The Trump Administration and the Rule of Law Under Pressure

David Sklansky: I’m seeing a trashing of traditions that have long been cherished and safeguarded by people across the political spectrum. This administration has done things that no administration in modern memory would’ve even contemplated doing in terms of politicizing the Department of Justice.

Pam Karlan: 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. My guest today is my colleague David Sklansky who’s the Stanley Morrison Professor of Law and faculty co-director of the Stanford Criminal Justice Center.

And David and I go way back. We started our careers together as law clerks at the U.S. Supreme Court, and now we’re faculty colleagues here at Stanford. And in between we’ve done a bunch of very different things to get to this point. And one of the things that you did very early in your career was you were an Assistant United States Attorney—you were a prosecutor for the United States in fraud cases in California. And in thinking about where we find ourselves today with the Trump Justice Department and the administration’s view of the use of law, it’s very different than where you started off, and I was talking to you before we did the show about what I think of as one of the greatest pieces of legal writing, and in American history, which is Robert Jackson, who was later a prosecutor at Nuremberg and a justice on the Supreme Court, he gave a speech on the role of the prosecutor. How did you think about your role as a prosecutor when you first started prosecuting cases?

David Sklansky: So I was a federal prosecutor in Los Angeles for seven years in the Central District of California. And I think like pretty much everybody who becomes a federal prosecutor, I knew about Jackson’s speech because it gets drilled into federal prosecutors.

Jackson was a really interesting figure. He was the last justice of the Supreme Court who never graduated from law school. He became a lawyer through apprenticeship. He was the Commissioner of Internal Revenue for a period during the Roosevelt administration. He was Attorney General, then he was Supreme Court Justice and the chief prosecutor at Nuremberg and he gave this speech to the United States attorneys when he was Attorney General, the United States Attorneys are the chief federal prosecutor in each of the various districts throughout the United States. Each US attorney’s office is headed by a US attorney. And the speech is famous because Jackson stressed the great danger that lies in prosecutorial power.

He said that prosecutors have the power to destroy lives in a way that’s almost unequal by any other public official. And the great danger, he said, is that prosecutors will exercise their power in an unprincipled way by trying to figure out people that they want to get, and then searching the statute books to try to come up with some crime that they could charge them with. So that’s long been viewed as the chief thing to fear about prosecutorial power, and the chief thing that we want to avoid in the way prosecutorial power is exercised.

Pam Karlan: And when you were a prosecutor, what role did politics play in your decisions about which cases to bring or which cases not to bring?

David Sklansky: Almost none. I was a federal prosecutor under Republican presidents and under a Democratic president, and it made a difference in the priorities of the office, but that was really at the margins. The main priorities of the office remained fairly constant from one administration to another.

There was some reordering of priorities based on the priorities of the administration. What there never was, was any interference on political grounds in the handling of particular cases. And I worked on cases that involved possible targets who were closely related to one of the presidents under which I served. And there was never a whiff of a suggestion of any involvement from the White House at all, let alone the president, in the prosecutorial decisions we made, nor was there any suggestion in even the softest way from the higher levels of the Department of Justice, that we should think about political considerations in making charging decisions or in the way we handled the case.

Pam Karlan: So when you look at what’s going on now at the Department of Justice with … especially with regard to criminal prosecutions, what are you seeing?

David Sklansky: I’m seeing a trashing of traditions that have long been cherished and safeguarded by people across the political spectrum. This is an administration that’s done things that no administration in modern memory would’ve even contemplated doing in terms of politicizing the Department of Justice.

Pam Karlan: Yeah and I should say that you and I … and I served in a political role in the Department of Justice—what’s called a political role—what it means is you’re a presidential appointee as opposed to a merit-selected civil servant. And even there, we didn’t have the kinds of interference that you’re seeing now. But 1,600 former prosecutors and other Justice department employees recently signed an open letter…

David Sklansky: And you and I are both among those 1,600. It’s an open letter that addresses the targeting of law firms by the Trump administration, which is separate from, but in many ways as troubling as the politicization of the Department of Justice.

Pam Karlan: Yeah. And one of the points I think that the letter makes is: when we were in the Department of Justice, we thought it was important for the other side to be well represented as well. That the way to win a case was not to make sure that your opponent had no lawyer or had a lawyer who was afraid.

David Sklansky: Yeah. That’s a central component of the way our system works, that everybody needs a lawyer, everybody needs zealous representation. Most of us learned in school about John Adams’ representation of the British soldiers who were charged with murder because of the Boston Massacre, which Adams said at the time, and later in his career, was one of the proudest things that he ever did in his career as a public servant.

