyer, much younger,, and only know about donald trump is he borrowed a lot of money from people around york and as far as i know never paid it back. we know he is borrowed money from somebody somewhere, depended on somebody. i don't know who it is because you won't disclose his tax returns but this is exactly the problem the founders anticipated. we need to take it very, very seriously what's going on with foreign government. the basic question such as why does our president start tweeting about jobs in china after he starts getting a good business deal in china? >> two other folks on the panel have thoughts about whether, as a will of law, issued this has traction with folks out there
think that this is an incandescent crime of corruption, or is this just something that is not tracking a resonating with the american people? anyone have thoughts? >> i think that initially it did, you know, when trump had been elected and the question was what was he going to do with his assets and was he going to divest them and put them in applying trust, or was he going to basically deal from his office in the interest of his business? by ps done so much since then that deserves outrage, that this, and this could be said of almost every time, he has done so much since he did the last thing that deserves outrage that we lose sight of the outreach before. but i do think it is court and is critical because one of aspects of the rule of law is separating out public office and
public service from private interests and private gain. donald trump doesn't understand that those are two different things. the rule of law is designed to reinforce that and essentially impose a kind of impulse control. and again donald trump doesn't seem to understand the concept of impulse control. i think it deserves our continued attention. ungrateful that richards group has been litigating this issue. and it could be, there could be and i still think there may be a tipping point at which these things all come together and people really stand up together. >> there's a different piece of this that i think is really important. i think this notion of self-dealing and corruption does resnick there's a lot of people in this country just are very confused by all the things that
the president is getting away with. scott pruitt. i cannot imagine another administration where a scott pruittld still be running the cabinet agency. everything has come out about this man, and what you think is a dangerous about the moment that we are in with the kind all of these things are coming out, david is right, this is like the first big thing that came out and since then there's been like 1500 scary aspects of our democracy. what a way that the most is that we begin to legitimize deputy becomes normal. it's too much on a daily basis, the relentless kind of absurdities that this administration is getting away with. not because folks are not suing and organizing, by the way is amazing at the aclu, you guys are my family, and to see all of you organizing at the membership conference. [applause] it's a big, big deal. this is a young crowd, a diverse crowd and i'm really
appreciative to all of you for being here. but the main thing is that this becomes legitimize and normalized. it because we can barely keep up with the pace of what's happening, and, you think about, stop and focus on scott pruitt or some of these concerns on crutches and self-dealing, we can't anyone of these would been a massive scandal in another administration, and that's all of us to figure out how do we keep this focus, how do we keep vigilant, how do we refuse to ever keeping of this becoming normal? >> and there is a practical lesson which is the last point, we have norms that seem like they could never be broken, the idea that presidents would self deal, that ivanka trump would get trademarks and exchange apparently for government policy. so what we will have to do at the end of this administration is put new laws in place to make sure that presidents release
their tax returns, that self-dealing is more explicitly made a federal crime so that folks like richard and norm eisen will have better lost to litigate against. these unthinkable have really finally become thinkable, because there had been so many of these different corruption issues, one on top of the other, our institutions, rule of law has not had the teeth it needs to do with him. at a think is one of our big challenges. after it's over making sure we teeth to the law. >> so let me ask you this -- [applause] >> this other big for any question that i into into this debate with, and that is we do have constitutional remedies, that we have impeachment as a remedy. we have the 25th amendment as a remedy. these have been floated. there's a conversation going on right now, joshua and lauren have written a book suggesting
impeachment may or may not be required legally and constitutionally, but it is tactically not smart right now. so i think the question of what to ask you, you are all very good lawyers. what's the constitutional offramp here? is there a constitutional offramp, or is the offramp we vote. joyce? >> i think we vote. i think it's each of us accept the obligation -- [applause] to share with our friends and our neighbors what the truth is, what the objective truth is, and we go out and we do our highest civic duty as americans, and would vote. one thing that it's important to note, we are in washington. i suspect many of you like me live in cities. i live in birmingham, alabama, which may not seem like a huge metropolitan area, but it is much larger than many of the other cities in birmingham. and i i think we have an
