Can the Rule of Law Hold?

Pam Karlan: I would have thought until this president started with the Schedule F and the new kind of loyalty tests and the 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 when you have a president who is absolutely hell bent on busting through all of the guardrails, I’m not sure what you do about that.

This is Stanford Legal, where we look at the cases, questions, conflicts, and legal stories that affect us all, every day. I’m Pam Karlan. 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 Neukom Center for the Rule of Law here at Stanford Law School. And 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.

Diego Zambrano: Great. 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.

Alright, so the topic for today is the recent dramatic changes to the Department of Justice, and specifically the Civil Rights Division you worked in. And 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?

Pam Karlan: 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 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 the like. And I think that Trump administration is riding 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.

Diego Zambrano: 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. There’s something very different, entirely different from the normal change in administration.

Pam Karlan: Yes, in a normal change of administrations, 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. 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 an assistant attorney general. There 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. But 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, 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 the like, and 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 and into to jobs that are designed, I think essentially, to make them quit.

Diego Zambrano: 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? What would you say?

Pam Karlan: I would say that  … I think of them almost as constructive discharge. You make the job so unpleasant, 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. There are a number of lawyers who, if they were career lawyers and they were senior career lawyers—so they were deputy chiefs or chiefs of sections—those were people who were in those jobs for the most part during the first Trump administration.

And 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 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, and they were not given the chance to do this.

Diego Zambrano: Yeah, I think that’s really important. I should say that 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. Can you tell us about that experience?

Pam Karlan: It was a fantastic experience both times. The first time I was there, I was 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 v. 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. And it was wonderful. I worked with great lawyers both in the front office, other political appointees, and also in the sections. 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 two or three years out of law school to people who’ve been there for 30 years. And the wealth of information was terrific.

Diego Zambrano: You keep emphasizing this continuity of career lawyers, this thick layer of lawyers that continue across administrations, and then this thin layer of political appointees. How was that interaction for you as one of the political appointees serving a brief stint? Because you were there at first for maybe a year or two and then…

Pam Karlan: Both times I was there for a little under two years.

Diego Zambrano: What was that interaction like with the career lawyers?

Pam Karlan: The career lawyers are so expert in what they do, especially the managers, the chiefs and the deputy chiefs of the sections. 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, and 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, 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.

Diego Zambrano: Good. 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…

Pam Karlan: 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. So, 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, and some administrations will want to spend more time on policing matters. Others might want to spend more time on institutionalized persons, 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 bring this case and not this case. Or I want to see more cases coming up to the front office, that involve USERRA, which is the a 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. I want to see more USERRA 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.

Diego Zambrano: So basically, setting general priorities on enforcement. And so in the first Trump administration, it would’ve 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?

Pam Karlan: Yeah. 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. 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.

Diego Zambrano: 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?

Pam Karlan: When it comes to prosecutorial decisions in particular, 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: You should start with a 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 is really quite staggering. And 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. It really undermines the rule of law entirely.

Diego Zambrano: Exactly. Again, another basic rule of law 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. How 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?

Pam Karlan: 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.

Especially now, if you think about it, USERRA is going to be … is a potentially very important tool. If you look at the voting section, there are millions of people in the United States who are able to vote or who were 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 UOCAVA, 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.

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.

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, maybe hundreds of millions of Americans.

Diego Zambrano: Yeah. And one thing people might not understand is that often we can highlight a lot of cases and you just did, but the effect of these decisions is on everyone else. So 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.

Pam Karlan: Yeah. And just one of the other things is, there’s 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 … 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, and 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.

Diego Zambrano: Yeah. This is a really interesting point, which is, look, there, 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.

Pam Karlan: Yeah. And obviously Diego, this is right up your alley because you’ve been writing about private rights of action and private enforcement. And 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 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 the 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.

Diego Zambrano: Yeah, the division of labor here is interesting. The area where private parties dominate is employment discrimination, Title VII claims, 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.

Pam Karlan: 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, but sometimes the priorities of a section might not be my priority. There were a couple of cases where I thought 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 this a case that’s going to make some law, that will have spillover effects on other cases? Or is this just a kind of  … nah …

Diego Zambrano: Are you comfortable saying specifically some areas where you think that happened? Not specific cases, but areas …

Pam Karlan: I think sometimes there are some … what I think of as large legacy employment cases like that, where you’re not going to make much new law and the department should be thinking, where could we make some really good new law?

Diego Zambrano: 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 DOJs 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, “a refuge of partisan activists and ideological crusaders.” Conservatives have had this critique that the division has been too activists, too partisan, etc. Do you think pre-Trump though, that the division was politicized?

Pam Karlan: 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 there the two parties, the Democrats and the Republicans, have different views … I shouldn’t say have always had, but in recent years, they’ve had very different views about a number of big civil rights issues. And so whichever party is in power, the department is going to take that view in a lot of cases.

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 “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. So 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 okay. That’s okay. 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 I didn’t 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 sideinn those cases. Not 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 division …  the department never takes the plaintiff’s side in civil rights cases. This administration seems different though.

Diego Zambrano: Yeah, that’s what I was going to say…

Pam Karlan: 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. They put out 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 completely different than anything we’ve seen before.

Diego Zambrano: Yeah, so you identified another red line there, which is are career official slash political appointees at DOJ now asking: is this going to benefit the president’s political goals, etc. And you said this … you think this question had never come up before and now you’re pretty confident that it is…

Pam Karlan: Never at this level. There might have been like a case here or a case there, 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, I understand what you want, but here’s why I don’t think we should do it or the like, and you relied on them to bring that expertise and 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.

