Peter Keisler
Appearances
The David Frum Show
The Crises of Due Process
And that shows that there is a cost to the administration of acting the way it's acting towards the courts. Because if you squander the reputation that governments of both parties have had for credibility and fair dealing and honest brokering with the court, then they're going to treat you different because they know they can't quite trust you.
The David Frum Show
The Crises of Due Process
Well, that's a really good question because look, if you and I were disobeying a court order in a private case, there's a very available toolkit that courts have to deal with that. We would face punishing fines, perhaps daily fines until we comply and we could even be incarcerated. It's much harder.
The David Frum Show
The Crises of Due Process
much trickier to apply that toolkit when the executive branch as a whole, not simply some rogue actor in it, but the executive branch as a whole is the one that's in defiance. And in particular, and I think this is embedded in your question, a particular order that essentially directs the court or the executive branch to conduct diplomacy is especially hard to enforce.
The David Frum Show
The Crises of Due Process
If the court had ordered that the government pay somebody money, That's an easier matter. Or even turn the planes around, as was the case in one of these cases. That's a binary thing. You either comply or you don't. The planes turn around or they don't. But the court can't deal directly with the president of El Salvador.
The David Frum Show
The Crises of Due Process
So they've essentially directed the president to do what he can to get them out. Now, you know, this is an easy matter because, as I said, they're only there because we're paying to house them. El Salvador has no independent And so so the administration just needs to ask.
The David Frum Show
The Crises of Due Process
And I would just say this about that, which is that right now they've made it easy to see their contempt because they're not even asking. The attorney general has said he's not coming home. End of story. Those are her words. But let's say they were just a little bit more smarmy about it, right? Let's say they sent a letter.
The David Frum Show
The Crises of Due Process
Dear President Bukele, an unelected federal judge without, in our view, any legal basis has directed us to try to get Mr. Obrego Garcia home. So we are conveying that request, you know, your friend Marco. And President Bukele said,
The David Frum Show
The Crises of Due Process
looks at that letter and he can read the subtext as well as the rest of us and says no and then the administration goes back to court with a kind of a cartoon halo above its head and said well your honor we tried But he said no. Now, the court can find them in contempt because she can read the subtext just as well as President Bukele and the rest of us. But that still doesn't get the man home.
The David Frum Show
The Crises of Due Process
And it's very hard for a court to work its will directly on a process that's so necessarily entrusted to the actual carrying out and implementation by the executive.
The David Frum Show
The Crises of Due Process
Well, it potentially could, but let's talk about that because it's important to distinguish between the president's power to fire Jerome Powell and the president's power to demote him because those actually stand on somewhat different footings.
The David Frum Show
The Crises of Due Process
And let's start with the firing, but let me just step back and give a little of the background here because the important thing to know is that the Federal Reserve Board has been the ghastly specter that has haunted the debate about the extent of the president's removal power over officers for many, many years. And I'll explain what I mean by that.
The David Frum Show
The Crises of Due Process
But just some additional background for your listeners. The default rule has always been that, with a few exceptions, if the president appointed you, the president can fire you. He could call up Marco Rubio tomorrow and say, Marco, you've done nothing wrong. You've been a great secretary of state, but I want Steve Witkoff. And so I am firing you right now.
The David Frum Show
The Crises of Due Process
And at the end of that phone call, Marco Rubio would be a private citizen. The president doesn't have to reason, doesn't have to get anyone else's approval. He's gone. And actually, that's true of the FBI director, too. The FBI director has a 10 year term by statute, and that was designed to give him some measure of independence.
The David Frum Show
The Crises of Due Process
And there's been a norm that presidents have mostly not removed their FBI directors except for cause before Trump. But in fact, the statute doesn't say he can't be removed earlier than that. And because there is this default rule that says the president appointed you, the president can fire you. That actually is generally accepted that as bad as it is, it applies to the FBI director, too.
The David Frum Show
The Crises of Due Process
But there is a small subset, mostly and most prominently the regulatory commissioners at some of the key regulatory agencies like the Federal Trade Commission and the National Labor Relations Board.