obligation to help our fellow citizens understand what's happening in our country and where their self interest lies. we have struggled to that for a lot ofeasons this administration is very successfully put out a counter narrative that is not grounded in the truth. one of our challenges will be defeating that narrative. >> does anyone else have a thought about whether the constitution is the solution here? seems like when a lot of people think about the constitution on this panel. >> i think the constitution is a solution in this sense, that the constitution envisions an autocratic leader and it created a set of checks and balances that what site to check autocratic leaders. it did not one-party control, and when one party controls the presidency, congress, the supreme court, two-thirds of the state legislatures, those formal checks and balances are not as
effective as they are in times of divided government. but they also envisioned and recognized the importance of civil society as a checking function of the citizenry coming together in organizations of, like the aclu, to stand up for the rights and values that are under attack, the press, , righ, which can stand up and it's job is to stand up to power and to disclose wrongdoing and the like. and to be one of the most encouraging things in this period is how many people have stood up and joined organizations like ours, increase their support of organizations like planned parenthood or crew or the leadership conference for the naacp legal defense fund, started new organizations like
indivisible and protect democracy and the like. that's what 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 to 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. [applause] >> david is right. in doing the resistance so to speak for the last many months, me, what's happening right now with one-party rule is that there are no checks and balances or is sufficient once a a leak from congress could like congress is just basically been supporting everything the president senator toomey
fundamentally this cannot continue and it all comes down to voting in november. i cannot come everything that we care about is at stake right now, and there is a moment in november where he pledged to vote their values and had to come out and vote. 've been seeing this in virginia, in alabama and other places where a a narrative that was deeply polarizing, racist, led by candidates who are seeking to achieve office were soundly rejected. if we don't come with the court at stake worth trumpets with the remaking the courts in terrifying ways. the census with the citizenship question being added. we have new evidence they were behind the citizenship question. they are going to set the rules of the debate, and unless we turn this around, everything else and all of these checks and balances will continue to fight.
they're such tremendous energy that we got to get to translated and people turn out to the polls and shaking the dynamics because of how much is at stake right in november. i know that's what all of your doing out in the community you work with but i cannot set much more of a a fine point on that. [applause] >> the fact that we are a couple of a nobody has said robert mueller. some just going to say robert mueller. then i'm going to say sometimes i get nervous because i think that robert mueller is the corrected that david and vanita are talking about everybody says it's okay, because robert mueller is going to save us. and almost a think sometimes we the point where there's another reality show we're watching, robert mueller show. even though it's all happening in the dark, every indictment, every leak, every whisper, every russian every transaction swells to fill the entirety of the evening news. so i think i just want to ask all of you whether we are, we
just i think all agreed that may be putting too stock in impeachment is that healthy and putting our confidence in people in voting is healthy, is putting too much stock in the magic of robert mueller probe in whatever its consequences may be another version of putting too much faith in impeachment? are which is way too magical in our thinking that a lawyer on the whiteboard is going to save us all? >> well, robert mueller charge is the focus on crimes that were committed in connection with russia. he's not getting -- this is not a ken starr stuff where he gets into the presidents sex life. he's not going to stray from his core focus, which is russia. and criminal activity having to do with russia. there may well have been collaboration with the russians
that was not criminal but that is extremely worrisome. he's not going to be able to file an indictment over that. furthermore, there are serious crimes committed, serious violations in the united states constitution that has nothing to with russia and are not within robert mueller's purview. so he is a great prosecutor. oblique all the unfounded attack you on robert mueller, on fox or were ever, from so-called experts. he is doing his job. his job is focused on a narrow set of issues. maybe not that narrow given the amount of russian interference in this election criminal activity in the number of indictment. but we need to go beyond that. the constitution is very clear that the executive branch does not have unlimited power, the congress has the power to investigate and yes, impeachment circumstance work.
we are well past we were in 1973 with house, hse, senat judiciary committee had hearings. i still remember sam ervin over there in the senate, and those hearings when i was 12. it's about time they get down to business and have hearing. will figure out whether the evidence justifies impeachment. it will involve a lot of topics, what will be on the scope of the mueller investigation. >> vanita? >> that are no single saviors that are going to get us out of this mountain. that's why we are the power that we need to be, but look, i think the attack on mueller's investigation are so deeply concerning, it's why would only out in the streets trump fires mueller or if, but i will say, how many of us afraid of president pants? let's be honest it like this is not right, okay.
