The Courts Won't Save Democracy From Trump

The Atlantic

09-07-2025

On this episode of The David Frum Show, The Atlantic 's David Frum opens with a warning about the deep implications of President Donald Trump's 'One Big Beautiful Bill'—not only for Americans' rights and freedoms, but also for the future of American economic strength. David argues that Trump's budget and tax policies are reshaping the U.S. economy in ways that will leave the country poorer, less innovative, and more isolated from the rest of the world than we were before.
David is then joined by George Conway for a conversation about the dangers our legal institutions are facing in the Trump presidency. They discuss Conway's journey from corporate litigator to outspoken critic of Trump, the dangers of relying on courts to restrain executive lawlessness, and the failure of Congress to uphold its constitutional duties. Conway also explains why our legal system, even when functioning properly, may be structurally incapable of stopping a president who is determined to ignore the law.
The following is a transcript of the episode:
David Frum: Hello, and welcome back to The David Frum Show. I'm David Frum, a staff writer at The Atlantic. My guest this week is George Conway, and we will be discussing threats to the rule of law in the United States, and the question of how well the federal courts are coping with the challenges to legality under the Trump administration.
I'd like to open, however, with thoughts on a slightly different but related subject, and that is the big budget and tax bill. I'm not proposing to enter into the specifics of the various tax increases (because tariffs are a tax), tax cuts, or spending decisions that constitute this bill. Instead, I want to take a larger look back at what this bill is going to do to the whole future shape of the American economy.
A budget bill is a way to finance the government, but because the federal government is so big and its actions are so important, the decisions made in how to finance the government end up shaping all the rest of the American economy, all the rest of American society. I want to start with a clean piece of paper and think about the questions here that are raised and the choices that are being made, because I think the real message of this bill is not just that it cuts health-care benefits for many people.
It cuts other kinds of benefits for many, many people. It's going to raise a lot of revenue by heaping tariffs on the people least-well positioned to afford them. It will give big tax cuts to many other people, and despite all this—all the cuts in spending, all the new tariffs—the tax cuts are so big that this bill will lead the United States more in debt than ever before, running bigger deficits than ever before, and paying more in interest payments than ever before. All of that you know.
I want to, though, look at the economy and its larger effects. If you were to think about how you build an economy for economic growth, well, we think about that all the time. That's maybe the most important question not only in economics, but in social policy. I think it's been said that once you start thinking about the miracle of economic growth, it's impossible to think about anything else.
This world was so poor not so very long ago, and it's become so wealthy, so abundant for so many people—all of that because we are able to extract more value from fewer resources at an ever-accumulating pace, on and on our way to bringing full development to more and more of the planet's population.
What is the difference between being a fully developed society—a society that can meet the needs of people—and one that isn't? If you were to start at the beginning of this project, what would you do? I've made a little list of some things. This isn't exhaustive, but I think these are the main things you would think about. And every one of the items I'm about to indicate, you'll see that the Trump budget and the Trump presidency leaves the United States not just a little but dramatically worse off in all the ways that are going to matter for the next decade, the indefinite future.
So here's the first thing you would do if you were to build an economic-growth society. The very first thing you would do would be to build a society that respects rights and liberties. People have ideas. They need to be able to act on those ideas. They need to live in a society of rules, not a society of fear. Many societies have economically developed without being full democracies. Great Britain, or England, wasn't a full democracy when it began developing in the 18th century. Singapore and South Korea weren't full democracies when they began developing. But they were rule-of-law societies where people could think for themselves, they could worship as they please, they could have their own ideas, and they didn't live in constant fear of arbitrary process.
Maybe the societies weren't as free as they later would become, but no one was grabbing people off the streets, putting bags on their heads, and sending them to a foreign country to be tortured indefinitely without any kind of hearing, rights, and liberties. But those are very much in question under the Trump presidency. More and more Americans—because many of the people who live inside this country live with a status somewhere between that of an alien and a citizen (they're green-card holders; they're on temporary visas)—those people, more and more of them, live in a fear society. And that makes them less effective as economic actors, among many other things. It changes the nature of the society in which they live in ways that are less productive, less innovative.
The next thing you would think about doing after having a society that respects rights and liberties is making sure the government is honest. Again, it doesn't need to be perfect, but people need to know that they can go about their business without being extorted to pay some kind of fee or bribe to somebody in a position of power, and that the people at the top of the government are not looking around the society like predators, thinking, Whose wealth do we seize? Whose do we take?
Well, here again, this is a way that, under the Trump presidency and especially with this bill, we are really failing. This is an administration that is more and more a predatory one, and where the methods that it is using to pass its measures involve seizing or manipulating or extorting, bribes, presence, gratuities. The permission to have mergers depends on if the merged company owns a media company, controlling the content of that media company. We are not living in a world of honest government anymore.