The David Frum Show
The Crises of Due Process
Congress has written into those statutes not only a specified term, usually four years, but as specifically said, the president cannot remove you except for this language like malfeasance or neglect of duty or inefficiency. And back during the New Deal, the Supreme Court upheld Congress's power to restrict the president's ability to fire under certain circumstances.
The David Frum Show
The Crises of Due Process
But there has been a longstanding debate and one that predates Donald Trump among scholars over whether or not that decision was right and whether or not Congress really should have that power. And the trend of court decisions over the last several years has been to be increasingly skeptical of Congress's power to limit that.
The David Frum Show
The Crises of Due Process
But they've never quite gone so far as to overrule that key New Deal precedent. And part of it has been the haunting specter of the Federal Reserve Board, because the Board of Governors are one of those agencies where Congress has written in, you can only fire for cause.
The David Frum Show
The Crises of Due Process
And so if you are on the side of the people who want the court to permit Congress to do that, and some cases come up as they are coming up now involving the president's firing of FTC commissioners or national labor relation board members, If you are on that side, the first thing you are saying is, my God, court, don't do this.
The David Frum Show
The Crises of Due Process
Because if the logic and reasoning of their position supports that, it also supports being able to fire Jay Powell. And everybody understands what a disaster it would be if our monetary policy were subject to that kind of direct political control. And if you're on the other side.
The David Frum Show
The Crises of Due Process
if you're arguing in favor of the president's power to remove there are a few exceptions but most people and anyone litigating the case before the court is saying no no that's different that's different the fed is unique monetary policy is unique i can come up with some reasons to distinguish it So that's been a kind of a long background. But what will the court do?
The David Frum Show
The Crises of Due Process
Right now, there are cases bubbling up and before the court involving other agencies. The president hasn't fired Jay Powell, as you know, in part because he doesn't want to contaminate those cases by making that vivid how much might be at stake. In those cases, the court is perfectly capable of saying arguments about the Federal Reserve Board are not before us. We're not going to decide that here.
The David Frum Show
The Crises of Due Process
Even if they uphold the president's right to fire FTC commissioners and NLRB members and so on, they can say there are arguments out there that the Fed is different and we will wait to address them for another day. And that day may never come. Because, you know, last week the president said, I mean, it was almost a joke, he said, Powell's termination can't come fast enough for me.
The David Frum Show
The Crises of Due Process
Well, he's the president. He hasn't been shy about pushing the legal envelope. If he really wants to fire Jay Powell, he would try to.
The David Frum Show
The Crises of Due Process
I think you have to assume the possibility. I don't think he loved the experience when the stock market dived because of the tariffs, and he may not want to provoke a similar one, but he could wake up one morning and just be motivated to do it. And that's why I mentioned at the outset this distinction between firing and demoting, because if he was going to do it, I think he would.
The David Frum Show
The Crises of Due Process
And by demoting, what I mean is this. So Jay Powell is chair of the seven-member board of governors. The decision to designate one of the governors as chair The provisions in the statute about that don't have the same tenure protections that being a governor does.
The David Frum Show
The Crises of Due Process
So if the president, instead of saying to Jay Powell, you're fired, you're now a private citizen, like that Marco Rubio guy I was referring to earlier, if he instead said, you're still a governor, but you're no longer the chair. there would be, I think, a stronger basis for him to argue, look, Congress has never limited that particular designation decision.
The David Frum Show
The Crises of Due Process
And there's a default rule that says, I can change it. Now, there'd be limits there, right? He couldn't just pick anybody to succeed Powell. He'd have to pick an existing governor. Because if there's no vacancy, he can't create one by firing a governor. He can only remove the chair, make the chair a governor, and elevate somebody. But eventually, there would be a vacancy.
The David Frum Show
The Crises of Due Process
Or, you know, he could say to one of the governors that he wants to remove, how would you like to be Secretary of the Treasury? Then fire a Secretary of the Treasury, move the governor to the Treasury Department, nominate somebody new and say that person would be chair.