i would expect a point hand to be raised. have to be clear about what it is that we are, the change were seeking to make. i think the concern about molding fired is just again, it is a clear statement that trump believes he is king and he does not understand the very basic function of our democracy and that he is not above the law. 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 abtll investigation. frankly, you know, whatever the outcome is we still have a deal with a more fundamental set of issues because losing trump may just bring in president pants and then what are we? it just has to more fundamentally the about our values that i care about the molestation because again about everything it says about our
democracy who trump thinks he is but we've got to have a much broader view of the change we need to see in this country. >> joyce, did you -- >> an interest in the comment that you make that mueller is magical. we've all seen that idea out there. it's almost as about he's a savior who is going write in on a white hse. and like richard says, that won't happen, and the reason it won't happen is because that is 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 respected when we wish i could do more than he could do in a particular situation. but mueller's job and the job of his team of investigators and prosecutors is to determine whether the criminal law of the united states has been violated. and i'l tell you as a former prosecutor that it will not indict unless they believe they can prove it in the court in front of a jury of whether the
defendant ours beyond a reasonable doubt. it's an incredibly high standard. i know people love to say prosecutors can indict a ham sandwich, i'm sure he can but what's the point if you get convicted at trial? so that is what mueller's focus is and that leaves a big job for all of us to do. that job is what happens if there is an inclement of truth that is something less than beyond reasonable doubt, more than just under suspicion. once there is anything those of you who pay attention to the news, which is probably all of you, there is that iingly evidence in the public domain that lets us know that something happened here that wasn't right. so whether moeller indicts or not we will have i think the obligation to make sure that his work is fulfilled, whether that is hearings on hill which i think real hearings are long overdue, bipartisan hearings, commission and the weather is indivisible, it's how we vote in november and in 2020, but we
can't let robert mueller bv end-all and be-all. that's not his focus within the rule of law. >> i just want to make an observation and it is standing -- with four macaluso saying law is going to be part of the solution but it's not the solution. the solution is to paraphrase what vanita just said, if mueller is fired people will have to take to the streets. and to think, you know, i keep reflecting on the day after the travel ban. you saw it first hand. every nerd lawyer with a laptop at the arrival gate trying to teach them some immigration law but really they were like real estate lawyers. but they really showed up, and i think, i suspect i speak for a lot of lawyers when i say i want to know what to . oh of that looks like come when lawyers get
activated. and i worry a little bit i guess what to push back vanita onhe notion that it's when mueller is fired because of the ways to do this. you can fire rod rosenstein. you can find jeff sessions. you can scuttle this investigation in ways that will not trigger that, okay, lawyers, grab your laptops come hit the street. i think what i'm asking you and it's the question i get that unit that out, i suspect you do, too, what is that break 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, do you want to take it? >> so i don't know, i mean, i think it takes a lot for, i tell my law students if you go to law school you are accepting the notion of incremental change. you are not a revolutionary. law and revolution don't really
go together. revolution is overthrowing a legal regime. i think it takes a lot for lawyers to break the glass but i think there's tremendous amount that lawyers 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 engaged in totand up with the support of the citizenry against the kinds of things that donald trump has done. we said two days after president trump was elected, we put out full-page ad in the "new york times" and "washington post" bessette if you do the things you said you were going to do, we will see you in court. we have indeed seen them in court and the muslim ban was the first case but we have sued over the transgender military band. we sit over separating immigrant families. we sued over revocation of daca. we suited over the nine young
women in immigration custody their right to choose to have an abortion. we sued him over sanctuary cities. we had certain over detainee a u.s. citizen as an enemy combatant without charges. and time and time again we had prevailed in the court, at least at the lower levels. [applause] >> so i have on my twitter feed a kind of regular feature, we will see in court episode number, and think i'm up to episode number 121 of our efforts to fight back against the top administration using the courts. and i think that's a critical part of this notion of the rule of law. that is the we can fight back against someone who is in some sense revolutionary by reinforcing the values and laws that this country stands for at its best, not by some sort of
