In this episode of The David Frum Show, David examines the dangerous path the Trump administration is charting by deporting and detaining individuals without hearings—an assault on due process that threatens the foundation of American justice. He’s then joined by former Acting Attorney General Peter Keisler to explore what America’s institutions can realistically do to push back against Trump’s executive overreach—and the serious risks facing the courts, the Federal Reserve, and the American public if Trump continues unchecked. Finally, David answers listener questions on Republican contempt for blue states, reclaiming the term “globalist,” and how citizens can effectively fight back. Get more from your favorite Atlantic voices when you subscribe. You’ll enjoy unlimited access to Pulitzer-winning journalism, from clear-eyed analysis and insight on breaking news to fascinating explorations of our world. Subscribe today at TheAtlantic.com/listener. Learn more about your ad choices. Visit megaphone.fm/adchoices
Chapter 1: Who are the speakers and what is their background?
Hello. Welcome to the third episode of The David Fromm Show. I'm David Fromm, a staff writer at The Atlantic. This week, my guest will be Peter Keisler, former Acting Attorney General of the United States under President George W. Bush, former head of the Civil Division at the Department of Justice, a veteran of the conservative legal community.
He had clerked for Supreme Court Justice Kennedy and for Judge Robert Bork. I have known Peter also as a friend for nearly half a century. He is someone in whom I've... enormous confidence from whom I have great respect. And I think as you listen to him today, you will see why, because of his extraordinary breadth of interest and depth of knowledge. I'm so grateful that he joined us.
Our theme will be issues of law and due process of law. And before I begin my conversation with Peter Keisler, let me offer some introductory thoughts on the subject.
Chapter 2: What are the due process concerns with Trump administration's immigration policies?
As we've seen, the Supreme Court of the United States has rebuked the Trump administration for its contemptuous attitude toward courts and toward the dozens of people it has sent to a maximum security prison in El Salvador without a hearing, without even allowing them to challenge that the government has got the right person.
Those detained people have now been in supposedly the custody of El Salvador, in fact, in the custody of the United States government, because the United States government is paying millions of dollars to the government of El Salvador to hold these prisoners.
They've been there now for five weeks, as I speak, without a hearing, without any show that the government has got the right person, incommunicado, and apparently for life. Now, it does look like there have been at least some instances of mistaken arrest. Some of these people may be outright innocent. Others may be genuinely bad actors. Who can know?
Because there's been no show of proof, no hearing of any kind. United States law allows for quite expedited process to remove people from the country, to deport them. You don't get a big trial. You don't get a jury trial. You are moved rapidly because the theory of the case is first, you don't have a right to immigrate to the United States. So you have not been deprived of your rights.
And secondly, once you're removed from the United States, you remain a free person. You are sent back to the place you came from or some other place to which you have some connection. And then you're free to go about your business. You're not sent to a prison, not sent to a prison for life.
But as I talk about this, the thing that has most gripped my mind with worry and anxiety is not only the effect on the individuals themselves, some of whom may be genuinely innocent, but the effect on those who are sending human beings to a prison without a hearing.
The United States government is now building an apparatus of lawyers, of officials of all kinds, who plan and think every day, how can we apprehend people on American soil and bundle them to a prison without giving them any show of a hearing? They're building skills and competencies at non-due process forms of arrest and incarceration. that are going to be very hard to limit.
There are many kinds of immigration status that people present in the United States have. There are citizens, of course. There are permanent residents. There are people here on many different kinds of visas. Now, you can lose your visa rapidly for many reasons.
I remember when I was a Canadian citizen in the United States on a student visa, we were warned, if you got into a bar fight, you could theoretically lose your student visa. Now, in those days, that meant that you'd have to go back to Canada and go to school in Canada, which is not the end of the world.
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Chapter 3: How has the Supreme Court responded to the Trump administration's deportation tactics?
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.
At a minimum, the person gets to say, you've got the wrong person. And I may have the same name as this other person, but actually I'm here on this visa or this status. You've got the wrong guy. Right.
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.
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.
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.
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.
Correct me if I'm wrong, but my impression is the federal courts have gone very, very far out of the way to avoid conflict with the first of the first and then the second Trump administrations. And in between, they went even further because they seem to have greatly welcomed delay on all the criminal matters, hoping that somehow All this problem would go away.