A third thing you'd really want to have as you develop your society of economic growth is a stable currency. The best way to predict whether the currency will be stable in the future is to look at the finances of the government. Governments that run big, chronic deficits, that have large debts—those are governments whose currency is probably on the way down. You may have seen, on the day I'm recording this, news of one of the worst years in the performance of the American dollar in a long time. The markets around the world are seeing that the dollar is soon going to bear a level of debt and interest payment that is going to raise questions about that currency's ability to keep its value.
And when the president of the United States is haranguing his Federal Reserve director for cheap money, cheap money at any cost, regardless of the economic situation— Yes, we are running these giant debts and giant deficits, but I want you to lower interest rates —well, it's a good bet that the currency is going to become less valuable in the years ahead, so this currency will be less stable.
So that's another price of Trumpism: fewer rights and freedoms, less-honest government, and a future of a less-stable currency.
It's very important to have a predictable tax regime. Obviously, you want taxes to be light, but more important than even that they be light is they be predictable. Businesses need to make long-term plans. Investors need to make long-term plans. They need to know: What is the rate if I make this investment today? And if it succeeds, what will I owe the government at the end of seven, eight, nine, 10 years, 12, 15, and more?
Well, the essence of the Trump fiscal policy in this big, bloated bill, BBB, is tax rates come and go. They twinkle out; they twinkle in. No one quite knows what they are going to be at any given date in the future. There are tax concessions that last as long as Trump does. There are other fiscal measures that are timed to go out of existence. Nothing is predictable. And the most important of the fiscal measures of the government is tariffs—those are utterly unpredictable. No one knows next week what you'll have to pay to unload freight at an American port, never mind next year, the next 10 years. So the tax regime—although the Trump people keep advertising that tax cuts are coming, the tax regime is less and less predictable. Predictability more than level is the most important thing about a tax.
So fewer rights and liberties, less-honest government, less-stable currency, unpredictable taxes.
Here's the next thing you would be thinking about if you wanna build growth for the long term. You would be thinking, How do I have a healthy and well-educated workforce? Adam Smith taught us a long time ago that the real wealth of nations is their people, their people's collective ability to solve problems. It's not an accident that Adam Smith when he wrote those words, Scotland in the 1700s probably had more literacy than any place else in the world, thanks to a good system of religiously founded, comprehensive primary schools. Almost all Scottish people could read or write. Many more English people could read or write than could read or write on the continent. America in the 18th century was a reasonably well-educated society, especially in the northern free states. More people in the northern free states could read or write than in most places, Scotland apart.
Well, are we building an ever-more educated and ever-healthier society? It doesn't look that way. We're certainly not going to be a healthier society when we're getting rid of vaccinations and waging war on modern medicine and bringing back a treatment regime of amulets and trinkets, instead of proper health and research, when we're punishing universities for other things the president doesn't like by shutting down cancer research and other forms of medical research. And when you're taking away health coverage and other health benefits, you're not gonna get a healthier population.
And as for a better-educated population, again, this administration is undercutting in every way it can the availability of education, limiting the availability of college education, and cutting back spending on primary and secondary education, and having a culture war against institutions of not only higher learning, but secondary learning.
So our future is one of more plagues and more ignorance, not fewer plagues and less ignorance. So fewer rights and liberties, less-honest government, less-stable currency, unpredictable tax regime, a population with declining health and levels of education. What else are we doing wrong?
Well, in a modern economy, one of the drivers of economic growth is investment in science and technology. And the United States, especially since the end of World War II, has led the world in big investments in science and technology. And many of the investments in science and technology are not the obvious ones. You know, whenever you hear some congressman trying to score a point by making fun of some kind of research— The love life of mosquitoes; who'd wanna study the love life of mosquitoes?— it usually turns out that study on the love life of mosquitoes is a subject of some kind of medical research that is connected to another piece of medical research, which when connected to a third piece of medical research will bring about some new treatment or drug. But we are seeing enormous pressure on institutions of higher learning and independence of research, closing down of atmospheric research because it yields conclusions that are unwelcome or unwanted by the Trump administration.
So we are decreasing our investment in science and technology. And when you look at the plan the Trump administration has for the future, the things they seem to really want are to make this an economy that is about coal, that is about oil extraction, that is about cutting down trees—the industries of 100, 200 years ago, not the industries of tomorrow, which they find kind of ridiculous and embarrassing. Wind technology, which they seem to hate for some reason, and which Trump wrongly says doesn't exist in China—China's the world's largest producer of energy from wind. These are industries of the future. We seem to be attached to the industries of the past. So less support for science and technology.
One of the things you'd wanna make sure to do is: While you would have a limited government in a high-growth society, you would wanna make sure that that government does what it does do very well, very effectively, very efficiently. You'd want a competent, well-trained civil service recruited for merit, not for political loyalty, with some security of tenure and some independence from pressure from interest groups. Well, we're going the opposite way on that.