The David Frum Show
The Crises of Due Process
So there are ways to do this without putting himself in the weakest possible legal position, because I think the court would be as reluctant as the rest of us to usher in a situation where monetary policy is subject to presidential control. on a day-to-day basis. And I think they would avoid a decision doing so if they at all could.
The David Frum Show
The Crises of Due Process
Right. Look, at some point, he can't keep on blaming Biden for everything that happens. So yes, he's going to have to find other scapegoats. And maybe he will try to do this. And if he does, it will be yet another line being crossed that we may never be able to get back from.
The David Frum Show
The Crises of Due Process
Well, there is a criminal conflict of interest statute and it prohibits employees from participating in matters over which they have a financial or other interest that's at all substantial. And that applies to Elon Musk because Elon Musk is what's called a special government employee, meaning a temporary employee, but the conflict of interest laws apply to that.
The David Frum Show
The Crises of Due Process
And look, in thinking about this, I mean, there's obviously a host of really complex government regulations, but basically the potential for conflict with anybody coming to the government is a function of the answer to two different questions. One is, what is their set of financial and other interests? And the other is, what are their responsibilities gonna be?
The David Frum Show
The Crises of Due Process
So you have those two circles and think of it like a simplified two circle Venn diagram. Where those circles, his interests and his responsibilities intersect, that's the area where there is a potential conflict. And if you have very few assets, you can be Secretary of the Treasury, but there's not gonna be much intersection. You can recuse yourself from a couple of things.
The David Frum Show
The Crises of Due Process
If you have lots of assets, but you're a data input operator at the Social Security Administration, there's not going to be a big intersection point. But with Musk, what you've got is two really big circles because you have an enormous amount of financial holdings and you have government wide vague, but very significant government wide authority. So there's a huge intersection point there.
The David Frum Show
The Crises of Due Process
Now, you know, that doesn't mean he can't serve. There are lots of people who go into government with lots of financial interests. But there's a there's a process for that. Usually you disclose all your financial interests. You know, you were in the White House. You know this process. You disclose your financial interests to Democrats.
The David Frum Show
The Crises of Due Process
various lawyers and officials who go over it and then give you guidance as to what you can and can't do. With Musk, what he said is, oh, if I see anything that's a conflict, I just won't do that. So it's completely self-policing. That's not how it works. It's at least not how it's ever worked, and it's not how it should work.
The David Frum Show
The Crises of Due Process
Well, I have two answers to that. One is a technical one and one is a philosophical one. The technical answer is there is in the conflict of interest laws and regulations procedures for someone to get waivers from various agency officials. And usually the waiver requires you to show that your interest is just not so substantial that would affect the integrity of the proceedings.
The David Frum Show
The Crises of Due Process
Now, that almost certainly could not be sensibly granted here. But nonetheless, there could be a piece of paper where some agency official says, I grant you a waiver. I suspect they haven't even bothered to do that. But I don't know, because that's where we get to the philosophical question here. And not to take this into consideration. too high into the stratosphere.
The David Frum Show
The Crises of Due Process
But the question is, what is law? Like to me, law is a set of binding requirements that you find in statutes and court decisions and regulations in the Constitution. And they exist and they bind whomever they bind by their own terms. But, you know, there was a school of thought in the early 20th century, the legal realists, very influential thinkers who said, no, no, no, that's silly.
The David Frum Show
The Crises of Due Process
Law is not an abstraction. Law is a prediction about what courts and people who enforce the law are actually going to do, because that's the only place where law has meaning. So who enforces the conflict of interest requirement? It's agency general counsels, it's inspectors general counsels. For high-level appointees like Musk, it's the White House Counsel's Office.
The David Frum Show
The Crises of Due Process
And in extreme cases where there's a criminal violation, it's the Department of Justice. If all of those institutions have been sufficiently compromised that there's nobody who's going to say this is a conflict, is it really law? Well, we could debate that philosophically.
The David Frum Show
The Crises of Due Process
As a practical matter, I don't think anyone's going to be applying the conflict of interest requirements to Elon Musk any more than Elon Musk wants them to.