It would be resolved by some other decision maker, some other branch of government or public opinion or something. And they could be left well out of it. And it culminating with the decision about the president's exposure to criminal liability, which is like this complete castle in the air legal structure that seems just to be based on we're going to
lick our finger, put it up in the wind and do a three-part balancing test based on no kind of ever previous authority. But mostly what we're trying to do here is just keep this off our docket.
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Chapter 4: What challenges do courts face enforcing their orders against the executive branch?
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.
But when Trump says things like that, there's a whole school of thought, which was, well, Trump may say these things, but he would never actually do them. And that school of thought looks pretty battered. I mean, after January 6th, you have to assume that anything Trump is talking about doing is something he might actually do.
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.
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.
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.
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.
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.
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.
He's going to need a scapegoat because the tariff policy is an immediate disaster. There's no public backing for it. And the Federal Reserve has always been, and when he got into trouble in 2018, the Federal Reserve was his favorite villain then. And Trump thinks like a lifelong debtor. He always thinks there's nothing wrong with this business that cheaper credit couldn't fix.
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Chapter 5: What is the significance of the Federal Reserve Chairman's independence?
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.
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.
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.
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.
So it's all gone.
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.
If they wish to, we're in a different world.
Well, this is where I want to invite you to look ahead to something that worries me a lot. And I don't have any kind of answer to this. I don't even know how to begin to think about it. But the United States has a strong tradition of turning the page on past chapters of political history. The outgoing president departs.
And even if the successor thinks that outgoing president may have done some things that were wrong, there's a very real-world example that during Watergate, it was – uncovered that Lyndon Johnson had done many of the same financial things that Richard Nixon was accused of doing, and more so, that would, in the post-Watergate world, look like violations of practice or even of law.
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Chapter 6: Could President Trump legally fire or demote Federal Reserve Chairman Jerome Powell?
He's doing even more egregious things. And the cycle, if and when there is a post-Trump presidency, if and when people of different views ever reclaim any executive power, they're going to confront either these acts are so extreme, you can't turn the practice of oblivion on them.
But then we're into a new kind of world that looks a lot more like French history than American history, where we're digging up the bodies of dead kings and throwing them to the jackals.
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?
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.
How do we ensure accountability for past misdeeds and more like, how do we just repair the damage?
But if some staffer at Doge has unloaded vast amounts of proprietary government data into a computer where they shouldn't be, and is maybe hoarding them or even trying to sell them, that person is going to have some kinds of legal liabilities in his own right. And the defense will be, someone told me to do it.
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.
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Chapter 7: How does the legal framework protect federal officials from political removal?
I feel like we're going to have other priorities as well.
How does that rebuilding go? I mean, there is a practice where Lawyers, no disrespect, tend to respond to breaches of norms by writing laws. And so after every scandal, you have this kind of museum of the scandal, which is the law written after the fact of outlaw the scandal because it wasn't maybe even illegal before. And so you get ever greater accretions of law.
And the bad practices or the bad consequences of all this law is you encourage the very American way of thinking, which is if it's not outright prohibited, then I'm free to do it.
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.
And that's a broader education and persuasion campaign more than it is a question of writing new laws and regulations.
In Trump 1, just generally, the conservative legal establishment we knew, all the federal society people we were friends with, so many cases still are, that turned out to be quite a bulwark against the worst things that the president wanted to do in Trump 1. During the interregnum between the two Trumps, it began to crumble.
You found a lot of people who one would have thought knew better making arguments to protect Trump that were obviously opportunistic for Trump one time only. And now in Trump 2, It's not just legal weirdos from strange places in American life, but it is a lot of very distinguished people are ready to do the work to enable Donald Trump to break what everybody used to think were laws.
How do we think about this? What do we do about it? Does any of this cast a backward glance on the conservative legal project or is there a new conservative legal project that we're going to need to do to incorporate kind of concepts of morality along with concepts of law?
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.
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Chapter 8: What are the potential risks if the president gains control over independent agencies?
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.
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.
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.
My very last question. You have had a distinguished career in private practice. You mentioned law firms just now. Why are the law firms buckling in the way that they are?
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.
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.
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.
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...
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.
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