Can the Rule of Law Hold?

0:00I would have thought until this president started with the Schedule F and the new kind of loyalty tests and transferring people out of their jobs, that the Civil Service Reform Act gave an awful lot. And the internal operating rules of the DOJ gave an awful lot of constraint to this stuff. But, you know, when you have a president who is absolutely hell bent on busting through all of the guardrails, I'm not sure what you what you do about that.

0:35This is Stanford Legal, where we look at the cases, questions, conflicts and legal stories that affect us all every day. I'm Pam Carlin. Please subscribe or follow this feed on your favorite podcast app. That way, you'll have access to all our new episodes as soon as they're available. Today, we're trying something a little different and a little new. My colleague Diego Zambrano joins us to interview me. Diego's an expert in civil procedure and in comparative law, and he's the Associate Dean for Global Programs and Director of the Newcomb Center for the Rule of Law here at Stanford Law School.

1:11And in thinking about the rule of law, obviously, one of the critical institutions in the United States is the Department of Justice. And so Diego and I are going to talk a bit about the Department of Justice today. Welcome to the show, Diego. And I hope you really love doing interviewing because I'd love to have you back. Great. Great. Yeah. Very happy to join you, Pam. You've promoted really interesting conversations in the podcast, so I'm happy to contribute as much as I can. All right. So the topic for today is the recent dramatic changes to the Department of Justice and specifically the civil rights division you worked in.

1:45And just to set things up, let me start with the obvious. The Trump administration has turned the DOJ upside down from the DOJ's move to dismiss charges against New York City's Mayor Eric Adams to the Attorney General Pam Bondi explicitly stating she was proud to work at the directive of Donald Trump. a departure, to say the least, from the usual stance of AG independence. There's a lot of ground to cover here, but can you just give us a capsule version of what's going on at the DOJ first and your thoughts on these changes? Well, one of the things is, at least since the Watergate era, there has been a notion that the Department of Justice, while it obviously takes into account the large-scale priorities of a presidential administration, makes decisions about individual cases without regard to kind of partisan considerations, and really views itself not as an independent agency, but as an agency of the executive branch that exercises some independent judgment about which prosecutions to bring, what kinds of cases to bring and like.

2:51And I think the Trump administration is riding kind of much tighter herd on the Department of Justice than any prior administration in my professional lifetime. And the upshot of this is that they have engaged in a series of personnel practices that were really hollowing out the department. I would say thousands, maybe tens of thousands of years of experience have departed from the Department of Justice in the last four months. Right. So the DOJ is interesting in that it's a mix of both career lawyers and political appointees. And so you do have a lot of changes in administrations, But the point you're making here is that the Trump administration is going beyond that.

3:33There's something very different, entirely different from a normal change in administration. Yeah. I mean, in a normal change of administrations, I mean, the one thing to understand about the Department of Justice is that the political superstructure in the Department of Justice is incredibly thin relative to the number of career attorneys. So, you know, in the civil rights division, there were, I don't know, 350 attorneys roughly, all told, maybe a little bit more, maybe a little bit less, depending on the year. And there were maybe 10 political appointees. There would be a, you know, an assistant attorney general.

4:09There would be some deputy assistant attorneys general, like three or four of those. There would be a couple of senior counsel positions in the front office. that everybody else was a career lawyer. And when I was at the Department of Justice, both in the Obama administration and in the Biden administration, you know, there were people who had been appointed by every president as merit civil servants. There were people who stretched back to the Nixon administration. There were people who were there from the Ford administration, from the Bush administration, obviously the Clinton administration and like.

4:42And I had no idea when these people had been hired, who the appointing president was and the like. And now the Department of Justice really seems to view itself as an agent of this president. And therefore, they have transferred huge numbers of people out of the jobs those people have expertise in to jobs that are designed, I think, essentially to make them quit. Yeah. And so if you had to pick maybe one story that really highlights the danger of these changes, what would you pick? Would it be the mass layoffs in certain departments or people departing? Would it be what Pam Bondi said or what I started the interview with, that statement?

