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Podcast: Cohen, Trump, and Campaign Finance Law

Jeffrey Rosen: [00:00:07] I'm Jeffrey Rosen president and CEO of the National Constitution Center. Welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. Recently President Trump's former attorney Michael Cohen was sentenced to three years in prison for pleading guilty to several crimes including violations of campaign finance laws. On today's podcast we're going to discuss those campaign finance violations and their possible implications for President Trump. Joining us are two of America's leading election law and campaign finance experts, great friends of the We The People podcast, and I'm so honored to welcome both of you back. Rick Hasen is Chancellor's Professor of Law and Political Science at the University of California Irvine. He was the founding co-editor of the Election Law Journal and blogs at the Election Law Blog. Rick thank you so much for joining.

Rick Hasen: [00:01:08] Great to be with you.

Rosen: [00:01:09] Bradley Smith is chairman and founder of the Institute for free speech. The Josiah H. Blackmore II/Shirley M. Nault designated Professor of Law at Capital University Law School and chairman of the Center for Competitive Politics. He served on the Federal Election Commission from 2000 to 2005. Brad welcome back.

Brad Smith: [00:01:30] Thanks Jeff. Pleasure.

Rosen: [00:01:31] OK. Let's jump right in. Rick, Cohen recently pled guilty to violating the Federal Election Campaign Act of 1971. Tell us what he pled guilty to and what the implications are for President Trump's liability for similar charges.

Hasen: [00:01:51] Sure. Well first it's important to note that he pled guilty to a number of different crimes. Only a couple of them related to campaign finance and so he was sentenced to 36 months for the sum total of the criminal activity that he engaged in. In relation to campaign finance, according to the documents that had been filed including a sentencing memo from the prosecutors in the Southern District of New York. And I should say parenthetically here that Cohen was sentenced for charges brought by the Muller team, the special counsel, related to information- related to covering up information related to contacts between the Trump Organization and Russia, but the campaign finance charges came from the Southern District of New York; they were not part of the special counsel. And basically, the Cohen campaign finance problems involved paying off two women who allegedly had sexual encounters with Donald Trump. One of the payments was facilitated through the National Enquirer, a tabloid magazine which made a payment to a woman named Karen McDougal to get her to sell her story exclusively to The National Enquirer and it was this idea of catch and kill. They would pay for the story and then never run it and she would have an exclusive and never be able to run it again. Cohen had assured the editor at The National Enquirer that they would be reimbursed for these payments. Then there was a separate payment to Stormy Daniels. This is the one that's probably gotten more attention for a long time. Daniels had been seeking payment to keep quiet. Cohen didn't agree to make any payments. But then October 25th, 2016, just days before the election, when Stormy Daniels' lawyer indicated that she was about to give an exclusive interview to a media outlet, Cohen agreed to a payment, took out a loan against the against his home, created a Limited Liability Corporation which paid about one hundred thirty thousand dollars to Daniels for her silence, and then billed the Trump Organization eventually to get this money back along with a commission for legal and technical services in payment structured - monthly payments of I think thirty five thousand dollars a month. Now both of these were found to be campaign related payments, that is, payments that would not have been made but for the campaign. Under those circumstances when you have someone making a payment for a campaign, in coordination with the campaign, and the sentencing documents say that this was done at the direction of and cooperation with Donald Trump and with the campaign, that would be an illegal in kind contribution from Cohen. You could only give twenty seven hundred dollars to a campaign. This was much more than that, just looking at the Stormy Daniels payment, that was a hundred thirty thousand dollars. Then you look at the fact that it was not a reported contribution. You look at the fact that a corporation may have been making the payments which would be an illegal corporate contribution. You've got both excessive in kind contributions, corporate contributions as well as unreported contributions and expenditures. These were never reported by the campaign in any sense, I think even through today. And so that's the basis for the violations. When they're willful violations, when you willfully violate the campaign laws rather than simply inadvertently doing it as campaigns do all the time, by forgetting to file something on time or making a slight paperwork error, those are handled civilly. But when you willfully evade the campaign finance laws that can subject to criminal liability and that's the- part of the reason that Cohen was sentenced to serve prison time for his activities.

Rosen: [00:06:21] Thank you very much for that clear and very helpful introduction. So Brad, Rick has said that potential crimes to which Cohen has pled guilty include unlawful contributions, failure to report transactions, and unlawful corporate contributions. To what extent might the president be liable for similar offenses? He has tweeted that it was a simple private transaction, lawyer's liability if he made a mistake, not me. Rick suggests that if the violations were willful they might raise criminal liability. Walk us through the arguments for and against liability for President Trump on any of these issues.

Smith: [00:07:02] Sure. I mean the basic simple argument is that if Cohen did these things with Trump's knowledge and at his direction which is what he's pled to, then Trump would be involved in the same knowing and willful violations of the law potentially subject to criminal penalties. You have got a whole [other] issue: whether you can indict a sitting president, so I'd just talk about campaign finance violations. However I will say that my view is that none of these things are in fact campaign finance violations and there's a fairly simple reason for that. They're not campaign expenses. I think intuitively you know if we ask most people, do you think that paying hush money to a former mistress is a campaign expense? They would say no but there's actually a basis for this in the statute that is the correct basis of the statute. The prosecutor or the U.S. attorneys rely very heavily on language in the statute that says anything that's done for the purpose of influencing an election is an expenditure and therefore subject to all of these rules. But in fact we know that that language is not to be taken literally. That is, all kinds of things are done for the purpose of influencing elections that are not campaign expenditures, so they go down to the most mundane things. When the candidate gets up in the morning and puts on his suit so he looks good on the campaign trail, that suit is not a campaign expenditure. When he drives into his office, his gas is not a campaign expenditure. And we can get into more serious things, for example, if a business man has many lawsuits pending against his businesses or him personally and that's- that's not uncommon, or say a candidate is in divorce proceedings. And let's take the business example. He says, look I think these cases have no merit but I don't want them out there; I don't want the press jumping on them while I'm running for office and saying I'm a cold hearted tycoon. So he tells his lawyer, settle those cases. Those payments are not campaign finance expenditures. They are not campaign expenditures. If they were they'd have to be paid with campaign money. And that's exactly what we don't want happening which is somebody using campaign funds to pay for personal expenses that arise from things outside of the campaign. And that's the same thing with for example the payments to Daniels, and the dual obligations arise from outside of the campaign, not in the campaign. They both were for events occurring far in advance. Now people say, yeah but he only paid them because he was near the campaign. That really doesn't matter. First we don't know exactly why he paid them. But beyond that the lawsuit says that it has to be the obligation would exist irrespective of the campaign. And it's not a campaign expenditure. This is another part of the law that the U.S. attorney seems to want to ignore. So in this case you know to the extent Trump has an obligation to pay this, it arises from things that occurred long before the campaign. The definition the laws intended is to get at the things we think of as campaigning: buying television ads, paying for bumper stickers, office space, hiring a campaign manager, getting phones for your staff, and that sort of thing. So I don't think there's anything there. When the FEC considered this, implementing regulations for this part of the law, it specifically rejected language that would have held that an expenditure that was primarily for the campaign was a campaign expenditure. It said no it has to exist only because of the campaign. So again the underlying events here are not campaign related and thus I don't think there's any campaign liability here at all. I do stress I'm not talking about whether Michael Cohen had legal ethical duties as a lawyer, whether there's abuses of corporate trust but there might be ethical laws that are violated, and also disclosure laws for political candidates, but purely from a campaign finance standpoint, I don't see it. And I think that in the past the FEC has not interpreted this way. The John Edwards case some years ago; John Edwards had supporters who paid a mistress of his for her silence. He was not convicted in court although he was indicted but he was not convicted in court. And I know at that time two former- two other former FEC chairs Scott Thomas and Don Lenhard testified much with the understanding I'm offering today, that this is simply maybe unseemly but it's not an illegal campaign expenditure.

Rosen: [00:11:16] Thank you very much for that. Rick, your response to Brad's two points, first that the statute does not consider campaign expenses obligations that exist independently of the campaign, and secondly the relevance of the Edwards case.

Hasen: [00:11:32] Sure. So I do think that the Edwards case is an important precedent here because we do know that these same kinds of arguments were made before the trial in the Edwards case. And the court rejected them. The court said that in fact these payments were being made because of, think of kind of a but for test as we use in tort law; would you have made these payments but for the campaign? Then these should be treated as campaign related. So even though the jury hung on the question of whether or not that was the factual case in the Edwards case, whether or not these payments were made for campaign reasons rather than to protect Edwards' personal reputation, the court accepted the idea that in certain circumstances such payments can count in this way. And of course Cohen's lawyers and Cohen agreed to plead guilty to this, and we know that the federal district court accepted this. If this were an illegitimate theory then that the court presumably would not have accepted these kinds of arguments as a basis for a campaign violation. And we know that at least from what Cohen has pled guilty to, that if you look at the timing of the Stormy Daniels payment there was no interest in making payments to her until it was close to the election. The election was very, a very tight election at that point, October 25th, 2016, you know just days before the presidential election, Stormy Daniels threatens to go on TV and talk about this and now the payment's going to be made. And we know that not only had Donald Trump had extramarital affairs before and bragged about them and didn't seem to really care about his general reputation. All of a sudden these payments are being made at the time before the election. I'm not saying that if Trump were ever indicted that he would necessarily be found guilty. As Brad mentioned you need to prove a willful violation and just because Cohen agreed to plead guilty to this doesn't prove that Trump did it, but I certainly think there would be enough here to go to a jury on this question of whether or not these were payments that would have been made irrespective of the campaign. And I think there's pretty good evidence that that they would not have been. And so then the question is what do we do about that? Is Trump really an unindicted co-conspirator here? Is the Southern District of New York going to potentially bring charges against him? We don't know where this goes next. We do know that the National Enquirer which was involved in this and the- I think it's the owner or the publisher, David Pecker, was given immunity in relation to this, so it could be that there's going to be more that comes out and it could be that for reasons unrelated to campaign finance law, that a sitting president wouldn't be indicted. But certainly there seems to be enough here. And I just point to one other example of something that's just completely unrelated just to show you how this would be handled in the normal course of things. There is a person who was elected to Congress, a Republican from Florida by the name of Ross Spano, and he received one hundred and eighty thousand dollars in loans, personal loans from friends to help run his campaign. And now he is facing criminal liability for failing to report those loans. So we know that these things are taken very seriously by both the Federal Election Commission and by prosecutors. And so I think if this were not the president, this would not be a difficult case. There would certainly be enough here to move forward and then the question be what would a jury think about this?

Rosen: [00:15:31] Thanks so much for that. Brad, if you were to evaluate the Edwards and Trump cases, which is stronger? In the Edwards case, the payments to the mistress took place as he was ending his candidacy. The payments to Trump's alleged mistresses came ahead of the election. Prosecutors in Edwards had little corroboration; here Cohen's corroborated. Would a potential case against Trump be stronger or weaker? And also what are your thoughts about the Spano case which Rick mentioned as well?

Smith: [00:16:01] You know I really can't say which case is stronger. I mean there are some differences. For the most part though they're very similar cases in which there doesn't seem to be much denial of the basic fact that people were paying money in order to help a candidate be a stronger candidate in the future for the purpose of influencing the election. But I do think- I want to respond a little bit to- Rick made the point that obviously the district court here let Cohen plea to this, and the district court in the Edwards case let the case go to a jury. On the other hand what's very important to note is that we've never had an appellate ruling on this specific issue in interpreting the contribution to a campaign. But what we have had are a number of appellate rulings interpreting the 'for the purpose of influencing' language in other contexts under the law, and then the court has always struck down broad interpretations. It says no, 'for the purpose of influencing an election' cannot literally mean anything for the purpose of influencing an election. And it's taken a very narrow view. For example if you do expenditures to the public, for those to count they have to not only include express advocacy, words of 'vote for' 'vote against' 'support' 'defeat.' Very, very precise in order to get there, and the court has done that in- the Supreme Court has done that in a number of cases as have the appellate courts. So you know I keep going back here. I mean I think- to me one of the real problems here is a lot of people are very convinced that Donald Trump is a uniquely bad person and a unique threat to American democracy who needs to be removed from office however possible. But you know my basic view is that the real threat comes from stretching laws in ways they are not intended to be used to try to get somebody simply because we see that person as uniquely bad.

Rosen: [00:17:54] Thank you so much for that. Rick response to the argument that the interpretation of laws should be narrow rather than strict. Which way might the Supreme Court go on this hypothetically? In the McDougal case they argued for a rather strict definition of corruption and then, put on the table please the case of Donald Trump Jr. and what his potential liability to campaign finance violations might be.

Hasen: [00:18:20] Sure. So I do think that there are reasons under the First Amendment for example, for reading certain campaign finance provisions in a narrow way to make sure that we can have rigorous competitive elections. But I do think that given that we have the precedent of the Edwards prosecution which Trump himself had commented on at the time on Twitter and elsewhere, it was pretty well established that these kinds of payments could be campaign related in appropriate circumstances and I don't think it would require a huge stretch of the law to say that if these payments were made only but for the campaign, that they are expenses that would be reportable as campaign expenses and that you could not make an excessive contribution or illegal personal loan to pay for them. Now the Don Jr. situation which has been out of the news recently but may come back up to the extent that the Mueller investigation goes there. This relates to a meeting that took place during the campaign at the Trump Tower where, we don't know everything, but supposedly dirt was being offered, information was being offered from representatives of the Russian government to the campaign. And the question there would be whether the provision of this information would count as a thing of value being given by a foreign entity to a campaign. That would be an illegal foreign contribution to the campaign. It could potentially be an illegal foreign expenditure that Don Jr. and maybe Manafort and some others helped to facilitate there. I think we don't have all the facts there. I think there's a more serious First Amendment question as to whether treating information as a thing of value would run into First Amendment problems. And I think you know that's something that has not been fully tested. I remember when this issue hit back last summer I was looking at some old Federal Election Commission rulings and there was one involving the provision of polling data when one candidate was running against another candidate. That first candidate drops out has polling data and offers it to the Other Campaign and the court said well that information is a thing of value that needs to be subject to the reporting rules and the contribution rules. But I think this is going to be the next big issue to the extent that the special counsel or another federal prosecutor goes after Don Jr. I think it's going to be a big question as to whether or not the provision of this information could be considered a thing of value that a foreign government could not contribute to or expand its resources on in relation to the 2016 presidential election.

Rosen: [00:21:20] Thanks very much for that. Brad, your thoughts on the possibility that the provision of information from Russia could be considered a thing of value in violation of the campaign finance laws. Is that a strong or a weak argument?

Smith: [00:21:33] Well a thing of value of course is a broad term and can mean a great many things. Certainly polling data is something that goes stale quickly and we need to remember here- and Rick basically was saying yes I think it could be considered a thing of value. But it's going to depend on the circumstances. The other thing that needs to be remembered here though are there are a number of allegations swirling about did they solicit foreign contributions and so on. I think the first thing is you have to actually solicit, so just taking a meeting with someone to find out what they have, what they're offering, it's not a violation of the law. And note that for example it's not a violation to pay a foreign entity to obtain information. That, for example, remember the Clinton campaign paid a British citizen, the spy Steele to go out and gather dirt on Trump, so you can pay foreign citizens for information that they might give you. So at least that's where that case is really going to hinge is whether solicitations and were delivered that were of value and not really so much whether specific items such as polling data might be considered a thing of value. One of the problems here I do want to mention again. In referring to Cohen, Rick mentioned, he said, if these contributions were made solely for the campaign they could count. Yeah I think that's wrong. I think that's wrong as a matter of reading the statute. But I do think that even if we were to read the statute that way and say that it had to do with the intent of the spender or the donor rather than a more objective test. I should note that Cohen in his testimony, in his sentencing memo, he says that the reason he made the payments were to prevent the election narrative before the election, and, and he puts an emphasis on this in the original, and because they would cause personal embarrassment to client one and his family and that takes us back to this key point here that you know we're looking for things that exist because you're running for office. We're not- the campaign finance laws are not a catchall to pry into the lives of candidates and force them to reveal everything about their finances and what they spend money on. They're about people who are paying for campaigns, polling, ads, office space, staff; the kinds of things that if you ask the person why would you give that candidate money? He would say I gave them money to pay for those things. And so again I really dislike this notion that you know maybe we can make this fit and some person we feel is uniquely bad, we're going to go get him. I think we need to remember he the admonition from Thomas Moore; you don't want to do this because one day the law is going to be turned around and used against somebody who you don't think is quite such a bad person.

Rosen: [00:24:17] Thanks for that. Rick, thoughts on what we've understood from this excellent discussion that it might be a close case if it went to a jury but Brad said that the provision should be read narrowly rather than broadly. What's your thoughts about that and then let's put on the table if we can a related case but which brings us to a different topic. That is the challenge to the federal law that bans foreign involvement in U.S. elections. It's being challenged by Ravi Singh, an Illinois based political consultant who says that it's unconstitutional and Congress can't regulate the role played by non-citizens in state and local elections. And some say that that's a threat to a law seen as the backbone of Mueller's probe of Russian election interference.

Hasen: [00:25:03] Sure so I think I've made my points and I think Brad and I are not going to get any further on this question of whether or not the law can be read to cover these kind of payments in appropriate circumstances. And you know I certainly politically was much closer to John Edwards than to Donald Trump. But I thought that the prosecution made sense to the extent that they could actually make their case. The problem in that case was that one of the donors was dead and the other one was I think over 100 years old and wasn't available to testify. So you know there's a problem of proof in that case. here we don't know exactly what the proof is on the foreign question. I don't think that the case that the Ninth Circuit is now considering out of San Diego is one that would really threaten the Mueller probe which involves money that is being- the Mueller probe involves money that is being spent to influence or information being given to influence federal elections. In the other case that you just referenced, the question is whether or not federal prosecutors can go after someone for making- for illegal foreign contributions in state and local elections. That raises a federalism question. The argument's really under the 10th Amendment and whether the federal government has the power to make these things crimes. I think it probably does. But that's really a question of Congress's power to criminalize activity in state and local elections. I know that there is a Federal Election Commission ruling which construed the federal foreign spending ban not to apply to ballot measure elections out here in California. So there might be something to that. But I really do think that regardless of what the Ninth Circuit or what the Supreme Court might do in that case it would have no impact on the kinds of campaign finance questions that have come up in the Mueller probe and in the related probe that the Southern District of New York has brought against Michael Cohen.

Rosen: [00:27:14] Thanks for that. Brad, your thoughts on the Singh case, whether or not you think that the constitutional challenge to the law banning interference by non-state citizens in state and local elections has constitutional merit regardless of its relevance to the Mueller probe, and then if you want to put on the table any other constitutional challenges to campaign finance laws that might be relevant to the Trump investigations.

Smith: [00:27:40] I think that I would agree with Rick's analysis on the case in the 9th Circuit. I think that the court is likely to uphold the statute but even if it didn't, that decision would probably follow on federalism grounds which would not affect the Mueller probe or the Southern District action here. So they'll probably be able to make that- that probably won't affect this case. I think that generally speaking you know we're going to- what we're seeing here in essence is sort of a breakdown of, the kind of absurdity of some of the law. When we're trying to use campaign finance law so that we can learn about whether a candidate had prior affairs, which is something a candidate does not have a legal obligation to disclose, you know we're starting to get off the reservation, and we're doing it again in an area that has a lot of First Amendment implications, a lot of democracy implications, that people have, you know, they vote for candidates, and we don't want to be relitigating the elections by coming up with all kinds of campaign finance theories. There are serious issues in elections I think and we're seeing them in the aftermath of 2018 as we do almost every year, where we've got some very serious allegations of election fraud in North Carolina. We have issues around the country pertaining to the efficiency of election administration and so you know I continue to go back Jeff, I said to you earlier, as much as some people want to get Trump, and this seems to be the legal means to get him, everything else is kind of squeezed, but this year is the one legal thing you can tie into it. It's a dangerous business to start trying to use laws in that way and interpret them in ways that are outside of their ordinary normal interpretations.

Rosen: [00:29:47] Thank you for that. Well it is time for closing arguments in this excellent discussion. And Rick, the first one is to you. How serious are the allegations of campaign finance violations against President Trump and how seriously should We the People listeners be concerned about them?

Hasen: [00:30:08] Well I as I said earlier, I certainly think that if Trump were not the president and there weren't these complicating political and legal factors, that he would be subject to indictment for what he's done and the question would be one that would be left to a jury in terms of how significant it is. I think I would leave the last word to the Southern District of New York prosecutors. I just want to read very briefly what they wrote about Cohen's activities in their sentencing memo. They said: Cohen's commission of two campaign finance crimes on the eve of the 2016 election for president of the United States struck a blow to one of the core goals of the federal campaign finance laws: transparency. While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks or found a number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows. He did so by orchestrating secret and illegal payments to silence two women who otherwise would not have made public their extramarital affairs with Individual-1 (that's Trump). In the process Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election. And I think that's really what's at stake here and why this really does matter. And it's not just a witch hunt, as the president might say.

Rosen: [00:31:24] Thank you very much for that. Brad, last word to you. How serious are the campaign finance violation allegations against President Trump and how seriously should We the People listeners be concerned about them?

Smith: [00:31:37] First, I've indicated as a campaign finance matter, I think there's nothing there. It's worth noting here again that for example had President Trump paid these expenditures out of his campaign funds and as the Clinton's paid the British spy Steele, they just paid their legal company and called it legal fees, Trump probably could have done that, used campaign and paid it as legal fees. That to me would be what much worse. We don't want the president using his campaign funds to pay hush money for mistresses, and had he done so, many people who are now arguing he violated the campaign law and this is very serious, would be arguing that he had violated campaign finance law by diverting campaign funds to his personal use and that if he wanted to pay hush money to his mistresses he should have arranged to pay it with non campaign funds which wouldn't have been reportable and wouldn't have been subject to any limits. So I think that you know there's this little bit of a gotcha coming when we gotcha going but we're going to getcha attitude. And again I think that's very dangerous for the rule of law. Nothing in the law requires presidents to reveal their prior extramarital affairs. The press can dig them up. That's great. But that's not what these laws are for and not what we want to try to be doing in this particular case. So we have to say you know there may be lots of reasons to vote against Trump or maybe other things that he has done that would be impeachable offenses or violate the law. But I think we need to be very careful when we get really enthusiastic about getting somebody [when we've] decided that this person is particularly bad, that we start using them misusing the law in ways that it's not intended to be used.

Rosen: [00:33:14] Thank you so much, Rick Hasen and Brad Smith for an illuminating, subtle, and educational discussion of the technical but important campaign finance laws and their consequences for President Trump. Rick, Brad thank you so much for joining us.

Smith: [00:33:32] Thank you Jeff. Thank you Rick.

Hasen: [00:33:33] Always a pleasure.

Rosen: [00:33:35] Today's show was engineered by Kevin Kilbourne and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Please remember to rate review and subscribe to We the People on Apple podcasts or wherever you listen, and check out our companion podcast, Live at America's Town Hall. That's the feed of all of our phenomenal town hall programs at the National Constitution Center and around the country that spread so much light about the constitutional issues at the center of national debate. And always dear We the People listeners remember, as you wake and as you sleep, that the National Constitution Center is a private nonprofit. We receive little government support and all of this incredible important work that we do spreading light about the Constitution, inspiring people to learn about it, and educating people to converge around this great document of human freedom is made possible only because of the support of people around the country who share our mission and are part of our common work, so go to the Web. Click the membership form and join the National Constitution Center. We're all so honored as the holiday seasons approach to work at the National Constitution Center. My colleagues and I are so excited about the really important work of constitutional education to be done in the year ahead and so grateful that you dear We the People listeners are a core part of our crucially important mission. So happy holidays and on behalf of the National Constitution Center, I'm Jeffrey Rosen.

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Jeffrey Rosen: [00:00:02] I'm Jeffrey Rosen president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people. On this episode we'll dive into one of the most interesting Supreme Court cases of the year. American Legion versus American Humanist Association. The case centers around a constitutional challenge to a 40 foot cross that's part of a veterans memorial in Maryland. It was built by the American Legion after World War 1 and it's being challenged by the American Humanist Association and Maryland citizens who say that it unconstitutionally promotes Christianity. It's being defended by a cross partisan coalition of citizens and lawyers who say that it does not and it's just a wonderful opportunity to explore the current state of the Establishment Clause and the nature of religious freedom in America. We're so honored to be joined by advocates on both sides of this fascinating case and it's just great to have them both. Ken Klukowski is representing the American Legion on behalf of First Liberty where he's senior counsel and director of Strategic Affairs. He's also senior legal editor for Breitbart news network and previously served as team leader for the constitutional rights team on the presidential transition team of President Trump. Ken thank you so much for joining.

Ken Klukowski: [00:01:34] Jeff thanks so much for having us.

Rosen: [00:01:36] And Monica Miller is counsel of record in this case for the American Humanist Association where she is senior counsel. Since joining the American Humanist council in 2012, Monica Miller has litigated many establishment clause cases and is a frequent media commentator. Monica it's an honor to have you as well.

Monica Miller: [00:01:54] It's a pleasure to be here. Thank you very much.

Rosen: [00:01:56] Ken let's jump right in. You can briefly state the facts as Professor Kingsfield used to say but the most interesting thing about this case is it was built on private land but the land at some point was bought by the state of Maryland so it's now on public land and then tell us what the lower court says some of them applied this so-called Lemon Test which we're going to talk a lot about and others apply a test from a case called Van Orden. So tell us about how lower courts differed about whether or not this cross violates the Establishment Clause.

Klukowski: [00:02:27] Happy to. In the 1920s the American Legion worked with the families of 49 Maryland citizens from a county in Maryland who had made the ultimate sacrifice in World War 1, had actually lost their lives defending the country overseas. And so a memorial was erected in the shape and configuration of a battlefield memorial that you can find even now in World War 1 cemeteries on European soil. That being a cross-shaped memorial with words emblazoned around the base like courage and valor and a large bronze plaque that explains what this memorial is all about who it is commemorating and that was set up again by a private organization on private land in the 1920s. Decades later the state of Maryland was expanding a nearby highway exercising the power of eminent domain and in doing so actually acquired title to the parcel of land where this memorial was located. Even so the memorial went on for roughly another half century without anyone having any objections to it until our friends on the other side of this case filed a lawsuit saying that the mere presence of this war memorial, this long standing war memorial, on land that had since become public land was in and of itself a violation of the Establishment Clause of the Constitution. That's the provision of the First Amendment that says that Congress shall make no law respecting an establishment of religion. First Liberty Institute came in representing the American Legion who intervened in the case and then we defended the war memorial in U.S. District Court for the District of Maryland. The case was assigned to a federal district judge who happened to be appointed by President Bill Clinton. And on summary judgment that judge held that, the judge noted that there are some questions regarding exactly what the standard is required by the Establishment Clause, what test a court should apply as it's trying to determine whether the clause has been violated. But the judge determined that under any of the tests that the Supreme Court had used through the years this war memorial clearly passed constitutional muster under any of those tests, so much so that the judge did not even require oral argument, just decided on the briefs on summary judgment. That was the decision in the district court. It then went up to the U.S. Court of Appeals for the 4th Circuit where the plaintiffs in the case prevailed by a 2 to 1 divided decision. Then the full en banc court all the judges of the 4th Circuit declined to rehear the case by an 8 to 6 split decision with several vigorous dissents. And now the US Supreme Court has granted certiorari to hear the case possibly in February of 2019 regarding whether this war memorial is permitted under the Constitution's Establishment Clause.