The David Frum Show
The Crises of Due Process
I think like so much, you know, ultimately, look, we're a democracy and we give the president a lot of power. We particularly give the president a lot of power when he's joined with Congress. The reality is that so much of what we rely on, as you say, have been norms and lines that presidents don't cross, not because they couldn't, but because they don't wish to.
The David Frum Show
The Crises of Due Process
Yeah. I mean, look, I would just say this, which is that I think that will be a tough question. But at the same time, at the end of this administration, let's assume it's just a four-year administration, the to-do list is going to be huge. It's going to include things like, how do we rebuild NATO? And how do we rebuild our alliances around the world?
The David Frum Show
The Crises of Due Process
And how do we rebuild our economy from the different shocks and disasters? And how do we rebuild a functioning civil service after so many people have fired. And I'm not saying that questions about accountability should be completely ignored, but I will just say that my priority is going to be less. And I think, you know, the new government's priority is going to be less.
The David Frum Show
The Crises of Due Process
How do we ensure accountability for past misdeeds and more like, how do we just repair the damage?
The David Frum Show
The Crises of Due Process
That's right. And look, you mentioned the Supreme Court's decision about presidential immunity, with which I really disagree with the decision. But at the end of the day, that only applies to the president. It doesn't protect his subordinates. So there will be potential liability and exposure. And I don't mean to dismiss that. I just feel like there's going to be so much repair work to be done.
The David Frum Show
The Crises of Due Process
I feel like we're going to have other priorities as well.
The David Frum Show
The Crises of Due Process
Look, democracy got us into this mess and democracy is going to have to get us out. And that's going to mean kind of fostering a public understanding of why these principles and norms are important so that we could get back to a place where, regardless of whether it violates the precise terms of the law, people who want to be successful in politics and want to be remembered well won't do that.
The David Frum Show
The Crises of Due Process
And that's a broader education and persuasion campaign more than it is a question of writing new laws and regulations.
The David Frum Show
The Crises of Due Process
Well, on the backwards looking question, I mean, I certainly do look back and think, well, you know, I thought there were people who shared certain principles that I hold dear and that I thought we all said we held dear that.
The David Frum Show
The Crises of Due Process
guess turned out not to or change their minds so i it does certainly make me look back with a bunch of question marks in my mind but look looking forward in some ways i think the answer is the same yes there are a lot of people who have done things and joined things and advocated for things that i'm very surprised and disappointed about and it certainly changed my view of them but i think we need to work
The David Frum Show
The Crises of Due Process
person by person, you know, throughout the country, just trying to persuade people that this is the wrong path and moving to the right path anyone we can.
The David Frum Show
The Crises of Due Process
So my advice on that, it changed between the first Trump term and the second Trump term. In the first Trump term, I had a lot of conversations with people about that very subject. They would say, I don't like Donald Trump very much, but
The David Frum Show
The Crises of Due Process
I have these particular political values which coincide with some aspects of his program, and my only chance to serve in the government would be in a Republican administration. What do you think I should do? And my general view there was that look, the only alternative to good people being in government was more bad people being in government.
The David Frum Show
The Crises of Due Process
And so that we all had an interest in having good people be in government. But I would say, look, that's what the country's interest is. For you, I would just look for roles that don't have you directly with the eye of Sauron gazing upon you in the White House.
The David Frum Show
The Crises of Due Process
Find something that's a little distant from that where most of the government is functioning normally and you can engage in public service in a wonderful way. in the second term, I just don't think there is a part of the government where you can say that anymore. I think at this point, that baleful eye is kind of much more pervasive and trying to turn everything in its direction.
The David Frum Show
The Crises of Due Process
I mean, one thing that is just striking about this administration, whether you talk about law firms or universities or the media, they are systematically trying to use every available lever of government power that exists in order to punish their enemies and discourage people from speaking out against them.
The David Frum Show
The Crises of Due Process
And I think it's very hard to find a corner of the government today where you can feel good. So I think on that, my advice has changed.
The David Frum Show
The Crises of Due Process
Well, I think, you know, it's a it's a classic prisoner's dilemma, which is that some individual I mean, the way the president's attack on law firms works again, this is about using all the levers of government power.