5:27What would you say? I would say that the kind of – I mean, I think of them almost as constructive discharge. You know, you make the job so unpleasant. You know, if you teach employment law, you know about constructive discharges. You weren't fired, but they made your life so unpleasant that you felt you had to quit. And I think that's the most profound thing here. I mean, there are a number of lawyers who, you know, if they were career lawyers and they were senior career lawyers, so they were deputy chiefs or chiefs of sections or the like. Those are people who were in those jobs for the most part during the first Trump administration.

6:06And they carried out the policies that the first Trump administration wanted. So these are not people that were secreted in there by Joe Biden. these are people who were happy to serve in the first Trump administration in their career positions. And, you know, for some of them, there were some kinds of cases that the first Trump administration wouldn't let you bring. But there were a lot of good cases brought during that time period. And these were people who I know from talking to some of them were eager to see whether they could come up with other cases that the Trump administration this time around would be happy with.

6:43And they were not given the chance to do this. Yeah. No, I think that's really important. I should say, you know, bureaucratic continuity is a pillar of the rule of law. It's what tells you that the law does not depend on political changes. You have career officials who are publicly minded, who care about the long-term interests of the country. And so you have continuity and that's a good thing. But before we continue talking about the current events, I wanted to step back and talk about your time at the Civil Rights Division. So as you mentioned, You had two stints there, one earlier in your career at the Obama administration, and then you returned during the Biden administration.

7:20Can you tell us about that experience? Yeah, I mean, it was a fantastic experience both times. I mean, the first time I was there, I was really sort of brought in to help with some major voting rights cases that were going on at the time. there was one challenging the Texas voter ID law and one challenging what was called the North Carolina omnibus law, which was a law that just had a lot of restrictions on voting rights in it. And so I was brought in to help oversee those in the front office. But I also ended up spending a lot of time on the implementation of the United States against Windsor case, which was the case that struck down the Federal Defense of Marriage Act and required the federal government to recognize same-sex marriages that were valid in the state where they were performed.

8:08And it was wonderful. I mean, I worked with great lawyers, both in the front office, other political appointees, and also in the sections. I mean, I was just, I was just awed by how good and how talented the career lawyers were, ranging from people who'd just been hired into the honors program, who were, you know, two or three years out of law school, to people who'd been there for 30 years. And, And, you know, just the wealth of information was terrific. You keep emphasizing this continuity of career lawyers, this kind of thick layer of lawyers that continue across administrations. And then this thin layer of political appointees.

8:49So how was that interaction for you as one of the political appointees serving a brief stint, right? Because you were there at first for maybe a year or two and then... I was there both times. I was there for a little under two years. Yeah. Yeah. What was that interaction like with the career lawyers? So the career lawyers are so expert in what they do, especially the managers, you know, the chiefs and the deputy chiefs of the sections. I mean, they know a huge amount. They have a huge amount of institutional knowledge. And I viewed my job as helping them to do their best work. I think my one real skill is I'm a particularly good brief writer and a particularly good brief editor.

9:31And so I think I was really helpful at helping to sharpen some of the arguments and give some guidance, for example, to some of the junior lawyers on the trial teams that I was on. But what just amazed me again and again and again was the willingness of the career people to say, look, the priorities are set in the front office by the politicals. We make suggestions and you all decide whether this is a case that you think should go forward or not. And not every case that came up to us from one of the sections ended up getting filed, but most of them did because these people had a lot of good judgment about what's the best way to use the resources of the United States to ensure that civil rights laws get enforced.

10:14Good. So the division's mandate is quite broad, right? You have voting, policing, housing. How do you practically decide how to allocate resources? So where does the president's agenda come in? Because we've said the DOJ has traditionally been independent, and yet you do have political appointees who have the president's agenda in mind. So how does that come into the decision? So most of it is not so much allocating between the sections, although when we get some new slots, which occasionally you get, you have to decide like which section will get those new slots. Most of it is in talking with the chiefs of the sections about what should our priorities be.

