Inside Golden State Politics

Will The Good Guys Finally Win?

• Nancy Boyarsky

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We ask Berkeley Law School Dean Erwin Chemerinsky whether the United States is being hit by a constitutional crisis under President Trump and what it might mean for the country's future.

Bill:

Welcome to another episode of Inside Golden State Politics. I'm Bill Boyarsky, former city editor and columnist for the Los Angeles Times. With me is Nancy Boyarsky, our producer director.

Sherry:

and I'm Sherry Bebitz Jeffey, political analyst and self styled media maven, coming to you from Googling real estate deals in New Zealand. I didn't think I'd ever need a plan B, but with the lunacy throbbing through the United States these days, it couldn't hurt. Over to you, Bill.

Bill:

Our guest is Dean Erwin Chemerinsky, the UC Berkeley School of Law, formerly Bolt Hall.

Sherry:

Let's not get into that argument.

Bill:

Poor Bolt. Anyway, Erwin is the expert On the Constitution on what's happening to the country today the Trump administration all the things we talk about and all the things we worry about. Jerry, you got a question?

Sherry:

I just like to start with an easy question. Dean Irwin. What is a constitutional crisis and are we in one now?

Erwin:

Let me say what a pleasure it is to get to talk with both of you. There is no definition of a constitutional crisis. The Constitution doesn't use that phrase. No law uses that phrase. Let me explain why I think we are in a constitutional crisis, but it could also become a worse constitutional

Sherry:

Oh, my God. No.

Erwin:

The constitutional crisis now is created by an imprecedent number of executive orders. That violate the constitution and a president who's threatening to ignore court orders to comply with what the judiciary has commanded. That's enough to create a constitutional crisis, but I think it's important to realize that constitutional crisis. Isn't binary. It's not we're in it or we're not. There's no magic moment where we crossed the line. I think we are in a constitutional crisis, but it's a continuum and it's something to be a lot worse. If the president chooses to systematically defy court orders. That would be a constitutional crisis of unprecedented magnitude.

Bill:

Are we in it today as he deals with the deportees to, el Salvador then to Venezuela in defiance or scorn of court orders. Isn't that the beginning of a constitutional crisis?

Erwin:

It is on many levels. Federal law says that before a person can be deported, they have to be given due process. And it says they have to be deported to the country that they came from. President Trump, to circumvent that, invoked a statute from 1898, the Alien Enemy Act. It's been used only three times in history. In the War of 1812, World War I, and World War II. And the reason is because it says if the United States is in quote, a declared war, or it has been invaded by an enemy or an invasion is imminent, then the president can remove from the country, non citizens. Specifically males over the age of 14. It is not plausible to argue that removing between 200 and 300 people from Venezuela fits within the scope of the alien enemy act. Nonetheless, the president did it. A judge ordered that the president not do this. The judge ordered even that the planes turned back. The president didn't comply with that order. The Secretary of Homeland Security on Monday, Secretary Homan said, we're not going to listen to what courts or liberals say. The judge in Washington, Chief Judge Boasberg, has repeatedly ordered the Trump administration to answer questions about when did the planes take off? When did they land? And the Trump administration keeps refusing to answer those questions.

Sherry:

Haven't yet.

Erwin:

That's violating the Constitution, federal law, and a judge's order. That to me puts us in a constitutional crisis.

Sherry:

How do we resolve it then?

Erwin:

In this instance, Chief Judge Bozberg keeps giving the Justice Department more opportunities to answer the questions about when did the planes take off and when did they land. I assume if they won't comply, he could hold the Attorney General or the attorneys in contempt of court. But then the problem is If they still don't comply, contempt of court is ultimately enforced by the Department of Justice. If it's criminal contempt, they have to prosecute it. If it's civil contempt, then it's the United States Marshals who are part of the Justice Department who enforce it. So if we get to the point where the court is issued an order and the president defies it, then we're in territory this country has never seen before. Presidents of both parties. Democrat and Republican have always complied with court orders, even when they disagree with them.

Bill:

Now you have a president who has nothing but scorn for these, for the constitution and for these court orders and who has the armed forces at at his beck and call. That I think is scary.