The David Frum Show
The Crises of Due Process
They're trying to ruin the law firms by threatening the clients by saying, you know, you'll lose your government contracts if you're a client of this law firm in the hope that the clients will flee. The lawyers representing those clients will flee and the law firms will crumble.
The David Frum Show
The Crises of Due Process
And so some law firm leaders have, I think, mistakenly concluded that the way to do this is to cut a deal and just get themselves out of the president's gaze and then they can move on. I think they're mistaken if they think they can move on. I think we're already starting to see the demands escalate.
The David Frum Show
The Crises of Due Process
Everybody knows that when you pay protection money, it's not one and done, that they come back to you for more and more and more once they know you're willing to pay. And so that's why we see the president...
The David Frum Show
The Crises of Due Process
Even after these deals were inked, the president saying things like, well, now I think I'd like to use these law firms to help coal companies with their leasing or help me with my trade deals. And there's even reporting that they want these law firms to potentially work for Doge and the Justice Department. Now, I don't know whether any of those requests have been made.
The David Frum Show
The Crises of Due Process
Maybe the president's gaze will, in fact, turn elsewhere. But these law firms have indicated that they are willing to pay protection money. And I don't know why they think it's going to stop here.
The David Frum Show
The Crises of Due Process
I think that is absolutely right. Look, courts are going to play a very critical function. They're already playing that function. There's a subset of issues. where they are absolutely critical and they're often doing great work. But that's a subset of issues. Some things the president is doing are gonna be terrible, but lawful.
The David Frum Show
The Crises of Due Process
Some things are gonna be unlawful, but there's gonna be a long lag time between the act and a court remedy. And some things the court remedy is just not gonna be fully effective. So it's ultimately up to the rest of us.
The David Frum Show
The Crises of Due Process
Right. And that was a great time. I still think about it very fondly. And one of the things I think about fondly is our long conversations over lunches and dinners and dining halls.
The David Frum Show
The Crises of Due Process
I think that's true. Look, I mean, I voted for Hillary Clinton, for Joe Biden and for Kamala Harris. You know, I was actually walking the streets in Pennsylvania this last year, knocking on doors for Kamala Harris. I never thought I would be doing that, frankly, for anyone. It's not what I used to be doing and contribute to campaigns.
The David Frum Show
The Crises of Due Process
And I certainly didn't think I would be doing that in that setting for the Democratic candidate. But look, I had always thought myself a conservative because I believed in things like a strong and robust foreign policy to oppose authoritarianism abroad in free markets and personal liberties and in constitutional values that underpin our democracy. I still believe in all of those things.
The David Frum Show
The Crises of Due Process
I don't think the current administration believes in any of them. And if that's what conservative has come to mean, then I just decided quite a while ago that I didn't want any part of it.
The David Frum Show
The Crises of Due Process
Largely so. I mean, look, we all over time as things happen, our ideas adjust in different ways to take into account new facts and new information. But on the whole, I still believe in the same thing about the courts that I always have.
The David Frum Show
The Crises of Due Process
What's happening now is unprecedented and really serious. I mean, some of the most high profile cases out there the administration's been acting with what could only be described as contempt towards court orders. And that's playing out most vividly in the cases involving their efforts to remove and keep people in the United States in that prison in El Salvador.
The David Frum Show
The Crises of Due Process
And those cases are really, at one level, very, very simple. And that's unusual for a legal matter. Most of them are complex to some degrees, but this one is simple. And just to back up, the administration had what it thought was a good two-part legal strategy for how to get certain people out of the country in ways that would
The David Frum Show
The Crises of Due Process
not require them to ever go to any court and present evidence or justify the legal basis for what they were doing and part one of that strategy was an internal decision that under a statute known as the alien enemies act they could bundle people into planes without giving them any notice about what was about to happen spirit them out of the country and do that so quickly that as a practical matter they wouldn't be able to get into court to stop that from happening
The David Frum Show
The Crises of Due Process
And then part two of the strategy is once they are out of the country and in that prison in El Salvador, if they try to file cases to say, well, it's a fait accompli now. They are no longer in our custody. They're in the custody of a foreign government. So there's nothing a court can do.