10:57So I'll just give you a couple of examples of different sections where there might be very different kinds of priorities depending on the administration. So, you know, the housing section, the housing and civil enforcement section of the civil rights division, it might do redlining cases, it might do sexual harassment by landlord cases. It might do cases about disability discrimination in housing. And different administrations will have a different mix of which kinds of cases they think are most important there. In the special litigation section, there might be different preferences and different priorities.

11:33And some administrations will want to spend more time on policing matters. Others might want to spend more time on institutionalized persons, you know, mental hospitals and other state facilities. And that's really for the folks in the front office to think about what should the priority be there. And you want to hear what the sections think the priorities should be, because they're often talking to the people out there who are affected. And then you make your decision, we're going to bring this case and not this case, or I want to see more cases coming up to the front office that involve USERA, which is the statute about making sure that folks who have to take time off to serve in the reserves or the National Guard, get their jobs back when they come back.

12:18I want to see more USERA cases and fewer large-scale testing cases involving physical fitness tests for fire departments or vice versa. And you make those decisions in the front office with the senior leadership of the Department of Justice, who are generally the people who are speaking directly to the White House. Right. So basically setting general priorities on enforcement. And so the first Trump administration, it would have been fair game to say, we want more religious liberty cases. That's the kind of thing that the president gets to do. The red line that you mentioned earlier is to decide on particular individual cases, right?

12:58Yeah. Generally, the idea is not that the president calls you up and says, I want you to investigate Harvard University, or I want you to investigate this particular individual who's been criticizing me or the like. In neither of the administrations that I served in, nor indeed in any prior administrations since the Nixon administration, would anybody have thought that it was appropriate for the White House to do that? And explain why, because obviously it's intuitive to me why the president shouldn't do this, but maybe it isn't intuitive for everyone. Why is it so dangerous for the president to be able to direct specific prosecutorial decisions.

13:40Well, when it comes to prosecutorial decisions in particular, you know, Justice Robert Jackson, before he became a Supreme Court justice, gave a very famous speech about the role of the prosecutor at DOJ. And what he basically said in that speech is the problem is if you start, you should start with the crime and then look for the perpetrator, not start with a person and then look for what crime you can pin on them. And that's especially true because even if you end up not being able at the end of the day to pin a crime on them for which they can be convicted, the process of having to deal with those kinds of investigations and hire a lawyer and the reputational hit you suffer and the like is really quite staggering.

14:28And, you know, the idea that the president can bring to bear the power of the Department of Justice on somebody because he doesn't like them for constitutionally protected activity is really frightening. I mean, it really kind of undermines the rule of law entirely. Exactly. Again, another basic rule of all value, divorcing political officials from really important decisions like prosecutorial decision making, etc. So you mentioned a lot of different cases that the division brings. And I was wondering how you think about success. So suppose you have to defend the work of the division to the public so that they understand why it is so important.

15:13How would you do that? What kinds of things would you point to and say, look, this shows the division has been very successful over time? So I think you can look at very different parts of the division and see this. So some of it is vindicating the fair employment rights of all kinds of people. The department has brought cases challenging unfair paper and pencil tests, has brought cases challenging unfair tests that kept women from becoming firefighters or police officers, has brought cases challenging employers who refuse to rehire veterans who come back from National Guard deployments. I mean, especially now, if you think about it, USERA is going to be is a potentially very important tool.

16:00If you look at the voting section, there are millions of people in the United States who are able to vote or who are able to elect candidates of their choice. Millions of overseas voters who get their ballots because the Department of Justice, every election cycle, makes sure that states are complying with UACAVA, which is how we get ballots to citizens living overseas, including citizens in the military, making sure those ballots go out on time and get back on time. The employee and immigrant and employee rights section makes sure both that people who are legally present in the United States and legally entitled to work don't get discriminated against in favor of citizens and make sure that citizens don't get discriminated against in favor of visa holders, which is also really important.