Sherry:

that worries me a lot. It goes back to Andrew Jackson and said, I don't have to listen to the court because. They don't have an army. And

Erwin:

Andrew Jackson never said that.

Sherry:

said it then?

Erwin:

Jackson never said it. Andrew Jackson, nobody did. Andrew

Sherry:

I

Erwin:

is quoted as, Andrew Jackson is quoted as saying, quote, John Marshall made his order, now let him enforce it. That's apocryphal. It was first attributed to Andrew Jackson 20 years after he died. Also, the context of it was a Supreme Court case, Worcester v. Georgia, in 1837. It involved a court order directed at the state of Georgia. There was no court order directed at Andrew Jackson for him to defy. This goes to my point. Presidents have always complied with court orders, even when they disagree. Richard Nixon released the Watergate tapes. Even though it ended his presidency to comply with the court order.

Sherry:

It took a lot to get him to do that. And when he went on television to resign, he didn't say he resigned because of the tapes. He said, I resigned because I've lost my political base. And I don't think Trump would ever have to say that or say it, but here's what you have been saying leads me to think, how do the courts enforce a ruling? They don't have an army and the president does.

Erwin:

But recognize what happens then if the president can violate the constitution and if the president can defy court orders to comply with it, then the president literally can do anything.

Sherry:

That's what Trump believes.

Erwin:

But then the president could take you or me and lock us up in a prison in El Salvador and even if a court order is released. He doesn't have to do it. There's a word for the president. There is a word for a head of government is unconstrained by a constitution or by court orders. That word is a dictator. And what's so stunning is that we're having this conversation and feel that we're on the precipice of that happening. I never thought in my lifetime I would be so afraid for the future of American democracy as I am right now.

Sherry:

I agree totally.

Bill:

Our country came up against this before and during World War II when the president ordered Japanese Americans into prison camps. Not only Japanese Americans, but Italian Americans and German Americans without any trial, without any. Cause for just ship them on trains to the prison camps. Do you see any comparison

Sherry:

He can't.

Erwin:

No, in a lot of ways. First, what the president did there was pursuant to a statute. There is no statute that gives authority here. There was a declared war. Here, there's no declared war. We now regard in hindsight that what we did to the Japanese Americans To be a terrible tragedy. We regard the Supreme court decision that upheld it in Korematsu versus the United States to be a terrible tragedy. And so if this is the path we're going on, it is repeating what we know to be a terrible mistake. And for all of Trump's executive orders, there hasn't been a systematic incarceration of people. So in that way, it's not safe. On the other hand, there are these 200 to 300 people from Venezuela who are being put in a maximum security prison, El Salvador, without any trial or due process, maybe they're really dangerous or maybe they're there by mistake. That's what due process is supposed to figure out.

Sherry:

It seems to me, I'm getting very nervous about this discussion, Erwin, it seems to me, it's blatantly obvious to me that we're talking about the use of war powers in a peacetime situation, and that is obviously unconstitutional, isn't it? But how do we stop it? Where does it get enforced? It seems to me like we're rolling downhill and we can't stop it.

Erwin:

The use of the enemy alien act certainly fits in that the enemy alien act was all about in its own words, declared war or imminent invasion.

Sherry:

Never.

Erwin:

it's only been used in 1812 war, World War I and World War II. Also, I think that if there's a point in which there's demonstrations against Trump, he will use that statute to argue that he has the right to use military within the United States.

Sherry:

Oh my.

Erwin:

He tried. After the death of George Floyd, when there were protests in the streets to use the military, but military leaders told him he couldn't. And I'm very worried that he will use the same authority to try to use the military. Ultimately, the question, answer to your question has to be, the courts have to be there to stop the President. And if the President defies court orders, then we need Congress to consider impeachment removal. And if not that, then we just have to hope that the people will be there. But if none of that works, If the president defies court orders, if Republicans in Congress won't impeach and remove, and if the people can't speak out in a way that will change the president and Congress of courts, then we've lost our democracy. There isn't anything else.