Pam Karlan: So maybe we should talk a little bit about the series of executive orders that the president has been issuing that target law firms and in particular target some of the most powerful and largest and most lucrative law firms in the country.

David Sklansky: At this point, there are half a dozen firms that have been targeted by the administration. And in each case the administration has been explicit that the firms are being targeted because of who they have employed as lawyers, because of the work that they’ve taken on through their pro bono programs, and because of the actions they’ve taken to increase diversity, equity, and inclusion in their workforce. And in each case, the executive orders threaten the law firms with barring all their lawyers from government buildings, barring them from government work, exercising a secondary boycott by reexamining government contracts with anybody who does any business with these law firms, revoking security clearances for lawyers at the firms. Several of these firms have sued and have received temporary restraining orders against most provisions of these orders. Other firms have settled with the administration and it’s an ongoing story.

Pam Karlan: Yeah, so the first of these orders, which involved Covington and Burling actually was targeting a Stanford Law School alumnus who works there, a lawyer named Peter Koski, who was a longtime civil servant in the public integrity section of the criminal division of the Department of Justice, where he prosecuted public corruption. He then went to Covington and Burling, where he is a partner and is representing Jack Smith, who was the special prosecutor appointed to look into President Trump’s involvement in breaches of security and in January 6th.

And then there was a series of them against New York-based law firms. Then there’s been another set of them, and I gather from talking to several friends who work at law firms, there are several other law firms that are pretty sure they’re going to be in the next tranche of these, who are trying to figure out what to do.

David Sklansky: And I would say that one thing that links together these executive orders against law firms and some of the actions that the Trump administration has taken inside the Department of Justice is the retaliation against lawyers who were involved in any investigation of Trump or any of the January 6th rioters. Trump promised as a candidate that he would be out for vengeance if he was elected president, and he’s made good on that. So, a number of these firms have been targeted because they employed people who were associated with Jack Smith’s investigation or because they employed people who are involved with other investigations of Trump.

And among the actions that have been taken to politicize the Department of Justice are firings of career prosecutors who were involved in the January 6th prosecutions, or in the investigation of links between the 2016 Trump campaign and the Soviet … and Russia.

Pam Karlan: Yeah, it’s … one of the things that’s so interesting about this is it’s almost like a kind of projection that the order will be … will declare something like preventing weaponization of the Department of Justice and then it goes and weaponizes the Department of Justice.

David Sklansky: Yeah. It’s a shame that the adjective “Orwellian” has been used so much ’cause you almost wish you could have saved it for now when it applies so aptly.

Pam Karlan: Yeah. The other thing, and you and I have talked about this, I’m sure on a couple of occasions, is in addition to the Orwellian of 1984, one of, I think, George Orwell’s best pieces of writing is that short essay Politics in the English Language, which talks about just what happens when you de degrade language in a way that it no longer means what it’s supposed to.

David Sklansky: Yeah. A lot of 1984 is about that too. One way in which that book got flattened for many years is it began to be read and remembered as a book about surveillance, but of course surveillance is only one piece of the system of oppression that Orwell describes in the book. Another large piece of the oppression has to do with language and with the use of facially apparent lies as a way of testing people’s loyalty.

Pam Karlan: Yeah. So when we think about stepping back from the executive orders about the law firms, and I should say one of the other things in addition to the letter that we both signed is that a number of people here at Stanford Law School, both on the faculty and in the Rhode Center on the Legal Profession, filed an amicus brief in the case involving the executive order against Perkins Coie, which is a law firm that was originally Seattle-based, but also has a large Washington presence. And what we say there is, there’s a problem here under the First Amendment because they’re targeting law firms because of their viewpoints, because the law firms have petitioned the government for redress of grievances, but also problems under the fifth and sixth amendments because they’re going to deprive certain groups and individuals of their right to their counsel of choice or perhaps any any choice. But when we step back from all of that to think about the rule of law more generally, what does the rule of law mean? We’re hearing that phrase an awful lot these days. What does that really mean?

David Sklansky: What it means to me is two things:  It means that you have rules and that they’re rules of law. So rules means that you don’t just exercise power based on whim or ideology; you’re following rules. And those rules themselves are arrived at through a principle process of reasoned deliberation. So you can think of the rule of law, I think, as the opposite of tyranny. It’s the opposite of having people in power, exercise power, just based on their own personal preferences or their own ideology.

Pam Karlan: So where is the threat coming from now, exactly?

David Sklansky: It’s from the White House, but I think that it’s a multi-pronged attack on the rule of law because it’s conceivable you could imagine a system that you might want to call the rule of law that didn’t involve courts and judges and lawyers, but we’ve never had a system like that.