revolutionary means. and i would just have one thing about the we will see you in court. there's been, the sort of change in the aclu since trump has been elected is remarkable as people know. we went from 400,000 members to 1.8 million members. with million members. with all kinds of celebrity, quest love is here to do the dj. we've all kinds of celebrity want to support us that i thought for me the moment that i realized the aclu had arrived was the week after the muslim ban, and my wife was doing to me at times crossword puzzle she said look at this. it was a clue in a crossword puzzle, group that'll president trump we will see you in court. [laughing] and i told her the answer is aclu and she was very grateful that i give an answer t aosswory -- but that's when you arrive. when you're the answer to a clue
in the "new york times" crossword puzzle. [applause] >> vanita spirire not going to burst his bubble because i love the aclu and i think the litigations of the aco you and other groups have been doing is so vital, but, but the courts are not going to say this in less were saving the courts. right now they're being radically reformed and remade. [applause] my thing about litigation is reaction to something. it's important. we've got the constitution. we need to be defending it, but it is not necessarily the thing that is going to build power in our communities for the change in public and the values that we need. and that is the wor that all of you and all of us are called upon. and so i'm not litigation remains a vital tool in telling us that but it really think so much of what we're seeing right now is that millions of people never thought of themselves as
hactivist before our going into the streets. their becoming plaintiffs in aclu lawsuit. they are figured out, , they're donating organizations in ways that if you like we are fighting for the soul of our country, and that is what people are called to do right now. and so there isn't one tactic. we're going to save the court because we want to save the court. we want to change the makeup of state legislatures to protect a fight for the census because redistricting and political power would be determined by the senses and we will live with those consequences as we have been since010 with the radical remaking state legislatures around the country through redistricting and gerrymandering. ..
. >> i would add one gloss to that. >> go ahead. she's right. [ applause ] >> i would add one gloss to that. it's such an important part to me. it has two prongs around i would love to hear about the second. the first prong is we're going to have to get good judges on the court. if one thinks about the kind of judges who are not getting through the senate judiciary committee, 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. everyone else gets through. but i also think that something under what you're saying is so important, which is that courts don't tweet back. courts don't respond to attacks.
and when the president delegitimizes an entire branch of government or goes after one judge or calls a so-called judge. if we don't bolster the idea of an independent judiciary, not just judged by a 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, again, i think there's magical thinking around courts protecting themselves. do you disagree? >> i totally agree. it's been one of the biggest sources of facts for me right now is the fact that progressives just not have understood that the courts are not going to -- the infrastructure of the courts is not going to protect themselves. you know, when maury moore was running for the seat in alabama, there were voters -- i remember reading the article. there were voters saying we don't like jory moore but you
don't have it on the progressive side. they're 25 years ahead of us in terms of the funding. we're playing a role on trying to protect fair and independent judiciary. and everything, everything we care about, everything that david just talked about is playing itself out in the courts right now. and i just don't think that we, as a community and as a movement, have really understood what we are going to have to do to point that. and frankly the racist nominees are making it through. i mean, the only ones that have been -- that have been withdrawn have been the folks who didn't know what a motion in limine was. there was one that said transgender children are satan's spawn. but we have a lot of nominees who are making it through who are refusing to say that brown versus board of education was correctly decided. that is the level at which we are at. and the swift speed with which
this is happening, i mean, it's 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 about how t protect an independent judicial branch? and i single out the judicial branch. we know that the fbi and the justice department and everybody whos being delegit mized has the same concern. but i think the smarment -- asymmetry does frighten me. every dge, including republican opposes who vote against trump get tagged. how do we continue to say that even in these polarized times, the courts are different. >> well, one of the concerns --
i've had this concerns for decade. there's been a lot of talk, a left and right, about how judging is really just a political act. and that there are political or biases behind all of the decisions behind the judges. they're teaching a lot of that in the law schools. 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, being politically motivated, you know, that is very dangerous. judges have an obligation as best they can to uphold the law. not to further the interests 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 tleers -- i h is when the far right wing discovered policies. you have people that believe very strongly about we should move the embassy to jerusalem. i don't agree. but that's no justification to go on cnn and protect this president and violating our constitutional rights on every single issue. and how about scott prut. people say they're christian and that he's a christian and, therefore, everything he does is okay. now, he hasn't read the first book of genesis that god created the earth while he's destroying it. [ laughing ] >> well, because he is my particular type of christian. i will excuse his bufs -- abusive power, his waste of public funds, his renting of house from a lobbyist basically