Sherry:

So there isn't a break on it until. The possibility of the midterm elections, giving at least one house of the Congress to the Democrats. Is that what you're saying?

Erwin:

But one House of Congress can't do much to stop the president. One House of Congress won't, means that they won't pass legislation that the president wants. But think right now, the president is acting by executive order and the president is acting by cutting off funds, closing agencies, putting strings on grants, the Democrats had a house of Congress. Now that wouldn't stop any of it

Bill:

Irwin, what do you tell your students when they ask you what should we do? I wanna do something, what would you advise? What do you tell them?

Erwin:

get involved. Have a number of pro bono projects that students can get involved in. There are pro bono projects to represent non citizens who are facing deportation. There's the opportunity for students to volunteer for organizations like ACLU and Common Cause, Democracy Now!, that are bringing litigation. I encourage my students to use the legal talents that they're developing to be involved. And when I speak to any audience, What I ultimately say is, it's so important that we be involved and so important to find ways to make our voices heard.

Sherry:

Is that enough, really? I've had students who have been soured because, first of all, civics has taught them vote, and you can change the world. You can't. And civics Courses don't always tell the truth about that. And does that really mean that we can stop slouching toward autocracy? People, the other people are frustrated because of that, Erwin.

Erwin:

I agree. I tell my students that there's no more important time than now to be a lawyer or go to law school. Because if we're going to stop autocratic rule, it's going to have to be through the courts. And that's going to require that lawyers bring the cases and judges decide the cases. And if that doesn't work, then you're right. I don't know what's going to keep us From going down the path of so many former democracies that become authoritarian, but I'm not willing to give up and say that it's inevitable. I think American history has shown our democracy is resilient, but we're really going to have to fight for it right now.

Bill:

The administration among the institutions it's going after are the lawyers, the law practices, the lawyers who defend people against the government. What do you think of that? That seems to me an unexpected and awful threat. And I've never heard of that before.

Erwin:

We've never seen anything like it. For example, about 10 days ago, president Trump issued an executive order naming the law firm of Perkins Coie. And the reason he went after that law firm is that at one point, some of its lawyers represented Hillary Clinton. And among other things, he said that lawyers from that firm couldn't have security clearances. Lawyers for that firm couldn't enter any federal buildings. I guess that would mean those lawyers couldn't even go to court because all the federal courthouses are federal. And then last Friday, he issued an executive order naming the law firm of Paul Weiss. Why? Because at one point they employed a lawyer who no longer works there, who is part of the prosecution team against Donald Trump. This is retribution, pure and simple. There's nothing else going on there, and we've never seen a president. Not even Richard Nixon engaged in this kind of blatant and open retribution.

Sherry:

Yeah, but the worst thing that we saw of Nixon was the enemies list, and that certainly doesn't come anywhere near what is happening now. Why what we're talking about, why isn't the media being more articulate about it, more visible about it, or maybe getting involved for your students may mean doing briefs, writing articles about what they see occurring. What's happening.

Erwin:

And a lot of that's going on. A lot of law professors and I'm sure law students are involved in writing friend of the court briefs in the many cases that are going on. There are statements being signed. There was an excellent law professor's statement that was about the rule of law. There was one today on the New York Review of Books website with regard to what's being done. I'm trying to organize a letter from all of the, as many deans in the country as I can, specifically on the targeting of law firms, how lawyers should never be punished for representing clients. That isn't consistent with the first and the sixth amendment. Many of us are writing op eds all the time. Let me offer you a partial answer to your question. Do you remember a book from maybe 50 years ago, Future Shock, by Alton Koeppler?

Bill:

Yeah.

Erwin:

Remember the thesis of it is, There would come to be a point where there were so many crises all at once, we just couldn't deal with them. I think part of the problem for all of us is, every day has a new outrage. And by the time we focus on it, and all that's wrong, then there's the next outrage. And so much is being done that's unconstitutional so quickly, it's hard to know how to focus on it and hard to know how to deal with it.

Sherry:

I think that's part of their strategy, the Trump strategy. And what do they call it? Flooding the zone. You just get everybody in the zone and the quarterback gets all frustrated. You don't know what to do first and people's attention get pulled away from one to another to none of them.