Our system of the rule of law does depend on judges who are independent, on systems of adjudication that are insulated from politics and on lawyers that responsibly and vigorously represent both sides in any dispute. So we’re seeing attacks on the lawyer piece of this, both through attacks on law firms, which seem to be aimed at eliminating the possibility that views that are opposed to the administration will be vigorously represented in the court. We’re seeing it in attacks on the Department of Justice as a non-political agency that operates through principles and procedures that are designed to avoid the threat that Robert Jackson warned of, of using prosecution simply as a political weapon. And we’re seeing it through attacks on the courts and the attacks on the courts coming in a number of forms. First of all, there are attacks on judges. Donald Trump called for the impeachment of the judge who had ruled against him in the lawsuit challenging the deportation of a number of people to El Salvador.

And there have been calls to impeach or disqualify pretty much every other judge who rules against the administration in any case. There are also attacks on the courts through efforts to sideline the courts, to prevent them from having any ability to rule in particular cases, by rushing things through, by creating facts that are hard for courts later to correct.

Pam Karlan: Can you give an example of that?

David Sklansky: Sure. So, the mass firing of all kinds of federal employees who are protected by civil service laws, including career prosecutors, is not just a threat to legal principles, it’s illegal. We have civil service laws that say you can’t fire people who are non-political employees without cause. And the administration has tried to flood the zone with so many firings and with such unannounced firings that it’s difficult for people to use the courts in an effort to stop it.

It’s the same thing with some of the actions that have been taken to deport people who the administration claims are gang members to El Salvador. So the administration has now admitted that at least one of the people that they sent to a Salvadoran prison was mistakenly identified.

Pam Karlan: They said it was an administrative error.

David Sklansky: Yeah, but their position is…

Pam Karlan:, but they can’t fix it.

David Sklansky: There’s they can’t because he’s in El Salvador now he’s out of our hands. That position, if accepted, amounts to saying that the courts just are powerless to correct this.

Pam Karlan: Because their position is you can’t stop it before it happens. Once it’s happened, there’s nothing to be done about it. Which is, moved from Orwellian to Catch 22.

David Sklansky: Yeah.

Pam Karlan: It’s stunning. And the other thing that has stunned me is the number of times they’ve sent lawyers into court to argue cases for the government. Now, many of them are career lawyers in the civil divisions, federal programs, who then have to say in court, I can’t answer that question. I don’t know the answer to that question or the like, and that to me is stunning because the federal programs folks at DOJ have generally been extraordinarily competent and understand what it is they’re going in to defend.

David Sklansky: Yeah, that’s been stunning and the willingness just to sideline career people altogether and say, we’ll just make the argument ourselves in court if you won’t, which is what they did when they requested dismissal of the prosecution of Mayor Eric Adams.

Pam Karlan: Yeah. And I thought it was very interesting that this is the case where they were going to prosecute the mayor of New York for various pieces of public corruption. The administration then directed the career prosecutors to dismiss the case. Those prosecutors refused to do, one of them resigned, I think both of them resigned ultimately…

David Sklansky: We had…

Pam Karlan: And then other folks were fired on that. And then a bunch of political appointees showed up in court and what they wanted to do, and I thought this was really telling, was they wanted to dismiss the charges, but dismiss them without prejudice, which meant they could bring those charges again at any point, which really turned the mayor into somebody who was very vulnerable to the federal government, and the judge in that case, Judge Dale Ho of the Southern District of New York issued an opinion earlier this week saying, look, I have to dismiss the case because when the government wants to dismiss a case, you really can’t force them to go forward with it. But I’m going to dismiss the case with prejudice, right? That is, you can’t bring this again.

David Sklansky: That’s the position that Paul Clement, who had been appointed a friend of the court, advised the judge to take and the judge took it.

Pam Karlan: Yeah. And it seemed to me that quite sensible to do it that way, to say, look, I may not be able to force you to prosecute, but I certainly can prevent you from turning this into a kind of stick that you can hold over the mayor.

David Sklansky: Yeah. The judge’s ruling is really worth reading.

Pam Karlan: Yeah.

David Sklansky: Because he does refuse to dismiss the case without prejudice, he dismisses it with prejudice, but he also takes quite a lot of time to explain why the government’s arguments for dismissing the case at all seem meritless. And he makes it clear that if he thought that he could somehow force the government to continue to prosecute the case, he would.

Pam Karlan: Yeah. I thought his description of that there was no politics in the original decision to bring this case…And the idea, it really goes after the idea of democratic accountability in a way to say that the mayor of New York should be more responsive to the policy preferences of people in the White House than the policy preferences of the people who elected him.