Rosen: [00:05:52] Thank you for that wonderful and clear summary both of the facts and the lower court holdings. Monica, please add anything to the facts you think relevant and then tell us more about the 4th Circuit ruling. Writing for the majority Judge Thacker applied the so-called Lemon Test, which we're going to hear a lot about, and held that the cross satisfied the first prong of a Lemon Test as it was put up for secular purposes maintaining safety in the intersection and honoring World War 1, soldiers but that it failed the second and third prongs of the Lemon test because it endorsed Christianity in a manner that excluded other faiths. So disaggregate and tell us more about that decision and whether you think it was right.

Miller: [00:06:36] Sure. So I'll start with the facts and we actually see we have a different iteration of the facts. And one of those facts is that the cross actually commenced construction began on property that was owned by the town and we know this because ultimately the cross, after it had been erected but hadn't been completed, the town actually transferred the care of that land and the completion of the cross to the American Legion. And that was around was in the mid- you know I think it was 1923, about then. So the cross had actually already been put up and then the Legion just happened to finish it. So it did start on public land. This is again this is a 40 foot Christian cross. It's concrete. It has some slight arching at the, where the bars meet. It doesn't look like the white small crosses in foreign battlefields. It's a dominating cross. It towers over one of the county's busiest intersections. It's unavoidable to passersby. At the time that the reason one of the reasons why it couldn't be completed is because it competed for funding with a secular and non-religious war memorial that had just been put up at the county courthouse for World War One veterans of Prince George's County, the very same county the cross was in. And so many citizens didn't want to support the cross because they had just supported this other non-religious war memorial. And that's, that goes into the fact that most World War I memorials did not use the cross. They usually consist of the secular doughboy at that sort of a bronze statue and that's the vastly common display that's used for World War One. The cross, you know, is a religious symbol, it honors Christian veterans but no other war dead are honored by the cross other than Christians. And so when you have these federal cases that a challenge crosses you see a landscape of courts consistently recognizing that the cross doesn't recognize other individuals and so when it sees this as a war memorial it sends a sharp message of exclusion to those who served our country, died for a country, but are not honored and practically forgotten when a cross is used to symbolize the war dead. And so there are about 30 federal cases that have struck down crosses either if they were used as a memorial or just you know used for some other purpose. And there are really only three outliers. So that kind of gives you the way that the courts have ruled. So the district court in this case that ruled that upheld the cross was actually kind of in it was in the minority of the courts that have addressed cross displays. So when we appealed up to the 4th Circuit Court of Appeals we did prevail there and the judge, Judge Thacker who wrote the opinion for the majority, said that you know using a cross to commemorate the war dead is exactly what I just said: it just doesn't commemorate all of the war dead. And so it actually is it's it just because it's a war memorial just doesn't make it secular it actually just it's using a religious symbol to accomplish that end. And so for that reason it was violate of the Establishment Clause.

Rosen: [00:09:52] Thank you so much for that. Ken so let's delve into the Lemon Test, much criticized by some, defended by others, Justice Scalia once described it like the ghoul rising up from the end of a horror movie which keeps coming back to be invoked by the court even though often justices don't like to cite it. But it was a case decided in 1971 and it had three prongs. It said that in order not to violate the Establishment Clause a statute must have a secular legislative purpose. Second, its primary or principal effect must be one that neither promotes nor inhibits religion. And third, that it must not foster excessive government entanglement with religion. And in this case as Monica suggested, Judge Thacker said that although the cross was erected for a secular purpose, it represented excessive entanglement of the church and state for two reasons: because the commission spent money to maintain the cross and the cross overwhelmed its surrounding and contained no symbols of other religions. And Judge Thacker also noted that religious services have been held over the years at the side of the cross. So tell us about whether you think the cross fails the Lemon test and whether do you think the court should apply the Lemon test or not and if and if not what other tests did it apply.

Klukowski: [00:11:07] Great questions. Let me weigh in on both parts of that. I guess the only supplemental fact that I would add before we get there is also within the jurisdiction of the Fourth Circuit. You have Arlington National Cemetery and there you will find a large twenty four-foot standalone cross, the Canadian cross of sacrifice, and another large standalone 13-foot cross, the Argon Cross. Those have been highlighted by the amicus briefs filed on behalf of numerous and a bipartisan group of members of Congress who filed a brief in the case and also a separate brief filed by the Veterans of Foreign Wars, also making the point that we do have these large stand-alone, these towering crosses as part of war memorials in other parts of the jurisdiction of the 4th Circuit, which certainly the only difference or perhaps the most prominent difference between this cross and those crosses is that this this crosses a little over 10 feet higher than the twenty four foot cross, the Canadian Cross of Sacrifice. And so it's difficult to say how the Constitution would say that that a 40 foot cross is unconstitutional but a 24 foot cross is constitutional. How those additional feet somehow make a constitutional difference. And I think that perhaps the reason that now the constitutionality of Arlington is jeopardized by the 4th Circuit's decision might account for one of the reasons that the High Court has decided to review this case. But getting into the actual facts I would start out by saying that we would contend that Lemon is actually not the right test to be applied here. There are three tests that the court could look at. We would say that the test that the court recently articulated and reinforced in Town of Greece versus Galloway is actually the correct rule for decision. But let me directly speak to what you ask regarding Lemon. We believe that the memorial is constitutional under any of the three tests that the court could look at: Town of Greece, or a separate case, Van Orden v. Perry, or the Lemon test, either under its original iteration or under its modern revision called the endorsement test. Regarding Lemon, you have this three prong test. We agree with the reasoning of the district court and the dissenting judges in the in the 4th Circuit proceeding, both at the panel stage and before the before the court. That the principal effect of this is not to advance religion. That the principal effect, speaking of the second prong of Lemon here, is to commemorate those who made the ultimate sacrifice during war. We would also say for the for the same reason that any degree of entanglement between the government and faith in that regard is not excessive and that that's why the third prong of Lemon is not offended either. To put that in the modern context where the Supreme Court in 1989 in the case county of Allegheny versus ACLU Greater Pittsburgh Chapter, revised Lemon starting with the second prong but really expanding out over the years to get to purpose and entanglement as well, say that the essentially that the Establishment Clause is violated under Lemon whenever a hypothetical reasonable observer, a person who is aware of community traditions aware of history aware of contextualizing facts, whether such a reasonable observer would come to the conclusion that the government is endorsing religion. Now while it's possible that that a hyper-sensitive observer might get such an impression, we believe a reasonable observer, someone who understands how common of a symbol this is to commemorate war dead including people of other faiths by the way, and that's included in the record we have. There are record citations to people of other faiths, including for example the Jewish faith, some of whom have been commemorated for example with tombstones with the Star of David but others who have voluntarily chosen and embraced being represented by a symbol that was the same as all of their other comrades in arms. We would say that a reasonable observer who is aware of how common it is for soldiers of various faiths or even no faith at all, to be represented by this symbol that that resembles battlefield markers. Including, for example, soldiers of the Jewish faith some of whom are commemorated with tombstones that feature the Star of David but others as the record shows in the amicus brief show in this case who chose, even though it's not as a symbol of their faith, to be commemorated by the same war memorial symbol that their comrades in arms were also being represented by. Choosing as a matter of solidarity, for everyone to be represented under the same symbol that a reasonable observer would understand that this is a way to commemorate and honor those who have sacrificed for this country. Not to try to impress a specific sectarian religious message.

Rosen: [00:17:03] Thank you so much for that. And thank you for giving us so much great constitutional law doctrine. Dear We the People listeners you must understand there's not a whole lot of doctrine in constitutional law. And when I teach in New York I'll just give you the whole thing for free when you're studying the 14th amendment Equal Protection clause, here's all the doctrine really that you need to know--if a law implicates a suspect classification like race or national origin it's subject to strict scrutiny which means that the law has to be necessary to achieve a compelling governmental interest. If it's an ordinary economic legislation it's subject to what's called rational basis review which means it has to be rationally related to a legitimate governmental interest. And if it's intermediate scrutiny like gender then it's has to be substantially related to an important governmental interests. I did it from memory and I gave you that just as a I hope will be a delightful bonus because Ken ran through these three First Amendment tests which are so doctrinal in which lawyers love cause you can actually apply the prongs. So Monica with apologies for that commercial interruption, I would love it if you now could run through the three tests that Ken mentioned. We have the Lemon test with the three prongs, we have this Van Orden test which asks about the perspective of a reasonable observer and also asked whether a practice has been subject to challenge over a period of time or not. And then he mentioned the Town of Greece case which involved a legislative prayer and the question there was, has the practice in question been compatible with longstanding historical practice. So thanks for your thoughts on each of those steps.

Miller: [00:18:52] So the Lemon test, really it enshrines sort of fundamental precepts of the Establishment Clause. So what the court is saying when it when it enshrines that test in the Lemon case, it was actually going off of the decades of jurisprudence prior to Lemon where the court had looked to, you know purpose and said you know the Establishment Clause clearly prohibits the government from acting with a religious motive like a can't no intend to convert citizens to Christianity. So when the government acts with an unconstitutional, with a religious purpose or motivation, that violates sort of prong one of Lemon. Prong two of course is that the government can't sponsor religion or make it appear to citizens that it's favoring one religion over others. And that's again an unquestionable precept of the Establishment Clause that goes back to the court's earliest Establishment Clause cases that one religion can't be favored over others. And lastly you get into entanglement which sometimes overlaps with that second prong about effect but it does have its own precepts that that goes to the heart of what the Establishment Clause prevents, which is interference with it from the government with religion and vice versa. And here we have an instance where the government has spent already over a hundred thousand dollars on this cross through various restoration projects and ongoing maintenance and it's now set aside another hundred thousand dollars because the cross is in critical condition. There's cracks. It's crumbling. One of the commission's employees said it might just come down on its own during deposition. And so we know that we're looking at a lot more entanglement with the government and this massive Christian display. So that's sort of where the three prongs of Lemon kind of come into play. The so-called historical test is not a test at all. The court in the Town of Grace case look to whether a legislative prayer practice that was being done by a local town fit within the tradition that the court previously upheld in Marsh vs. Chambers -- that was a 1980s case. So it wasn't applying a test as much as it was saying can a can a town's prayer practice be consistent with something that we upheld for state and for the federal government and it held that it could. But there was no actual test that the court applied. It was a very unique analysis that hasn't been applicable outside of the legislative prayer context. And so here we're just saying I don't even know how you would apply that because it doesn't--the inquiry was very focused on who's delivering the prayers, what the audience is doing with respect to the you know the government giving the prayers, is who's the one giving the prayer. It's all very focused on prayer and can't really apply outside of that. And then lastly we get to the Van Orden case which again doesn't actually give us a test. You had a plurality decision so you had a splintered court and what ended up happening was Justice Breyer provided this concurring opinion which is considered the controlling opinion. But in it Justice Breyer says that Lemon is still very useful and we're going to continue to apply it in a religious display cases. Not only did he say that he did it the very same day Van Orden was decided the Supreme Court in a majority applied Lemon to strike down another Ten Commandments display which was in the McCreary case. And Justice Breyer was in that majority block. He just said that you know this was almost like a one off situation. Texas had a Ten Commandments that was in line with about 17 monuments and historical markers all which were the same size it had been added to the display. So unlike the cross here that was proposed and installed in isolation was until years later other structures were built around it. The Ten Commandments in that case was integrated and both the plurality the justices that said you know we were not sure if we like Lemon, and Justice Breyer agreed that the reason Ten Commandments are sort of different is because they have an undeniable historic meaning tied to our nation, our foundations of law and lawmaking. And so when the Ten Commandments are displayed in a legal historical context, which was the case there in Texas, it's less likely to be perceived as you know the government putting its hands on religion, unlike something that's you know, a quintessential and the preeminent symbol of Christianity, which is a cross. And to the point about Jewish soldiers using the cross it's- I'm not familiar with, that maybe it's an exception. But the Jewish Welfare Board was a staunch opposer of using crosses in overseas graves and actually testified before Congress saying it was very deeply offensive that some Jewish soldiers graves were being used with crosses and not Stars of David. And the Jewish War Veterans organization has been the plaintiff in many of these cross lawsuits seeking to remove federal crosses as war memorials on the basis that they don't represent them. So the general consensus amongst Jews and non-Christian groups is that the cross is not representative and does not honor or memorialize them in any way.

Rosen: [00:24:00] Thank you so much for that. Ken, help us understand how the Supreme Court may approach these conflicting tests. Justices Thomas and Gorsuch have noted the disagreement among the circuits on the question of whether a particular religious symbol would be perceived by a reasonable observer. Justice Thomas says it's entirely unpredictable whether given the court's hypothetical observer would be any beholder or the average beholder. And the circuits have disagreed as well. The 10th and fourth circuits have understood the reasonable observers and ordinary passerby, but the third, sixth, and 11th Circuit have rejected this definition and said that the reasonable observer as a person is presumed to have an understanding of the general history of the display. So given Justice Thomas and Gorsuch's preference for examining the text and original understanding of the clause, rather than precedents they think are inconsistent with that, how are they likely to approach this case and how do you think they should approach this case.

Klukowski: [00:25:08] Well in fact Jeff rather than just focus on those two justices all expanded out to a majority of the court. If you look at Town of Greece which was written by Justice Kennedy and that was a 5-4 decision of the court. So five justices on here. The Obama administration in Town of Greece had asked the Supreme Court to only hold that the prayers at issue there were consistent with what the Supreme Court had previously upheld in 1983 case involving legislative prayer, a case called Marsh v. Chambers. And the Obama administration had said these prayer practices here are permissible under Marsh. The court should just hold that that is the case and not get into broader issues regarding the Establishment Clause. A majority of the court brushed aside that argument and they in fact went big and they noted at the outset, the first thing that they noted is that yes, the prayers here are consistent with those upheld in Marsh v. Chambers. But rather than just stop with a very short opinion there, Justice Kennedy went on to say Marsh is sometimes described as carving out an exception to the court's Establishment Clause jurisprudence because it sustained legislative prayer without subjecting the practice to any of the formal tests that have traditionally structured this inquiry. He then goes on later to say, and this is a majority of the court speaking quote, "Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted by reference to historical practices and understanding." Later on in the decision, he goes on to say the court the full court goes on to say any test the court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. The court goes on for a number of pages and in doing so it casts serious doubt on this whole reasonable observer concept. This whole endorsement test concept and it goes on to say that when the court is to is reviewing the Establishment Clause, consistent with what it does with other provisions of the Constitution, whether it's a First Amendment provision like the Free Speech Clause, or the Second Amendment right to keep and bear arms, that the court needs to look to the historical contours of the clause which it goes on to explain that there were historical hallmarks of religious establishments--like laws telling you that you had to attend church on Sunday, laws telling you which church you had to attend a tax system that would be a mandatory tithe that's only given to the government's preferred church, government licenses for what teachings you can make and that you would be in risk of fines or even imprisonment if you were teaching a doctrine other than that which was approved by the government. One of the bestselling books of all time is Pilgrim's Progress by John Bunyan. He wrote that when he spent years in the British prison because he was teaching doctrines that deviated from those that were authorized by the Church of England. And so in Town of Greece the court explains you look at all these historical hallmarks and that in a modern context it comes down to coercion. Is the government coercing any person to participate in a religious activity that violates their conscience? And when it comes to a passive display like this, no one is making you bow to it. No one's making you pray to or to put money in a box next to. There is therefore no coercion. Even though a person might not, might think that there is a religious message there, they might decide they don't agree with that religious message. As Justice Kennedy said in Town of Greece, he said if you're hearing something like a prayer that you disagree with, you may find that offensive, he said but offence does not equate to coercion. When it comes to the Establishment Clause what you're looking at is history and whether someone is being coerced and that that's the line that is drawn. And that that we believe is the correct line of decision. And I believe that that's a line that the majority of the court including Justices Thomas and Gorsuch are going to be applying in this case.

Rosen: [00:29:44] Thank you so much for that. Monica do you believe that this coercion test is the correct test to apply if the court does embrace it, how dramatic a change in the jurisprudence would that represent? And do you believe the court will embrace this coercion test?

Miller: [00:30:21] So my answer is no to all of that. No. I don't believe that the Supreme Court will embrace, the majority of Supreme Court won't embrace, the coercion test as the primary, only test for these kind of cases. And I don't think it's the correct test for several reasons. First of all, the court has repeatedly rejected the notion that coercion is the only value that the establishment clause protects. In fact it's said that that's really the role of the free exercise clause. So if that was the sole purpose for the establishment clause it would be redundant. And this is based off the court looking back at the legislative history leading up to the establishment clause, the intent of Madison, the intent of Thomas Jefferson, know the primary founders of the clause. It goes back to some of the early Supreme Court cases as I mentioned. Even in the most recent case I think it was in McCreary, the court specifically said that that coercion alone is not going to be the test and religious display cases. When you get into it when you get into Town of Greece, the court is saying that in this narrow context of legislative prayer that's when we're going to say you know we're already upholding legislative prayer as even if it's not an exception as something that's not that is religious, but it's not in our normal course of what we would uphold. It's saying, even then some prayers will still be unconstitutional if there is a pattern of proselytizing or coercion or some evidence to that effect. But it had said that same premise in the Marsh decision and other cases and subsequently used I mean turn back to Lemon after the Marsh case when it looked to that more narrow view. And in the Town of Grace case, Justice Kennedy relies heavily on his concurrence in the Allegheny decision and his concurrence in the Allegheny decision specifically said that he had no doubt that you know the Establishment Clause prohibits the government from erecting a large permanent massive, you know, Latin cross on city hall and he used that example specifically and he said he would find that unconstitutional even if you didn't apply Lemon because there would be an obvious effort to proselytize on behalf of a particular faith. And an underlying principle in the legislative prayer cases as well as the Ten Commandments cases, is the notion that yes our history does accept and acknowledge some general references to God or theism, but when it comes to promoting Christianity specifically or one religion over another that's when the line is crossed. And Justice Scalia is one of the, he's always advocated a narrow view of the establishment clause and a very originalist view. Even he recognized the distinction between symbols that you recognize that are embraced by multiple different religions like the Ten Commandments which has been embraced by Judaism Islam and Christianity. He found that that's consistent with our historical understandings. Whereas he said that you know a reference to Jesus Christ or something more sectarian is not consistent with our history and with the establishment clause as general principle against prohibiting the government from favoring one religion over another. And I think that's really where the line is drawn and so because this is such a potent sectarian symbol something that the justices have consistently recognized this is something different than a generic symbol or something that's benign like a prayer a legislative prayer that's delivered by a local citizen and not even the government. There's a big difference between the two.

Rosen: [00:33:51] Thanks for that very much. Ken as Monica said the court might distinguish between the Ten Commandments which is a symbol embraced by many faiths and not necessarily sectarian and a cross. On the other hand it could decide this case quite narrowly by saying that you know a cross that's been up for a long time historically on land that was originally private but was now public and so forth could basically tailor the facts to cover this cross but not other ones. And indeed this case as you suggested is supported by a bipartisan coalition in the state of Maryland as represented by my brother in law Neal Katyal who is no conservative. So if you were to try to figure out how the liberal Justices would vote in this case could you imagine a, say a 7 to 2 decision with Justices Kagan and Breyer joining the conservatives as they did in the recent cases involving sorry in the name of the, that's the question again the rubber playground case was Trinity Lutheran.

Klukowski: [00:35:41] Those are great questions Jeff and not only could I see a 7 to 2 victory for the American Legion here, I could see potentially a nine to zero unanimous victory like we had in Hosanna Taper in 2012. That was an issue where a lot of commentators at the time were thinking this could be a 5 4 decision it could go either way. Instead it was a 9 0 decision not just with Justices Breyer and Kagan but also with justices Ginsburg and Sotomayor where the court held that it was unconstitutional for the EEOC to apply a federal anti-discrimination law against a church against a church school telling them the who the teachers had to be at the ministerial exception to federal nondiscrimination laws. I think here that the coercion issue, far from seeing that as redundant, I actually think it's the common denominator for the First Amendment. Coercion is the touchstone for compelled speech under the Free Speech Clause. It's the touchstone for restrictions on speech under the Free Speech Clause. It is the touchstone for the free exercise clause when the government is telling you that you cannot exercise your own faith. Conversely, it is also the touchstone for the Establishment Clause where the government is choosing its own fate and then coercing citizens to participate in it. So I think what we see here in Town of Greece, far from some sort of one off anomaly, and again I think that Justice Kennedy made it explicit at the outset of the decision that this was not any sort of set aside, I think it instead reintegrates the Establishment Clause with the entirety of the First Amendment. The six clauses of the First Amendment, all of which turned to one degree or other this concept of coercion and the historical hallmarks from the founding to the present of where we see that being relevant. Now if I move on, also as you said to the Ten Commandments, I would actually say that the religious message here is less than you would find with the Ten Commandments. I believe the Ten Commandments are fully constitutional as well. And I think it's the plurality opinion in Van Orden that put forth the right rule of decision there. But in that case you have big bold print. You know "I am the Lord thy God you shall have no other gods before me." The plaintiffs in those Ten Commandments cases were making the same arguments that my friend Monica is making today. They were making those same arguments against the Ten Commandments in those 2005 cases. And again in Van Orden five of the justices didn't buy it. There were also a version of those same arguments made in Town of Greece itself. The plaintiffs there noting that almost all of the prayer givers in the Town of Greece were Christian. Many of the prayers, in fact most of the prayers made sectarian references to Jesus Christ, and all of these issues about this this sectarian message. Those were actually the lead arguments in Town of Greece. The Supreme Court heard all of those arguments and they rejected them. And in fact if you read the dissenting one of the dissenting opinions in Town of Greece written by Justice Elena Kagan she makes exactly those same points that you're hearing from my friend today. Those were made in dissent in Town of Greece. You can read that in the second part of the opinion. And so I think the Supreme Court as a whole has heard these arguments before. They did not buy them in the context of legislative prayer and I don't think they're going to buy them with respects to this long standing passive war memorial either.

Rosen: [00:39:26] Monica, what is your response to that claim that the court has been more tolerant of religious symbols that have been up for a long time and seem to have a strict sanction that even the liberal justices have joined the conservatives in upholding them? And what do you want to say to We The People listeners about why these longstanding historical monuments do in fact violate the Establishment Clause and in your view and then why you think they should be struck down.

Miller: [00:39:52] Sure. I mean the Supreme Court has never said that you know history alone is a basis for upholding an otherwise unconstitutional display our practice in fact that's exactly what we heard earlier today when the Supreme Court said in Town of Greece that it wasn't upholding legislative prayer simply because it was old. It was actually looking to a lot of other variables and one of which was the notion that Congress, just days after passing the First Amendment, was engaged in the practice of legislative prayer. The very specific practice. And the reason it was upheld was had a lot to do with the fact that it was an internal practice and it is to remain an internal practice for the benefit of lawmakers. So when, and the court says this in Town of Greece, when a practice starts becoming a public practice when there is evidence that the government is actually doing a legislative prayer to promote religious observance among the public, for instance if it says everyone stand all say our prayer does the sign of the Cross has the government doing these gestures towards the citizenry versus you know doing a prayer for themselves, that's where even a legislative prayer will cross the line. The court also said that this is a benign acknowledgment to religion. Yes there might be more Christian prayers here. But that was a product of demographics. The county had a practice of nondiscrimination and the Supreme Court specifically said we're upholding legislative prayer here because it is a non-discriminatory practice. Anyone can give an invocation including an atheist. The court was really specific to say that if a practice over time looks like it's denigrating nonbelievers or is preferring some religions over others that's going to be unconstitutional and that's even in the narrow legislative prayer context. Here again we have a massive 40 foot Christian cross that represents Christians to the exclusion of everyone else. It's not a benign reference to religion. It's not monotheistic or it's not a product of you know a private fleeting prayer. It is a massive permanent Christian cross that that people pass by on a daily basis in the middle of a busy intersection. So this is much more like a promotion of religion to the public it's not an internal act. It's not benign. You know as Judge Wynne said in his concurring opinion in the, in the denial of the en banc he said it's very offensive to him as a Christian to say that this is anything but a Christian symbol. It denigrates the religious meaning of the cross to call it anything other than Christian. Some have said that the use of a cross as you know for military purposes is blasphemous and it actually you know co-ops spiritual content for government purposes in a way that they feel is inconsistent with what Jesus Christ would have represented to them. So I think you know this just goes to the heart of why government and religion really should remain in their separate spheres especially when the government's using such a potently sectarian symbol for honoring veterans.

Rosen: [00:42:47] Many thanks for that. Ken from the other side what would you say to listeners who wonder whether this coercion test that you're advocating really would represent a dramatic change in the court's jurisprudence and might open the door to non-coercive prayer which the court has previously rejected. And in the course of answering that you might give us your thoughts about whether Justice Kavanaugh is likely to view these questions differently than Justice Kennedy.

Klukowski: [00:43:17] Sure to make sure I understand your question what's your reference to non-coercive prayer opening the door to that.

Rosen: [00:43:24] Well in upholding in striking down school prayer in the Abington case and then in striking down a graduation, Justice Kennedy has said that even prayer that's ostensibly voluntary may as effectively be coercive because of the social pressure that kids feel to participate in. And the question is whether the coercion test you're advocating would change that.

Klukowski: [00:43:47] Right. And I think if we look at those three if we look at those three cases you have the Engel vs. Vitale in 1963 regarding school prayer. You have Lee versus Weisman regarding high school graduation ceremonies prayers there in 1992. And then the Santa Fe case involving prayer at Friday night football games in the year 2000. Each of those were each of those were divided decisions. Lee versus, Lee for example was a 5 to 4 decision. So I think some of the justices might consider it a close call when there are children present. And this was heavily briefed in the Town of Greece issue because the Supreme Court level the central thrust of the plaintiff's argument was that under Lee v. Weissman, these local prayers where people who were appearing before the commissioners that the commissioners could clearly see whether they were participating in the prayers, whether they were perhaps rejecting the prayer opportunity that that was inherently coercive. That argument was centrally made in Town of Greece. It looks like Justice Kennedy who of course is now retired from the court, Justice Kennedy was careful to draw a line for coercion between adults and children. And he goes on in other cases especially in the free speech context to say that adults in American society need to be expected to hear and to be able to tolerate or see expressions of faith or expressions of anything perhaps political ideas that they disagree with and need to learn to tolerate that. But that children, when they're subjected to a captive audience scenario to a religious expression, that children unlike adults can feel coerced in terms of peer pressure to be able to participate. So otherwise put, Justice Kennedy said peer pressure is coercive for children in a public school context but not for adults in society at large. And so I think that a majority of the court will clearly understand the limits to that coercion principle there. So all of those prayer cases I would say we're still about coercion. It's just that Justice Kennedy, disagreed with some of his conservative colleagues on this issue that the coercion line moves when you're talking about children in public school. Now in terms of how that would play out in the larger context could you repeat the rest of your question?