Diego Zambrano: Right. Now, the interesting thing, a lot of these changes are breaches in norm, 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…

Pam Karlan: I think some of it probably is, which is, it is retaliation against folks to take people who, for example, have spent their whole life in the environment/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.

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 the … and it’s really just designed to force those people to leave.

Diego Zambrano: Okay. So that’s where you would see some unlawful acts. Now, was this inevitable? 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. At 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 is … would you prefer a model more like the states or what would you see as a way to counteract this problem?

Pam Karlan: So to start with the first part, I’m not sure that this is inevitable, because, obviously around the margins there are always complaints about unfair practices of various kinds, but they’re very seldom … they very seldom rise to anything like this level, that is, the press reports are that two thirds of the lawyers in the civil rights division have left. I know sections where there’s hardly anybody left in the section at this point. And that is not normal. And that’s not normal even when you have a big swing. When Ronald Reagan took over, people didn’t leave en masse, some people left just like some people will leave when Obama came in, but most people didn’t leave because these are people who really decide to devote their lives to public service.

The question of whether you want an independent AG is a really complicated one because so much of what the Department of Justice does is to represent the Executive Branch in all sorts of work. So you don’t want to … I don’t think you’d want to have, for example, an AG who was from a different political party than the president. I think that could be a real disaster for even things like defending the president’s policies, right? Because the Civil Division at the Department of Justice and in particular, the Federal Programs section of the Civil of the Civil Division, is responsible for defending the president’s programs in court.

What’s horrible now is when those people … by the way, federal programs has hemorrhaged people recently, in part because those people are being asked to go into court and defend things without being told the truth about what’s going on. So, you’re constantly having people being asked in court: “Is the government doing this or this?” And having them say “I don’t know, all I can tell you is what I read in the newspaper,” because they can’t get answers from the politicals about what’s going on. So, I’m not sure that a totally independent attorney general is what you want. I would have thought until this president started with the Schedule F and the new kind of loyalty tests and the 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 when you have a president who is absolutely hell bent on busting through all of the guardrails, I’m not sure what you do about that.

Diego Zambrano: Yeah. So say you had a magic pen, you can make any changes in law or the Constitution. Do you have a favorite idea for how you fix this problem?

Pam Karlan: I think maybe we strengthen the civil service laws some. So that it’s harder to do what the President is doing here. And I, … we don’t have the ability … I think, the Supreme Court has made this all tougher by giving the president absolute immunity from any kind of deterrent constraint on the, on his, doing what he’s doing right. The Senate … I if I could do anything here, it might have been giving a backbone to the U.S. Senate because they never should have confirmed the people they confirmed for the top jobs at DOJ.

Diego Zambrano: That’s a great point.

Pam Karlan: And if they hadn’t confirmed those folks, we wouldn’t be in the position we’re in.

Diego Zambrano: Very good point. And I wanted to … maybe we’re coming to a close here, but I wanted to mention that one thing that I’ve always been impressed by is the high caliber of DOJ attorneys.

Pam Karlan: Oh, they’re the best.

Diego Zambrano: It’s an institution that attracts the best of the best. My best students are eager and excited … have traditionally been eager and excited to work for the DOJ. Some of the best students that I graduated with from law school have ended up at the DOJ, and this is, that’s actually not normal. That’s an amazing achievement for the country, that the legal branch of the government attracts the best of the best.

Most countries around the world want that. They try to build that and it is very difficult to actually achieve. And so I … what I’m most worried about is degrading that, not having the highest caliber law students, lawyers want to join the Department of Justice because they see it as a political entity. Is this is something that really concerns you too?

Pam Karlan: It totally concerns me and it concerns me also because people relied on the idea that as merit-selected civil servants, they would have job security in these jobs. And so, it’s not just that they love these jobs, which is great, but that they feel they can make the financial sacrifices and the like to take these jobs because they know that the job will not disappear on them as long as they’re doing their work well.

And once you get rid of that, it becomes much harder to attract people to the job. Because what attracts people to the job is the combination of the ability to do their best work, never have to worry about a client, right? You don’t have to go out there and get clients. The cases come to you in that sense, or you go out and find them because you think they’re righteous cases. You don’t have to persuade somebody to pay you or to hire you or the like. And I said this at graduation the other day when I gave the talk that one of the sentences that I’ve said that made me proudest was getting up in court and saying, “Pamela Karlan for the United States.”

And I think from talking to a lot of these folks, every time they said that, they felt this surge of pride. And what you now have are people who don’t feel that they can rely on that anymore. I hope what will happen is we will survive this period, and a lot of these people will flow back to the Department of Justice, but some of them won’t. Some of them took retirement, so they can’t really. And some of them will have moved on to other things, and the loss of that talent and that experience is just a huge cost.

Diego Zambrano: Absolutely agree. It’s extremely important, if you want to govern a country well, maybe at the top of your list it should be create institutions that the best talent want to work in. And so I … maybe we should end with that, but I’ll give you the last word, Pam.

Pam Karlan:  It’s been such a pleasure talking with you about this and, your bringing the comparative perspective to this is also really valuable because I think people in the United States don’t understand just how special our Department of Justice is, but it is a very special place and what’s going on there now is just a terrible tragedy.

I want to thank Diego Zambrano, my colleague here for joining me. This is Stanford Legal. If you’re enjoying the show, please tell a friend and leave us a rating or review on your favorite podcast app. Your feedback improves the show and helps us get new listeners to discover us. I’m Pam Karlan. See you next time.