And finally, what you would value above all—not above all, but climatically—is commerce with the rest of the world, because as big as the U.S. economy is, the world is bigger. Americans out there to succeed need to sell to the whole world. And selling to the whole world means having world-competitive prices. And that applies that Americans must buy world-competitive components, which they integrate into their goods and into their services at the world price.
Well, Donald Trump is trying to sever the United States economy from the world, having special, higher made-in-America prices for everything. The world's most expensive components mean the world's most expensive outputs. When you don't trade in peace and freedom with the rest of the world, your goods and services become less sellable in peace and freedom to the rest of the world. You wall yourself off like a hermit kingdom. Well, that is hardly a path to progress.
And the last thing—and this is climactic—societies that are growing faster than their neighbors tend to attract labor. And that's true whether you're Holland in the 1600s, Britain in the 1700s, America in the 1800s, Canada and Australia in the 1900s. Fast-growing societies need more labor, pay higher wages, and attract more labor. Now, the movement of people must always be regulated according to law, but when very large numbers of people want to come to your country—again, you have to regulate it, but—that is a sign of strength. And when very large numbers of people don't want to come to your country, that's a warning that your country is developing in ways that are slower growing than other places where people could go.
The Trump administration wants to enforce immigration laws, and I commend them for that. They're trying to bring an end to the period of unregulated immigration that we saw in the period after the pandemic. Well, that's a good idea. But oftentimes, it seems like their idea is to repel as many people; to scare away people; to make people who have uncertain status, who are here on as permanent residents or student visas, to make them feel unwelcome; to empower every agent of government to be as hostile as possible at ports and airports, at border crossings; to harass and belittle and monitor and bully those people who are plighting their faith and their future to the United States. That is not the path to wealth, but it's the path that the United States is on.
In area after area—again, not everything in the Trump big, bloated bill is bad. Most of it is, but not everything. The direction is bad from a fiscal point of view. There's gonna be a lot more debt and a lot more interest to pay. But it is shaping a society that is just less-well suited to succeed in the 21st century. The big decisions that have to be got right—predictability; stability; honesty; integrity; money that holds its value; investment in knowledge and technology; making people feel that they live in a society of rules, not a society of fear; and understanding that the pressure of immigration, which always has to be regulated, is nonetheless a sign of your society's success, not a betrayal of the people who are already here—flunk, flunk, flunk, flunk, flunk.
Without doing the kind of micro budgetary analysis that is also necessary, I think you can look at this bill and say, This is a blueprint for society that is poor, more backward, more fearful, more isolated, and less the leader of the 21st century than it was in the 20th century.
That is not the America I think most of us believe in. That is not the America we'd like to live in. That's not the America we'd like to leave our children, but that is the America that is being bequeathed to them unless something quite decisive is done quite soon.
Thanks so much for listening to this outburst by me about the future of economic growth. And now my dialogue with George Conway. But first, a quick break.
[ Music ]
Frum: I imagine George Conway needs very little introduction to people who watch or listen to this podcast, but just in case—maybe somebody's been living in a cave or under a rock somewhere and has missed George's explosive impact on the American political debate—let me read a short introduction.
George Conway was a litigator in a preeminent New York law firm. Among his achievements there, he won a major securities case unanimously before the United States Supreme Court, and he was offered the job to head the civil division of the United States Justice Department at the beginning of the first Trump presidency. And that is the most important job any corporate or civil lawyer in the United States can be offered. A lifelong conservative and Republican, George had voted for Trump in 2016, but he soon repented of his choice, and he rejected or refused the Department of Justice job offer. In 2019, he published in The Atlantic —our Atlantic —the definitive case, over 11,000 words, for diagnosing Donald Trump as a narcissistic sociopath, and not as an insult, but in the most clinical sense of those terms. George was a founding member of the Lincoln Project, and today is the president of the Society for the Rule of Law.
One theme of George Conway's life, if you've been following his career, has been his abhorrence of sexual abuse of power, whether it be Bill Clinton's versus Paula Jones, or Donald Trump's against E. Jean Carroll—and it was George Conway who found E. Jean Carroll, the legal team that won her decisive, multimillion-dollar defamation verdict against Donald Trump. George is now retired from the law, but not from the fight for his beliefs.
I personally have followed his career with admiration since the 1980s, when he was president of the Yale Law School chapter of the Federal Society, the national association of conservative lawyers and law students, the same year that I headed the Harvard Law School chapter.
George, welcome to the program. It's such a pleasure and honor to have you here.
George Conway: Great to be here. Thanks for inviting me, David.
Frum: I wanna start off with something that may sound like a little bit of a detour, but I think, although people know a lot about you and have seen you on so many programs, they may not understand that you are one of the best friends Canada has south of the border.