Klukowski: [00:46:29] The question is whether Justice Kavanaugh might approach this differently than Justice Kennedy and more directly whether five justices on this court might interpret coercion more strictly than Justice Kennedy did and allow for school prayer even for kids as long as it's not formally coercive.

Klukowski: [00:46:52] In that regard Justice Kavanaugh of course is not yet at the Supreme Court level weighed in on an Establishment Clause case. So I'm not going to speculate as to exactly where he might share the view or differ from the view of Justice Kennedy in that regard. I do believe that that whether he has the same view or a different view even under Justice Kennedy's view I do not think that this would be regarded as coercive in a constitutional sense. And again I think if we look at cases like the Janus case from the end of last term, various free speech cases where Justice Kennedy has unpacked these coercion contexts these courtroom principles in a different context, I do believe that Justice Kennedy, and we saw this also in the Citizens United case in 2010, where he said the solution to speech you disagree with is more speech not less. It is not to silence the voices you disagree with. It is to have a free opportunity to express your own competing voice that contradicts the voice that you disagree with. So I think that Justice Kennedy and what we've seen with the majority of the court is that this is that it's not the role of the government to shelter people, to shelter at least adults, in society at large from being exposed to ideas or concepts that they might disagree with. And I think that that broader coercion context would not apply, those coercion tripwires don't apply anywhere in this context. I think even in for example even in the legislative prayer context the en banc 6th Circuit, meaning all the judges of the 6th Circuit, just a little over a year ago in a case I was involved with, it was a county out of Michigan where the presiding officer would say "please stand and assume a reverent position." Would say that to the room. The full sixth circuit said, that that's not coercive either. That that kind of even broad inviting language where you're not threatening some sort of adverse government action if you don't. But even that sort of inviting language to maintain to maintain decorum and respect, which people can choose to reject without of course without any threat of punishment, but even those sorts of expressions do not cross the line for coercion especially not when you're talking about grown adults. I mean America is about advanced citizenry. I mean a democratic system involves people hearing things every day that they might disagree with and even disagree with strongly but that doesn't mean it is the role of unelected judges to come in and shelter everyone from expressions or sides that they might not personally agree with.

Rosen: [00:49:48] Thanks so much for that. Monica, version of the same question for you and then we'll have closing arguments. Are you concerned that this new court with the addition of Justice Kavanaugh might embrace a version of the coercion test which allowed for more prayer and more public religious expression than the Supreme Court has previously tolerated.

Miller: [00:50:09] You know it's obviously hard to say but we actually do have some indication that Justice Kavanaugh is looking at religious displays differently than say other ceremonial deistic practices such as in God we trust in the motto and that comes from his concurring decision in Newdow versus Roberts. And there he actually goes out of his way to say that unlike these practices like legislative prayer or "in God we trust" he says because of their fixed qualities displays have caused somewhat more concern and spoken words which by their nature are fleeting. And he cites to several opinions one of which is Justice Kennedy's concurring decision in Allegheny which I spoke of earlier where Justice Kennedy said in this quote is provided in Kavanaugh's opinion, "I do not doubt for example that the Establishment Clause forbade the city to permit the permanent erection of a large Latin cross on a on the roof of City Hall. This is not because the government speech about religion is per say suspect as the majority would have it, but because such an intrusive year-round religious display would place the government's weight behind an obvious effort to proselytize on behalf of a particular religion." And so we know that's Kennedy's view and now we have you know Justice Kavanaugh putting it in the concurring opinion where he's distinguishing again a benign religious practice something referencing God to a permanent religious display like the cross. So I think it's definitely going to, you know I don't think we can say for certain which way any of the justices will go, but I do think that there is an indication that they're not all going to be on board with this -- just looking at coercion versus you know other tests or just the government's preference. I mean yes the government doesn't need to shelter citizens from religious symbols or things that might be offensive to them but certainly the government can't place its hands on the scales and be the one promoting those religions or putting those displays up on government property. And that's where the rubber meets the road for that. So we'll have to see where they land. But I do think that just consistent with all the other establishment clause cases I think the most likely outcome will be something narrow that you know won't necessarily apply outside of the religious display setting and might not even apply to other crosses. So we'll just have to you know present our arguments and see how the courts rule.

Rosen: [00:52:39] Thank you so much for that. Well it is time for closing arguments in this wonderful and illuminating discussion. And Ken the first one is to you. And the question is the obvious one. Do you believe that the Bladensburg Peace Cross violates the Establishment Clause of the First Amendment. And why should We the People listeners care about this case.

Klukowski: [00:53:00] Jeff, the Bladensburg World War One veterans memorial is completely consistent with the U.S. Constitution under any of the tests that the U.S. Supreme Court has applied over the years in terms of what sort of line amounts to an establishment of religion in violation of the First Amendment. Whether it is the history and coercion standard that the court recently brought to the fore in Town of Greece versus Galloway which we believe is the correct rule of decision, or if it is the approach that the court used in Van Orden v. Perry in 2005, or even the Lemon test either the original Lemon from 1971 or its endorsement tests variation the reasonable observer test from 1989, under any of those approaches we would agree that as the district court judge said in this case under any of those tests this is fully consistent with the Establishment Clause. And I don't believe this is a close case either. I believe a solid majority of the court will conclude that an almost century old passive war memorial is indistinguishable in critical regards from countless other war memorials both here in the US and around the world are fully consistent with the establishment clause that the Constitution permits the honoring of those who have given their lives in defense of this country.

Rosen: [00:54:30] Thank you so much for that Monica. Last word to you. Do you believe that the Bladensburg Peace Cross violates the Establishment Clause of the First Amendment. And why should We The People listeners care about this case?

Miller: [00:54:44] Sure, the Bladensburg cross, the 40 foot Latin cross that towers over the busiest intersection in Prince Georges County, clearly violates the Establishment Clause. I would argue under any of the tests that the court has applied to date and that includes Justice Breyer's concurrence and Van Orden. It's dominating its surroundings, there's no other cross that's like this that we're aware of. The Arlington crosses are in the context of a cemetery, they're smaller, and they're not by any means the dominant displays in that context and they're surrounded by religious symbols representing individual soldiers of many different faiths whereas here real Christianity is singularly and exclusively represented and that's backed by like I said over a hundred thousand dollars in government funds and which potentially can be you know another hundred thousand dollars just to restore it. So I think that the Supreme Court will look at this not just as a benign or historic display but one that is potently sectarian, that doesn't represent everyone and I think that's really the core principle here is the government's neutrality with respect to religion and whether this giant Christian cross is consistent with the government's requirement that it maintain a neutral stance when it comes to religious matters. So for that reason I do think it would violate the Establishment Clause.

Rosen: [00:56:05] Thank you so much Monica Miller and Ken Klukowski for an illuminating educational and deep discussion of this crucially important first amendment case. Thank you for spreading light about the meaning of the establishment clause and helping our listeners make up their own mind about the central meaning of religious freedom and the Constitution. Ken. Monica thank you so much for joining.

Klukowski: [00:56:31] Thanks so much Jeff.

Miller: [00:56:33] Yes. Thank you.

On this day, the Whig Party becomes a national force

New partisan gerrymander case reaches Justices

Happy birthday to the Founders’ painter, Gilbert Stuart

In Memoriam: George H.W. Bush

Remembering Former President, National Constitution Center chair George H.W. Bush

Video (2015): Jon Meacham talks about George H.W. Bush

Space Force could hit a constitutional roadblock: The House

Winston Churchill on why the American Constitution matters

The Bladensburg Peace Cross Case

On this day, President Johnson calls for the Warren Commission

Podcast: Free Speech and Press Cases in the Courts

Jeffrey Rosen: [00:00:05] I'm Jeffrey Rosen president and CEO of the National Constitution Center and welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. This is a special We the People episode on the state of the First Amendment. We will dive into the constitutional issues surrounding CNN versus Trump, the lawsuit that CNN correspondent Jim Acosta filed against the president and other White House officials after his press pass was revoked. We'll also touch on lawsuits involving the president's Twitter feed as well as possible charges against Julian Assange. Here to tell us about these developments in the First Amendment and to illuminate the arguments on all sides are two of America's leading experts on the First Amendment. And we're so lucky to hear from them. Katie Fallow is a senior attorney at the Knight First Amendment Institute who has litigated First Amendment and media cases. She was previously a partner at Jenner and Block and the deputy director of the Bureau of Consumer Protection at the Federal Trade Commission. Katie thank you so much for joining us.

 

Katie Fallow: [00:01:16] Thank you Jeff. It's great to be here.

 

Rosen: [00:01:18] David French is senior writer for National Review, a senior fellow at the National Review Institute, and the previous president of the Foundation for Individual Rights in Education. A great defender of the First Amendment and a returning champion on the We the People podcast. David it's wonderful to have you back.

 

David French: [00:01:36] Thanks for having me. I really appreciate it.

 

Rosen: [00:01:38] All right let's jump right in. Katie let's begin with the facts. There was an important hearing in the CNN case recently and a ruling by the judge and it focused on a case called Sherrill versus Knight from the D.C. Circuit in 1977 which held that the protection afforded newsgathering under the First Amendment guarantees of freedom of the press requires that access to White House press facilities not be denied arbitrarily or for less than compelling reasons. So tell us about the Sherrill case, what the judge held in the CNN case - it was not a firm First Amendment ruling but a due process ruling - explain what the judge's reasoning was.

 

Fallow: [00:02:16] Yes. So in the Sherrill case- actually the Sherrill case spanned looks like almost over a decade where Sherrill the reporter, who was a reporter and a White House correspondent for The Nation magazine, applied for a press pass, security clearance from the Secret Service, and he was denied the pass and the Secret Service refused to tell them the reason why he was denied the pass. The pass obviously would provide him access to go to the press briefings at the White House. So he kept on trying to find an answer. Eventually the ACLU got involved and they filed first of all a freedom of information suit, and at one point at the end of that - it sort of started apparently in the Johnson administration but then went into the Nixon administration - and I guess at some point John Dean sent a letter to the reporters saying, well you were- you have an assault conviction in Florida at some point and that's why you were denied the pass. The ACLU got involved. They filed a lawsuit against the Secret Service and the D.C. Circuit in its decision, as you said, recognized that there was a first amendment right of access to the White House, what they called the White House press facilities, and there was no allegation in the Sherrill-Knight case that the reporter was denied the security pass or the press pass based on the contents of his speech or viewpoint. And the court sort of in passing suggested that that would be a real problem. But still the court- the D.C. Circuit said that there is no- the White House does not have to open its facilities or its property at all to the press, but once it does and it creates these press facilities, the space for the press to be, it as you said can not deny a press pass to an otherwise quote bona fide journalist for arbitrary reasons or for less than compelling reasons. And the D.C. Circuit said on the First Amendment argument that compelling- you have to have a compelling argument because- I mean, excuse me, a compelling government interest if you are to do something that would infringe on the reporter's right of speech or write to engage in newsgathering. So we have that decision out there and in there as you said the district- the D.C. Circuit did recognize a First Amendment liberty interest and then went on to say that because the reporter has this interest in getting the press, he is also entitled to due process which, meaning, notice of the rules that govern access to a press pass and an opportunity to respond if he is denied or there is a decision that could be denied that interest. So flash forward however many years, you know several decades to the current situation with CNN and after the contentious press conference on November 7th following the midterm election where there was this back and forth between CNN correspondent Jim Acosta and the president and a White House intern attempted to take back the microphone from Mr. Acosta and he refused to relinquish it. So then the White House offered a series of different and sometimes conflicting justifications for why it had revoked and directed the Secret Service to revoke Mr. Acosta's press pass which has basically never happened as far as anyone has reported. So CNN filed the lawsuit and in the hearing last Friday, a District Court Judge Kelly who was a Trump appointee granted CNN's request for a TRO and ordered that the White House return the, what they call the hard pass, kind of a not permanent but ongoing press pass of access to the White House and in his- this was a decision given from the bench and Judge Kelly said, it was interesting, basically said he suggested that he doesn't agree with the gist of the D.C. Circuit's decision in Sherrill v. Knight or may not like it but that he is bound by it, that it is longstanding precedent of the D.C. circuit, as a district court judge he is bound by it and he based his grant of the request for a temporary injunction on due process grounds. He, the judge said I'm not going to rule on the scope of CNN or Jim Acosta's First Amendment claim but I'm just going to hold that here, he was apparently given no process at all, and so you cannot revoke. That would irreparably cause him constitutional injury and you can't revoke the press pass based on those grounds.

 

Rosen: [00:07:34] Thank you so much for that great introduction. And We the People listeners if you check out the transcript of the hearing that Katie referred to, by Judge Kelly, which took place on November 16th, you'll have a sense of a district judge in real time balancing the equities in a very moving way. And David, is it significant that Judge Kelly is a trump appointee who ruled against the evidence? Does that suggest that the law is clear? And then as Katie suggests it was a due process ruling holding Mr. Acosta had the right to notice and to rebut the Government's reasons and a written decision. What happens next if he's given those opportunities? Can his press pass be revoked or does that trigger the First Amendment arguments and how do they play out?

 

French: [00:08:25] I think that given the Sherrill v. Knight decision and the clarity of that decision, I think it should be- I think that a judge whether they are appointed by Clinton, Bush, Obama, or Trump would have reached the same result. So in the sense- legally I don't think it's significant that a Trump appointee Judge rendered this decision. But politically I do think it's significant. I think it's something that should make many of the very reflexive defenders of the administration stand up and say, oh wait a minute. Maybe this action did violate controlling legal authority. So I do think there is some real significance there and that it came from- to the public that it came from a Trump appointee judge. But you know any district judge should be bound by that D.C. Circuit precedent. Of course I think that- one of the things that I think is really important for folks to understand, and this is something that is, I think, going forward, going to be interesting to see how it works out, is that essentially what we have here is an administration that has given an ample amount of evidence that it particularly relishes a fight with CNN, that- and the president himself particularly relishes a fight with CNN, and he particularly relishes a fight with CNN on the basis of what he perceives to be CNN's viewpoint. And that's going to be important as the case goes forward because one of the cornerstones of First Amendment law is a generalized, you know, we can get into the weeds and talk about the exceptions to this, but a generalized prohibition against viewpoint discrimination. And given the abundance of evidence of Trump himself and how much he dislikes CNN because of CNN's viewpoint, it's going to be tough if this case moves on to any kind of viewpoint discrimination analysis, I think, for the administration to prevail. The other thing that I think is interesting about this is, if you have- a cornerstone of the First Amendment is prohibitions against viewpoint discrimination. Well a cornerstone, shorthand definition of due process under the 5th Amendment is notice and an opportunity to be heard. In other words, notice of the rules that apply against you and an opportunity to have your case or your side heard, as- in any sort of, whether formal or informal, adjudication of those rules. And that's something that I think is going to be really difficult for the administration to prevail on as this case moves forward because, what were the rules that Jim Acosta was supposed to have notice of? We know that the administration appears to be in the process of formulating some guidelines at present but formulating guidelines in the present and applying them retroactively has some additional due process concerns as a general rule. You can't- you can't punish a person under rules that did not exist when they engaged in the alleged misconduct. So you're running up against a couple of elements of the First and Fifth Amendment that I think are going to be- they're going to be difficult for the administration to overcome.

 

Rosen: [00:11:50] Thank you very much for that. Katie, as you think about the substantive First Amendment claim, in other cases we've seen courts refuse to look to the president's motive. The Supreme Court in the travel ban case refused to find an ilicit motive of religious discrimination and still expect- accepted the law as facially valid. Here, the government will argue that it had safety concerns, that Jim Acosta menaced an intern. How are courts more likely in First Amendment cases to look for actual motive? And in that sense, do you agree with David that they might well conclude that the real motive was to discriminate against CNN or not? Walk us through what the substantive wing of the First Amendment cases would be and put on the table any other relevant Supreme Court precedents including perhaps two cited by the complainants, New York Times and Sullivan and The Hustler magazine case which talked about the importance of robust political debate.

 

Fallow: [00:12:48] As David said, a cornerstone of First Amendment case law is that the public officials and government officials cannot seek to suppress speech or censor speech based on viewpoint, and it's a fundamental First Amendment principle, and in the context of public forum law, which is where the Supreme Court and other courts have frequently applied this rule against viewpoint discrimination, as they call it, the Supreme Court has made clear that if a government purports to be trying to censor speech or exclude someone from a public forum and they say it's based on a rule of conduct or on a rule that has no relationship to the speaker's viewpoint or the content of the speaker's speech, that the courts will look behind that the purported justifications to ensure that it's not a pretext for impermissible viewpoint discrimination. So I think that is the basis, one ground of which this would be different from the Muslim ban case where the court was looking at just the letter of the executive order in that case and determining whether that was fully justified under the president's authority. But here if there is a question whether or not the president or other people at the White House were motivated by Jim Acosta's viewpoint or the content of his questions and you know the video of the press conference is obviously available for everybody to see and I think there's both that and also the sort of longstanding history as David said of a feud between President Trump and CNN and President Trump's repeated attacks on CNN and particularly based on CNN's opposing viewpoint. So I think that if Judge Kelly or another court reviewing this and Acosta brings a claim saying I was excluded because of my viewpoint and the content of my speech that it would be necessary under the relevant case law to have factual discovery to determine what was the motivating what motivated there the revocation of the hard pass and New York Timesv. Sullivan and hustler. I think those cases are extremely important cases and First Amendment law and both I think supporting the view that public officials and public figures have to put up with a fair amount of challenging viewpoints from other speakers so famously in The Hustler Supreme Court case which didn't involve a public official but a public figure of Jerry Falwell. The court held that even very coarse crude speech that many people would find extremely offensive which was a parody of that I think. I think it's Jerry Falwell speaking right? Yes for sexual experience, that even in those instances the First Amendment protects all manner of speech and that people who are public figures or public officials that are out there in the world essentially kind of have to have a tough skin and put up with a fair amount of speech even that's offensive because of the important principle of the First Amendment protecting, sort of creating a bubble around protected speech to ensure that it is not unduly censored.

 

Rosen: [00:16:48] Katie, you and Knight have argued that the Trump Twitter lawsuit raises many of the same issues as the CNN case. In that case, Knight claims that the plaintiffs were blocked from the president's account because they posted tweets critical of the administration. And you also argued the ban was a violation of their First Amendment right to free speech and free assembly. And a judge has preliminarily agreed with the Knight Foundation. Judge Naomi Rice, a district judge, in a recent decision held that: we hold that the portions of Donald Trump's account, the interactive space where Twitter users may directly engage with the content of the president's tweets, are properly analyzed under the public forum doctrine set forth by the Supreme Court, that such space is a designated public forum and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. David tell us about this very interesting ruling, more about the public forum doctrine. Was it unusual that Twitter was held to be a public forum and why was this viewpoint discrimination?

 

French: [00:17:58] This was a farce and this is a fascinating case. It's still ongoing obviously and it- it really goes to this. This is the- this is a situation where we may end up, your two guests may end up disagreeing a bit on this but this turns on whether or not the forum was owned or controlled. Donald Trump's Twitter account being the forum in the spaces underneath, in the replies to a tweet, is that owned or controlled by the government? So if you have a forum for speech that is owned or controlled by the government then First Amendment protections are going to lock in. And again going back to some of the things we've talked about before, one of the thing- one of the core fundamental First Amendment protections is this freedom from viewpoint discrimination. So if the Trump Twitter account or this particular spaces within the Trump Twitter account are owned or controlled a forum owned or controlled by the government. This is actually a pretty easy case that blocking critics that- inhibiting critics' speech, prohibiting critics from sort of having the same kind of access to Trump's speech, all of those things are- it's going to be an easy case, it's gonna be pretty open and shut if this is owned or controlled by the government. So therefore I think that that's the- that's the central question and where I have some disagreement with the judge's decision is Twitter so thoroughly controls our accounts. Twitter is so thoroughly in charge of our accounts that I question whether we could say it's owned or controlled by the government. I pulled up Twitter's terms of service and it's really pretty stunning. So not only can they suspend or terminate you, cease providing you with all or part of the services at any time, they can do so for any reason or no reason at all. You don't have to violate the terms of service. Twitter has the ability to shut you down in whole or in part for any reason that Twitter wants to shut you down. So this is a- in my view this is a Twitter controlled forum not a government controlled forum. In fact even Twitter control is so complete that your content on Twitter isn't even your content anymore. For example when you post on Twitter you grant Twitter a worldwide non-exclusive royalty free license to use copy reproduce all of this content in any way that they see fit. So it's a- I think it's a case that's very interesting to see if forum doctrine is going to extend to it, into a space so thoroughly controlled by a private entity and that I think that will be one of the core questions as this case goes forward.

 

Rosen: [00:20:53] Fascinating. Katie you and Knight argue that Twitter was a public forum. Tell us what the tests are for how to determine a public forum and why you think Twitter is one?

 

Fallow: [00:21:05] Yeah, just to step back a little bit. First I want to also note that the judge in the case is Naomi Rice Buchwald, just in case anyone wants to look up the judge and her decision. But you know so- in this case we represent seven individuals, people from all over the country who you know including a sociology professor, a- several writers, a doctor, and a veteran and police officers, so people from all walks of life. And the thing that they had in common was that they replied directly to the president's tweets which he made using his @ real Donald Trump Twitter account which everybody is aware of. They replied directly to him. And the president then blocked them from his Twitter account. And what it means if you block someone is that that person, if they're signed into their Twitter account, they can't read your tweets. And they also can't reply directly to you. And the president using his @real Donald Trump account, he tweets, as we all know, all the time and in response to every single one of his tweets there are tens of thousands of replies and comments and those replies all appear in these comment threads that appear underneath the president's tweets. So what we argued was that the president was using his @real Donald Trump Twitter account essentially as a virtual town hall. So a vast virtual town hall where he as the public official was essentially standing at the front of this vast forum and speaking and then all of the members of the audience who are the individual Twitter users can speak= engage in their own speech and reply to him and reply to each other and discuss the president and his policies. And that discussion appears in these comment threads and we argue that by blocking- when he personally blocked them, he was essentially evicting them from this town hall. And just as a city council that is holding an open town meeting can't eject someone from that town meeting because they don't like what the person has to say, the president shouldn't be able to block people from replying to him because he doesn't like when they criticize him. And then David- so we made that argument and this is the public forum doctrine which we've sort of talked about, and in a series of cases over the last 30 or 40 years the Supreme Court has recognized this, what they call the public forum doctrine, the traditional public forum doctrine are limited to essentially public parks and sidewalks which throughout our history we have a long tradition of allowing people to essentially get up on a soapbox and speak their mind. And it is this fundamental principle as we've discussed that public officials could not throw someone out of a park or make them get off that soapbox because they don't like what they have to say. They can develop these content neutral viewpoint, neutral time place manner, or rules like saying, no you can't in certain circumstances, you couldn't use a megaphone or you have to do it at certain times of the day, but you have to ensure that the government isn't using those kinds of rules essentially just to kick people out because they don't like their viewpoint. So that's traditional public forums. But the Supreme Court has also recognized what it calls a designated public forum. So it's a non-traditional space that as David said is owned or controlled by the government and where the government has opened up that space for people to engage in speech. And so if the government does that and that would be for instance you know if a city council decides to have an open public meeting in its offices, it may not traditionally open up those offices to the members of the- of the general public to speak. But once it says we're going to have these meetings there on Tuesdays and you're able to speak if you're a member of the community or if you just want to address the issues we're talking about, well that would be considered a designated public forum. And what the Supreme Court has made clear is that once again, you cannot restrict people's access to that forum based on either the content of their speech or their viewpoint. So Judge Buchwald agreed with us. What she found was that although the president in his own tweets are not a public forum, that's his speech, but this quote space which she called the interactive spaces which are the places where people can reply directly to him she said those are a public forum. And when he blocked people from his @real Donald Trump account he was operating the necessary control. So yes Twitter in general controls the whole platform but individual account holders, they make decisions about who they are going to block from their accounts. And because when he did block people from the account, that was the action that had the effect of excluding them from this these comment threads and that is government action, that is subject to the first amendment. And you know, I know David brought up this question about if Twitter does retain a significant amount of control over the platform in its entirety, can that really be a public forum? Our view is that first of all the Supreme Court has applied the first amendment and the requirements of the public forum doctrine in context where the government was for instance leasing a theater. So there was a private property owner who retained ultimate control over a Municipal Theater in this case involving municipal theaters, denial of the ability to show the play Hair. But the Supreme Court sort of held that the fact that it looked at what the government entity was doing there and that the government entity was the one that was making the decision about whether the musical could be performed. So I think it's also important to keep in mind that if you conclude that a Twitter account cannot be a public forum even if it's run by a government official or a government entity then all social media accounts that owned by the government including the @POTUS account, the White House account that allowed people to speak, well they could not subject to the public forum doctrine. Theoretically they could just go and exclude anyone they want all based on viewpoints and we believe that would have completely unacceptable consequences from a First Amendment standpoint.

 

Rosen: [00:28:20] Thank you for all that. David in Judge Buchwald's opinion she analyzed the complicated cases about limited public forum including the Perry education case where the plaintiffs want access to a public school's internal mail system to distribute literature. And she stressed here that the plaintiffs weren't seeking access to the whole account, in other words the ability to send tweets but just to get messages, and she said that because the account was controlled by a government official, namely President Trump, citing cases including fascinatingly, and I'm on pages forty two onward for listeners who want to geek out and read the really fascinating opinion, she says, she cited the Zivotofsky opinion saying the president has a unique role in communicating with foreign governments. That was the determination of where the capital of Jerusalem could be. She concluded in practice this was a limited public forum so it's obviously a complicated balancing of equities. But what's the argument on the other side and when and how do you- how do you think the Supreme Court might come down if they were to take up this question?

 

French: [00:29:29] I would actually I would be surprised if the Supreme Court held this to be a designated or limited public forum. I think that there is an avenue here that individuals have that has nothing to do with the government. Individuals could go to Twitter and say to Twitter, we believe you as a company should make it to where public officials or public figures how ever you know you define it, but certainly public officials and official government accounts, do not have the ability to block and do not have the ability to mute for example, and Twitter could do that and do it instantaneously and do it without any court involvement at all. And that illustrates I think the extent that- the level of control that Twitter has here. So for example if the government leases out a private community center or private theater for a government meeting, the lease is going to grant the government a degree of control over those proceedings that a tweet- that does not exist when a government official logs on to Twitter or a government account logs on to Twitter. And so I think that that's going to be a a key question going forward and that's going to be the thing that I think may ultimately- and because again as I said if this thing, if twitter- if there is a owned or controlled- if this is deemed to be owned or controlled by the government, this case is relatively easy, there is a clear act here of viewpoint discrimination. There's clear inhibition of the ability of the of the plaintiffs to interact. Now it's not a huge inhibition but there is- there is a punitive action that's taken place. But the owned or controlled analysis is going to be in my view the analysis that's going to ultimately decide this case. And in- given Twitter's absolute control, given the extent to which Twitter can uniquely modify the control that it gives to government officials in what it deems, what Twitter solely deems in its own discretion to be the public's interest, I don't think the Supreme Court even though this court is relatively speech protective compared to prior courts I don't think it'll ultimately rule for the plaintiffs. But it's not cut and dry. It's going to be an interesting hard fought piece of litigation.