16:50You know, the special litigation section has made sure that people who are in state mental hospitals and other facilities are treated with dignity. The education opportunity section deals with all kinds of cases involving students with disabilities and students who have been subjected to unfair discipline and the like. So, you know, if you look across the division, it touches probably some aspect of the department. The division's work has touched and made better the lives of millions, millions, maybe hundreds of millions of Americans. Yeah. And one thing people might not understand is that often we can highlight a lot of cases and you just did.

17:30But the effect of these decisions is on everyone else. Right. The deterrence that a single prosecution or a single civil enforcement decision can bring on the behavior of a lot of states, officials, etc. And that is difficult to measure, but we know that it is there. Yeah, and just one of the other things is there are some kinds of cases really that if the Civil Rights Division didn't bring them, they couldn't effectively be brought. And I'll just give one example from the Texas voter ID case, which was brought both by the department and by a number of civil rights groups. In order to get some of the data to show the number of people who didn't have sufficient ID to vote in Texas, even though they were registered voters, you had to go through a number of federal databases to show that people didn't have a passport or didn't have a military ID or the like.

18:22And that's not something that private citizens can get access to. It's only because the United States was in the case that you could get access to those databases and run that stuff to show that there were hundreds of thousands of registered voters in Texas who didn't have the kind of ID they would need to vote. Yeah, this is a really interesting point, which is, look, there are a lot of cases that could be brought by private parties, but there are a lot of cases that only the government can bring. And obviously, Diego, this is right up your alley because you've been writing about private rights of action and private enforcement.

18:58And as you know, there's some kinds of cases where it might be better to have private parties bring the cases than the government. And then there are other areas where, boy, if the government's not going to do it, it's not going to be done at all. And of course, the Civil Rights Division brings criminal cases involving police brutality and hate crimes and human trafficking. And those are not cases that can be brought by victims. Even if the victims could bring a case, all they would get is damages. They wouldn't get to stop the people from doing this to someone else. Yeah, the division of labor here is interesting.

19:31The area where private parties dominate is employment discrimination, Title VII claim. But all these other areas that you're talking about are really dominated by the DOJ. So, all right, lots of good. But if there's one thing I know about you is that you're an independent thinker and you're not afraid to criticize where there are problems. So tell us some areas where you actually disagreed with the way the division had been run for a long time or areas where surprisingly you did not agree with your colleagues. Yeah, so I think there were some cases that were brought when I was there, not that weren't good cases in the sense that we never approved a case that we didn't think had some merit to it.

20:13But sometimes the priorities of a section might not be my priority. um so you know there there were a couple of cases where i thought well okay i see that you could bring this case and it does seem a little bit like shooting fish in a barrel is this really a case that's going to have the kind of legs that you were alluding to earlier which is is this case that's going to make some law that will have spillover effects on other cases or is this just a kind of meh it can you know and are you comfortable saying specifically some areas where you think that happened? Not specific cases, but areas. Areas, I think, so I think sometimes there are some, what I think of as kind of large legacy employment cases like that, where you're not going to make much new law.

21:07And the department should be thinking, you know, where could we make some really good new law? Yeah. And we shouldn't understate the extent to which there have been political disagreements in the past on both sides. Both Republicans and Democrats have disagreed about the mission of this division. In the mid-2000s under George W. Bush, the DOJ's inspector general reported that senior officials were illegally using politics as a litmus test in hiring career lawyers. And then during the Obama administration, you had a lot of conservative organizations like Heritage calling the division, quote, a refuge of partisan activists and ideological crusaders.

21:47So conservatives have had this critique that the division has been too activist, too partisan, etc. Do you think pre-Trump, though, that the division was politicized? So I want to separate two things out there about politicizing. One question is partisan politics. Does the division take into account, will this benefit the Democrats or benefit the Republicans? And I think prior to this administration, I don't think that was true in either set of administrations. That is, I think that the two parties, the Democrats and the Republicans, have different views. I shouldn't say have always had, but in recent years, they had very different views about a number of big civil rights issues.