as a payoff who worked for the th is the type of mindset that's extremely dangerous in a country. it's what destroyed the republic. it's what could destroy us when you view your identity with particular religious groups or ethnic groups as somehow being . that is what is going on in the trump administration right now, and that's what is going on with the people who are defending the trump administration. whether it's on cnn, fox news or anywhere else. and we need to stand up against it. it's just flat out wrong. [ cheers and applause ] >> joyce, did you have a -- did you have a gloss on protecting an independent judiciary? >> so i just go back to something that vanita said and make the point that we are so far behind the conservative movement and the republican party in creating high value for people who believe things that
we believe creating high value for the importance of the judiciary. because i have had the sam conversation with so many of my fepublican friends in the last months. and it's gone something like this. how can you continue to support this president who is doing x, y, z. and they will tell you over and over, well, i don't like -- you know, 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 fix. we need to take that issue head on. we need to make sure 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 have fought for over the years, like brown versus board of education. we're letting this one slip away from us, frankly. [ applause ] >> uh-huh. >> and just to be super clear, neil gorsich was willing to go on the record at his confirmation record and say unequivocally that brown was correctly decided in the binding precedence. so think about the fact that a year later it is possible to take the posture at a confirmation hearing that that's not to discuss it because it may come before me again because the jury racial segregation in the schools is bubbling up. i mean, that is an astounding 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 jeff sessions justice department
disgust. [ laughing ] >> and we can -- i mean, we can start if you want. [ laughing ] >> we're just having a tiny little breakdown. [aughing ] >> but we can start with the aca. with the, you know, career lawyers declining to sign a brief in the new aca litigation. and maybe we'll start with that. but just the larger -- pan back and let's talk about what policies on incarceration, on drugs, on prisons, on sanctuary cities flipping policies easily and happily changing sides. i don't know, david, do you want to start and just give some kind of non-breakdown-based assessment of what has happened at the justice department. >> david: sure. well, i started at the aclu on
january 9th, 2017. and on january 11th, i testified for the aclu in the jeff sessions nomination. we don't take positions endorsing or opposing nominees. and so i made it very clear that i'm not taking any positions. but here are the questions that you ought to ask before you vote in favor of this nominee. and i concluded by saying we don't endorse her opposed nominees. but if you had an intern applying for, you know, one of your senatorial staff positions with as many badly unanswered questions in the record as jeff sessions had, 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 confronted him. and his act is true to force and reverse so much of what was the great work that was done by vani and joyce 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 is what led -- you know, created mass incarceration. they have reversed policy -- reversed their position in many lawsuits. in one that we're involved in in the supreme court, 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 that you must have moved out of the state. when, in fact, we know that 50% of people generally don't vote in every election. and the justice department for 20 years took the position that
you can't remove pple und for t kind of conduct. and they joined the case onur side in that case and we won in the sixth circuit. and then ohio took it up to the supreme court. trump was elected. and the justice department reversed the position that it had taken for 20 years under republican and democratic administrations. in masterpiece chain chop case which was a challenge t the public accommodations law, the justice department enforces non-discrimination law. so never before in the history of the justice department has it supported an argument that there is a constitutional right to discriminate, which is baker was arguing for. and here thi justice 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 -- you know, trump has been trying to
reverse obama care since he came into office. and he has failed because we stood up. because people went to town. because people insisted that we want the protection on preextsing -- preexisting conditions. we want the insurance companies to not be able to charge you more if you're sick. and he was unable to turn all of that. he was unable to take away the enforcement mechanism behind the individual mandates. 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 only piece of legisln he' been able to enact. and now he's arguing in court that the justice department can't defend the constitutional tee 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 t crt should repeal the rest of it and get rid of