Conway: If you put that in writing, I may need it for my asylum application.
Frum: (Laughs.) I'll put that in writing. And you have been to places that most Americans have not been. And I just wanna say personally how grateful and honored and touched my wife Danielle and I were that you would come in June to the unveiling of the memorial to our daughter, in Picton, Ontario. But let me ask you: Okay, why Canada? How did that happen?
Conway: Well, I grew up as a kid playing hockey, and watching the Bruins playing the Canadiens and New England. And so, you know, Canada was sort of part of the environment. And we made a couple of trips up to Quebec and got our asses kicked playing youth hockey. I mean, watching the Bruins play the Canadiens, and playing the Maple Leafs and so on, I learned the Canadian national anthem. I learned a lot about Canada. And because all my, you know, heroes like Bobby Orr and Phil Esposito—Bobby Orr turned out to be a Trumper, though. So I'm very familiar with the country and following along, and I remember in the '70s, it was a big deal when Quebec wanted to split off. And I've been following them for many, many years.
Frum: What is going on with Bobby Orr and Wayne Gretzky and all these other hockey players?
Conway: I don't know. I think it's a sports thing. I don't know. I think it's—I can't explain that. I don't know these men well enough. I prefer Dominik Hašek.
Frum: So Hašek sounds like a Central European name, maybe Czech or Slovak. So experiences of Russian oppression may have helped to formulate his views.
Conway: You would think.
Frum: Yeah. Can I ask you about your career in the law? A lot of the people who have stepped forward as prominent critics of Donald Trump have had careers in constitutional law, or civil-liberties law of some kind, or public-ethics law, but you were a real lawyer's lawyer. So talk a little bit about your private practice, the kind of lawyer you were, and just how far away you were from most active politics in your legal career.
Conway: I mean, I went to a law firm that was known for takeover defense. I did that because when I was in law school, I went to a Houston law firm where the big case that they were litigating that summer was Pennzoil against Texaco. It was basically a broken merger deal. And I became very, very interested in the facts of the case and very, very interested in this whole world of companies taking each other over and battles for corporate control.
What was great about that compared to other kinds of litigation that you could do—and I wanted to be a litigator because I thought that's what lawyers do. I wanna make arguments. I want to write briefs, be brief writer. What was great is that those cases lasted for a very, very slow amount of time. They're kind of like all this current Trump litigation. There's just a lot of things that happen really, really fast. And usually, it gets decided very, very quickly in the Delaware Court of Chancery, for example. And so I found it very, very interesting to do that kind of litigation. So I went to a law firm that, basically, that's what it did.
And that's what I practiced for a good chunk of my career. But I also did securities litigation. I did some, you know—I did antitrust investigations involving mergers, a little antitrust investigation, lots of contract litigation. And occasionally, there would be a constitutional-law issue that would pop up here and there. And I think I knew more about that kind of stuff than a lot of New York lawyers.
But the bread and butter, as you point out, was this corporate law. And I think the one thing that really carried over from corporate practice or my learning about corporate law to my current existence was: When I wrote that Atlantic piece that you mentioned early on, a good chunk of it was talking about something that was very, very analogous to corporate law, which is that the framers of our Constitution—in fact, it was really the Anglo American tradition—viewed public office as fiduciary positions. And a lot of the principles that developed—
Frum: Let me interrupt you because not everyone will understand what that word means. So would you explain what it means?
Conway: Yes. Yeah. A fiduciary is basically somebody who is taking care of property or something that belongs to somebody else for them, okay? So for example, you think of a fiduciary, it would be like you're running a trust for your parents or your children, or you're running a corporation—a public corporation that trades on the New York Stock Exchange—and you're the CEO, or you're a member of the board of directors. You are running that company, and taking care of its property, and taking care of its business for the people who own it, which are the shareholders.
And by analogy, when you are an officeholder—whether you be a mayor or a governor or a president—you are acting in a fiduciary capacity on behalf of other people. The planes that you fly in if you're president aren't yours. The duties that you have aren't to yourself; they're to the public. You're supposed to be acting in their interest, not your own personal interest. If your interest conflicts with those of the people who you are serving, the people you are serving—their interests take precedence.
And you can see the relevance of those principles to Donald Trump, who couldn't—you know, he was about basically the last person you'd want in a fiduciary position of any sort. Would you trust him? Would you make him the trustee for your children? Of course not. Would you trust him with any piece of property of yours? You'd not. And that was sort of the relevance to The Atlantic article, where I was just saying these personality defects, these manifest personality disorders that he has, that are just—you know, you could just check the boxes: He's a narcissistic sociopath by any reasonable definition. Those people can't serve as fiduciaries, because they can't follow rules and they only think of themselves.