Erwin:

And I think that's part of the answer to your question. There's just so much that's happening. It's hard for people, and I think it's, you were both reporters for a long time, hard for the media to know how to cover when it's this much happening all the time.

Sherry:

Particularly with the shrinkage of the media core and Trump's barring certain media, including the Associated Press from even covering him. It all fits doesn't it Owen? It's beginning to really make, I don't want to use the word make some sense, but it's all falling into place what's happening here and it scares me.

Erwin:

One thing we haven't talked about, I think a lot of what's going on that relates to what you just said is intimidation and bullying. That as much as he wants to win the specific fights, he wants to intimidate and bully. Cutting off 400 million dollars from Columbia University is chilling of every university in the country. And so it's about bullying them. Going after Chief Judge Boasberg and threatening him impeachment and going after him in the way that they have, that's trying to bully and intimidate judges. Arbitrary firing of government employees is trying to scare, and is scaring, government employees at all levels of the federal government. Deporting a non citizen for his speech is chilling the speech of other non citizens. I think this is a conscious strategy to intimidate and silence, but to go back to what you said, every authoritarian regime has come to power in just that way.

Bill:

This place is a a tremendous burden on the various media, whether they be online media, whether they be print or television to step up and point out some of the things you've been saying. They seem to be frighteningly afraid to do that. The media,

Erwin:

We're 60 days into the Trump presidency, and I think one of the things that the media needs to figure out, that Congress, specifically Democrats in Congress, need to figure out, that critics need to figure out, is how to deal with what you just called flooding the zone. Because the automatic instinct is to respond to the latest, and then there's something else, and then something else, and then something else. And I don't think that anyone has yet come up with a strategy, how do we deal with so many unconstitutional things being done all at once?

Sherry:

how do we,

Erwin:

My answer is, we fight against Each of them with all the tools that we have, and our most important tool is litigation, that we try to educate the public about them as best we can, and that we find ways to speak out as best we can.

Sherry:

I think that at least you're right. Number one, number two do you think that the attempts that are now occurring, for example the town halls, the protests, et cetera, are making a difference or helping or are hurting those who feel that they are protecting the constitution from the maneuvers of the Trump administration.

Erwin:

I don't know is the answer to that question. I don't think any of us can know until time goes by and we can look in hindsight how much they help. But my instinct is, we have to look for every opportunity to speak out. The town halls are one opportunity for people to speak out. Rallies are another opportunity. For those of us who can write op ed pieces, they're a chance to speak out. But we have to speak out in any way we can. He

Bill:

How does Trump the autocrat compare with other autocrats around the world and the autocratic all of shame

Sherry:

Ha.

Erwin:

is following the playbook that autocrats have followed for a long time and throughout the world. We're talking about this. Take control over government spending. Take control over the military. Undermine any checks and balances and separation of powers. Surround yourself with people who will have no other interest but loyalty to you. Violate any constitution or written law with impunity. Undermine universities. Undermine the independent and free press. Look, for example, at Viktor Orban did. in Hungary. It's all of these things. We can also identify autocrats who did really horrible things who did these things as well.

Bill:

That's not really encouraging since these, since worldwide network of autocrats. seem to be set in power. It's very difficult. We, Sherry and I are always talking about how awful things are and what we can do about it. I tend to be a Oh, everything's going to work out kind of person, which I think is totally out of place these days. But I say, everyone's got to do something. What we're doing is we're putting out this podcast now we don't have 8 million readers and viewers, but it's a little something we can do. Maybe makes us feel better.

Sherry:

Good point.

Erwin:

Yes, I've created a new series. They're 60 to 90 second videos on Instagram and Tic Tac. I'm not an Instagrammer, TikTok is a user, but the series is called It's the Law. And in each of the segments, I take a legal question and try to provide as clear an answer to it as I can, just of what the law is. Does the president have the power to refuse to spend federal funds? I can give a 60 to 90 second answer. Does the president have the power to eliminate a federal agency? Does the president have the power to annex Greenland? This goes to something that you were saying, that people don't understand the constitution of the laws. And I'd like to reach people who don't read the op ed pages and educate them. And we're doing pretty well in getting people to just come watch these videos. For me, I can write op ed pieces, and so trying to write op ed pieces to educate people and then for those who read them to help educate others.