the protection for preexisting conditions. get rid of the requirements that nc companies can't charge you more if you're sick. the rule is you defend a federal statute. it's your job to defend a statute unless there's no reasonable argument. here there are boat loads 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 jt turned -- turned on its head the notion of justice. >> vanita. [ laughing ] >> he's just terrible. he's awful. [ laughing ] >> he is the worst possible person to have been made attorney general that i could have imagined. and i said it as soon as we heard about his nomination compared to the other candidates. and it's all born out to be
true. i mean, on every level, the man is advancing a narrow white supremacist view of america. the anti--- don't kw how many of you saw his interview last week. conservative talk show radio host where hue hewitt went after himher relentlessly. and i really appreciated it about how is it thatf sessions could stand for separating young children from their mothers at the border and parents at the border. and to read session and then hear his responses, i don't know how he sleeps at night. i n't know het all be in theositiohat heis. and i would urge all of you to listen to that interview. it was an important moment, i think. and i hope that hue hewitt is listening. but what sessions has turned -- he has turned the mandates of the justice department on our
head. he's largely abandoned the civil rights division. and completely stopped police reform in its tracks and done worse by em boldening law enforcement against the very kinds of things that a lot of leaders were actually beginning to really promote after ferguson and because of the movement for black lives. and that's what is making me so ill is when trump gets celebrated for the johnson -- and i'm going to give folks in the aclu credit butters th-- be they're really highlighting life without parole and mass incarceration. but trump gets kudos for that. and, right, yes, he should. but he has meanwhile put in place an attorney general who has not only stopped allf the criminal justice reform that was under way that had begun to reduce for the first ten i decades the federal prison population. but he is now, you know, mass civil -- massively increased the
federal prison population. he's reintroduced solitary confineme confinement. he's withdrawn every piece of work that attorney general holder and loretta lynn had tried to put in place to finally address whatasnef the nation's most shameful crises mass incarceration. so i'm kind of like what -- you know, you can't speak out of one side of your mouth and then watch what this attorney general is doing. and so i think sessions on every crinal justice reform, on issue after issue that we care about. a man who called voting rights 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 of power are. he was a u.s. attorney, and he like many others, it's not a question of incompetence. he knows what levers to pull.
so i think in washington we have to do everything we can to resist that agenda and to resist his agenda. there's no question that in the states now the work and being able to staut the work on criminal justice reform and lgbtq reform is that important. and so is the work you're doing in all of your communities. but we can't ignore the tremendous power the justice department has in setting an agenda across the country. but at the same time, we've got to be able to fight back in our state against what i think -- i think he's out of the norm even of his own party on a lot of this stuff. and it's been a lot of work to push back on that. and i frankly think that if something doesn't change in november, it's only going to get worse. . >> richard. >> i think it's critically important to separate out the policy disagreement that many of
us have with attorney general sessions and his violations of the rule of law, the conversion of the constitution. once again, i want to impress the importance of those. focusing on the rule of law. we may 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 and the statutes in this country. and by the second measure of objective truth, i will have to say that this attorney general is one of the worst we've had since attorney general mitchell under president nixon and attorney general pmer in the way waning years. if you remember the palmer race when he would go after rounding people up. and this attorney general lied under oath when asked the question by senator franken about his contact with the russians. he lied under oath.
that's what happened there. and senator franken called him on that. the new york times called for his resignation. because he had lied under oath. and that's what happened. now, we decided to not resign but was recused from the russian investigation. and now i'm in a very difficult position of havin to ask myself should attorney general sessions, one of the worst attorney generals we've ever had be fired and having to reach the conclusion to that and no. so if he goes, robert muller goes. that was going on. so i detest this attorney general. he lied under oath. he has diverted our constitution. and that has nothing to do with all of the other issues that people agree with him about. but we're in a very, very troubling situation where we have to keep this man where he is at least for the time being
to prevent this presidentrom diverting the rule of law. and how did we get into this horrible situation? it is a tragedy. >> joyce, do you want to talk about the --. [ applause ] >> about the 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 contacts with the russians during his confirmation hearing. right? i mean, these are very, very troubling concepts. a lot of what is 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 online 311 more