And that was the point of the article. I was connecting up sort of his psychological disorders with his legal capacity to be president, his legal ability to be president. They basically said the only solution for something, someone as bad as this, who is going to do bad things because he is basically programmed to, is impeachment and removal. Or the alternative will be the fourth section of the 25th Amendment, and that's still the case.
Frum: The reason I opened this discussion by coming at this corporate side of your career is: You come from an area of the law—you made your living in an area of the law—which is very technical, a lot of rules. The rules are very complicated, a lot of dotting of i 's and crossing of t 's. And there are many people who become lawyers who find in technicality an escape from morality, that they can say, Well, I'm following the rules. The rules are written down. It's not my job to ask whether these rules are just, and it's not my job to worry too much about whether the outcome is just. I am using this elaborate system of rules for the benefit of my client.
And I wonder if that explains why so many, in the especially New York legal world, have been so vulnerable to the pressures we have seen in the second Trump presidency to pay ransom, to yield, that they can rationalize, Well, we're following rules. And you somehow were not crushed. Your moral sense was not crushed by that technicality.
Conway: Yeah. I think there's something a little bit different going on there. I don't think it's that people—I think a lot of Americans may feel, Oh, well, if it looks to be legal or people are saying it's legal, then it must be okay if the Trump administration says it's legal. I think there is a lot of hiding behind purported legality. I think that's absolutely the case. I think in the case of lawyers—I think most lawyers have been outraged by the Trump administration. And I think, you know, there's a limit to what people practicing law can do to speak out, because clients don't necessarily like lawyers who are political activists and, you know, doing something other than their own work.
But most lawyers have been very, very adamant about the Trump administration and its lawlessness. And I think we saw it very, very recently in the D.C. Bar, which had an election involving Pam Bondi's brother, who tried to challenge somebody to become president of that bar, and he got singularly trounced and embarrassed and humiliated.
I think what's going on with the law firms—and I don't think it's gonna happen anymore, because I think law firms have kind of learned their lesson that it is bad to cave to Trump. I think that what has happened was: I think that there's been a backlash in the legal community as the people who settled. I think what happened there, though, has something to do with the takeover practice that I mentioned, which is that the fees that deal firms get are percentages of a transaction. And they're very, very lucrative because today they all require—they all involve companies in the same industry—they require regulatory approval.
And I think what happened was: These firms that make a lot of money off of takeovers, acquisitions, mergers, spinoffs, the works were afraid that they would not be able to get their lucrative deals approved by the government, and that's why they caved. It turned out that clients don't like having lawyers that capitulate to the government. If a law firm can't defend itself, it's hard to see how it's going to defend you. And there's been a huge backlash among general counsels, people who hire law firms, against these law firms that caved and a directing business towards some of the law firms, like Perkins Coie, that stood up. So I think the tide has turned there.
I think it would not have gotten so bad if Paul, Weiss—the original law firm that first capitulated—had not done so. I think that created a panic that I think was unnecessary. And I think it caused a lot of other law firms to cave or think of caving that would not otherwise have done so. But I think that is over. I think they're—I think the law firms are all geared up to sort of stand their ground, and I think that's a good thing.
Frum: Yeah. Well, one of the places where people find refuge from technicality—this is a pet peeve of mine I'm about to confess—which is: A president has done something bad, and cable TV will at that point turn to a lot of former federal prosecutors, who will go on the air to talk about what statute may or may not have been tripped. And the implication is: If a statute hasn't been tripped, if the president hasn't broken some law, then no problem—the president can do it. And one of the—as you said at the very beginning, one of the things we've all discovered from Donald Trump is there are a lot of things that presidents might do that they shouldn't do that turned out not to be illegal, exactly.
I mean, there doesn't seem to be a law that says the president can't sell perfume while being president. We just think he shouldn't. And other presidents didn't. And the inhibition to doing it was that the president would think it was wrong or disgraceful or shameful or stupid or silly. But when you say, Where's it written down? And this parade of looking for the laws that Donald Trump has broken—and to be clear, he has broken many—but his defenders will often point out that some of the worst things he's done are not the most illegal.
And one of the things that we're all struggling with is: The 30-some counts of felony that Donald Trump has been convicted for were not the worst things he did. And the worst things he did may not trigger any federal statute. And that loss of moral sense that some lawyers have, the flight from morality into legality, has in some ways left us disabled in the face of the Trump presidency.
Conway: No, I think you're absolutely right. I think maybe we had—before we even knew each other, we must have had some mind meld going in 1987, when we were president of our respective Yale Federalist Society chapters.
It reminds me of something—when I first started coming out and saying stuff, one of the first things I wrote was for The Washington Post, and it was about the Mueller report, and what the Mueller report meant, and what it was about to say, and then what it said. And I made the point that what Mueller described was outright obstruction in Part 2 of the Mueller report.