 

Rosen: [00:32:13] Katie your response to those thoughtful observations about whether or not Twitter is owned or controlled by Twitter or by the president in the case of the Donald Trump account. And then I want to broaden out the question. Just this past week Mark Zuckerberg announced plans to create a Supreme Court for Facebook. He said that you can imagine some sort of structure almost like a Supreme Court made up of independent folks who don't work for Facebook who ultimately make the final judgment call on what should be acceptable speech in a community that reflects the social norms and values of people around the world. All of us who think about free speech are struggling with how to think about the platforms Twitter, Facebook and Google. In a world where they control more about who can speak and who can be heard than the president himself and the Supreme Court justices, after your reflections on public forum doctrine, what do you think of the idea of a Supreme Court for Facebook?

 

Fallow: [00:33:09] I mean I think you'll not be surprised to hear that I disagree with David's ultimate prediction for how the Supreme Court rules on this but I think that- and I think it's for several reasons: first of all nothing in the case against the president for blocking people on Twitter turns on anything that Twitter did. It's not a case against Twitter; it's against the president and his aides and it has- it focuses specifically on the access that the president controls to be able to reply to his Twitter account. And the president made those decisions just as anyone else who's an account holder could make. So I think it would be entirely consistent with the public forum doctrine as the court has made clear that when you're determining whether it is a public forum you look at the- and what constitutes the public forum. You look at the access sought by the speaker and here the access is the ability to reply to him. I also think you hold that the fact that Twitter retains some control over the platform generally as I mentioned, there are so many things where the government for instance, if the government maintains an interactive website where it allows people to post comments on a Web site, which courts have held that that would be a designated public forum, the Web sites are hosted by private companies. I mean you know obviously the Internet itself is owned by, the people who carry the signals are owned by private companies. So if you hold that the fact that a private property owner provides the communications technologies that people can use in this day and age to engage in speech and engage in these virtual public forums there's no stopping point to that. Turning to Facebook having a Supreme Court of Facebook you know I think that Facebook itself, and just as in our case of Twitter, they are not considered state actors. So they are not subject to the first amendment and to some extent they can organize their platforms as they see fit. But I think what we're seeing is that Facebook is struggling with how to determine what speech is allowed on its platform and they're actually addressing many of the same problems that the courts have had to grapple with over the years. And it's easy to say well we don't want x kind of speech or we all think that y kind of speech is bad, but when you actually try to define it and adjudicate it it is is pretty hard to do.

 

Rosen: [00:36:06] David your thoughts on whether Facebook should create a Supreme Court and given the fact that it is creating one, what criteria should the Supreme Court have? What should the appointment procedures be? How do we guarantee judicial independence independence? And who should serve on it aside from you and Katie who I nominate immediately.

 

French: [00:36:26] Well you know I think I actually am somewhat heartened by it in the sense, I think we've reached a point where nobody trusts Facebook anymore. So if- you know it- folks on the right are convinced that Facebook to the extent it has any discretion at all, disfavors conservative viewpoints, is more apt to view conservative viewpoints as dehumanizing or hate speech and has a strong progressive bias against conservatives on the platform. A whole lot of progressives look at Facebook after the 2016 election and what it knew about Russian interference and Russian accounts or Russian sponsored accounts, the way in which Facebook seemingly concealed a lot of that information from the public and are sort of thoroughly over Mark Zuckerberg as well. So Facebook has a PR problem. It doesn't have a- it doesn't have a a real competitor right now but it's still got a huge PR problem. And so I think that moving towards some- moving towards a structure where you can say, hey we have, we know we have a problem, we know you don't trust us and we're going to have this independent panel that deals with these thorny questions I think is an interesting approach. But the core problem is if they continue to have vague standards for determining- vague and subjective standards for determining what kind of speech is allowable on the platform, you could put together the most dream team panel you can imagine and they're still going to come up with standards that will satisfy- be dissatisfying to an enormous number of people. And because- the problem comes that if you're going to try to ban so-called hate speech, you're going to run into a definition problem and as you run into that definition problem you're going to you're going to end up in constant battles on the margins over that definition of hate speech. What I- what I have written in the past, I wrote this when Alex Jones was banned from Facebook and YouTube, is that I think these social media companies that are seeking to create something that approximates a marketplace of ideas would be well served by not trying to reinvent the wheel on speech standards but instead look to our centuries of development and the first amendment and use that as their guideline, use that as their sort of starting point. Now I'm not saying that they should replicate all aspects of First Amendment jurisprudence but using that as the starting framework I think is going to get them a lot further than sort of this endless battle that exists over very nebulous and difficult to define concepts like hate speech and applying that, for example, applying a more First Amendment centered framework, and one that is- relies on our centuries of development in common law hardly leaves people without any protection at all. So for example I think it would be clearly within Facebook's rights and maybe even a Facebook obligation to kick from its platform people who you know engage in defamation, libel, slander. In that circumstance you know Alex Jones would be a candidate for removal on the basis of his Sandy Hook conspiracy theories alone. So there are many ways in which you can create a platform that- where the rules and regulations regarding conduct are more explicitly viewpoint neutral because the instant you begin to open up the viewpoint analysis is the instant you open up Pandora's box, as every one of these platforms, every single one of them has understood and struggles with on a daily basis.

 

Rosen: [00:40:23] Very interesting. Katie, David says what's important is not just the appointment procedures but the substantive law, and he calls for a kind of First Amendment free speech imperialism, if I may, that basically should adopt a version of the Supreme Court's interpretation of the First Amendment which says that speech can only be banned if it's intended to and likely to cause imminent violence, unlike the current Facebook, Twitter and Google standards which allow the banning of hate speech and other speech that demeans people on the basis of group identity. Do you agree with David on the substantive standards or not?

 

Fallow: [00:41:02] Well I tend to agree with David very much on this idea that you know that these are very hard lines to draw, that whenever you try to start applying standards to carve out certain kinds of speech and you brought into these problems of how to define that and you inevitably run into situations of speech. On the other side for instance there was a law that was struck down by the Supreme Court in the past decade or so that would have prohibited the depiction of quote animal crush videos and a lot of people were you know agreed on that- that these kinds of images served absolutely no social value. There were a number of animal rights groups that actually did not support the law because they wanted to be able to engage in speech protesting this conduct. And so- and recognizing that if you apply a vague standard you could also apply it against people who were fighting against the social harm or anytime that you've tried, the state would say there have been centuries in the development of our Supreme Court, our First Amendment jurisprudence that any laws that sort of challenge speech that again you know has one point of view, can often be used against people on the other side. So obviously that's the slippery slope problem. So I think you know again as I said I think that Facebook is certainly not bound by the First Amendment in terms of what speech it can or cannot have. But I do agree that when they have tried to for instance police fake news or to ban certain kinds of speech it does raise a lot of problem- questions and problems that I think are hard to work out.

 

Rosen: [00:43:18] All right, I have one final topic on this First Amendment tour that is WikiLeaks. In what seems to have been a cut and paste error, there was a filing in an unrelated court case that revealed last week that the Justice Department may have charged WikiLeaks founder Julian Assange. And it's been trying to come up with a way to charge Assange since 2010. But the Obama administration was concerned about charging Assange under the Espionage Act of 1917 because, as The Washington Post put it in 2013, there was a New York Times problem. In other words if the government indicted Assange it would be similarly able to indict the New York Times and other news organizations who publish classified information. Until now there's been a barrier on indictments of news organizations under the Espionage Act. David explain to us the significance of the apparent decision to indict Assange under the Espionage Act or other grounds for charging him, and what are the implications for press freedom moving forward?

 

French: [00:44:24] Right, I think there's a clear implication for press freedom if he's being indicted for publishing classified information and that would be the sum total of the indictment. There is a New York Times problem, there is a- it's not just a New York Times problem. As a practical matter there's a New York Times problem. As a legal matter, I mean there's the New York Times versus the United States case from 1971 involving publication of the Pentagon Papers that were highly- that were highly classified documents detailing the history of the US war in Vietnam in the run up to the war in Vietnam. And so the government sought to prohibit their publication and the Supreme Court refused and refused to grant prior restraint against their publication. And so essentially what this did was create a obligation on the part of the government to keep its classified information classified if it wanted. If it didn't want it to be in the public domain it should take steps to prevent it being in public domain but once it can - and it can take steps to prevent it from being in the public domain - but once a news organization gets a hold of it as a general rule it's going to be able to publish it. I think that's a sound framework, but when it comes to wiki leaks there may be a lot more going on here. It would actually somewhat surprise me if the indictment was over the publication of classified information. I mean these Wikileaks classified documents have been in the domain for a very long time, going back to some of the disclosures in the Obama years, so that this stuff has been out there. News organizations have published it. I mean it's just been all over the place so that would surprise me. It would not surprise me if there was evidence that WikiLeaks had participated in hacking attempts or if WikiLeaks had conspired in some ways with foreign intelligence agencies to engage in clandestine activities that are unlawful regardless, you know, unlawful and don't really touch on the first amendment at all. There's just, there are many ways in which a hostile foreign entity, particularly a hostile foreign entity that is known to be an asset of Russian intelligence can violate U.S. law., and so it would surprise me if it boiled down to- if the indictment boiled down to indicting WikiLeaks for publishing classified information. If it did it would have, that indictment I think would have a hard time sticking.

 

Rosen: [00:47:03] Thanks for that. Katie, your thoughts about why an indictment for publishing classified information would have a hard time sticking and why it would represent a sea change for the first amendment and why previous presidents have been reluctant to bring such indictments, as well as what do you think the other charges might be?

 

Fallow: [00:47:25] I mean I agree with David that if there has been, or WikiLeaks has been charged- Assange has been charged under the Espionage Act, that creates a huge potential problem a huge as David said New York Times problem, or any newspaper problem, because if he is prosecuted under a law for actually leaking the information, so not aimed at the actual conduct that's supposed to be unlawful but merely for publishing information that he knows was obtained unlawfully, there is a whole line of cases including the Pentagon Papers case and including another case called Bart Nicky in the early 2000s that holds that publication- that the government may not penalize mere publication of information that's of public interest even if that information was originally obtained unlawfully. And that is extremely important because as we've been discussing, otherwise any news organization that you know obtains leaked information or is aware of information that has been leaked or you know somehow obtained, which is a lot of reporting and a lot of really important reporting, would fear publishing this information because they could be potentially subject to serious criminal penalties, and for that reason, it is my understanding from reading- which is why the Obama administration, which in fact stepped up its prosecution of leakers themselves, held off and did not pursue an espionage act claim against Assange for this very concern, because it is no- if on the face of the Espionage Act itself it says it is unlawful to publish or release information that is classified, there is no carve-out for a news organization. And if there were, it is very hard to craft something like that because it brings into question what's a quote legitimate news organization? And I think it would be a very bad rule if the court were to say well that kind of protection is only granted to formal news organizations because that would not provide a lot of you know bloggers and other people who are just citizen journalists who want to publish things the kind of protection that I think we want to have because we want this information to be out there and I think you also have to look at this in the context of you know what a lot of people have criticized as a great growth of overclassification somewhat.

 

Rosen: [00:50:19] Well it is time for closing arguments in this hugely illuminating and very rich discussion about this CNN case, the Twitter case, and the Facebook Supreme Court, and the WikiLeaks case. As we're talking, the Guardian has just reported that CNN could be back in court as early as next week over news reports that the Trump administration has warned that his credentials are set to be suspended again when the 14 day order expires. So David first closing thoughts to you. How do you think that this case will ultimately be resolved? How far up will it go? What will the final resolution be? On what grounds? The first amendment or due process? And why should our listeners care about the CNN case and the future of the first amendment?

 

French: [00:51:10] Well I think ultimately the case will be resolved in CNN's favor. You know I think that when you have a situation where there is such overwhelming evidence of viewpoint discrimination, where you have an establishment of prohibiting conduct or a standard reappraise conduct after the individual is engaged in the conduct rather than establishing clear viewpoint neutral guidelines before, there are just too many ways here in which the Trump administration appears to be acting in an arbitrary, capricious- and to the extent it's not arbitrary, it's quite specifically targeted on the basis of viewpoint, I just find it difficult to believe that there are five justices, if this makes it that the Supreme Court, who would go for the proposition that the- under these facts, under these circumstances that the Trump administration has the ability to block Jim Acosta. Now could the administration promulgate some reasonable viewpoint neutral guidelines for behavior and apply them going forward? Yes absolutely it could. And if it a reporter violated reasonable viewpoint neutral guidelines for conducting decorum, going forward I think in that circumstance a reporter would lose. But that's not where we are right now. And I think a lot of news organizations, and this is something that's surprising to some conservatives, including Fox News, have reached that same conclusion that says look this is this is a real threat. And why should people care. Well you know because if you're a Trump fan you have to realize that Trump's not always going to be president. You have to understand and realize that there will be somebody on the other side who may not like some of your favorite reporters. That's one of the things about the First Amendment is, in one of the- one of the realities of free speech is it almost always comes back to bite you when you try to uphold a principle that says free speech for me and not for- free speech for my favored speakers and not for the speakers I dislike. It's almost like there's this constitutional law of karma. It always comes back around. And that's one thing you've gotta understand.

 

Rosen: [00:53:31] Love it. The Constitution Center will enforce the constitutional law of karma to the best of our ability. Katie last word to you. How will the CNN case eventually be resolved? How high up will it get and why should our listeners care about the case of CNN versus Trump?

 

Fallow: [00:53:54] I agree with David. I think that a court- the Supreme Court and the courts in between, the district or the Supreme Court, are unlikely to uphold sort of this post hoc rationalization or attempt to cover the real reasons why Acosta's hard past was provoked. And I think you need to also see this within the larger pattern of President Trump and his administration seeking to exclude critical voices from public forums, whether it's the press- White House press conferences where I think you need to take into account both the reporter's own free speech rights to engage in speech and to engage in newsgathering as a member of the press, but also to think of the press. And remember that they serve an important function in our democracy of being a representative for the public, or news gathering for the purpose of providing information to the public. And it would be bad not just for CNN but for the public if people- reporters aren't allowed to ask challenging questions at White House press conferences without fear of retaliation. And similarly in our case against the president for blocking people on Twitter we think that there are sort of two harms: there's the harm to the individuals who are blocked by the president. And it wasn't just the seven individuals but many people from around the country who I will note have subsequently been unblocked after the court's decision. But it's the harm to those people to make their replies, but it's also a harm to the listeners who want to hear political discourse and hear from people from all over the political spectrum. And just as if you were in a town hall and you tell someone to sit down, you don't like what they're having to say, what they have to say, you're hurting their first amendment rights but you're also hurting the rights of the other community members to hear from people who are critical.

 

Rosen: [00:56:00] Thank you so much, Katie Fallow and David French for an illuminating deep and really educational discussion about a series of very current First Amendment issues. You have reminded us that although thoughtful people of different perspectives can disagree about the application of particular First Amendment standards, the standards themselves unite us and are a shining beacon for freedom that is truly inspiring. Katie, David thank you so much for joining us.

 

French: [00:56:31] Thank you.

 

Fallow: [00:56:32] Thank you.

 

Rosen: [00:56:39] Today's show was engineered by Kevin Kilbourne and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Please remember to rate review and subscribe to we the people on Apple podcasts or wherever you listen, recommend the show to your friends and colleagues and check out our companion podcast Live at America's Town Hall. We have the most incredible constitutional conversations here at the Constitution Center every week. Just last week was a wonderful discussion of Hamilton: The Musical and the law with an amazing series of guests and you can hear all of those programs on the Live at America's Town Hall podcast. Check it out. I bet and hope you will learn from it. Always remember when you wake and when you sleep as you prepare for Thanksgiving, when all of us have so much to be grateful for and especially the gratitude for, the ability to learn and to enlighten ourselves by hearing thoughtful intelligent arguments on all sides of our contested national debates so that we can cultivate our faculties of reason - express your gratitude please by joining the National Constitution Center and becoming part of the family of learners around the country that have the privilege of uniting in reason. Isaiah the prophet said, come let us reason together and the great Louis Brandeis was so inspired by those words. By listening to this podcast you are part of the community of reasoned citizens and I want you to express your appreciation for that by making the National Constitution Center's work possible. Check us out at ConstitutionCenter.com/membership to learn more. Happy Thanksgiving everyone. And on behalf of the National Constitution Center, I'm Jeffrey Rosen

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Podcast: The Attorney General, the President, and Congressional Oversight

Jeffrey Rosen: [00:00:05] I'm Jeffrey Rosen president and CEO of the National Constitution Center, and welcome to We the People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit, chartered by Congress to increase awareness and understanding of the Constitution among the American people. After the 2018 midterm elections Democrats took control of the House of Representatives and divided government has reemerged in Washington. That may bring a host of constitutional issues including "is the acting attorney general's appointment consistent with the Constitution with federal statutes?" If Congress thinks it isn't what can I do about it if Congress tries to subpoena the acting attorney general or special counsel and what is the Supreme Court said about Congress's investigatory powers? About Congress's power to oversee the executive branch? Joining us to discuss these pressing constitutional questions are two of America's leading constitutional scholars and historians. Stephen Vladeck is A. Dalton Cross Professor of Law at the University of Texas School of Law. He's co-editor in chief of Just Security, a senior contributor to Lawfare, co-host of The National Security Law podcast and a CNN legal analyst. He co-wrote the Constitution Center's interactive constitution explainers on the Constitution on the Commander-in-Chief clause of Article 2 and the declare war clause of Article 1 with Michael Ramsey and those might be good places to start your homework. Steve thank you so much for joining

Stephen Vladeck: [00:01:33] Thanks Jeff great to be with you.

Rosen: [00:01:35] Gregory Wiener is a political scientist and associate professor of political science at Assumption College. He is author of the spectacular book "Madison's Metronome: the Constitution majority rule and the tempo of American politics." Dear We the People listeners I want you to read Greg's book because it changed the way I thought and understood Madison's understanding of the need for slow reasoned majority rule over time. And I knew you will learn as much from it as I did. Gregory is going to join us at the Constitution Center soon for our Madisonian Commission's exploration of what Madison would think of American democracy today. Greg I can't wait to meet you in person. And welcome to We The People podcast.

Gregory Wiener: [00:02:15] Thank you so much. I'm looking forward to it as well.

Rosen: [00:02:17] Great. Okay. Let's jump right in with the appointment of the assistant attorney general. Steve you wrote a piece in The New York Times recently. The headline was "Whitacre may be a bad choice but he's a legal one" and you were responding to arguments that the appointment may have violated the Appointments Clause of Article 2. And you noted among other things in 1898 decision United States versus Eden in which the Supreme Court rejected the argument that only a principal officer confirmed by the Senate can temporarily fill the shoes of another principal officer. Walk us back tell us what Article 2 says, why the case said that you don't need Senate confirmation to serve as acting attorney general, and why you believe the constitutional arguments against Whitaker's appointment are not convincing.

Vladeck: [00:03:05] Sure. I mean so Article 2 the Appointments Clause creates a distinction that the Supreme Court has basically relied upon for really the better part of a century now between three categories of people who work in the executive branch. At the bottom you just have ordinary employees and the Constitution has very little to say about how they're chosen and how they're supervised how they're fired. And then the Appointments Clause distinguishes between what we now call principal officers. So think about like the attorney general or other Cabinet heads heads of agencies and inferior officers. The rules are different with regard to how those individuals are both appointed and how they can be supervised and removed ever since Chief Justice Taft's opinion for the Supreme Court in Myers vs. United States, 1926, the Supreme Court has taken the position that if you are a principal officer you can only be chosen by presidential nomination and Senate confirmation and you must serve at the pleasure of the president. So the argument is that because the attorney general is a principal officer someone who temporarily exercises the functions of the attorney general must also be a principal officer, must also therefore have been Senate confirmed. As you mentioned Jeff the Supreme Court in the one case where it really even considered a similar question, the Eden case from the 1890s, reached a different conclusion. Now that was a very factually distinct case that was about a vacancy or temporary disability on the part of our counsel to Siam, modern day Thailand. But the court basically said there that someone who is an inferior officer to begin with and who is only temporarily exercising the duties of a principal officer while the principal office is vacant or the principal officer is disabled, is still an inferior officer and therefore doesn't have to be confirmed by the Senate. The Justice Department's Office of Legal Counsel reaffirmed this conclusion in a 2003 opinion. So my basic sort of reaction to all of this is not only that it's there but that it's right. That the alternative rule, where even a temporary holder of a principal office had to be Senate confirmed. Jeff it would give the Senate the power to strangle the executive branch because the Senate could simply refuse to confirm anyone to a Senate confirmed position in a relevant agency. And the president would be powerless to name anybody even on an acting basis to direct that agency. Of course that's not the situation we have here. There are other Justice Department officials who have been confirmed by the Senate starting with Deputy Attorney General Rosenstein, Solicitor General Francisco, but at least as a matter of constitutional law I don't think the appointments clause requires those people to go first. So the basic gist of my view is that as long as it's temporary, and I think there's a separate fight about what that means, the president has the power as long as Congress has authorized it to temporarily name someone who has not been confirmed by the Senate to nevertheless exercise the functions of a principal office on a temporary basis.

Rosen: [00:06:12] The leading argument on the other side was made by my brother-in-law Neal Katyal and George Conway in the New York Times, the headline of that piece was "Trump's appointment of the acting attorney general is unconstitutiona"l and Neil and George Conway relied in particular on a concurring opinion by Justice Clarence Thomas in a recent case where the Supreme Court examined the question of whether the general counsel of the National Labor Relations Board was lawfully appointed to his job without Senate confirmation. And Justice Thomas said that the appointments clause would not have allowed the appointment because the officer was a principal officer and the Constitution's drafters recognized the serious risk for abuse and corruption posed by permitting one person to fill every office in government. Are you persuaded by the argument of Neal and George Conway. Or do you agree with Steve?

Wiener: [00:07:02] Well I'm mostly persuaded by the argument that it is unconstitutional. And the reason for that is several fold. One is that we're talking about a much higher ranking officer than it's been tested before the courts and certainly than Steve mentioned it was was at stake in the Eden case. I certainly agree that that requiring a someone in this situation is serving temporarily to be Senate confirmed would give the Senate a great deal of power over the executive. But I think that was intended. So I think for example had Democrats taken over the Senate one of the great controls on President Trump firing the Attorney General Sessions or requesting his resignation would've been the difficulty of confirming a replacement. So I'm not terribly comfortable with taking that power taking that source of influence away. I think the Senate was intended at that that degree of influence over executive appointments. Remember that this is a joint power between the executive and the Senate. And there's there's no question in my mind that what we're talking about is a principal officer. Where I think Steve is certainly correct on his op ed is that Congress has delegated this this authority to the executive branch and designated certain officers as is inferior and in principle particularly in the law that was passed in if memory serves in 1998. I'm less sanguine about whether Congress was entitled to make that distinction to go into that degree of authority.

Rosen: [00:08:30] Many thanks for that. That raises the statutory question and Neal, who's been busy with his op eds, has another piece recently in the Washington Post saying the rules are clear Whittaker can't supervise Mueller's investigation and he argues that even if you think the Whitaker's appointment is not unconstitutional, although he believes it is, then it violates the special counsel rules which Neal says that he helped to draft because those rules presume that the special counsel will be supervised by a principal officer. So even if Whitaker is an inferior officer who doesn't need Senate confirmation to serve as acting A.G., Katyal argues the special counsel rules require that Mueller be supervised by a principal officer. Steve what you think of that argument.

Vladeck: [00:09:17] I mean I think I think with with all respect to my friend Neal I think it proves too much. I mean by that logic you could never have someone like the special counsel be supervised during any vacancy, no matter how justifiable, in a principal office because there'd be at least some moment where the principal office was vacant and where the acting office holder hadn't been confirmed by the Senate. I guess you know my reaction is to all of this is that I think it's a lot of legal maneuvering because there is widespread agreement, even among those who disagree on the constitutional analysis, that this is a very troubling appointment, that it's a dangerous appointment, that it shows a lot of disrespect for the rule of law. I guess the my problem with sort of the notion that even if his appointment is valid the attorney general can't supervise the council is you know that's a Justice Department regulation that doesn't anywhere distinguish between the attorney general and the acting attorney general. And Jeff as you know, special counsel Muller up until last week had been supervised by Deputy Attorney General Rosenstein in his capacity as acting attorney general. I don't see anything in the text of the regulation that suggests that one acting attorney general would be OK but a different acting attorney general not be. It seems to me the acting attorney general is either the acting attorney general or he isn't. You know you've already heard the constitutional arguments for and against that conclusion. I think there's also the statutory question that Neal and others have raised about whether the Vacancies Reform Act, the 1998 statute that authorized the president, at least purportedly, to choose Mr. Whitaker overrides the DOJ succession statute. Jeff it's possible that the courts you know which may get this question sooner rather than later are going to just engage in constitutional avoidance and read the relevant statutes to not even have to reach this, by all accounts messy, appointments clause question by holding that the relevant statutes didn't authorize President Trump to name Mr. Whitaker In the first place. I think that would make a lot of these messier arguments go away and I would kick the can really back to Congress and at least for the moment that the deputy attorney general Rosenstein.

Rosen: [00:11:22] Gregory your thoughts on the statutory question of whether Mueller has to be supervised by a principal officer as well as whether the Vacancy Reform Act itself might raise constitutional difficulties.

Wiener: [00:11:33] I tend to agree with Steve on this. I think if he's there he's there. I think there are reasonable questions. We've already heard as to whether he's whether he needed to be confirmed. But keep in mind that those are DOJ regulations and they can be changed by the administration. We don't have any statutory authority. It seems to me that what we need to avoid is a flight from constitutional politics to constitutional law. If Congress wants to assert itself institutionally here there's plenty of room for it to do so. But I don't think the way to do that is is to try to force things into the realm of law that are really questions of politics. The other thing that I would add there is that we don't want a situation where a prosecutor of any stripe, whether they're prosecuting someone who's powerful or powerless, is exempt functionally from supervision. There's a reason for political supervision of those people that ultimately redounds to the benefit of individual liberty.

Rosen: [00:12:34] Thank you so much for that. All right well let us now turn to the question of Congress's power to subpoena executive branch officials including possibly former Attorney General Sessions, acting attorney general Whitacre, or even the special counsel himself. Steve give us a sense of what the Supreme Court has said about limits on the congressional legislative power and if you could maybe I'll just throw out a case that our great constitutional prep team found called McGrane v. Doughtery from 1927. It was the Teapot Dome scandal Dougherty was the brother of the former attorney general who refused to prosecute wrongdoing during the Teapot Dome scandal. Congress subpoenaed the brother. And the question was whether Congress had the power to do it since the investigation had nothing to do with the committee's legislative purpose. And the court upheld the contempt conviction in establishing a presumption that congressional subpoenas are okay as long as they do have a legislative purpose. Maybe we could start there and then take us off and running.