assistant state's attorney's, prosecutors across the country, spread out across do u. attorney offices nationwide. and what does that mean? that means jeff sessions will have a greater capacity to carry out his -- and that is to increase prosecutions. they made qualitative decisions about priorities when they implemented smart on time policies. they said prosecutors should think about doing fewer but more significant cases. go after public corruption. go after white collar crimes. do civil rights prosecutions. do immigration cases. but do the right ones. and so under the obama administration, prosecutors were
largely directed to consider pros ku prosecuting cases for those involved in violent crime. folks who were trafficking human bein. the approach that's being taken under this justice department i. let's prosecute people who illegally reentered the united states after being deported once without doing more was the first wave of that. and now we're prosecuting people simply for being illegally present in the united states. we're prosecuting misdemeanor crimes and using that as the rationale for separating parents from their children. dhateff sessions is devoting his newesources to. low level drug cases. a return to the war on crime. over filling federal prisons. this is not movements forward. this is movements that perhaps to the 1950s based on an
etiology of fear and of hatred. and if there's one thing that i learned in 25 plus years in doj, it's that politics happen, right, every four or eight years there's a change. and the career that doj collectively find 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 worse moves forward on a linear track based in large case on data, not etiology. that's not what is happening here. jeff sessions is taking us back to an old etiology that has failed. there's data that's 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. but in my judgment, this is one of the worse that we're seeing. >> so i want to -- i want to point out that every one of you in some form or another, every
one of you has said something about asymmetry. that there's a problem here, whether it's enthusiasm and asymmetry or focused asymmetry. and there's another asymmetry that i want to point out. and that is we keep talking about truth. we keepalngbout 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 institutio that you believe in and you're fighting to preserve them because if and whether this ends, we still need a functioning justice department. still functioning courts. we're going to need a functioning fbi. and i think that that dilutes in some sense the message. ihink the two least effective words you can say on cable television are yes but or yes and. because you lost. and i think that, you know, the example that i think of is ry,
very soul searching by democrats saying, well, if democrats ever gain control of the senate judiciary committee, we will certainly reinstate the filibuer. we will reinstate the blue slip. we will go back to all of 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 is 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 to do the work of both trying to advance your interests and also prop up institutions that really do matter, even though they matter 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 -- however you want to switch the play book with respect to judicial confirmation. the better rule is, yes, you ought to have 50 votes of the supreme court of the united states and maybe for the courts of appeals. but when it comes to filibuster, which is really an end run around the usual procedures. they want to just say, yes, they have 60 votes. yeah, they have 60 votes. it just requi s majorit on the united states supreme court or maybe the courts of appeal. but the way it's been handled using filibusters is extremely irresponsible. it's a big problem. because everyone has been talking about judging ideology and it's been the message that's been for me in the law schools for decades. and now the ultra right wing is taking this message and saying we need to put in right wing judges and justices. all right. 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 trap. but, once again, i think it's critically important to honor our tradition, our constitution. there is a balance ofower the senate has a critically important role in confiing judges and justices. and, by the way, they should answer the questions. if you can't say whether brown versus board is a good decision or at least that you uphold it. you don't have to be in favor of abortion to uphold roe versus wade. there is a first trierment -- trimester government. two justices were appointed by president nixon from minnesota. so this is not a progressive versus conservative issue.
you cannot have people standing there in front of the senate sitting there. they're supposed to answer questions. and they're saying i can't decide a pending case. well, roe versus wade is not a pending indication. no more is brown versus board of education. and i would want to hear under oath that they're going to reverse and that is citizens ited. [ laughing ] >> talk about judicial activism. you have nine justices. i don't think any of them run for elective office. they don't know what a quid pro quo is. they're saying this is a quid pro quo right in front of us. we're going to say it's a first amendment right. it's bribery. i want answered questions under oath. that's what the american people -- answer to questions or no confirmation. end of discussion. [ applause ] >> does anyone else want to take a crack at the two front war? >> so i think the aclu has been fighting a two-front war for virtually 100 years.