But I also made the point there that that's not even—you know, crime isn't required for impeachment. A crime isn't required to find somebody unfit for office. I said we should expect more of our presidents than they simply not be indictable or criminal. And that's the point you're making. He absolutely—I mean, he embarrasses himself, he embarrasses the country, he embarrasses the office, and he disrespects the office. He has contempt for what his job actually is, which is to enforce the Constitution, enforce the laws, to do right by the country for the people of the country. And he's not capable of doing that.
And, you know, he does violate laws. He may not violate laws that are criminal all the time, although he does, he would be—he is doing that, I think, leaving apart the Supreme Court's decision in the immunity case last year. But you know, it goes so far beyond the legal at this point that it's just a disgrace. And I think that one rule ought to be: A president shouldn't be a disgrace. Who knew?
Frum: Let's shift the attention, for a minute, from the lawyers to the courts, as you just mentioned.
Conway: Yeah.
Frum: It sometimes seems to me—and I'm not a practitioner like you, and certainly not an eminent practitioner like you—but the courts are following this rule familiar from children's games: One for him, and one for you. One for him, and one for you.
So can masked men put a bag over somebody's head on an American street, shove them into an airplane, fly them to another country without a hearing, and throw them into a dungeon? The courts have said that one—that one's for you. No, no, we can't do that. The next question is: Well, can the president commit crimes? Can he try to overthrow the Constitution and be prosecuted? And the courts said, That's one for him. We give him one.
And that there does seem to be this pattern—and maybe it's a coincidence—where every time they deliver a strong anti-Trump decision, they are looking collectively for a way either to escape having to do the next question, and they have often, as we saw with the documents cases. It looked like the entire judicial branch made a decision, Let's just shove this one. We've got an obstructionist judge. Good. Let's give her lots of room, because we want this one delayed. And when it finally comes to us, we want to find a way to evade it. And then we have this complex, multipart balancing test about whether or not the president can violate criminal statutes. Yes or no? We will give you a muddy answer that is completely useless.
Conway: Yeah, I agree and disagree with that. And I think it would probably be longer than any podcast to go through it all.
I think the federal courts overall have been doing a tremendous job in fighting back. And I can't, you know—with respect to Judge [Aileen] Cannon in the documents case, I mean, that was just sort of beyond. You get a judge like that, it's just, you just—it's not in the genes of the federal system to basically throw somebody off a case (unless they do some, you know—it takes a lot more even than what she did). The immunity case, I disagreed with strongly and I thought was a bad decision, but I don't think it was the work—it wouldn't have prevented his prosecution except because it did so via the calendar, but not in terms of the substance.
I don't think the federal courts, as what they are doing now, is giving one for Trump and then giving one for the plaintiffs. Maybe the Supreme Court seems to be doing that a little bit. I mean, for example, we had some great decisions on the Alien Enemies Act cases, where they basically said due process is required, and they kind of spanked the Trump administration in that case that came out of Texas. And then they had this case in Massachusetts, the D. V. D. case, where they inexplicably stayed an injunction where a judge basically said that you have to give people being removed from the country due process as to where they're being removed to, because they could be removed to someplace that they might not survive.
So that, there's a little—it does seem maybe that the Supreme Court is doing that a little. We don't know, because they didn't really explain their reasoning in that last decision. But there is something to a possible wisdom there. I'm not justifying what the Supreme Court is doing in any particular case. I like it when they are being tough on administration more than I like it when they are not. But there's a kind of careful game that the Court has to play here. And I hate to be—I'm not really a legal-realist type. I believe in letting the chips fall where they may, in terms of the law.
But, you know, there's a lot of writing—like, by Alexander Bickel, a great legal scholar from Yale, who, you know, 60 years ago wrote a book about The Least Dangerous Branch —it was in the '60s, maybe 60 years ago—where he basically pointed out that the Court has to sort of hold itself back. And it was really a reaction to the [Earl] Warren era, where the Court really, I think, got ahead of the country in a lot of ways that we are still paying a little bit of a price for.
And what Bickel wrote was: The Court sometimes has to take its time, has to act gradually, and also has to watch its political capital. And the way that it does that is: Sometimes, it won't take a case when it might otherwise take a case. It has discretionary jurisdiction. Or it might see some grounds for ruling that isn't the broadest or most impactful way of ruling.
And I do think that in the current environment, the Court does have to pick its spots somewhat carefully because it doesn't have, as Bickel points out—doesn't have armies, doesn't have police. At the end of the day, the courts, from the federal district courts to the Supreme Court of the United States, can only really enforce their orders through either moral suasion or through the auspices of the United States Department of Justice.
For example, if somebody violates a court order and is held in contempt, the U.S. Marshals Service system is the organization that goes out and takes somebody and sends them to jail. Well, that's controlled by the Department of Justice, by Pam Bondi and Donald Trump. And who controls the jails? The federal jails? The United States Bureau of Prisons, also a part of the United States Department of Justice—also beholden, also managed and run by Donald Trump and Pam Bondi.