Sherry:

You know that brings to mind a question that I had to you. That's a little bit off the trail, but I don't think it is because I'm very much interested in the impact of social media, on politics, on governance across the board. How do you think that social media has influenced the judicial system

Erwin:

I don't think social media has directly influenced the judicial system. My guess is there are probably more judges like me who have never been on Instagram or TikTok or Facebook regular users. That said, I think there can be an indirect effect. There's not direct effect, but the indirect effect could be the judges live in our society. They're aware of public opinion. I think one reason that courts overall don't go too far away from public opinion is because they live in society. So there's no direct effect. There's probably indirect effects that we'll never be able to measure.

Bill:

there is something that happened and that was Chief Justice Roberts mild admonition to Trump to lay off these judges.

Erwin:

It was stunning and it was important. Chief Justice Roberts is not a liberal. Chief Justice Roberts wrote the terrible decision in Trump vs. the United States last July 1st, that a president can't be criminally prosecuted for official acts taken in office. There was a red line for Chief Justice Roberts. There was something that was just beyond the pale. And that's when a judge in Washington, D. C. issued an order to the government, and when the Trump administration didn't like it, none other than the President of the United States put a post on social media saying he should be impeached, he's corrupt, and an impeachment resolution was introduced in the House. What Chief Justice Roberts said, which is historically accurate, is never in history has a judge been impeached because we disliked the ruling of that judge.

Sherry:

And that should not ever happen his statement that it's that's what the appellate process is for you don't impeach a person for it. You go to another court and make your argument again. And when you were talking about Nixon and the tapes, it reminds me of a very good. an analysis of the role of the court in Watergate. Basically it was a love letter to the Congress, which we will not see coming out of this, but the essence was it was by Jimmy Breslin. It's called how the good guys finally won. And he talks about Why and how the Supreme Court came to the conclusion that the president must give up the tapes. And they, and Breslin said the justices sit across the breakfast table with their spouse. They go out, they have a social life, they go to dinner parties, they listen to public opinion. And that moved them. To come to the conclusion that they did and ordered the president to release the tapes. Something like that I think has really got to happen. Now, I think there's a possibility that it might. I am convinced that part of the reason that the Chief Justice took a stance was that he sees his legacy. He sees the legacy of the Roberts Court going down the drain. There's very little credibility to the highest court of the land.

Erwin:

I think he sees something, I think he sees something else as well. We were talking a moment ago about the path towards authoritarianism. One thing that authoritarian judges, rulers do. is remove the judges who disagree with them. I'll tell an anecdote. In 1998, I got to go to a judicial conference in Moscow, a number of different countries, and I was a speaker. And a Russian judge came up to me and was an interpreter, said, how do you remove judges in the United States? And I made a mistake. I tried to get too complicated and nuanced an answer of well, if it's a federal judge or a state judge. And so I said, no, how do you remove judges in the United States? And I gave a simple answer, he said here, if the government doesn't like you, they just remove you from being a judge. And he said his colleagues who had made rulings that the government didn't like simply got removed from being a judge. So anybody who's going to remain a judge is going to be loyal to those who are in power. The judges in France after the Nazis took over were even more aggressive in enforcing Nazi laws than the judges in Germany. I think what President Trump is trying to do Is intimidate the judiciary. And I think the reason Chief Justice Roberts spoke up is he knew that authoritarians, when they come to power, try to undermine the judiciary.

Bill:

I want to very much for being our guest

Sherry:

it's been a scary but very important conversation. Thanks for taking the time out. I, you don't have anything to do anyway, I know. But

Erwin:

it's wonderful to talk to you both in any time, and I hope as this goes along, we'll continue to talk and I hope we'll become more optimistic than any of us feel today.

Sherry:

I doubt we'll become more optimistic, but I think that you'll be telling us a whole lot more as this goes on. Thanks. And everyone, cheers. Bye bye.

Erwin:

Thank you.