Vladeck: [00:13:34] Yeah I would. Jeff if you don't mind I would actually frame the question in the other direction. You asked what are the limits, I would start with where are the sources of Congress's power and I think McGrane versus Dougherty is an increasingly important case in our con-law cannon and I've been teaching it for the last three or four years and I think you know that more and more people will be rediscovering it in the coming weeks and months because it's the closest the Supreme Court has come to saying expressly what it's practice throughout its history has been which is to recognize that Congress doesn't just have legislative power under the Constitution, but that Congress also has oversight power under the Constitution and that the so-called power of inquiry that the Supreme Court discussed at some length in McGrane vs. Dougherty is not limited to those matters on which Congress is either actively considering legislation or even Jeff, could constitutionally consider legislation, that really the power of inquiry extends to the full sort of sweep of Congress's permissible constitutional function. A function that for our purposes includes oversight of the executive branch, a nd you know although we're a long way away from it, includes the potential impeachment, not just of the president but of other executive branch officials. And so McGrane stands for the proposition that as a threshold matter as long as Congress can show some relevance to its oversight authority or its regulatory authority, Congress is allowed through appropriate process within each House and as the houses choose within each committee of each House to engage in that kind of coercive process even toward executive branch officials. Now Jeff the harder question I'm sure to get into it is what kinds of defenses or immunities, what kinds of privileges or immunities executive branch officials and other recipients of this kind of process, whether it's a subpoena for papers or a request to testify, that those folks might be entitled to. I think the key point for now is that's really where most of the focus is in this case is not whether Congress has the authority ab initio to engage in these kinds of investigations and to demand testimony and relevant documents.

Rosen: [00:15:51] Thank you so much for that. Yes we will turn to the limits in a moment but framing the question in terms of the powers. Greg you wrote a superb op ed in The New York Times called "Nancy Pelosi's first order of business should be to reclaim the power of the house." This is about much more than Trump and you note quoting Federalist 55 that the Constitution made Congress the subject of Article 1 for a reason that the most substantial powers of national government delineated there, restoring congressional power ultimately through legislation which would both transcend and serve Democrats partisan interests. Tell us about that argument. You know what you think of the Dougherty case and broadly how Congress can reclaim the powers of the Constitution?

Wiener: [00:16:32] Well the the argument in the op ed was really a prudential argument that the House needs to behave institutionally rather than in a partisan way. So that in addition to behaving, I should say part of behaving institutionally is not seeing itself as it is operating in orbit around the presidency. So not not trying to fix every issue in relation to what does it mean for this president or the next presidential election. So it certainly has the authority, and one can argue the responsibility to investigate the administration, but if that's all it does it's not going to do much to restore Congress to what it was intended to be which is the center of the constitutional regime. So that is a a prudential argument, although I tell you it's also a constitutional one, that the Congress's foremost job is to legislate the origins of the oversight power are I suppose somewhat constitutionally murky and so far is not delineated specifically anywhere in the Constitution. But but again the Dougherty cases you mention it does interpret it quite broadly. I do think it is significant that that case does say it has to have some relation to Congress's constitutional function so that it can't just be a free wheeling power of investigation. One can argue that it interpreted the case interprets the oversight power broadly enough that those are functionally equivalent but I think the idea that it's got to be tied to some other constitutional function of Congress is quite important.

Rosen: [00:18:13] Steve you wrote a piece in The Washington Post on November 7th called "What would happen if Trump resists an investigation by the Democratic House." There could be a major conflict and even a slow motion constitutional crisis recognizing that we writers don't always write our headlines why don't you walk us through the arguments of that piece which begin with the fact that the court in 1927 gave the House a power of inquiry over the executive branch, including the power to compel evidence, that's the Dougherty report. And then you run through a bunch of subpoenas that the House might argue and a bunch of responses that the president might make including claims of executive privilege. Why don't you walk us through that piece and begin with the possibility that the Trump administration could defy a subpoena from Congress at some point if it did. So what do you think that's subpoena would be and what would the administration's response be and how would the courts resolve it.

Vladeck: [00:19:06] Sure, I mean so let's start the beginning. I mean so right the subpoena would be necessary presumably once the executive branch refused a voluntary request that someone testify or that particular documents be turned over or if at the particular hearing a witness that potentially refused to answer questions. Jeff it's not hard to imagine a whole range of topics that we might see subpoenas on Everything from the sort of background to some of the president's more controversial policies, the family separation policy at the border, the move to add a question about the census about citizenship to the census, even the appointment of Mr. Whitaker as the acting attorney general, and perhaps even matters more personal to President Trump. Maybe a subpoena seeking disclosure of his tax returns and then of course I think the fight would be whether the recipient of the subpoena had a valid basis for refusing to comply with it. That could of course be litigated. The House unlike the Senate does not have expressed authority to litigate in this context but federal courts during both the Bush and Obama administrations recognized that it was appropriate for House committees that had issued duly issued subpoenas to litigate whether the whether a defensive response the subpoenas was valid. So Jeff let's assume that a subpoena is issued that it's valid on its face and that the question is then whether the requested material is protected by executive privilege. Presumably that could then be litigated and a federal court could decide whether the privilege claim was valid or invalid. And in a world in which the federal court says the privilege claim is invalid the question would that be would the president authorize the individual to comply or would he order them to defy the subpoena. If he orders them to defy the subpoena Congress's remedy at that point is to hold the individual, the recipient of the subpoena, in contempt for refusing to comply with the subpoena. That's where things get tricky because Congress has mechanisms for enforcing a contempt citation. One of them is the sort of old school lock lock the recipient up in their old capital jail, doesn't exist anymore, until they comply or until the end of that session of Congress whichever comes first. Jeff the other more modern version, the statute has been on the books since 1857, to refer the contempnor, the individual who's been held in contempt to the Justice Department for criminal prosecution. And that's what we can see a real problem because it's not hard to imagine that the Justice Department would be in no hurry to prosecute a member of the executive branch for contempt for refusing to comply with a subpoena from Congress if the president himself was the reason why the individual in question didn't comply. So that's that's to me where we could reach this kind of messy slow motion constitutional crisis where Congress' only mechanisms to refer the contempt citation to the executive branch or to try to find some way to resuscitate the long dormant practice of what's called inherent contempt where the Capitol Police would literally arrest the contemptnor I'm not sure that's healthy even if it's been there for good editorial copy.

Rosen: [00:22:22] Wow thanks for those great thoughts. Greg, maybe you know some history of Congress trying to enforce its contempt powers. I'd love to hear more about capital jail as well as the inherent contempt power over that wonderful word, the contemptnor, and in the course of that maybe some more words about executive privilege in the U.S. v. Nixon case where the court rejected an executive privilege claim when the president was trying to resist a subpoena issued by a court rather than Congress.

Wiener: [00:22:51] Sure. Executive privilege goes back to the the is again one of those constitutional constructions that's not written into the Constitution but it goes all the way back to the beginning. That's understood to be sort of part of the nature of the office that the president has some need for, we'll get to this in a minute in the U.S. v Nixon case, for confidential advice from his or her staff. The classical case is in 1796 the House demanded documents from the Washington administration on the treaty that John Jay and just concluded with Great Britain. President Washington concluded that the House had no authority over the treaty.He provided the documents to the Senate but not to the, but not to the House. The Supreme Court the closest the Supreme Court has has gotten to this issue again as you indicated is the I think is the US v. Nixon case in which it read explicitly recognized that executive privilege existed but said that a general claim of executive privilege, and I'm paraphrasing here, couldn't overcome a specific need for evidence in a criminal case. I think we're on, I think assertions of executive privilege in my view and I'm speaking to my view as a political theorist or scholar of the founding not as a constitutional not in terms of what the constitutional law says, I think we're on very dicey ground here. I tend much more toward the view of the great constitutional scholar Raul Burger who said that executive privilege was was a myth. And that it just has to be read into the nature of the of the office in much much the same way we would read in attorney client privilege or a, or some other sort of privilege. And I think again it's very hard to get out of there in any in any meaningful originalist way to me. Let me make one other point with respect to this which is that I think Steve is right that this would get over to the to the courts and in a sense that's appropriate. It might in fact lead to a crisis of the Justice Department declining to to prosecute a case that's been referred to it. But we ought not forget the political weapons particularly the House has. So let me just quote you Federalist 58. Madison says there in Federalist 58 that the power over the purse is the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people for obtaining a redress of every grievance, he says, for carrying into effect every just and salutary measure. So what he means there is that the power of the purse which is the which is derived from the fact that the power of taxation originates in the house. Is that the control of the unique control the House has over the finances of the national government, great leverage over every other facet of policy.If the House is willing to behave institutionally rather than in a partisan way to use it. So I think the House has ample weapons with which to make its will felt short of a prosecution for contempt and that that's what the New York Times op ed that you referenced before, that that's what I was hoping the House would be willing to use.

Rosen: [00:26:25] Steve, Greg's mention of the power of the purse of course comes to mind acting attorney general Whitaker's suggestion that the Justice Department could starve the Mueller investigation by defunding it. Could Congress respond by restoring funding to the investigation. Talk more about the power of the purse and then take us into more recent contempt battles between the executive branch and Congress in particular the conflict in the summer of 2012 when Attorney General Holder refused to testify in conjunction with the so-called Fast and Furious operation and the DOJ refused to pursue a contempt prosecution against an executive branch official when the president invoked executive privilege.

Vladeck: [00:27:07] Sure. I mean so. So it started with, I mean I think it's exactly right that the House will have political weapons available to it to try to make it painful for the president or those who are supporting him and the executive branch, to resist a duly issued subpoena, on the far side of the judicial rule in that there was no valid privilege or immunity to assert from compliance. Jeff I think where things get tricky is where you run into the separation of parties instead of the separation of powers where the house is limited in what it can do by itself as opposed to what it would need the Senate's help for. And it's not hard to imagine, whatever happens in Florida, that the Republican controlled Senate is going to be nowhere near in as much of a hurry as the House is going to be, to take the kind of you know bicammeral actions, of whether it comes to stripping funding, whether it comes to other kinds of legislation. I think the better question is whether there are must-pass bills where the House, as opposed to needing the Senate's consent, could effectively use its veto power as a political lever against the president for example spending bills. I think there's a bill coming up that with regard to raising the debt ceiling that's where I think you could see those political pressures being brought to bear. So with regard to Holder I think we've had two major examples of subpoena fights really in the last decade. The first one actually involved former White House counsel Josh Bolten and Harriet Miers, Deputy White House counsel during the Bush administration over the allegedly politically motivated firing of U.S. attorneys where both Mr. Bolton and Ms Miers were held in contempt by the House Judiciary Committee. There was litigation over whether they had about executive privilege claim, the court said no. That case actually sort of fell apart on appeal because it was right at the end of the Bush administration and basically a deal was made during the transition to the Obama administration that effectively booted the dispute. The D.C. Circuit ultimately dismissed the appeal. The Holder example is the more recent one after after basically a widespread view that that Attorney General Holder had been insufficiently forthcoming in turning over documents to the House of Representative. He was held in contempt by the House of Representatives, both civil and criminal contempt, there was a referral to the Justice Department, there was a civil contempt vote that basically allowed the House Committee on Oversight and Government Reform to go to court. And that litigation believe it or not, is also still pending. So I guess you know one reaction to all of this is that the litigation in these cases tends to go pretty slowly and that you know even though I have faith that the courts would eventually sort out the privilege claims, all the while you would have noncompliance as the status quo and you'd have really you know it be a much more a debate over the political levers that the House or its committees could use to compel some degree of cooperation from the executive branch far more than the legal levers because as both the 2008 case and the Holder case suggest the legal levers can really be slow and that may be the biggest obstacle to those being effective. We may have an intervening presidential and congressional election, right, before those are ever ultimately decided by the Supreme Court.

Rosen: [00:30:42] Thanks for that. Greg, your response to those interesting points: first that the legal levers are slow as both the 2008 Goldman Myers, and the 2012 Holder cases show, and then more broadly; do you have faith that there is a bipartisan ability for both parties to exercise the congressional oversight powers that both you and some scholars on the other side think are necessary or in a partisan and polarized age, is the House simply unable to exercise its constitutional oversight functions?

Wiener: [00:31:18] I think it's exactly right that the legal levers are slow and I think it's meant to be that way and it's also meant to be the case that the political levers are more available and perhaps more potent. So I think we have a tendency as I indicated before to flee from politics to law because law seems to provide more emphasis, it seems, to provide more precise definitive answers whereas politics requires more judgment which we tend to, I think to needlessly to fear. The point about the intervening election that Steve made is particularly important because ultimately the political levers are superintended by public opinion which in a republic of course is the final final authority over these thing. In terms of whether I have faith in the; I take your question to mean is there a bipartisan capacity to act institutionally rather than in a partisan way. The answer is I do not have that faith now but I do have; Let me say as as Lincoln said the ultimate confidence or patient confidence in the ultimate justice for the people. I mean I do have confidence in the in the basic workings of the regime and you know, one of the, I mentioned in the op ed that one of the great ironies of American political development is that Madison was both the great theorist of the separation of powers and of the American party system. So in a sense we've never had pure institutional loyalty. Pure institutional as opposed to partisan loyalty. On the other hand as late as 1887 you have Woodrow Wilson complaining of what he in the title of his famous book "Congressional Government in the United States". So we do have examples of this and all that is required for Congress to behave institutionally is for its members to care about their own power, as they're first and foremost interest. And that to me is the interesting question -- is at what point did members of Congress start seeking office for other reasons whatever one may believe they are. I tend personally not to believe the crush motive as much as it is as if it's popularly believed. But clearly members of Congress if in fact it's the case that they're unwilling to defend their own power seeking office for motives other than power which is in Madisonian terms is unthinkable.

Rosen: [00:33:47] Steve what might an example of institutional action look like. There are proposals by Senators Chris Coons and others to pass legislation protecting the special counsel from being fired but members on the other side argued that that would be unconstitutional because Morrison versus Olson a Supreme Court case upholding the independent counsel was wrongly decided and the president's power to fire shouldn't be constrained. Might Congress assert itself, if Mueller wanted to issue a report, the acting attorney general tried to suppress it, and Congress tried to subpoena the report? Or what do you think is the most likely example of institutional action and how would it be resolved?

Vladeck: [00:34:31] Well I mean I think Jeff you know we can hope for legislation and the bills to protect special counsel Mueller are a good example. You know back in April the Senate Judiciary Committee actually passed that bill out of committee on a bipartisan 14 to 7 vote. So there are some Republicans who objected to legislation on constitutional grounds but I think there are actually enough in both chambers to pass it. I think the problem is that Senator Senate Majority Leader McConnell has said he won't bring it to the floor because he thinks it's unnecessary. And so we're back to the point where you know the real leverage with regard to legislation is only with respect to those bills that are so-called must pass bills where presumably you could try to tack on things like the Mueller protection legislation as an amendment. I think the bigger point, and I think this is why the midterms are potentially so important, is that you know even if the president even if Congress, here I think more specifically the House, is hamstrung by you know yearlong debates over executive privilege, Congress is free of course to subpoena people who wouldn't invoke privilege who want to testify. So imagine a scenario where the special counsel is fired with or without this legislation in place to protect him. I think the very first subpoena we would see from the 116th House would be subpoenaed the special counsel Muller to testify. I think he would happily accept and respond. So I think what what we're looking for is exactly as as we've been discussing, it's really about how the political pieces are going to fit together with the legal pieces. It's going to be about sort of the order in which things happen and Congress I think is going to have, you know not just the subpoena power, but Congress is going to have the ability to sort of not pass you know must pass legislation not fund the federal government if it really gets that extreme to compel some modicum of compliance with the Trump administration. Jeff I think where the rubber will hit the road is you know to what extent the new Democratic majority in the House is unified on these issues and whether there are going to be some substantive topics where the Republicans are able to peel away enough votes from the House Democrats to get legislation through even without perhaps some of these amendments or to resist some of these leveraging mechanisms.

Rosen: [00:36:49] Greg, if you were designing bipartisan institutionalist legislation that would allow Congress to assert its constitutional prerogatives and you can imagine being co-sponsored by Ben Sasse and Chris Coons in the Senate and Justin Amash, and Lofgren in the house. What would the legislation look like.

Wiener: [00:37:08] Sure do you mean with respect to oversight.

Rosen: [00:37:10] Yes with respect to oversight yes.

Wiener: [00:37:14] Well I think, I'm not sure we would take necessarily legislative form but it but it's certainly might in contempt referral or an authorization for a contempt referral or something like that. I'm actually not terribly comfortable with the idea of protecting Mueller legislatively. And the reason for that is that as I indicated before there there's a reason we have political sort of civilian supervision of prosecutors which I think ultimately benefits the powerless along with the powerful. So I think it might be taking less a legislative form than committees, majorities minorities on committees, working together to, in reaction to claims of executive privilege and so forth which by the way there's some record of doing. Senator Grassley is is is certainly, on the Senate side, has been known for working in a bipartisan fashion on oversight. And there are other examples on the Democratic side as well. So there there are any number of other issues where where you would expect Congress's first instinct to be, not president of my party did or didn't say this. but rather this was my authority not yours.

Rosen: [00:38:29] Steve your thoughts about what institutionalist action might look like and then let's get into the drama of kind of constitutional crises land that might materialize as you suggested in your Washington Post piece. What action or what subpoena or what firing do you think could precipitate a really serious conflict and lead us through how it might be resolved.

Vladeck: [00:38:55] Well I think Greg laid it out nicely. I mean I I'm I'm a little surprised Jeff that we're not already there with regard to sort of crossing the Rubicon. I mean I have thought all along that removing Attorney General Sessions would be understood as, as I think I understood it, as a direct move against the special counsel investigation. I would've thought that would be the point, even if you hadn't thought until then, that passed on the special counsel legislation was necessary became so. Clearly we're not there yet. Jeff in addition to subpoenas in addition to oversight of funding, I mean the other potential possibility here is that we see some of the moderate Republicans in the Senate start using their ability to block, for example nominations, as a way to try to exact yet further leverage over the president if we get to a point where they think he's crossed various lines. So you know right now we're looking at maybe a 52 48 Senate depending upon how the Florida recount turns out. You know in that scenario take three Republican senators to hold up judicial nominations, to hold up executive branch nominations, really to bring the president's entire agenda to a halt. And so I think you know if we're really heading for, as I wrote in The Washington Post, the slow motion constitutional crisis I think the folks who are going to be the most important to try to assert the institutional role of Congress in such a case aren't going to be the Democrats in the House. It's going to be you know what's left of moderate Republicans in the Senate who, whether on a case by case basis or perhaps even by declaring their independence and potentially caucusing with the Democrats, could radically shift the balance of power in a means that would give Congress much more leverage over the president. It hasn't happened yet. Jeff I don't think it's going to happen tomorrow but I think that to me would be the last you know sort of safety valve before I'd really start to be worried about the power the president would be able to exercise.

Rosen: [00:40:59] Greg, what kind of action of the president do you think it would take to impel moderate Republicans to caucus with Democrats over nominations to check him on the firing of the special counsel, the refusal to issue a report? You know what would it take and then take us back to history and give us examples of congressional executive clashes in the past of similar magnitude and tell us how they've been resolved.

Wiener: [00:41:23] I do think firing the special counsel. . . I'm reluctant to say would do it. I'm willing to say that if that wouldn't do it I don't know what it would. I mean that is, as Steve said, would be the Rubicon. I think that might trigger--the only thing I would add there is that to the extent there is a role for the House to play here, it won't simply be Republicans peeling off. The question will be whether the whether House Democrats have been sufficiently co-operative on legislative matters that they get some cooperation and turn on on oversight so there's some some complicated incentives there. I suppose the greatest example here would be the would be Nixon; U.S. v. Nixon, although that's a that's a prosecutor requesting information rather than rather than Congress. The Supreme Court has not really tested the extent of congressional oversight powers, its mostly been in the lower courts. But I think there is an instructive lesson there which is that the system worked, so we tend to think I think Steve is exactly right that we could be headed for a slow motion constitutional crisis, but it's only a crisis if the levers that we have available to us don't work. And the reason they wouldn't work is if, again, there's there's the partisan instinct is so strong that people are unwilling to behave institutionally and constitutionally. And that again would be ultimately a question of public opinion. I think if they if the country is so, I don't think it is, I think the election showed that, but if the country is so bitterly divided it can't sort of can't compute these sorts of these sorts of conflicts, then I think we've got bigger constitutional bigger constitutional problems.

Rosen: [00:43:16] Steve what would be an example of the scenario Greg describes where there's a breaking of norms or laws and yet Congress refuses to react institutionally because of partisan divisions.

Vladeck: [00:43:29] Well imagine a scenario where for example the special counsel were to indict, let's just go all the way there and say Donald Trump Junior, and the president were to turn around the next day and pardon his son. That to me I think would be a pretty dramatic moment. And whatever folks might think about the pardon, I mean I think another, Jeff, old Supreme Court case that doesn't get read enough these days is 1926 decision called, 1925 I'm sorry, called Ex Parte Grossman, where Chief Justice and former President William Howard Taft wrote about concerns with regard to potential presidential abuse of the pardon power. And Taft was quite explicit that the pardon power could surely be abused but that it's not the court, it won't be the court's job in that circumstance to supervise the abuses by reviewing the validity of the pardons, it would be that Congress's job at that point to constrain abusive pardons through impeachment. You know it's just it's very hard for me to imagine in our current political environment even if a lot more comes out about the president than is currently known or even if he engages in far more I think rule of law threatening actions than he has to date, I don't see a scenario where there are going to be two thirds of the Senate, even if the House is going to impeach, that would remove the president. And I think that's you know that that's the crisis that we are potentially heading for if things really do get out of hand. Now I don't want to be a sort of a Cassandra here. I think it's possible that you know this is all just people fearing for the worst and that we're not going to get there. But that's you know that's where I think you could see the political division of the country getting in the way of the structural mechanisms that the founders intended to operate and protect us in such a case.

Rosen: [00:45:21] Thanks so much for that. And thank you Steve for saying the magic word which is William Howard Taft. It's so much fun on these podcasts to find out that there are hidden Taft opinions waiting to inform us on a recent podcast with Richard Epstein Adam Liptak, we learn that Taft wrote a crucial case about libel law and now we are going to read the Grossman case, dear We the People listeners about the pardon power. Greg what is your scenario of the sort of constitutional crisis scenarios Steve just gave u--the president pardoning his son. Do you have another one which might trigger a crisis?

Wiener: [00:45:53] I was actually going to go to the same place which was an abuse of the pardon power but I think the key here is the the the political supervision. I mean I suppose if we're going to go sort of if we're going to go the other way scenario we could we could imagine the power of the pardoning himself, which is, sort of raises separate constitutional legal questions. But again I think we just can't avoid the political, the fundamental political issue, which is the public opinion is incapable of superintending doing that kind of abuse, the president pardoning his son the day after indictment, then we simply have much bigger constitutional problems than the pardoning himself.

Rosen: [00:46:44] One more round of these hypotheticals which may soon not be hypotheticals take us to another possible trigger for a constitutional crisis.

Vladeck: [00:46:53] Well I mean you know separate from I mean I think the pardon power is one possibility. I think a scenario where you know the president orders the acting attorney general to fire the special counsel like a repeat of the Saturday Night Massacre where various DOJ officials resigned before firing him and then he's fired. You know we've seen, Jeff, obviously some troubling moves I think against the press from this White House. You know in the last couple weeks I think CNN filed a lawsuit today about the revocation of Jim Acosta's hard pass. I guess you know the, it's hard to imagine, but like if the president were to deploy the military domestically in response to political protest. If the president were to you know try to stir up doubt about you know what, otherwise him to be clearly legitimate election results. I mean I think it's unfortunately increasingly easy to dream up what really should have been fantastical hypotheticals about threats to the rule of law. I think Greg is right. I think the key point has always been that the way the Constitution is designed, the principal mechanism for constraining a president who is jeopardizing the rule of law is not the public and it's not the courts, it's the Congress of the United States. And you know I just I, as Greg said, I don't know what is going to be the moment at which the Republican senators who have to date largely enabled the president to do whatever he wants, by not using their leverage with regard to nominations and other legislation, I don't know what the trigger for them would be where they would you know say enough is enough, you know this far but no further. And I think it's you know I hope we never find out because it's scary to think about what would what it would mean when we got to that point.

Rosen: [00:48:42] Greg do you agree with the kind of examples Steve has just given such as firing the special counsel, deploying the military, or attacking the press might require a bipartisan institutional response from Congress and if any of those came to pass, Do you believe that Congress might in fact respond institutionally on a bipartisan basis.

Wiener: [00:49:03] There's no question that it would require a bipartisan and institutional response. As to whether it would, I think unfortunately we're we're back to that sort of first principle of congressional scholarship which is re-election that the re-election motive is a pretty good predictor of congressional behavior. Until the president's behavior starts to undermine both his own popularity and their own, I don't think we're going to see that many peeling off. I think that's what we, I'm not a historian, but I think in the Nixon era I think the congressional support began to crumble when they began to pay a price themselves.

Rosen: [00:49:45] Well it is time for closing arguments and this was an absolutely fascinating debate. Steve, the first one is to you. What do you want to tell We the People listeners and also members of Congress about what their institutional responsibilities to check the president under the Constitution are.

Vladeck: [00:50:00] Well I think I mean, the last thing I'll say Jeff as we saw the president as early as the morning after Election Day threatening House Democrats and inventing this term, presidential harassment, to describe what to me looks like a perfectly ordinary exercise of the House's oversight power. I think we ought to all be able to differentiate between investigations by the new House that look like they're simply meant to cause personal agita for the president, and investigations that are actually consistent with the House's constitutional function to identify waste, fraud, or abuse in the executive branch, to supervise policy decisions by the executive branch, and to ensure that executive branch officers are actually complying with their responsibilities to federal law and the Constitution. And I just have to say, you know I fear that folks are going to have a very partisan reaction to these investigations and I hope they don't because I think we have increasingly run into trouble in our constitutional system across a range of topics from everything we've talked about on this episode, to the war powers, to other contexts where power has drifted to the executive branch whenever the same party has controlled Congress and the White House. I for one think that our country will function much better wholly apart from which party is in charge of each branch, when we're back to a system that is more about the separation of powers and separation of parties. To me that's the best thing that happened on Election Day. You know divided government may seem inefficient but I actually think it's the best way at least for the moment to achieve that that founding ideal.

Rosen: [00:51:45] Thank you so much for that. And Greg the last word is to you. What would you say to We the People listeners and members of Congress about what their constitutional responsibilities to check the president are?