[ laughing ] >> right? what do we defend? we defend the institution of the bill of rights. we defend equal ection we defend the freedom 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 aclu in the wake of president trump's election because they realize the need for a very strong defense. but i think -- you know, it is not co institutions to advance. so, you know, the institution of free speech we fought for years
to protect that right when the government was targeting first anarchists and thecounists and then civil rights activist and women's rights activists and ultimately we won by achieving very strong first amendment protections in this country and in a series of decisions in the 1970s. but it came from 50 years of organized, engaged battles to protect an institution that was in the constitution to begin with but didn't mean what we mean it to mean until people fought for it. so i think they're part and parcel of the same thing. >> vanita. >> i would just add kind of going back to my first point which is that for a lot of folks, and i can just say for like communicative color, institutions -- i mean, you don't want to just overly romanticize the institutions either. they have failed a lot of
communities over time. [ applause ] >> and we just have to -- we weren't -- it's a struggle that we find ourselves in right now, which is that the project to make these institutions more accessible. by institutions you can unpack that. it can mean a lot of different things. but, you know, you've got the ideals of what these new things are supposed to be and then the constant struggle, even in the best of times, to make them actually accountable to everyone in this country and not just for the status quo and the powerful. but we're finding ourselves in this situation where, you know, civil rights lawyers we have relied on the courts for vindicating the rights of the least popular or the most marginalized and we've been able to vote people into office that may be able to change the tenor of the conversation or the like. and those very vehicles right now are being -- are most under a threat. and so it isn't to say that like
we can do one withouthe other. we've got to be working on both. but what i do worry about, i'm being honest with you, is that republicans -- i mean, the gloves are off. glassily has changed the rules on the confirmation process. they're not rules. they're norms. they keep reminding me. so what happens if and when a different party comes into power. and, mind you, you know, the democrats have a lot to work on themselves around this. it isn't to say that the party has got all of the answers. but, you know, are we just going to return back to our polite kind of mode of being and say these are the norms and traditions and we've abided by them, even when we got completely royally screwed by the other side. i think that we -- you know, we've got to play a little tougher. and it isn't to say we need to understand the long-term consequences of our actions and the institutions. you always have to imagine what does this lk like when somebody else is in power. and i'm firmly a believer that
we have to protect those things. but i also think sometimes, you know, the tools and tactics we rely on, you know, we want to be the rule -- the kind of -- the nice people who play by the norms and traditions. and qoowe've got to be able to think outside of the box right now and be able to figure out how can we protect o institutions. how do we continue to engage in the long battles to make them more perfect for our union. and also how do we win? and those all -- it's part of a messy calculus that doesn't have a single form lay yik answer -- formulaic answer but that's where it's got to be. >> another lightning round. you're looking at activated, passionate people. they're not numb. they're 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 th-- the
can't change the senate judiciary rule. 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 ] [ cheers and applause ]. >> it's critically important. the constitution sets forth the responsibilities and rights of everyone in our society and the citizens have an obligation to vote to elect the entire house of representatives every two years. and since they amendedme the senate with the direct election of senators, vote of the senate every two years. that is your responsibility. your friends have that responsibility. you want to get the word out. and expect congress to do its job. respect the constitution from the first amendment. absolutely. and i want to emphasize the first amendment i first became just disgusted with donald trump
as president when he talked about banning people from immigrating to our country based on their religion. there's some things that founders got wrong in the constitution. religion is one thing they got right. going back to the mayflower, people come to this country for free exercise of religion. and have a president talking that way. i had never seen that type of rhetoric in a political campaign. i don't know of any in the history of the united states. 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 can take to defend the rule of law. >> vote. [ laughing ] >> and it's not just in november. it's for every election locally. i mean, prosecutors and state -- the state board officials.
you've voting downstream. i will also say keep organizing. every fight that you're fighting in your community or washington, there's a target. be smart about it. figure out who the targets are. get organized and take action. that is all that we can d right now is to take action wherever we possibly can. be smart about. be strategic and vote. >> joyce. >> vote. take action. and so i don't have any doubt that everyone in this 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 id because we have one of the worst id apps in the country and it's hard for people to vote. make sure people in rural areas have transportation. and, most importantly, fight this horrible malaise of numbness that we have. because when everything is bad and when 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 not to be a broken record. but, you know, our motto for 2018 and 2020 is vote like your civil liberties depend on it. [ laughing ] >> and that is absolutely critical. donald trump did not win the election by getting more votes than john mccain. 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, several million fewer votes than president obama had gotten. so 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 from my most recent book. and it comes from learned hand who was a judge on the u.s. court of appeals for the second circuit in new york. and he was -- 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 the judge to speak to them. they had a little bit different view of the court. and he talked about the spirit of liberty. and he said in that speech liberty lies. we resume or live coverage now at the american civil liberties union membership conference in washington dc. the event includes remarks by senator elizabeth warren and panel discussions focusing on the media and the rule of law. >> just as all of you are doing in you