So the courts have to be a little bit careful here. They want to save their fire for when it's most required, and I don't think we've reached that stage yet. Now, I'm not justifying what the Court did in a couple of recent decisions that I disagree with, but I do think people need to think about that possibility instead of being so contemptuous to the Court. And I think the other thing that to contextually remember about the courts that goes along with this is: The courts cannot save us, precisely because of the things I said.
Frum: I was recently on another television program [hosted by] Piers Morgan, who was defending Donald Trump, and one of the points he made is that when there was a court case and Donald Trump lost it and lost it and lost it, on appeal and in multiple courts, eventually he would comply with the law, and doesn't that make him a very, very good boy? And one of the things I think that you're saying here is, among the answers to that question, that the president's projection of the question that he thinks he deserves credit for obeying the law is one of the reasons that the courts are hesitant to enforce the law. Because I don't think past presidents would've had their defenders say, Well, you have to hand it to the president. When there are multiple court orders, he doesn't defy them. But that's not usually a mark in your favor. I say, Yeah, yeah, yeah, of course. Yeah. He also has to be over 35. He has to not break the law.
But with Trump, because you know he's poised to break the law, that has a feedback effect on the courts, where they become more reluctant to enforce the law upon him than they would be on a President Obama or some other president who they knew would comply.
Conway: Yeah, I mean, I think that there's truth to that, but I also think he is violating these court orders in numerous respects. I mean, he's not doing it by saying, We will not obey this court order, but they're doing it in other ways.
They're doing it by gaslighting the courts, by misleading the courts. We saw this whistleblower letter that was directed at the conduct of Emil Bove in the Department of Justice where, basically, they were not giving federal agencies guidance as to what the courts were telling them not to do. So the agencies would continue to do the things that the courts had prohibited them from doing. That being said, I absolutely agree that Donald Trump is getting credit here for doing what a president is supposed to do, which is to uphold—you know, he's getting credit after violating his oath of office. Finally, at the end of the day, if he does obey a court order, people say, See there? He's doing what he's supposed to do. And it's just that's not how it works. The president is supposed to obey court orders, obey the law, even if there's not a court order out saying that he should obey.
Frum: Well, let me give you a very specific example. This is where I wanted to go about the feedback. So even before Donald Trump came on the scene, over the past two or three decades, the federal courts have made it much harder to convict state, local, and federal officeholders of corruption cases. And basically, the line that the courts have been taking is, It's not enough simply to show that the officeholder received a benefit from a person. We need to see that the benefit directly influenced the action. So we need not only the quid and not only the quo. We need the pro. We need to prove the pro, that the quid caused the pro. And we've had, I think, the most involved, important case here that involved a past governor of Virginia, who was acquitted. He had received a lot of benefits, he was convicted, and then the Supreme Court struck it down, saying the governor was not shown to have acted, because of the inducement and be outside of the scope of his official actions.
Now, the reason this is so alarming right now is we have a lot of examples of Donald Trump receiving benefits, including, most flamboyantly, a jumbo jet from the government of Qatar that maybe they offered willingly, maybe he extorted. That's a little unclear. But the question is, the Constitution says, look—the president can't accept any gift from anybody without a vote of Congress. But the defense is gonna say, He's not the president. It's going to his library, so-called, and maybe the library will operate as a flying library, a book-extension service. The books come to you by plane, with the president and/or his family aboard on their way to, you know, Rio de Janeiro.
But when the Court seemed to have already put so much water in the idea that the president shouldn't take gifts, and especially not from foreigners, but from anybody, how do we hold the president to account when the courts have been changing what the account should be?
Conway: Well, I mean, I think there are a couple of things that are getting mixed in together there. I mean, what the courts have been ruling about quid pro quos is in the context of a particular statute, the mail-and-wire-fraud statutes, that even I think have been—I think members of the Court have felt for very long time that is a very amorphous statute and really got out of control, because it was just defined by prosecutors, and it doesn't really say anything about gifts and bribes and whatnot. So they've kind of tried to confine the mail-fraud statute to things that are otherwise illegal.
Now, you can debate the merits of that, but it's really up to the Congress to pass laws, to enforce restrictions on what the president can accept. I think the closest statute that could be invoked against Trump—were there a Justice Department able to do that, and were there not this Supreme Court immunity decision out there—would be the gratuity statute. There's basically a law that says that public officeholders cannot accept gifts that are designed to reward them for having carried out their efficient duties in some manner. It doesn't necessarily have to be a quid pro quo. It could be just, Thank you for being a good president. Here's $1 million. That would be a violation of the gratuities law, both by the person who's giving gratuities and by the person who is receiving the gratuity. And there actually could be, I mean—I think there's an argument that it would not be subject to the Supreme Court's immunity decision, but that's another podcast.