Wiener: [00:51:57] Well I'm glad you mentioned We the People listeners because I think ultimately that what we've got to do is educate public opinion about the importance of Congress and the importance of the separation of powers. When I talk about this I tend to hear a lot of people saying I don't care how things get done I just want things to get done. And that is a very constitutionally problematic view. I think what members of Congress need to do is respond as members of Congress not as members of a party. That would include by the way not being intimidated when President Trump threatens what he called a warlike posture toward investigations. But it would also include not being baited by a threat like that. They should simply go about their business. But but part of going about their business simply has to be educating the public about why it matters that things go through Congress and not through the presidency, particularly in a as you were kind enough to mention my book about Madison before, particularly in a time period when time is so accelerated we want things done so immediately that we're tempted to turn toward executive power and away from the slow natural deliberative process of the legislature.

Rosen: [00:53:03] Thank you so much Greg Wiener and Steve Vladeck for an illuminating, deep, and unexpectedly bipartisan discussion about Congress's institutional responsibilities under the Constitution to check the president. You have both illuminated our we the people listeners in the highest traditions of this podcast. Greg, Steve thank you so much for joining.

Wiener: [00:53:25] Thank you.

Vladeck: [00:53:28] Thank you Jeff.

Rosen: [00:53:28] Today's show was engineered by David Stotz and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Please remember to read review and subscribe to We the People on Apple podcast or wherever you listen recommend the show to your friends and colleagues and check out our podcast live at America's town hall. That's the audio feed of our town hall programs from Philadelphia and around the country which unite thought leaders and scholars to discuss the constitutional issues of the day. Remember always, dear We the People listeners the National Constitution Center is a private, nonprofit. We rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. It is urgently important to engage as many Americans in supporting the mission of the National Constitution Center as possible. Please, you must go to our website, check out the content and become a member at any level. Go to constitution center dot org slash membership to learn more. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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2018 Liberty Medal Transcript

MC: [00:09:27] Ladies and gentlemen please welcome the National Constitution Center's Executive Vice President and Chief Operating Officer Vince Stango. [Applause]

Vince Stango: [00:18:44] Good evening everyone and happy Veterans Day. It's my great pleasure to welcome you to the 2018 Liberty Medal ceremony honoring President George W. Bush and Mrs. Laura Bush. As you know the National Constitution Center inspires citizens as the only place where people across America and around the world can come together to learn about, debate, and celebrate the greatest vision of human freedom in history, the U.S. Constitution. We're honored to educate and inspire so many Americans about the meaning and importance of the U.S. Constitution. And it's because of you that we can engage in this meaningful work. On behalf of Jeff Rosen and the entire team at the National Constitution Center I want to thank all of you: our donors, partners and visitors, our public officials, many of whom are in the audience tonight, our Corporate Leadership Council, and our superb Board of Trustees, for everything you do to help us bring the U.S. Constitution to life. I'm sure many of you will want to share our program tonight with your friends and family. When you do so, we invite you to use the hashtag Liberty Medal; however, we ask you to do so quietly. So thank you in advance for silencing your mobile devices. Now, please join me in welcoming Cynthia MacLeod, superintendent of Independence National Historical Park.

Cynthia MacLeod: [00:20:21] Good evening everyone and welcome, indeed, to the National Constitution Center and to Independence National Historical Park. Congratulations to President George W. Bush and Mrs. Laura Bush for your Liberty Medal award. The award reflects your significant work with veterans supporting especially their transition to civilian life. In a country where we have citizen soldiers, the transition from military service back to civilian life is important and not always easy. Thank you President and Mrs. Bush for your devotion to veterans. [Applause] Earlier today National Park Service staff rangers rang the Centennial Bell atop Independence Hall 21 times as a highlight of programs to honor veterans especially on this centennial of Armistice Day. They had to climb many stairs and a steep ladder to the open air tower and tug on a big rope in unison with bells across the nation. The Independence Hall bell rang with others on the 11th hour of the 11th day of the 11th month in honor of those who served in World War I and indeed all wars. Today's bell tolling was a solemn nod in a program called Bells of Peace to mark that one hundredth anniversary of Armistice Day, the cessation of fighting in 1918 in what was called the great war to end all wars. Pictures of the streets and newspaper headlines I've seen from November 11, 1918, showed jubilation, jubilation and celebration at the promise of peace. Indeed, Philadelphia joined other cities again this year in hosting a parade last Sunday and National Park rangers have enthralled thousands with special programs this weekend. The World War I Centennial Commission designated our very famous silent bell, the Liberty Bell, as the honorary Bell of Peace to commemorate the centennial of Armistice Day. Although the Liberty Bell cannot literally be rung now, its message of freedom is heard across the nation and around the world. The National Park Service is proud to welcome millions of people every year who visit the Liberty Bell, Independence Hall and the other national historic landmarks and museums including the National Constitution Center, all components of Independence National Historical Park. We share stories of people and events related to these authentic places that comprise the birthplace of our nation where our founders gathered to create the Declaration of Independence and the U.S. Constitution, and the National Bank and banking system, and our tradition of a peaceful transfer of power from one president elected by the people to the next president. There are fascinating diverse stories that have everything to do with who we are today; powerful stories that ignite the national pride and also provoke reflection on what did and did not happen in 1776 and 1787. The stories bring relevancy from our historic foundations to today's world and possibilities. The stories have many connections to veterans and our military. George Washington was made commander in chief here. Here is where the U.S. Army was created. Here is the Tomb of the Unknown Soldier from the Revolutionary War. Today we continue the tradition of supporting our veterans and the military. I'm proud to serve with many veterans here at the park. And we host numerous military reenlistment, promotion, and retirement ceremonies including some right in front of the Liberty Bell. Independence National Historical Park is an important, special place. There isn't a better time or place to honor President and Mrs. Bush for their work with veterans than right here at the birthplace of our country. Thank you. [Applause]

Vince Stango: [00:24:38] Thank you, Cindy. There are some friends of the Constitution Center whose dedicated support helps to make nights like tonight possible. I'd like to invite them to join us onstage. Ladies and gentlemen please help me welcome William R. Sasso, chairman of Stradley Ronon; Dan Fitzpatrick, president of Citizens Bank; mid-Atlantic region; Ira Lubert, chairman Lubert-Adler. This year marks Ira Lubert and Pamela Estadt’s 10th year sponsoring the $100,000 prize. Please give Ira and Pam an extra round of applause for their incredibly generous support. [Applause] Dr. Amy Gutmann, president of the University of Pennsylvania; Doug DeVos, chairman of the National Constitution Center's Executive Committee. There is one longtime NCC supporter whose life, legacy, and commitment to constitutional education needs to be acknowledged tonight – Rich DeVos. Rich passed away on September 6 at the age of 92, and all of us at the NCC were saddened by his loss, but more powerful than our sadness was the joy we felt in remembering his life. Thanks to Rich's vision, passion, and generosity we were able to build this great center and sustain it for the past 15 years, educating millions in Philadelphia and many millions more around the globe. Thank you does not sufficiently capture the sentiments of gratitude that we owe Rich and Helen DeVos and their entire family, but we must thank Rich for what he helped us start almost 20 years ago when he first came to the National Constitution Center as a supporter and later as a trustee. We honor his life by continuing the important work of our congressional charter, playing an important role in sustaining our democracy for generations to come. Please join me in a brief moment of silence as we remember the life, well lived, of Rich DeVos. Thank you. A few of our special guests this evening recorded messages of support for President and Mrs. Bush. We'd like to share those with you now. Please turn your attention to the screen behind me.

Dan Fitzpatrick: [00:27:37] [By video] Welcome. I'm Dan Fitzpatrick and it's my great pleasure to join the National Constitution Center and all of you to celebrate the 2018 recipients of the Liberty Medal, President George Bush and Mrs. Laura Bush. Most of us know how fortunate we are to live under a government of the people, by the people, and for the people. We know, too, how many people around the world long for the liberty we enjoy as citizens of a representative democracy. The men and women of the American military do more than protect American freedom. They also represent the hope that freedom will spread to places and people where it is now only an aspiration. The Military Service Initiative is a major pillar of the George W. Bush Presidential Center. Through this initiative the Bush's honor the liberty that soldiers represent and defend. 2018 proudly marked Citizens Bank's 13th year of supporting the Constitution Center's conveyance of the Liberty Medal on behalf of our CEO and NCC Trustee Bruce Van Saun, along with all of my colleagues at Citizens Bank, congratulations to President and Mrs. Bush for being the well-deserved recipients of this year's Liberty Medal.

Bill Sasso: [00:28:47] [By video] Good evening. I'm Bill Sasso, chairman of the law firm of Stradley Ronon. It's a great honor to join the National Constitution Center in paying tribute to two great Americans, President George Bush and Mrs. Laura Bush. America has a rich military tradition grounded, in the preamble to the Constitution. Veterans, current members of the armed forces, and future military leaders chose to put their lives on the line so that we can remain free. Yet too often, the commitment made by these women and men comes at a high cost. They struggle with visible and invisible wounds and the many challenges of returning to civilian life. These challenges affect the lives of our veterans, their families, and their dedicated caregivers. President Bush and Mrs. Bush have committed themselves to those who have sacrificed to provide for the common defense. Today we honor the two of them for serving those who serve liberty. Thank you for joining me, Stradley Ronon, and the National Constitution Center in congratulating the recipients of the 2018 Liberty Medal, George and Laura Bush.

Vince Stango: [00:30:07] Ladies and gentlemen, the program will begin in a few moments. Enjoy.

[Trumpets]

MC: [00:30:30] Good evening, and welcome to the National Constitution Center's 2018 Liberty Medal ceremony. Please welcome Jeffrey Rosen, president and chief executive officer of the National Constitution Center, and chairman of the National Constitution Center and Vice President Joe Biden as they escort our 2018 Liberty Medal recipients, President George W. Bush and Mrs. Laura Bush. Please rise for our national anthem and the presentation of colors.

[Singing of the National Anthem]

And now please welcome Jeffrey Rosen, president and chief executive officer of the National Constitution Center. [Applause]

Jeffrey Rosen: [00:34:40] Ladies and gentlemen, welcome to the National Constitution Center! It is such an honor to welcome you to this great educational institution with an inspiring nonpartisan mission: to increase awareness and understanding of the Constitution among the American people. And it's also an honor on this Veterans Day, the hundredth anniversary of the end of World War I, for the National Constitution Center to award the 2018 Liberty Medal, in recognition of their service to veterans, to President George W. Bush and Mrs. Laura Bush. America's veterans inspire us all with the sacrifices they have made to preserve, protect, and defend the Constitution of the United States. America's first and greatest veteran, George Washington, understood the urgent importance of remembering the sacrifices of veterans and promoting civic education. In 1781, he pleaded to his friend Jonathan Trumbull on behalf of those veteran troops who, through almost every distress, have been so long and so faithfully serving the states. He added, every satisfaction which can reasonably be requested, should be given to them. Washington was similarly passionate about civic education. In urging Congress in 1796 to create a national university, Washington said a primary object of such a national institution should be education of our youth in the science of government. Recent studies confirm Washington's insight that civic education in the structures of government is necessary to preserve the future of the American republic. Citizens, both liberal and conservative, who were educated about the importance of an independent judiciary and judicial review are more likely to support democratic norms and values. And at a time when the percentage of people who say it is essential to live in a democracy is plummeting around the globe, a time when support for autocratic alternatives to the American Constitution is alarmingly high among young people, civic education, it's now clear, is crucial to the survival of liberty and democracy in America. [Applause] Last week Justice Sonia Sotomayor and Justice Neil Gorsuch sat down together for an interview to discuss the critical need for civic education in America. Friends, I'm thrilled to share that Justice Gorsuch along with Elena Kagan and other justices are participating in a series of educational videos about the Constitution that the National Constitution Center is creating now. These videos will appear on the Constitution Center's Interactive Constitution, amazing online learning platform which has received more than 20 million hits since it launched in 2015. I want you to download this app now and look at it on the web. [Applause] This remarkable platform for constitutional light brings together the top liberal and conservative scholars to debate and every clause of the Constitution, describing what they agree about and what they disagree about. And I'm also thrilled to share an exciting collaboration between the Constitution Center and the College Board, which administers the S.A.T. and the Advanced Placement exams. Recognizing the crucial importance of teaching civics to high school students, the College Board will encourage all three to five million AP students to take a two week course on the First Amendment which the National Constitution Center is creating. [Applause] But it gets even better. That's not all. This two week First Amendment course is going to be available not just to Advanced Placement U.S. Government and History students but to all students whether they're studying physics or chemistry or Italian or French. At the end of their courses, they'll have the opportunity to learn the basic principles of the First Amendment before they graduate from high school. [Interruption from audience] And, in our next incarnation, we're going to take not only the First Amendment, but the principles of the structural constitution to work together to bring the interactive Constitution not just to AP high school students but to middle and high school students across America. And in the process of studying the Constitution, students will learn to debate and protest respectfully and civilly with full respect for our First Amendment values. [Applause] Our common task today, friends, is to honor America's veterans, who can teach us better than anyone about the sacrifices required to preserve, protect, and defend the Constitution. All of us have veterans who have touched our lives, and I just want to give a special call out to my dear dad. He's 92. He served in the Korean War and I have his dog tag in my pocket right now. [Applause] In that spirit we're gathered to honor President and Mrs. Bush who have devoted their time and talent since leaving office to listening to veterans, to honoring their stories and to working to ease their transition to civilian life. After leaving office, President Bush said he would dedicate the rest of his life to serving veterans, and so he has. And we honor you for that service. [Applause] And anyone who has heard Mrs. Bush talk about the importance of adult literacy and honoring veterans cannot fail to be inspired, and we are so honored that she, too, has devoted her energy to inspiring veterans too and all Americans to become better and deeper readers. Thank you for that great service. [Applause] The Bushes have decided to honor veterans by donating today's Liberty Medal prize to A Charge to Keep, which is the campaign to endow the work of the George W. Bush Institute and its Military Service Initiative. Together President and Mrs. Bush inspire all of us to live up to the shining example of America's veterans who remind us how important it is that all of us educate ourselves about the greatest document of human freedom in history: the U.S. Constitution. Thank you so much. [Applause]

MC: Please welcome University of Pennsylvania President Dr. Amy Gutmann.

Amy Gutmann: [00:43:23] Here on Veterans Day on behalf of the Liberty Medal committee, which I have the honor of chairing, I extend our utmost respect and reverence to the women and men who don the uniforms of our nation's military. To them we all say, we will never forget your service. [Applause] Your personal valor, your sacrifice, merit our nation's highest regard and most devoted service. Today we recognize two individuals who have dedicated themselves to just such service, answering the needs of our veterans and inspiring us all to join their effort. George W. Bush vowed after his presidency to spend the rest of his life helping our vets. Across all his efforts, Laura Bush has joined, stood resolutely, strongly at his side, championed education for our vets and our support for them. Together they have worked tirelessly to unite communities, nonprofit organizations, businesses, academia, and philanthropy in support of our nation's wonderful veterans. The University of Pennsylvania, which I lead, has a deep and abiding connection with our nation's military and we're so proud of it. Penn has taught many famous military leaders, as well, including major Samuel Nicholas, the first commandant of the Marine Corps, and Benjamin Stoddard, the first secretary of the Navy. To every individual service member, we honor and we salute their sacrifices. They give their all in our defense. In grateful appreciation, President and Mrs. Bush have given their all in return. They have paid it forward. They have modeled what gratitude, service, and leadership mean. To them, we are so grateful. You see it in the many sponsored activities that bring them together with our post 9/11 wounded warriors. Whether it's leading a 100 kilometer bicycle ride, traveling to promote employment opportunities for veterans, or meeting one-on-one with vets and listening to their inspiring stories of service. Most evocatively, most evocatively, you see it in the paintings that President Bush has created, of 98 former members of the armed services, most of whom served in Iraq and Afghanistan. These paintings are gathered together in his eye riveting and heart wrenching book, Portraits of Courage. And portraits of courage they are. The faces of our vets tell the story of war and its aftermath. They also tell the story of this president's and painter's love, respect, and admiration for each and every one of these great individuals. The connection is real. It is deep. It is visceral. At the George W. Bush Presidential Center in Dallas, the steadfast commitment of President and Mrs. Bush to the health, safety, and success of our nation's veterans is manifest throughout the Bush Institute Military Service Initiative, which helps military service members to continue their exemplary leadership as citizens. When George Washington took the unprecedented and to many unimaginable step of freely relinquishing power after two terms of office, he wrote a public letter to his fellow citizens. He concluded with a wish for peace saying he looked forward most of all and I quote, "To the sweet enjoyment of the benign influence of good laws under a free government." No nation remains free without men and women who in our hour of need rise willingly to its defense, and no nation can long be considered good or benign that does not care for those who so freely and devotedly come to our aid. President George W. Bush and Laura Bush remind us in their words, in their deeds, in their hearts, and most of all in their unfailing support for America's veterans that ours is a nation devoted to liberty and justice for all. Theirs is a clarion call that we do right by those who have done so right by us and for us. It is for that dedication that the Liberty Medal committee unanimously and enthusiastically selected President and Mrs. Bush for this single honor. On behalf of the Committee, on behalf of us all, I offer my heartfelt congratulations to you both and most of all our deep felt gratitude. Thank you very, very much. [Applause]

MC: Please welcome to the stage Sergeant First Class Michael Rodriguez, United States Army retired, and Leslie Zimmerman, veteran United States Army. [Applause]

Leslie Zimmerman: [00:50:07] At age 18, I enlisted as a combat medic in the army, inspired by my sister who was in the Marine Corps. I loved the teamwork, the camaraderie, and the purpose that my military family gave me. Above all I loved serving my country. After witnessing the brutality of war I had many unwanted memories that remain with me. I was diagnosed with post-traumatic stress and depression. Determined to heal on my own, I pushed away my family and friends [Applause] while trying to cope. Recognizing my determination had become a weakness, I sought help. I gave myself permission to feel with the fight from within. And to not feel alone. With humble courage, I hope to help others find their road to recovery. [Applause]

Michael Rodriguez: [00:51:23] My first heroes were my grandfathers who served during World War II and my father who fought in Vietnam. I join the Army at age 17 and after 21 years of service I retired as a special forces Green Beret. My wife retired last year after 21 years in the army, and my oldest son is an airborne infantryman in 82nd Airborne Division who just returned home from his first deployment to Afghanistan, marking the 16th deployment for my household alone. [Applause] Even though I no longer wear the uniform I continue to fight the invisible wounds of war in the forms of post-traumatic stress and traumatic brain injury. I am not a threat. I am engaged in a fight I'm not ashamed of and it's a fight I'm not necessarily trained for, but it's a war I eagerly face because I know I will win because I'm not fighting this war alone.

Leslie Zimmerman: [00:52:35] Rod and I both have benefited from the Bush Institute's Military Service Initiative. We've used sports, particularly mountain biking, to find a renewed sense of purpose, strength, and healing. We both have had the honor of riding with President Bush several times during the W 00 bike ride that President and Mrs. Bush host on their ranch. The teamwork and the support we find in sports has given us a new identity and a new mission: to help ourselves and our fellow veterans in their path to recovery, recovery from the invisible and the visible wounds of war. [Applause]

Michael Rodriguez: [00:53:23] As members of Team 43 I stand side by side with my brothers and sisters who are committed to selfless service. The Bush Institute's military service initiative is empowering us, other post 9/11 veterans and their families through their programs and engagement. When I hear that only one percent of our population wears our nation's uniform, I am filled with pride. I am proud that it only takes one percent to defend the 99 percent. Each of us has been challenged by President Bush to continue our servant leadership after we take the uniform off, highlighting to the rest of the nation, we, as a veteran community are an asset, and we will continue to serve others first. [Applause]

Leslie Zimmerman: [00:54:21] In a moment you'll hear from a few more of our fellow Team 43 members about their own experiences. And while our stories are different, there's one thing that we all have in common.

Michael Rodriguez: [00:54:36] We are proud of our service to this nation. President Bush said his greatest honor was saluting us as commander in chief. I think Leslie and I would say our greatest honor has been not only defending this great country, but calling President and Mrs. Bush our friends. I want to thank you all for coming here to celebrate their servant leadership.

Leslie Zimmerman: [00:55:12] Thank you all for being here tonight. [Applause]

[00:55:13] [Video playing]

MC: [01:02:08] Ladies and Gentlemen, please welcome Vice President Joe Biden. [Applause]

Joe Biden: [01:02:29] Good evening. It's an honor to be here. My name is Joe Biden. I work for President Bush. It’s not part of the script, but let me just say one brief introductory comment. I carry in my pocket my schedule every day, like all of you do. And Mr. President, every morning at 7 o'clock, I have my staff contact the Defense Department. Because I want to know exactly how many men and women have been killed in Afghanistan and Iraq. Not generically, exactly. Every single one of them leaves behind a whole community. Nothing angers me more – it’s unfair of me, I know – when they say well roughly 6,800 killed in Afghanistan or Iraq. It's 6,842. 56,000, excuse me, 52,732 not 31, wounded. You just saw the speakers and on television, the incredible work that Mrs. Bush and President Bush are doing for these wounded warriors. There are an estimated 300,000 – 300,000 coming home with post-traumatic stress and traumatic brain injury. And there are always trained never to complain. My dad's expression, never complain and never explain. And they're trained not to ask for help. And so what our two speakers did earlier tonight and all those who spoke, give people courage to come forward. Give people courage to come forward and seek the help they need. More people are dying in the military as a consequence of suicide than they are of anything else right now. So I can't tell you, Mr. President and Laura how touched I was by – I know of the program – but seeing it, seeing your deep involvement in. It really, really matters. Thank you. Ladies and gentlemen, in the two years since President Obama and I left office, I've had the opportunity to take on a few new projects, including a professorship at the University of Pennsylvania, The Biden Center for Diplomacy and Global Engagement, thanks to President Gutmann, and the Biden Institute at the University of Delaware, working on domestic policy. But the biggest honor has been in serving as chairman of the board of the National Constitution Center, an institution dedicated to preserving the fundamentals of our democracy and educating the next generation – the next generation about the uniqueness and the audacity of our founding document. Folks, unlike any other country in the world, America is unique and that's not chauvinism. It's a historical statement of fact. We are uniquely a product of our political institutions unlike any other country in the world. We're not organized based on ethnicity, race, religion, tribe; we're organized around a set of ideals and values to which you must be committed to say you're an American, enshrined in our Constitution. For 230 years, our Constitution has endured, guiding us through our many stumbles and shortcomings as a nation while overseeing the inexorable march toward freedom and liberty. It's a document that makes no mention of political party or faction, only we the people. We the people The hold these truths self-evident that all men are created equal. We say it all the time. We learn it when we're in school. But it really is who we are. We haven't always lived up to it, but we’ve never walked away from it. And so folks, in the week following another contentious political season, the presentation of Liberty Medal is a critical reminder that neither Republicans nor Democrats hold a monopoly on the values and ideals that define us as a nation. So I'm proud to be here tonight to honor President George W. Bush and former first lady Laura Bush who celebrate the values we share as Americans. It's no secret, President Bush and I occasionally had our political disagreements. I remember one time in the Oval Office, Mr. President, you looking at me and you said, damn Biden you spend more time in this office with me than anybody else, including Republicans. But the fact of the matter is I always respected the president. We had a disagreement on a number of issues which we made pretty clear to one another in private. And we were never hesitant to tell each other the honest to god truth as we saw it. That's the way the system is supposed to work – voices raised in a contest of ideas to determine the direction we take as a nation. As President Bush was my opposition as chairman of the Foreign Relations Committee, he was never my enemy. Think how demeaning our politics has become in terms of how we talk about one another. He was the opposition, not enemies. You know, where our priorities aligned, we worked together. I think there's no better example of that, Mr. President, than the incredible legacy you left in the President's Emergency Plan for AIDS Relief, called PEPFAR. The 90s and early 2000s, the AIDS epidemic in Africa was threatening to wipe out an entire generation of leadership as well as an entire generation. But President Bush, you believed with American leadership we could turn that tide. You put real political muscle and resources into making sure PEPFAR would be effective. And I was proud to play a small role as chairman of the Foreign Relations Committee, to twice see the aid was authorized and made sure was funded. Today there are 14 million people receiving lifesaving HIV treatment who otherwise would not have received it, would not receive the care because of PEPFAR, because of you. He continued toward a world free of the specter of AIDS. PEPFAR is an incredible vision, and it continues to be an incredible demonstration of American values. And America's capacity, America's capacity to do big things. I said at the time and I'm reiterate it today: history a record as one of your greatest achievements, Mr. President, you've had many, that PEPFAR was one of them. Now that we're both out of office and continue our public service through new avenues, we once again find ourselves on the same side on an important point. This year, the Biden Center for Diplomacy and Engagement joined The George W. Bush Institute and Freedom House to undertake a study on, it's called the Democracy Project, a national and international survey to gauge attitudes, American attitudes, about the core Democratic principles, and how we can strengthen and support democracies around the world, because they're under siege in many parts of the world today. President Bush and Laura, we share a belief that those values which [undergird] our democracy are precious. They exist way above party and they have to be defended. That's the duty of patriots. That's the duty of patriots. [Applause] As a team, Laura, you and the president continue to take on big challenges in your post White House years. Through your work at the George W. Bush Institute and tonight we recognize the impact you've made through your enduring commitment to supporting America's veterans and caregivers. And if my mother were here looking at you being married long as you have she'd say no purgatory for you two. Straight to heaven. Straight to heaven. [Applause] Because you understand the sacrifice we ask of our men and women who wear the uniform of the United States and the toll that it takes on both the service members and their families. I've long said that we have many, many obligations as a country. But we only have in my view, and I've been criticized for saying it, I'll say it again: we only have one sacred obligation. One truly sacred obligation. To properly equip those we send to war, and care for them and their families both while they're deployed and when they return. It's not as easy as just picking up where you left off. That's why you created the Veterans Employment Transition Roadmap, a customized tool kit to help service members smoothly return back to civilian life and find good jobs. And that's why you've made it a point to not just focus on mending physical wounds but dealing with the unseen scars. Jill and I just worked with the walking wounded who walked across the United States a thousand miles, Brits and Americans, hand in hand, doing the same thing, trying to raise the level of awareness among veterans that it's okay, it's necessary, it's good to seek help. There is no stigma. Promoting awareness about mental health issues for servicemen and veterans and their families is one of the core issues my wife Jill and I focus on in the Biden Foundation, so I want to applaud everything you've done. Both of you. To care, connect and care, connect providers for the veterans who need help through the warrior wellness alliance, ensuring our heroes and their families can reach out and get help, and it's there when they reach out for it. We have to eliminate the barriers that keep people from seeking and receiving the support they need in mental health. There's no difference between a mental health problem and a broken bone. It's a problem. It's a health problem. [Applause] As the Bush's know, it's about literally changing our culture. Our veterans and their families are so used to being strong, they have to know it's okay to ask for help. They have to know that when they ask for help they'll be connected to the care and support they so badly need. The Bush's Institute’s Military Service Initiative has been a leader on these issues for many years including, including a critical partner in the Joining Forces Initiative which Jill, my wife, and the first lady Michelle Obama started during our administration. And I know that you both feel this responsibility in this mission personally. It's a personal commitment. Mr. President, I've always been impressed by your ability to connect with people. And I deeply respect your commitment to Team 43, forming these personal relationships with our wounded warriors through sports and honoring their individual stories with the art of Portraits of Courage. It's incredibly personal to the Biden family, as well. We learned that what it means to be a military family when our son Beau was deployed to Iraq for a year. He came back a decorated soldier after a year. But his main concern, his plea to his mother, was as long as you're involved, please get involved in working on mental health problems for returning veterans. You know, we saw how difficult his absence was for his two young children. We prayed daily for his safety and those of his comrades. Every family member knows what it means to sacrifice. The poet Keats said that, talking about service of families, that they also serve who only stand and wait. They also serve who only stand and wait. For every deployed soldier and everyone that was deployed and deployed now, there's someone standing and waiting and praying. It's not about, again, Democrats and Republicans, it's about who we are. It's about standing up for men and women who put their lives on the line to defend us every single day. It's about fighting for the soul of this nation that has given us so much. So thank you, both President Bush and Mrs. Bush for your ongoing commitment to honor and support the brave women, men and women who serve the United States military, who, without fear of contradiction, is the finest fighting force in the history of the world. That is not hyperbole. It's the finest fighting force. [Applause] For all your efforts on their behalf, I'm about to say the medal you're going to be presented. But I want to tell you, Mr. President my wife who unfortunately could not be with us tonight, wanted me to simultaneously present you both with the Philadelphia Eagles jersey tonight. President Bush asked about the game and he said Joe, you an Eagles fan? I said yes, unless I want to sleep alone. I married a Phillies girl. I married a Philly girl. Mr. President, on a very serious note, it's my honor to present you both with the National Constitution Center 201[8] Liberty Medal. You both deserve it. [Applause]

Jeffrey Rosen: [01:17:50] Ladies and gentlemen, it's time to bestow the 2018 Liberty Medal. And I now invite Vice President Biden and Doug DeVos, chair of the National Constitution Center, to join me in the presentation. President George W. Bush and Mrs. Laura Bush, for supporting America's veterans and the sacrifices they have made to provide for the common defense and secure the blessings of liberty to ourselves and our posterity, for honoring that sacrifice and service by helping America's veterans in their transition to civilian life despite the visible and invisible wounds of war, your work with Gold Star families and others who care for those who defend our freedom, and for inspiring all Americans to educate themselves about the principles of freedom and preserve, protect, and defend the Constitution of the United States, it is the National Constitution Center's honor to award you the 2018 Liberty Medal.