22:33And so whichever party is in power, the department is going to take that view in a lot of cases. So, for example, I argued a case, this is after I came out of the department the first time I argued a case about whether Title VII's prohibition on discrimination in employment, quote unquote, because of sex, covers discrimination against people who are gay, lesbian, bisexual, or transgender. And not surprisingly, the Trump administration took the position. No, it didn't. And I took the position. Yes, it did. And when I had been in the Obama administration, we had taken that position that Title VII did cover transgender individuals.

23:16So that thing had switched back and forth over time. I don't think that was partisan. I think it reflects the different ideological valence of the two parties. And that's OK. Right. That's OK. I don't think that people thought about, is this going to help Democrats or is this going to help Republicans particularly? I never saw any discussion of that. when I was in the department. And of course, I did a number of cases when I was a civil rights lawyer full time when I was at the NAACP Legal Defense Fund. That was during the Reagan years, continuing over into the George H.W. Bush years. And the government was often on our side on those cases.

23:56Not always, but quite often. The first case I argued at the Supreme Court, the government was on our side. And the solicitor general who argued alongside me was Ken Starr and his political deputy was John Roberts. So it's not that the department never takes the plaintiff's side in civil rights cases. This administration seems different, though. Yeah, that's what I was going to say. It just seems totally interested in turning the division into something it never was before, which is a kind of pure ideological warfare on behalf of an ideology that's very hostile to most of the statutes that the department actually enforces.

24:42I mean, they put up these new mission statements that don't really mention what the division has traditionally done for the last 50 years since it became a division. They talk about the voting section without mentioning the Voting Rights Act. They talk about the education opportunity section without mentioning school desegregation. It's just completely different than anything we've seen before. Yeah. So you identified another red line there, which is our career officials slash political appointees at DOJ now asking, is this going to benefit the president, the president's political goals, et cetera?

25:19And you said this, you think this question had never come up before. And now you're pretty confident that it is. Never at this level. I mean, there might have been like a case here or a case there. Right. But, you know, the desire to get rid of everybody in the division who has a different view than you. I mean, one of the things that I thought was great about the division when I was there was that the career managers were not afraid to say, I don't think this is a good idea. Or, you know, I understand what you want, but here's why I don't think we should do it. And you relied on them to bring that expertise.

26:02And the current assistant attorney general for the Civil Rights Division has made it very clear. She is not interested in hearing from people who are not completely with the MAGA movement. Right. Now, the interesting thing, a lot of these changes are breaches in norms, right? So we had norms of DOJ independence that are being eroded. But much of what's happening is not actually unlawful. Now, you did mention, though, that you think... I think some of it probably is, which is, you know, it is retaliation against folks to take people who, for example, have spent their whole life in the environment and natural resources division doing environmental law and tell them, now we're going to assign you to a task force to sue cities that are not dealing with our immigration system the way this administration wants.

26:54I mean, the number of people, really senior people who've been transferred into jobs that they have no expertise to do, and then those jobs don't even really exist. And it's really just designed to force those people to leave. Right, right. Okay, so that's where you would see some unlawful acts. Now, was this inevitable? I mean, given a polarized electorate that cannot agree on some basic fundamental principles, and the president who technically has the power to control the DOJ. Was this kind of thing inevitable? And I say that because this is not how the states run their attorneys general, right?

27:35At the state level, more than 40 states have independently elected AGs, where a governor could not do this because that AG is independent. But that's not true at the federal level. So would you prefer a model more like the states? Or what would you see is a way to counteract this problem. So to start with the first part, I'm not sure that this is inevitable. Because, you know, obviously, around the margins, there are always complaints about, you know, unfair practices of various kinds, but they're very seldom, they very seldom rise to anything like this level. That is, you know, the press reports are that two thirds of the lawyers in the Civil Rights Division have left.