And then there's the emoluments provisions of the Constitution that both restrict the president from taking—the gratuities statute, it's a criminal law that applies to all federal public officeholders. Emoluments clause is the constitutional provision that applies just to the president, and it applies both to foreign emoluments and domestic emoluments. And there's no clear—I mean, it's not clear how that is enforced. It's not something that you can prosecute. Some people could have standing to challenge it, but it's not something that there can be a criminal prosecution for.
I think basically, the problem here has not been the courts. I mean, the problem is that there's nobody to prosecute, you know, the wrongs that are being committed, which would include a violation of gratuity statutes, I believe, or at least an argument of one, or at least something worth investigating. Because Donald Trump is president of the United States, he controls the prosecutorial agenda. He doesn't want to prosecute himself. He wants to prosecute people he doesn't like. And so that's the fundamental problem. And I don't really tag the courts on it.
Frum: Do we have a fundamental problem here? And this will be where I end. The United States, because the Constitution is so old, it also includes a lot of ideas that have gone out of fashion in other democracies. And one of the fashions in most democracies is that the people in charge of initiating prosecutions are not political. Whether they're federal or state, they're not elected, and they don't answer to the elected bodies. I remember this was explained to me in Germany, that their equivalent of the head of the criminal division is a civil servant who is promoted through the ranks, who is selected by the minister of justice, formally nominated by the president. The chancellor has nothing to do with it. And the chancellor and the minister of justice are usually from different parties anyway, and if a chancellor of Germany were to suggest to the public prosecutor, Arrest this person; don't arrest this person, the handcuffs would be on the hands of the chancellor, not on the hands—
But in the United States, the attorney general is a member of the president's cabinet. That's not how most democracies do things anymore, but the United States is sort of stuck with it. Is there any way to make this work better? Is it—are we just doomed to have political prosecutors forever?
Conway: No. Look—at the end of the day, it's about the norms. It's about people doing the right thing. And that's true even if there were a constitutional provision that separated the functions of the attorney general out from the president. I mean, the fundamental problem that we have today is not any particular provision of the Constitution, but the people are failing to abide by its text and by its spirit. And fundamentally, those people who are doing that are the Republicans in Congress.
The solution for a president who fails to adhere to his duties, fails to comply with the laws in the Constitution of the United States, fails to faithfully execute them, which is what he swears to do, isn't litigation or prosecution or judges running this department or ordering, you know, 500 federal judges running different pieces of the government because the government is defying the law. It's impeachment removal. And the problem we have here is that too many people in our governmental system are failing to comply with their duties to the country and to the Constitution, and putting their loyalty in one man instead of the law.
Frum: This is where I would like to close, a theme that you raised on with your reference to legal realism, a term that will be unfamiliar to some people, but I'll explain it in a moment. I had this similar conversation with Peter Keisler, who I believe is also a friend of yours, who was—
Conway: Went to law school together, and we helped form the Society for the Rule of Law together.
Frum: And again, we all were members of the Federal Society. We all come from the conservative legal tradition. And the thing we were arguing about back in the '80s at law school was this idea of legal realism. And legal realism is a body of thought that said the law is just a way of predicting what courts will do. It has no independent existence. It's descriptive. What happens is the law. And a lawyer is someone who's good at predicting what will happen—that's it. And our group said, That's not good enough. That's not—the law is more than that. The law is not just what people do; it's also what people should do.
And when institutions fail to enforce the law in a right way, you have something meaningful to say about that. And it's not just a political argument, that I like this outcome and don't like that outcome. It's actually a legal outcome. This is not the law.
And that may be why so many of us who come from that tradition have found ourselves on the other side of this fight, because what the Trump term challenges to do is say, What is law? What do we mean by it? Does it exist aside of just the cynical explanation of what people do?
I know there are a lot of people who will say to you and have said to Keisler, Well, it's so strange. I didn't agree with anything you said 40 years ago. But I like everything you say now. Well, what I say now comes from what I said 40 years ago.
George, thank you so much for fighting the good fight.
Conway: Thank you for having me. Always a pleasure.
Frum: I know you pay a heavy personal price for it, so thank you. And I so admire you. I'm so grateful to you for your visit to Ontario, and thank you for joining the podcast today.
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Frum: Thanks so much to George Conway for joining the program today. I hope you will subscribe or like or indicate your commitment to this program. Let's make this relationship a little bit more lasting. And remember, also, that the best way to support this program and all the work of all of my colleagues is by subscribing to The Atlantic.
I hope you'll consider doing that. Thank you so much for joining. See you next week on The David Frum Show.
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Frum: This episode of The David Frum Show was produced by Nathaniel Frum and edited by Andrea Valdez. It was engineered by Dave Grein. Our theme is by Andrew M. Edwards. Claudine Ebeid is the executive producer of Atlantic audio, and Andrea Valdez is our managing editor.