[Applause and presentation of the medals]

And it's now my honor to invite to the podium the first of our 2018 Liberty Medal winners, Mrs. Laura Bush. [Applause]

Laura Bush: [01:20:04] Thank you all. Thank you so much. Thanks everyone. [Applause] Thank you very much Jeffrey and thank you Vice President Biden, thank you very much Doug DeVos. Thank you all for this honor. And thank you for hosting George and me at the National Constitution Center today. Thanks to Rod Rodriguez and to Leslie Zimmerman and to all the veterans and active military here today. Thank you for your distinguished service to our country. [Applause] President Bush and I are retired now, so we want to spend our afterlife dedicated to the programs of the George W. Bush Institute including, and especially, our Military Service Initiative. The Military Service Initiative honors the men and women who've served our country. We're working with them to develop the leadership skills and the tools they need to transition successfully to civilian life. Since 2011, President Bush has hosted veterans at the Warrior Open golf tournament in Dallas, and the Warrior 100K bike ride at our ranch in Crawford. At these events, George and I are inspired by the strength and the determination of our veterans. While George is watching chips and putts or riding with the Warriors, I like to spend time with the spouses and caregivers who accompany their warriors to Texas. These are the ones who care for the family and manage the home while our servicemen and women are deployed. They help their kids with the homework, they oversee the family finances, and they pray that their husbands or wives in uniform return home safely. Master Sergeant Rocky Arena and his wife Marlene joined us at our ranch in 2017 for the Warrior 100 bike ride. When Marlene talked about Rocky's years of service in the Air Force she said, “I say we served for 25 years.” I lived every deployment with Rocky, every trial and tribulation, so that the day I said yes to him, I didn't realize the impact that his service was going to have on me. This is the reason it's so important to make sure that while our servicemen and women receive the support they need when they come home, that we care for their spouses and families, too. November is National Family Caregivers Month. So today on Veterans Day we must consider how we can help the caregivers now and in the future. There are over four million post-9/11 veterans and more than one million men and women who are caring for these post-9/11 veterans. And of course all any caregiver wants is for his or her family to be in good physical and mental health. As veterans transition to civilian life, visible wounds, post-traumatic stress, and lack of stability may make veterans more susceptible to issues like depression and addiction. And of course, when one family member suffers the entire family suffers, leading to an increase in the risk of behavioral issues and anxiety and depression in military children. Just as veterans need good health care when they return home, caregivers need access to quality care for themselves and for their children. Fifteen percent of military caregivers spend 40 hours a week caring for their veteran and they often spend more hours caring for their children when childcare is unavailable. As a result of caregiving, 48 percent of post-9/11 caregivers have been forced to take unpaid time off from work and 28 percent have had to quit working entirely. With these statistics it's not surprising that many caregivers report that caregiving has caused financial strain. Anne Meree Craig joined us at the Bush Institute last month for our Stand To veteran leadership program. Anne Meree is a military caregiver and one of 33 scholars in our inaugural Stand To veteran leadership class. Anne Meree’s husband is an Army Special Operations Forces veteran and they have three children. For many years Anne Meree worked for the Department of Defense and intelligence community. But as she watched service members, including her husband, return home, she was inspired to do more. In 2012 she co-founded the Commit Foundation to help veterans translate their skills into successful roles and careers for their service. Anne Meree said this work has been my passion and it's the product of my family's journey with traumatic brain injury. I navigated services as I worked to heal my husband and the many others I met along the way. During a conversation about caregivers last month she told the Stand To class: there is a group of us that shows up instead of walking out that builds rather than tears down and that waters the plants and tends the garden. Our military spouses and caregivers do just that. They tend the gardens at home creating and maintaining a nurturing place to take care of their loved ones. They have the same priorities as the rest of us and they have them with more difficulties and obstacles. It reminds me of the old line: Ginger Rogers did everything Fred Astaire did, but she did it backwards and in high heels. [Applause] So to all of the government programs, corporate and nonprofit communities, and individuals working to improve veteran transition, I ask that you consider how you can support the hidden heroes and the loved ones who also serve our country. George and I are forever thankful for the brave men and women who volunteer to defend our country. Our military strength is the strength of our nation, our service members are the strength of our military, and our caregivers are the strength of our veterans and wounded warriors. Their devotion to our men and women in uniform and their commitment to their marriage, their family, and to our country is an inspiration to us all. Now I'd like to introduce the former Commander in Chief, my husband, President George W. Bush. [Applause]

George W. Bush: [01:28:19] Thank you all. Thank you. [Applause] Sit down! Thank you all. [Applause] Thank you Laura. Laura was a fabulous first lady. One time I said that and the crowd went wild and I realized my mother was sitting in the front row. She's also a fabulous advocate for military spouses and caregivers. Mr. Vice President Biden, it’s great to be in your presence. Doug DeVos, Jeff Rosen, distinguished guests, and ladies and gentlemen, I am incredibly proud, along with Laura, to receive the Liberty Medal. And I thank the National Constitution Center and the members of its board for this high honor. Laura and I are the second and third members of our family to have received this award. The most deserving, of course, was the first. And I'm proud to follow in my dad's footsteps, once again. [Applause] In case you're wondering, he's doing all right these days and he sends his greetings. [Applause] He is 94 years old, and his parachuting adventures are now officially behind him. At least that's what we keep telling him. Both my dad and my brother Jeb once served as the chairmen of the National Constitution Center, a position that is now held by Vice President Biden. Joe, you're looking good. Yeah it's amazing what happens when you get out of office. I really appreciate your good spirit in presenting this award. I thank you for your public service, and I wish you all the very best. [Applause] Joe and I share a love of liberty. To that end, as Joe mentioned, the Bush Institute is partnering with the Penn Biden Center and the Freedom House on a project to reaffirm support for democracy both at home and abroad. We aim to inspire men and women in the darkest corners of the world and instruct a rising generation on the beauty and the possibilities of free societies. When the vice president was here last year to bestow this same award, the recipient was a man who dedicated his life to the cause of liberty, a man we admire and miss. And who better to keep close in memory on Veterans Day than our friend John McCain. [Applause] John's passing this summer was an occasion to recall the kind of bravery and fortitude we have always counted on in the armed services of the United States. This is a man who had been to the darkest places as a prisoner of war, he returned as a witness to the unbreakable bonds of loyalty and comradeship amongst those who sacrificed for our country. For the privilege of serving, John, said on this stage last year, he was repaid a thousand times over. That was sure a modest way of looking at it. But that's how it is with so many men and women who have worn the uniform, and often the humility runs deepest in the ones who gave the most. I've been fortunate to meet thousands of these patriots. And what most of them want to tell me is this: they were proud to serve. And they'd do it again. Veterans Day is the appropriate time to honor them. 1918, on the 11th day of the 11th month, an armistice ended the Great War. News of a quiet Western Front prompted celebrations all around the world on this very day one hundred years ago. A moment of hope that the light of liberty could never be extinguished. Every November 11 since, we've shown our appreciation to all those who step forward to take an oath, to live by a code of conduct, and accept the discipline of military life, a discipline that brought out the best, and that which was in them. We recall what it means to put country above self, ready if the order is to come to face war and everything that goes with it. We think of all the American soldiers, sailors, airmen, and Marines who never live to be called veterans. And the war fighters who came home to face new struggles as wounded veterans. By far the greatest responsibility any president has is to be a commander in chief. Leading the most formidable, courageous, selfless collection of men and women you will find anywhere. And in the near decade since Laura and I left the White House, we've had to further honor of knowing so many veterans as friends, especially those who served or enlisted after September the 11th, 2001. At the Bush Institute on the campus of Southern Methodist University in Dallas, we're helping warriors and their families keep moving forward in life. Transition can be extremely tough for our vets. Some come home with visible and invisible wounds of war. Others feel disconnected from their communities, or miss a sense of purpose they found in their military career. We are helping them with health care, career opportunities, and the fellowship of other veterans. These men and women are tremendous natural assets, and they have so much more to give to our country. [Applause] With us tonight are members of the Bush Institute's Warrior Wellness Alliance. This is a project we started to get more warriors the quality personalized care they need and deserve for invisible wounds of war like post-traumatic stress, post-traumatic stress and traumatic brain injury. Laura and I joined some of the partners at Point Breeze neighborhood earlier today for a service project where we planted trees in a public park. Travis Manion Foundation was there, The Mission Continues, Team Rubicon, Team Red White and Blue. It's always a joy to be with our veterans and to see them helping each other as they help the communities in which they live. As you've heard, not only do we produce programs, but we host the Warrior Open golf tournament and the W100K mountain bike ride. These outings underscore the importance of sports as a rehabilitation component for some vets, and they offer a support network for continued recovery. The inspiration they provide for each other and for those of us there is far greater than anything we could offer them. I aim to keep doing it. I aim to keep riding mountain bikes until my bike breaks down or my body. [Applause] I count these friendships among the great blessings of my life. And I have painted quite a few of them. You may have heard that I took up painting a while back. And I'm pleased to say that some of my paintings on public display. If you happen to go to an art museum where they are, just look for the sign that says gallery of the masters and go the other way. The good news is even my toughest critic says I'm kind of improving. [Applause] You know, I think the turning point may have been when I began the paintings from my book Portraits of Courage. The participants over mountain bike rides and golf tournaments have formed a group known as Team 43 and I wanted to capture at least something of their resilience and greatness of heart on canvas. I painted 98 of these remarkable men and women and recorded their stories. You've heard from two of my subjects tonight: Leslie Zimmerman and Michael Rodriguez. I call him Rod. [Applause] When I painted Leslie, I painted a compassionate woman who saw firsthand the horrors of war as a combat medic, painted a fierce competitor on the mountain bike, which she has used to overcome the invisible wounds of war. I painted a veteran who has become a dedicated wife and mother, a selfless soul who is determined to help others. And I painted a friend. And capturing Rod, I wondered how does an artist show the character of a courageous Green Beret who saw tough combat against terrorists, sustained repeated injuries and worried only about missing the next deployment; a husband who struggled with post-traumatic stress as he helped his wonderful wife, also a veteran, deal with hers; a father whose son born just a few years before 9/11 became the fifth generation of the Rodriguez family to serve in the military. He mentioned his son Antonio, and the fact is his platoon, the mighty Taco Vipers, has just returned from Afghanistan, and we salute him, Rod. I'll leave it for better judges to decide how close my portraits came to the mark. I can assure you only that they were put on canvas with my utmost respect and care. The message isn't just how honorable and heroic these men and women were in the past. It's that this new generation of veterans has the gifts to shine in whatever they do. They number in the hundreds of thousands, and no group of citizens is more vital to the future success of our country. Come to think of it, that's always been true of veterans. Ever since a former army general presided over the Constitutional Convention. There's no steadier influence in the life of our nation than the ones who've defended America and understand what it takes. What would the influence of America itself be today without the legacy of our veterans? We rightly speak of our nation as a force like no other in history, with liberating armies, moral commitments, and alliances to safeguard peaceful nations from every kind of enemy. Generations of statesmen and diplomats have done their part. Yet for our peaceful purposes in the world, nothing has ever mattered more than the skill and the courage and the sheer decency of those who've served in the United States military. For my part to return the salute of such people was the highest of all the privileges that came with the office of president. And because the Liberty Medal is presented to Laura and me on Veterans Day, we will cherish it all the more. To us it will always be a reminder of the people we deeply admire, including some very special men and women we know and love. I want to thank you very much. May God bless our veterans and may God continue to bless the United States of America. [Applause]

MC: [01:42:48] Thank you for attending the National Constitution Center's 2018 Liberty Medal ceremony.

Video

Watch highlights and other video from the 2018 Liberty Medal ceremony below.

You can also read a full transcript from the ceremony at the following link: https://constitutioncenter.org/liberty-medal/video/2018-liberty-medal-transcript

The Full Ceremony

The Acceptance Speeches

Former Vice President Joe Biden

Jeffrey Rosen

2018 Photo Gallery

2018 Photo Gallery – Photos by Peter Van Beever for National Constitution Center

Benjamin Franklin’s last great quote and the Constitution

A birthday salute to Louis Brandeis

Shutdown, border wall highlight lame-duck session

CBS Philly: New Jersey Veteran Talks About Vietnam War At National Constitution Center’s Veterans Day Celebration

National Constitution Center Honors George W. Bush and Laura Bush During 30th Annual Liberty Medal Ceremony

How Americans fought to restore Veterans Day to November 11

Semper Fi! Happy birthday to the Marine Corps

Podcast: Does the Constitution Require Birthright Citizenship?

Jeffrey Rosen: [00:00:07] I'm Jeffrey Rosen president and CEO of the National Constitution Center. And welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is the only institution in America chartered by Congress to disseminate information about the Constitution on a nonpartisan basis. Recently President Trump proposed to end birthright citizenship through executive order. The proposal has set off vigorous commentary. Does the president have the authority under the Constitution to end birthright citizenship? Could Congress do it by statute if the president can't do it by executive order and what does the Constitution mean in the 14th Amendment it states - and We the People listeners I want you to bring out your interactive constitutions - all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside. Joining us to discuss this crucial constitutional question are two of America's leading commentators on it. Akhil Amar is Sterling Professor of Law and Political Science at Yale Law School and the author of many acclaimed books including most recently The Constitution Today. Akhil is the co author of the interactive constitution's explainer on the citizenship clause with John Harrison. And dear We the People listeners I want you to check out the common explainer right after the podcast. Akhil, it's so wonderful to have you back on We the People. And Edward Erler is senior fellow at the Claremont Institute and professor of political science emeritus at California State University San Bernardino. He is the co-author of the book The Founders on Citizenship and Immigration and has argued that birthright citizenship can and should be reformed without violating the Constitution. Professor Erler thank you so much for joining us.

Edward Erler: [00:02:01] My pleasure.

Rosen: [00:02:03] Professor Erler let's begin with you. What did the framers mean by the phrase subject to the jurisdiction thereof and why have you concluded that they did not believe to include the children of illegal aliens in the United States in their notion of birthright citizen?

Erler: [00:02:20] Well of course as you know that's the crucial question. The Citizenship Clause of the 14th amendment was introduced at a very late date and it was suggested that citizenship clause or a definition of citizenship was necessary because it had already been adopted - a provision had already been adopted that privileges and immunities of United States citizens would be guaranteed. So Senator Wade suggested that the definition of citizenship should be: all persons born or naturalized should be citizens of the United States. That suggestion went to the Joint Committee on Reconstruction and the committee took up the issue and came back with a provision that said: All persons born or naturalized and subject to the jurisdiction were citizens of the United States. The committee evidently put considerable weight on the provision "subject to the jurisdiction of the United States." The Citizenship Clause was introduced into the Senate by Jacob Howard. He said this was not an innovation and it was only a codification or a reaffirmation of the law of the land as that already existed. He was obviously referring to the Civil Rights Act of 1866 which had been passed over President Johnson's veto only six weeks earlier. The Civil Rights Act of 1866 was the first definition of citizenship, after the ratification of the 13th Amendment and remember this was passed by a two thirds majority of both houses of the Congress. So it enjoyed widespread support of the Congress. That definition of citizenship said all persons born or naturalized and not subject to a foreign power were citizens of the United States. So when Jacob Howard submitted the citizenship clause he knew that the Civil Rights Act of 1866 did not include persons who were subject to a foreign power. And so the citizenship clause that he introduced as you read at the outset was read to the floor of the Senate and someone objected immediately that this would include native persons. Howard said no it would not because they were considered to be foreign nations and they didn't owe allegiance to the United States but they owed allegiance to their tribes. They were considered to be foreign nations. In other words they're considered to be foreigners not owing allegiance to the United States. Senator Trumbull who had been the author of the Civil Rights Act of 1866 came to the support of Senator Howard and said yes subject to the jurisdiction meant owing allegiance to the United States and not owing allegiance to any other country, owing complete allegiance to the United States, subject to the complete jurisdiction of the United States. And that's what we take to mean to be the meaning of the jurisdiction clause of the 14th Amendment. It doesn't mean subject to the laws of the United States or merely subject to the courts of the United States. It means owing allegiance to the United States, being subject to complete jurisdiction of the United States and the exclusion of those who are not subject to birthright citizenship means those who owe allegiance to foreign nations who are subject to foreign nations - they are excluded. And I presume that means the children born to illegal aliens whose parents owe allegiance to other nations would be excluded from jurisdiction of the United States.

Rosen: [00:06:53] Professor Amar in your separate statement on the interactive constitution you strongly disagree with this interpretation and you say anyone born in America under the American flag is a citizen even if his parents are not citizens and indeed even if his parents are not here legally. Tell us why you believe that is the case.

Akhil Amar: [00:07:11] It's not just I who believe it it's basically I would say candidly I'd be very shocked if if that view were not held by every single member of the current United States Supreme Court and then that includes my student Brett Kavanaugh and many people that I work pretty closely with and it includes basically virtually every constitutional scholar who teaches constitutional law in a law school, left right and center who has weighed in on this, people who are law trained from Michael McConnell, a George W. Bush distinguished appointee to the bench now professor at Stanford, my collaborator in a recent op ed Steven Calabresi, the founder of the Federalist Society, other leading Federalist Society people like George Conway who is the spouse of Kellyanne Conway who works for President Trump. So this is actually the- the virtually every opinion issued by the executive branch of government, I can quote several, and leading Supreme Court opinions and so it's really the consensus view of lawyers left right and center. And by the way if the argument that we've just heard is that illegal aliens owe their allegiance to other countries well actually that would be true I guess of legal aliens too that they- and some of them may not be green card holders, they may be citizens, they may seem- they may be still students, they may be visitors on tourist visas, and other things. I myself was born in Ann Arbor Michigan and my parents at the time, they weren't here illegally but they also weren't United States citizens. So I've thought about this an awful lot and I've studied it a bit. So let me give your audience some general background and it's a mistake to start as late as 1866 or 1868. Let's start with that landmark opinion by the Court of Chancery of New York. And I'll tell you why we're starting there because Lincoln's attorney general thinks that this is the key passage and he, in 1862, Lincoln's Attorney General, Bates, in 1862 says people who are born in America of alien parents are citizens of the United States. That's in1862 responding to Dred Scott. And he cites, this is actually what he says in his opinion of the attorney general in 1862: I am quite clear in the opinion that children born in the United States of alien parents are citizens of the United States. And then he says I might sustain this principle by referring to longstanding principles of English common law that apply in modified form in the United States. But all this has been well done by assistant vice chancellor Stanford in the case of Lynch v Clark. And he cites this case of Lynch v. Clark. It's a new york opinion, 1844, and Lincoln's attorney general says this is the key decision. And here's what that decision says I'm quoting. Basically everyone born United States is a citizen with quote the exceptions are the children of ambassadors who are deemed to be born within the legions of a foreign country. Here's the bottom line payoff. Upon principle therefore - this is the judge in 1844 - I can entertain no doubt that by the law of the United States every person born within the United States whatever the situation of his parents is a natural born citizen. No one inquires further. No one asks whether his parents were citizens or were foreigners. It's enough that he was born here. Whatever the status of his parents and again he's made an exception for children of foreign ambassadors and he's also appealing to English rules that say, Oh when there's a foreign army that's occupying territory that might be different as well. So that's 1844 long before all of this. Dred Scott comes along and says oh blacks can't be citizens even if they're born in the United States, and Bates, and Lincoln thinks Dred Scott is a wrong decision. And he is elected president and he has his attorney general weigh in in 1862 10 opinions of the attorney general at 328 and it's just a one paragraph discussion by Bates. He follows it up later and the question is citizenship - this is the issue - quote citizenship of children born in the United States of alien parents. He says it's clear it's obvious - that's 1862 - and then he follows it up with a longer opinion later in 1862. But then the question is can the executive just do this on his own? The Supreme Court has said one thing can the executive on his own say something else? Remember that question audience because it's going to be the question for Trump because the Supreme Court will have weighed in on my side later in our conversation. And so that's why you get the statute in 1866 which as you've just heard says and I quote All persons born in the United States and not subject to any foreign power excluding Indians not taxed are hereby declared to be citizens of the United States. So that's an 1866 statute but by mere statute can you modify the rule of Dred Scott which seemed to say otherwise? That blacks can't be citizens. And so then you have the first sentence of the 14th Amendment. That's a codification of the Civil Rights Act of 1866 which is a codification of what Bates said which is a codification of what the New York Court of Chancery said in 1844 which goes back to all sorts of English principles that say as a general proposition even if you're a child of aliens you are a citizen. And then talk about the cases that are decided there after that confirm all of that, with two basic exceptions in America. One is children of diplomats and the other is tribal Indians who basically are in a quasi sovereign separate enclave in the 1860s. And then in England there was an exception that doesn't really matter to America at all that the cases talk about which is what happens if you have people born behind enemy lines when there's actually an occupying army the way the United States occupied Germany say after World War II. But that's not really relevant today. And that's what the cases are going to say. And no one in the reconstruction Congress clearly said anything otherwise. And the- and when I I emphasize all of this, this was the settled understanding by the Republican lawyers before the 14th Amendment was adopted. It's based on Bates, who was basing it on this 1844 case that he explicitly references.

Rosen: [00:14:34] Professor Erler, You have argued that the reconstruction Congresspeople did think differently and saw broader exceptions than just the children of diplomats and tribal Indians. And you have pointed to a statement by Senator Jacob Howard: This will not of course include persons born in the United States who are foreigners, aliens - I'm reading from the whole quote - who belong to the families of ambassadors or foreign ministers accredited to the government of the United States, but will include every other class of persons. So that's the quotation from Senator Howard. Tell us why you think that that supports broader exceptions for birthright citizenship than Professor Amar suggested.

Erler: [00:15:14] Well I think it supports the broader restrictions because Senator Howard and Senator Trumble who is the chairman of the Senate Judiciary Committee and many others said so. No one in the reconstruction Congress said that the 14th Amendment adopted the English common law of citizenship. In fact it could not have adopted the English common law of citizenship for one very significant reason: the English common law of citizenship was rejected by the Declaration of Independence. Let us not forget in Blackstone there is no such thing as citizenship. Blackstone says that anyone born within the protection of the King owed perpetual allegiance, perpetual allegiance as a debt of gratitude to the king that was perpetual subjectship. There was no citizenship. Blackstone Does not use the word citizen in his four volume treatise on the English common law so that the Declaration of Independence says that the American people have absolved their allegiance to the British crown. This was a violation and a rejection of the English common law. It is impossible to believe that the American founders were adopting the English common law as the basis of American citizenship at the same time that they were foregoing or absolving themselves of allegiance to the British crown; in other words they were rejecting the English common law. They base American citizenship on consent. The consent of the governed and the declaration says that just powers of government are derived from the consent of the governed and no one could be ruled or become a citizen without his consent. I think it's very very very clear and the Framers took consent very very seriously, very seriously. Social contract basis of government was the idea that suffused the entire founding. The idea that the Dred Scott decision rejected jus solis as the basis of citizenship is simply wrong. The reason that Chief Justice Taney said that blacks of African descent could never be citizens was the fact that in his opinion the Declaration of Independence didn't include blacks of African descent and because they were not included in all men are created equal. He said they were not part of the people who framed and ratified the Constitution and he was mistaken in that regard because five states allowed free blacks to vote in the election that ratified the Constitution and the dissent in the Dred Scott case pointed this out, that an historical error that Taney made, that free blacks did in fact participate in the election that ratified the Constitution. So they were part of the people who ratified the Constitution. This was a massive error that Taney made but it wasn't the Dred Scott decision that repealed jus solis. It was the Declaration of Independence that rejected the common law basis for citizenship and no one in the reconstruction Congress ever suggested that the English common law was to be the basis of American citizenship. And this business about consensus - there have been consensus among lawyers and legislators from time to time for example that thought that separate but equal was the law of land and should be the law of the land. That doesn't make any difference. We believed that at one time when we no longer believe it. We see it was bad constitutional law at the time and it is still bad constitutional law. And I think birthright citizenship was never intended to be part of the 14th Amendment and it should not be part of the 14th amendment today. It was never intended by the framers to be part of the 14th Amendment. And I think it should be repealed. Most modern industrial nations have rejected birthright citizenship. England in 1981 stopped its birthright citizenship because Blackstone said birthright citizenship was a part of a feudal inheritance. It was the relation of master and servant. It was not suitable for a republican form of government and I think our framers realized that. By the way, Senator Trumbull who is the author again of the Civil Rights Act of 1866 said that he thought of using the word allegiance instead of- in the Civil Rights Act of 1866. But he found that it was a term of art under the English common law and that there was such a thing under the Common Law as temporary allegiance that we would- if he had used that word in the Civil Rights Act we would have had to have given birthright citizenship to those who were only temporary in the country. Under the English common law those who had temporary allegiance instead of perpetual allegiance, those who were born under the protection of the king had perpetual allegiance by the way which could never be put off or cancelled in any way without the permission of the king. But those who were in the country in the country temporarily had temporary allegiance and their children were not birthright subjects of the king. But if we had used that language in America in the civil rights act of 1866 those people who were temporarily in the country would have been given birthright citizenship. And Senator Trumbull said we had no right and we had no need to give those people birthright citizenship. And that's why he didn't use the word allegiance in the civil rights act. And that's the same reason that the framers of the 14th Amendment didn't use the word allegiance in the 14th Amendment. They chose the word jurisdiction and jurisdiction was the Republican substitute for the word allegiance which occurred in the common law. It was a rejection of birthright subjectship and a feudal relic that was rejected by the Declaration of Independence and the American framers. It should be recognized that birthright citizenship or birthright subjectship as it appears under the common law has to be gotten rid of.