The David Frum Show
The Crises of Due Process
So, you know, even though there is a precept which is like deeply wired into the DNA of the country and certainly in the Constitution that Everybody gets their day in court. Under this approach, it would always be either too early or too late for them to get into court. And what happened is the Supreme Court dealt what could only be described as a death blow to both aspects of that legal strategy.
The David Frum Show
The Crises of Due Process
The court held with no reported dissent that, no, you can't hustle people out of the country in this way without giving them sufficient notice to enable them to go to court and challenge that if they wish to. And they also held on the other part that a court can direct the administration to do what it is able to do to get somebody returned who's been erroneously removed.
The David Frum Show
The Crises of Due Process
Absolutely. We are not talking about weeks long jury trials. We're talking about there's no jury at all. This is before either an immigration judge or it can ultimately be before, you know, a federal judge. But you are the key.
The David Frum Show
The Crises of Due Process
The minimum baseline is you have an opportunity both to present evidence, factual evidence, and to make legal arguments that the administration doesn't have the authority to do this. And some independent decision maker. will make a judgment as to whether or not they have a right to deport you.
The David Frum Show
The Crises of Due Process
So it is a very minimal level of due process, and it is not itself an extraordinarily time consuming fact, but it does require the administration to submit to some neutral testing of its legal theory and its evidence. So, yeah, go ahead.
The David Frum Show
The Crises of Due Process
And to translate this to our current context, it would mean saying they're saying I'm a member of Trende Aragua, this this Venezuelan gang, because I have a tattoo here. That looks like what they say is a logo of the gang. But in fact, that tattoo is something I put on 20 years ago because it's my favorite soccer team or something like that. And the judge would would scrutinize the evidence.
The David Frum Show
The Crises of Due Process
And so the administration really once it lost on these basic legal principles in the court, it had a very straightforward way to respond. which would be just to say we acknowledge that these people in El Salvador are there only because we are paying millions of dollars to El Salvador to house them for us. So they are in our custody effectively, both legally and practically.
The David Frum Show
The Crises of Due Process
And their lawyers can file habeas petitions and present whatever evidence they can that what was done was unlawful. We can respond. And whatever a court decides, we'll do. And as to the guy in Maryland who was who they've already conceded was erroneously deported. They could bring him back and then give him whatever process and maybe he can be removed to another country.
The David Frum Show
The Crises of Due Process
All of that would be for a judge to decide. All that's being asked of the administration is that they go through that process. But whether because, well, I think it's a mix of political reasons, ideological reasons. psychological, even pathological reasons, they are incapable of doing that. They want this fight and it's turned into a big power struggle. And that's where it ceases being so simple.
The David Frum Show
The Crises of Due Process
I think that's absolutely right. And if you want a really extraordinary example of that, you would look at the order that the court issued at 1 a.m. on Saturday morning this last weekend, because even though they had held that everybody has to be given meaningful notice before they could be removed in this way, there was credible evidence that the administration was loading people onto buses
The David Frum Show
The Crises of Due Process
without giving them anything like the notice that was required. And the ACLU went to the Supreme Court and said, please, as you listen to the rest of this case and get briefing, stop this from happening. And if the administration were a normal administration and had compiled a record so far of being a normal administration,
The David Frum Show
The Crises of Due Process
the court would have said, well, I can be confident they're not going to do this while we are hearing your petition. So let's give the government a chance to respond. Let's see what they say. And then we'll decide what to do.
The David Frum Show
The Crises of Due Process
Because, of course, the government wouldn't spirit these people away while we are actually in the process of deciding whether it can do so on this emergency application you filed. But they knew that the government had done exactly that with the first 200 or so people they had sent away. The case was before a district judge.
The David Frum Show
The Crises of Due Process
And they rushed to secretly get the people out before he could issue an order. And they didn't quite succeed on that, which is why you have these issues of contempt floating around now. But at 1 a.m., the court, by a seven to two vote, said, don't remove anybody in the class represented by these lawyers until you hear otherwise from us.