Rosen: [00:22:57] Thank you so much for that. So just to review some of the terms the important terms we're talking about Professor Erler you've just argued that jus solis which is citizenship determined by place of birth as opposed to jus sanguinis which is citizenship determined by blood was embraced by the English common law and the idea of birthright citizenship or subjectship and you say that that notion was repudiated by the Declaration of Independence which instead based citizenship on the consent of We The People. Professor Amar your response to all of those arguments.

Amar: [00:23:30] Well there's some similarities, some overlap between us but I'll go through what they are but none of that comes close to establishing this utterly outlandish proposition that people born in America of alien parents are somehow not citizens. Here's some common ground: That the rules in England are a little different. In England basically they don't- at the time of the founding or even at the time of the Civil War they have an idea of being subjects to the king and not quite an American idea of citizenship. In England they have an idea of perpetual allegiance and the way you're born you can't change that. Just like you can't divorce your parents you can't you can't unilaterally dissolve a tie to that the king under whose protection you're born. We Americans I agree with the professor don't believe that we think that you actually can renounce your allegiance to the Crown and for example become Americans. So that's different. That's not the question though of whether there's birthright citizenship. It's whether you can renounce your birthright and whether you're born in the United States of American parents or born in the United States a foreign parent actually naturalized, and then later choose to to go to some other country, to go back to your original country, it's your right to be a citizen and you're allowed to repudiate that. And the English don't let you do that. So that's a difference. But that doesn't answer the question whether it's your birth right to be a citizen on the day you're born and asked to consent of the governed. Consent is given by the 14th Amendment itself, by the Civil Rights Act of 1866 itself, by repeated statutes thereafter including one in 1952 saying it is the policy of the United States that people born here under our flag are citizens whether their parents are aliens or not. In that way it's a little bit like the English rules although there are you can renounce it and it's citizenship not subjecthood. But then the question is Under what conditions did we the people grant that consent. And the answer is yes we have to look at those words subject to the jurisdiction. Now I'll come back to that in just a second. Here's a second area of agreement. Dred Scott said some preposterous things. And it was wrong. We're in agreement about that. Now let's go through actually again what Americans say on this. In 1844 this landmark New York decision says following the policy of our nation that America has been to bestow the right of citizenship freely and with a liberality unknown to the old world. We're going to be different than the old rule we're going to give citizenship more broadly and just to repeat no one - here's the sentence - I can entertain and no doubt, says the judge in 1844, that by the law of the United States every person born within the Dominion and allegiance to the United States whatever the situation of his parents is a natural born citizen. No one inquires further. No one asks whether his parents were citizens or foreigners. It's enough that he was born here. Whatever the status of his parents. And remember he had earlier made an exception for children of ambassadors. And in that he's borrowing from English law. But he's saying it's different from English law because its citizenship. And it is renouncable if you want it to be. That's 1844 then 1862 Bates says it's clear. He says I'm quite clear. I mean it's hard for the language to be, the English language to be more clear, that citizens born in United States of alien parents who've never been naturalized are native born citizens of the United States. There is nothing in 1866 that has been quoted on the other side that repudiates any of that. In fact that the quotations that are used are taken out of context. they're actually misrendered. A word is is stuck in, a word "or" that even the National Review actually published some of this stuff actually backed away from and repudiated. Show me a clear statement saying all of that's wrong. Bates is wrong. Lincoln's attorney general was wrong. 1844 was wrong. You will not find it. And then there are later cases, there are landmark opinions by the Supreme Court. Wong Kim Ark, Plyler vs. Doe that reaffirm that subject to the jurisdiction basically means alien armies and children and ambassadors and Native Americans living in tribes. Now I want to say two other points because they actually are key about the original intent. In the 1860s there are racists out there in the 1860s and they say now wait a minute this birthright citizenship. Do you mean that it's a child of a Chinese person who's not able himself to be a citizen but their kid if born in the United States is a citizen. The framers of the 14th Amendment say yes that's exactly what we mean. The status of the parent isn't communicate to the child. So even though the parent is not and cannot be a U.S. citizen the child born of that parent will be a U.S. citizen under the rule that we're proposing. So they try to play the race card about gypsies the Roma and Chinese and explicitly the Republicans say no we're with Bates. We're that 1844 ruling. Second there are people in the United States in the 1860s who actually are in effect illegal aliens. Dred Scott says it took Times about two things one whether free blacks can be citizens and I agree with Professor Erler that they can and that the dissent is right and Dred Scott and and blacks voted for the Constitution and fought it at places like bunker hill. But now let's talk about slaves not free blacks but slaves and slaves. The entire purpose of the 14th Amendment is to ensure the core purpose that children of slaves are American citizens. Dred Scott says if you're descended from slaves you can't be an American citizen. The 14th Amendment says and the civil rights act of 1866 says on the contrary whether you're born as slaves or not if you're born in America you're an American citizen. Now some of the slaves that they're talking about were technically here illegally. They were smuggled into the United States in violation of a congressional statute passed in 1807. It's the act of March 2nd 1807 that prohibits slave importation from Africa. And yet people were imported from Africa in violation, slaves, in violation of that. Conservative estimates put that number in the tens of thousands. There are tens of thousands of illegal aliens in America. There were slaves smuggled in and it's utterly clear that the children of those illegal aliens were citizens. By the Civil Rights Act of 1866 and by the 14th Amendment. And so now we have two different examples. And by the way some of the people who are illegally here in the United States today were actually the product of sex trafficking and international slavery regimes and the like. So even today there are unfortunately people in America who are here- they were brought here perhaps illegally but their children are every bit as much, if they're born in the United States, citizens of the United States, as children of slaves in the 1860s. So two different examples where they clearly understood that the status of the parent would not be visited upon the child and that's what Bates and the 1844 thing says: we don't ask about the parents. We may not even know who the parents are. A foundling born in Kansas with a- and you find the Foundling and it's one day old and there's the umbilical cord sticking out, you don't know who the person's parents are but you know they were born in United States. We don't ask about the status of the parent - whether they're gypsies and can't be U.S. citizens or Chinese people- Chinese aliens who can't be united states citizens - their children are citizens whether or not they're- unless they're the children of diplomats. And children of slaves some of whom were here illegally, it doesn't matter. If they're born in the United States they are citizens of the United States. This is these are core meanings of the 14th Amendment and the civil rights of 1866. And I promise you that that's exactly what the court says in great detail, the United States Supreme Court, in a case called Wong Kim Ark. It goes through and and maybe in the next go round I'll you know quote you passage after passage after passage from Wong Kim Ark basically saying subject to the jurisdiction just means basically alien armies, children of diplomats, and they appeal for all of that to English law. They say English law doesn't apply wholly but in these respects actually it's- we call them citizens not subjects, you can renounce not like Britain, but in other ways actually yes we are borrowing the law of the soil. If you're born in America you're a citizen; unless your parents were diplomats, you're born behind enemy lines in an occupying army or you're a member of an Indian tribe that's like its own separate nation within the United States. And that's what subject to the jurisdiction means as Wong Kim Ark- the more modern Supreme Court has endorsed this, Plyler vs. Doe. So the text of the Constitution is clear, the history of the Constitution is clear, the precedents are clear. They all point in the same direction. Oh and by the way even if all of that were wrong there are statutes more recent than 1866 that say the same thing; statutes passed for example in 1952 after Wong Kim Ark is on the books say, here's what subject to the jurisdiction means, saying that. And the idea that a president unilaterally could disregard these statutes and the Constitution. This is an extremely eccentric position bordering on the crackpot.

Rosen: [00:34:06] Thank you very much for that. Professor Erler of course your response to a number of points Akhil made including: he cited that the quotation from Senator Howard that you've relied on, also relied on by Michael Anton in the National Review. He's the spokesperson for the National Security Council on whom President Trump relied, and Akhil Amar, suggesting that there was an "or" inserted into the quote that changed its meaning, the quote is: this will not of course include persons born in the United States who are foreigners, aliens and then Mr. Anton inserted an "or", who belong to the families and ambassadors. And then Professor Amar also introduced the Wong Kim Ark case. So your thoughts about why that case which applied to the children of illegal aliens does not apply to the children of illegal aliens would be great.

Erler: [00:34:57] I'm the one who originally inserted the "or" in that quote because I thought it clarified it and I still think the bracketed "or" is justified. I wrote a response to the editors of National Review which they posted justifying the use of the "or," using Jacob Howard's own words because after all he said that the reason that he didn't repeat the language of the Civil Rights Act saying Indians not taxed are excluded was that he regarded Indians as foreigners. So in that statement that he made he resisted the Indians in the 14th Amendment language because he regarded them as foreigners inhabiting a foreign nation, he said. We've always thought of Indians as being members of foreign nations and so they were part of the foreigners that he included there. And I gave plenty of other evidence including the Civil Rights Act of 1866 which he said, those who are subject to a foreign power, we are not eligible for birthright citizenship. I don't see how you can get any clearer than that. But I think that Professor Amar sees the 14th Amendment as somehow repealing the Civil Rights Act of 1866. The Civil Rights Act of 1866 does in fact exclude those who are subject to a foreign power from birthright citizenship so that people who come here illegally are obviously subject to a foreign power and the Civil Rights Act excluded them from birthright citizenship, and now he would say that the 14th amendment includes them in birthright citizenship. So you have an incompatibility between the 14th Amendment and the Civil Rights Act of 1866. And I don't know of anyone who makes that argument. Now I don't know what statutes that the professor is referring to but I don't believe that there is any case on point that says except in dicta that says that children of illegal aliens are considered to be citizens of the United States. I don't think there is a case and I don't think that Plyler vs. Doe does say that. After all the children that were involved in that case were in fact illegal aliens. And so I don't think that case is on point. Let me just say something about Wong Kim Ark, the argument in Wong Kim Ark, we have to remember that his parents were legal aliens. They were in the country legally but they were not eligible- they could never become citizens of the United States. They were barred from citizenship by treaty and by statute and they professed allegiance to the Emperor of China. So Wong Kim Ark was born in the United States and the question was whether or not he was a citizen of the United States. Now Justice Gray who wrote the majority decision there said that the 14th Amendment was premised on the English common law. But his argument there was the perfect nonsequitur. He said this: that the framers of the Constitution were perfectly aware and had studied the English common law and of course everyone concedes that the legal education at the time largely consisted of studying the English common law, so that's no surprise, but because they had studied the English common law we must read the Constitution in the light of English common law and that of course that makes no sense. Madison himself had said that whatever, in the Declaration of Independence, whatever in the common law that contradicts the principles of the Declaration of Independence was repealed by the principles of the revolution. Havari argued that birthright subjectship is utterly incompatible with the principles of the Declaration of Independence. So there is no notion that birthright subjectship survived the principles of the Declaration of Independence. As a matter of fact, Chief Justice Fuller's dissent in Wong Kim Ark makes precisely that argument. In fact it used to be a principle of constitutional construction prior to Wong Kim Ark that the principles of the revolution repealed anything in the English common law that was inconsistent with those principles. I think that principle of constitutional construction should have prevailed in the Wong Kim Ark case. The idea for example Justice Gray noted that was in the English Common Law only talk about subjectship, but he said something utterly fantastic that for our purposes subject and citizen were convertible terms- subject and citizen were convertible terms- so that wherever we see subject in the common law we can read citizen. Now I submit that this kind of language, that citizen and subject are convertible terms, in previous years, in centuries long ago, might have been language that would have flattered kings but in a Republican form of government, this is simply outrageous to speak in those terms. Madison would never have said for example that there is no difference between a monarchy and a republic. Thomas Hobbs for example might have agreed that since a monarchy is sovereign and a republic is sovereign there is no essential difference between the two forms of government. But the framers of our Constitution knew well the difference between monarchies and republics. So the idea that citizens and subjects were convertible terms is an absolute outrage and that alone should give us pause and perhaps lead us to rethink whether Wong Kim Ark should be repealed, as I think it should be repealed, that Chief Justice Fuller in that case had by far the superior argument. It was a 6 to 2 opinion but the majority opinion was so fraught with difficulties that I think it needs to be revisited. And the idea that the 14th Amendment rests upon the English common law is an outrageous misreading not only of the debates, the reconstruction debates but the Constitution itself. I think this ought not to stand.

Rosen: [00:42:47] Professor Amar if you could tell us more about the Wong Kim Ark case, why you think that it covers the children of illegal aliens, and also tell us about the Supreme Court's other relevant case law including the Rios Panetta case from 1985 which assumed in dicta that the parents of two U.S. born children were U.S. citizens, Plyler and Doe, where all nine justices agreed that no plausible distinction with respect to the Fourteenth Amendment jurisdiction can be drawn between resident aliens whose entry into the United States was lawful and resident aliens whose entry was unlawful. And finally on the case law tell us why you began by saying that you think that all nine justices of the current court would hold that birthright citizenship extends to the children of illegal aliens.

Amar: [00:43:31] Thanks Jeff. So let me just- I think Professor Erler realizes that he has to basically say that the Supreme Court didn't know what it was talking about in Wong Kim Ark, and he's right. Sometimes the Supreme Court gets it wrong, but not here I think. Let me just read you one payoff passage and the reason it didn't get it wrong Jeff is because Wong Kim Ark is saying the exact same thing that the New York Chancery Court said in 1844, that Lincoln's attorney general said in 1862, and that the Republican Party- it's the same Lincoln's Republican Party- are saying in Congress in 1866 unless you misread their quotes OK? Bates and the Republican Party basically it's a pretty cohesive party back then and they they have a certain view. They understand that England is different from America in a couple of respects. But when they say citizens are the same as subjects they mean for the purpose of birthright citizenship, not for everything else. Yes citizens vote in a republic and subjects you know inherit a crown. Yes in Britain you can't basically divorce the King. You can't divorce Britain even if you want; in America you can leave. Those are key differences between the American republic and the Brits; irrelevant to the question at hand which is are we going to have in effect a law of the soil like Britain or law of blood like a lot of European countries? And what the judge in 1844 says is we're going to have citizenship, not subjecthood, but citizenship, and it's renouncable by soil and that's what Bates says in 1862 and that's what the Republicans say in their statute in 1866 and in the Constitution, they're saying the same thing, not different things, Professor Erler. I don't think they're saying different things. They're saying the same thing. And that's what Wong Kim Ark says as well. They're all of a piece. And to repeat, the two differences: you can renounce your citizenship. That's what makes America great. And you're a citizen and not a subject, but it's a birthright idea with the same exceptions as the English have for ambassadors and conquering armies, and America adds one more: we've got tribes within our country or quasi sovereign nations in a way that Britain doesn't. Here's what Wong Kim Ark says: After- I could quote a lot- the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory. So you see yes they are saying we are applying the English rules to the American context. And so it just says we're gonna have a new exception for Indians. We're going to call it citizenship and not subjecthood. We're going to make it renounceable. But in this deep point about law of the soil rather than law of the blood we're affirming the- the 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territories including all children here born of resident aliens with the exceptions or qualifications as of the old rule itself of citizens of foreign sovereigns or their menace children of foreign sovereigns. That would be kings or their ministers or born on foreign public ships or of enemies within and during a hostile occupation as a part of our territory. So that's what all the Blackstone references and all the rest and with the additional thing, with the single additional exception, so just like the Brits you know, there it's the subject, here it's citizen. They're not renounceable, here it is, just like the Brits with the same exceptions for foreign diplomats and concrete armoured armies with the single additional exception of children of members of Indian tribes owing direct allegiance to their several tribes. The amendment in clear words and in manifest intent includes the children born within the territory, the United States, of all other persons of whatever race or color. Every citizen or subject of another country while domiciled here is within allegiance blah blah blah. So we don't distinguish between children of aliens and children of citizens. And that was asked in the 14th Amendment debates about the Chinese, you see, so Wong Kim Ark is saying the same thing as the Republicans were saying in 1866, unless you misinterpret what they're saying which is the same thing that Bates said which was the same thing that this 1844 case said building on English authorities. So, and then the Supreme Court of the United States has repeatedly reaffirmed this later on in cases like Plyler vs. Doe as you mentioned in the modern era. And the reason I feel so- Jeff you asked me why I feel so confident about the justices- is because I did go to law school. I'm law trained and I'm in regular conversations with the justices. I'm actually having a conversation tomorrow with one of them about something. I did testify for Brett Kavanaugh. I'm a Democrat. He's a Republican. Constitutional law is not partisan. I've co-authored with- clerked for one person who's on the Supreme Court now, Steve Breyer- my co-author in a recent piece in TIME magazine/dot.com Calabresi who clerked for another Supreme Court Justice, Antonin Scalia. He's a Republican. I'm a Democrat, but I'm happy to give anyone- I'm happy to take any action you've got for me. We can place a nice big bet on this because the precedents are clear, the text is clear, the original intent is clear. The New York Times had an op ed by the pre eminent scholar of reconstruction two days ago on this topic. His name is Eric Foner. He wrote- a Columbia professor, former president of the organization of American Historians. He is by acclamation the pre-eminent scholar of reconstruction and he says this is clear. It's not ambiguous. It's clear. That's what Eric Foner says. That's what constitutional scholars who teach in law schools and are quoted by the Supreme Court, cited by the Supreme Court, followed by the justices, from Michael McConnell and Stephen Calabresi on the right to Larry Tribe and Walter Dellinger, a former solicitor general of the United States, on the left. I know of no constitutional law trained person regularly cited, in a law school, in a law school, because you know we actually- we do this thing called law day in and day out and we know we how to read cases and it's not a fair read in the case to say, because they say, you know, subjects and citizens are the same thing that they mean it for all purposes. They mean for the purpose at hand which is birthright entitlements; they don't mean it for Republicanism or for renounceability. So that's what we do. And all I'm saying is I'm about as confident about this as I've been about anything else. I have been cited 37 times by the United States Supreme Court, by justices across the spectrum, probably more by the Conservatives than by the Liberals. I I clerked for a liberal, Steve Breyer. So the precedents are clear. They're not in doubt, there are dissents but those are dissents. The text is clear. But what does it mean to be subject to the jurisdiction, it means actually you're born in the United States and if you misbehave, oh we're going to apply our laws against you. We may not even know what foreign country your parents came from, we may not even know who your parents are. You might be a foundling. You're not going to have DNA tests about who your real father is biologically or not but if, by the way, if we did, that would be a can of worms because all sorts of people aren't necessarily the biological children of the person that they think they are, of the father that they think they have. So it's a nice clean, clear rule: if you're born in the United States under the flag you're a citizen, with these two exceptions from England - conquering armies and foreign diplomats and a third one, to deal with a unique American situation which we don't have anymore which is tribal Indians. The text is clear. The original intent is clear. The history from 1844 on is clear and the precedents are clear.

Rosen: [00:52:34] Well in light of the Supreme Court decision that could lead states to legalize sports gambling, I don't know whether We the People can facilitate that. I'm not going to take that risk but I will say that at the end of this fascinating debate, it's time for closing arguments, and Professor Erler the first one is to you. In just a few sentences can you sum up for our audience why you believe that the president does have the authority by executive order to end birthright citizenship?

Erler: [00:53:02] Well I happen to be one who does not think that the president has authority to issue an executive order to end birthright citizenship. But I think he's imitating- trying to imitate President Obama who said, when Congress won't act, well I have a pen and a phone to act in their stead. But I don't think that President Obama ever acted constitutionally with his executive orders. And I don't think the president can act constitutionally here either. But I think Congress can act by statute to end birthright citizenship. And I think that they should. But I must say that Professor Amar's last argument was what Madison might call an ingenious sofism. Plenty of members of the reconstruction Congress wasted a lot of breath talking about allegiance when they talked in terms of jurisdiction. It's not enough to take up the latest edition of Black's law dictionary and look under the entry of jurisdiction to figure out what the framers of the 14th Amendment meant by jurisdiction. They said plainly what they meant by jurisdiction and it it's not what Professor Amar says they meant by jurisdiction. They meant something specific: not owing allegiance to any other country, being under the complete jurisdiction of the United States. And when Justice Gray said that the 14th Amendment adopted the way of the English common law on citizenship or subjectship, he said what no member of the reconstruction Congress ever said. I have read the debates, more than once, and there is not a single member of the Congress who ever said that we are simply adopting the English common law of subjects. We're drawing upon the ink well we're converting the English law subjects into the American law on citizenship. That was never the case and I don't think you could ever make the argument that that was the case. Justice Gray said look, Wong Kim Ark, he comes of age, if he wants to expatriate himself back to China, he is free to do so. Did he not understand that expatriation was against the English common law, that he was contradicting himself, and he contradicted himself many, many times in his opinion when he said that the 14th Amendment adopted the English common law? All we have to do is substitute citizen for subject and everything is going well. The opinion is simply absurd. It's as absurd as any opinion ever was, almost as absurd as Dred Scott. The Dred Scott opinion of course is too vicious to be merely described as absurd. But Wong Kim Ark is just as contradictory. I must say you can't simply rely on that opinion for any anything good and I disagree. The Wong Kim Ark opinion is expansive but it's not expansive enough to say that it is authoritative enough to include the children of illegal immigrants to be included as American citizens. I just do not believe that. There has been dicta, yes, but no case on point.

Rosen: [00:57:01] Thank you so much for that. Professor Amar, last word to you. Professor Erler helpfully made clear that he thinks that Congress could end birthright citizenship by statute, but the president could not do so by executive order. Tell us why you believe that in fact the Constitution compels recognition of birthright citizenship.

Amar: [00:57:19] Great so let's not lose track of that very important and helpful point that he did make: that what President Trump is proposing is flatly unconstitutional. That's actually the bottom line. Even though he and I disagree on other things and I actually think that some of this stuff is very very well settled, and, you know, it's kind of, you know, round earthers versus flat earthers, on some of this stuff. That's actually my view. And there are lots of things that are fairly debatable among constitutional scholars and judges, but this actually in general isn't that close. But even for that, ok, we are agreed that what President Trump is proposing, Professor Erler and I are in agreement that that's flatly unconstitutional at present, can't do this unilaterally. Good. Thank you for that. Very important. A note of agreement. Two final points: If you say subject to the jurisdiction, a kid of an illegal alien is possibly subject to the jurisdiction of some other country that he's never been to, never will be to, maybe. OK. But then that would be true of a legal alien too, not just an illegal alien. So if the test is somehow, is there any other country that could possibly regulate, are you born a dual citizen or something? And that makes you now not an American citizen, because let's imagine your parents are legal aliens. Let's imagine actually that they're permanent green- residents, they're green card holders. But you are on the day you're born not just born an American under the 14th Amendment but you also might inherit a dual citizenship from Canada or England or some other jurisdiction. So if he says are subject to jurisdiction means you can't- there has to be no other foreign government possibly in the picture. Wow. That's a radical proposition. That's true not just of children of illegal aliens, the children of legal aliens, not just people on student visas, not just people who are tourists, but actually permanent green card holders even. Wow wow wow. And now you see the clear contradiction between that and Wong Kim Ark on its facts. And he says oh the Supreme Court, they don't know what they're doing. He's right. Sometimes they don't. But I'm not sure that it's- that his- that Pandora's Box once you open it can be limited just to children of illegal aliens and it's a thin edge of a very big and dangerous wedge that I think runs squarely into Wong Kim Ark. And the third point, my final point is there is no- I've read the debates about the 14th Amendment too. I've written a bunch of books actually on the 14th Amendment and not just this one sentence, and I emphatically disagree with his account of actually what they say and don't say. And oh by the way Eric Foner is on my side. I'd rather have him than any other single person. And I actually think virtually all the reconstruction historians whom I know, and I know a lot of them, you know, would be on my side. Here's the point. Their conversation doesn't begin in 1866. They are building on what Bates has done in 1862, in their statutes in 1866 and their amendment, and Bates is building on an 1844 case that he explicitly references that is based on English rules of soil. So all this stuff about English rules of soil. You might not like it Professor Erler. You might think it collapses you know subjectship and citizenship, but on the relevant question actually which is not subjecthood versus citizenship, and it's not whether you can renounce your birthright or not, but on the question basically are we in America going to be a law of the soil place or law of the blood place? 1844 says we're a law of the soil place. 1862 Bates says we're a law of the soil place. That's what the framers of the 14th Amendment actually say again and again and again, even for children of Chinese people who themselves can't be citizens but the children if born in America can. And there are only three exceptions and two of them come from English law, all the way back in Blackstone: conquering armies and foreign diplomats and we add a third for American Indians in tribes because this is a different regime.

Rosen: [01:01:45] Thank you so much Akhil Amar and Edward Erler for an extremely vigorous but also extremely deep, specific and illuminating debate about this hotly contested constitutional topic. Dear We the People listeners you have been treated to what is indeed a deep dive into this important case and your homework is to take one of these statutes or cases that was discussed, read it and see if you agree with Professor Amar or Professor Erler and write to me to tell me what you think. Akhil Amar Edward Erler thank you so much for joining.

Amar: [01:02:21] Thank you.

Erler: [01:02:22] My pleasure.

Rosen: [01:02:27] Today's show was engineered by Kevin Kilbourne and produced by Jackie McDermott. Research was provided by Lana Ulrich and Jackie McDermott. Please listen and subscribe to our companion podcast Live at America's Town Hall. This is the audio feed of all of our phenomenal shows and public programs both in Philadelphia and around the country. They include scholars and thought leaders from Michael Beschloss and Doris Kearns Goodwin to Kenneth Starr whom I'm interviewing tonight, and they're just a wonderful companion to We the People for those of you who are hungry for constitutional education. And of course if you like our podcast tell your friends and colleagues and leave us a rating on Apple or wherever else you get your podcasts. As always dear We The People listeners please remember the National Constitution Center is a private nonprofit. We can't put on these podcasts or do any of the really important educational work we do unless you, the people that is We the People who love our podcast, become members and support us and sign up and tell your friends and tell their friends and continue to write to me to tell you what you think of the podcast. Your engagement is so meaningful and I'm so honored that you are learning with me about the Constitution every week and I want you to show that passion and commitment by joining the National Constitution Center at our website. Please go to ConstitutionCenter.org to learn more. On behalf of the National Constitution Center, I'm Jeffrey Rosen.

First Amendment: Speech

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Constitution Day Kit
Constitution Day Kit
Everything you need for a Constitution Day lesson and activities. Comes with lesson plan, DVD, pocket constitutions and more!