David Sklansky: Yeah. That the consistent theme with a lot of this is making people accountable to the whims of one man. The career prosecutors in the Eric Adams case, were told, here’s what you need to say in court, we’re ordering you to do it if you don’t agree with it, it’s your duty to say it anyway. That’s your job, just to be a mouthpiece for us. And the lawyers who resigned, which included the U.S. Attorney in New York, one of the career prosecutors who had been working on the case, and then a number of prosecutors in Washington, D.C. at main Justice, their view was that’s not what they signed on for. And I have to say, when I became a federal prosecutor, it’s not what I signed on for. And it’s not a role I was ever asked to carry out. It’s similar with the law firms that the president has boasted about the fact that these law firms now seem eager to sign. They’re so eager to please him. The objective of the program is to create loyalty to the president’s objectives, both in the Department of Justice and in the private bar, and that’s not how the rule of law operates.

Pam Karlan: Yeah, one of the things that’s striking there is the firms all pledge to do a bunch of pro bono work. Several of the … one firm, it’s $40 million, two other firms, it’s $100 million of pro bono work in favor of the president’s priorities. And usually…

David Sklansky: Go ahead, Pam.

Pam Karlan: No, go ahead.

David Sklansky: I would say that when you read the list of what the president’s priorities are, none of them seem that bad on their face: assisting veterans, for example. What’s chilling is the idea that firms should be directing their pro bono programs to cohere with the president’s personal preferences.

Pam Karlan: And there have been some news reports, for example, of law firms that have decided not to continue representing certain groups pro bono that they had been representing in the past. There was a news report about LULAC being essentially told, we’re not going to continue representing you. LULAC is the League of United Latin American citizens.

David Sklansky: Yeah. And it’s worth keeping in mind that part of the executive orders targeting these firms explained that these firms were targeted because of “destructive” work they had done in a pro bono capacity. So it’s, the administration is being very explicit about the fact that they think that law firms should be penalized if they represent clients that the administration views as advancing positions that they disagree with.

Pam Karlan: Yeah, and one of the things that’s really scary about this is how it cows people beyond the people who were targeted by the orders themselves. Don Verrilli, who’s a lawyer at Munger Tolles and a former solicitor General, has been working on an amicus brief in support of the law firms that are challenging this, and a lot of the large law firms are not signing that brief or are saying, we’ll only sign the brief if a lot of our friends sign the brief as well. And that’s a really chilling situation.

David Sklansky: Yeah. That, so that brief, I think is gonna be filed tomorrow and I think they have a lot of firms and a lot of big influential firms that employ a lot of our graduates. But you’re right that what’s missing is the firms, the largest firms, the firms that are most profitable, those they’ve been chaired.

Pam Karlan: Yeah. I taught a reading group here in the fall for first-year students that was called Exit,Voice and Loyalty that used Albert O. Hirschman’s kind of work on that. And I find like almost every day I’m thinking about the “exit voice and loyalty” options that people, and especially that lawyers have under these circumstances. When do they say, I have to quit this organization, I can’t be part of it? When do they speak up iInside the organization and when do they simply say the organization’s made its decision, I’m gonna go along with it. And I think those questions are facing people both inside the government and inside a lot of these law firms.

David Sklansky: Yeah. And I do think it’s important, though, to recognize the lawyers across the country who are choosing “voice” at this moment, and they’re doing that in a variety of ways. And the challenges to these orders are so far uniformly successful.

Pam Karlan: So where do we go from here?

David Sklansky: I think we have a rough ride ahead of us for the next couple years. The rule of law is facing threats that it’s never faced in this country in my lifetime, in the lifetime of anybody I know. And it’s going to need a lot of supporters and a lot of advocates and lawyers are the … have to be at the front line of that. The letter that you and I both signed, the letter from former Department of Justice lawyers objecting to the targeting of law firms by the Trump administration, closes by saying, “All lawyers must call this out, otherwise we’ll replace the rule of law with the rule of men.” And I think it’s true that lawyers have a special obligation to view themselves as champions of the rule of law. And it is true that the rule of law has to be understood as what protects us from the rule of men, that is to say, tyranny. And it’s why, I think, I’m happy that we’re recording this in front of a room full of people who are thinking of attending law school because I feel like at this moment we need lawyers who are trained and who are committed to the rule of law and who will defend it.

Pam Karlan: So I wanna thank you so much, David, for coming on the show again. So Sharon, we have about five minutes for questions?

Sharon Driscoll: Five, ten minutes.

Pam Karlan: Five 10 minutes for questions.

Question 1: Just wanna say thank you so much. It was such an illuminating conversation and I really loved this framing of “exit, voice and loyalty.” In particular in the context of, we’re trying to figure out law school decisions and we also see that the administration is not just attacking law firms and the DOJ, but also universities. And so I’m curious, like what is, I guess, the current approach that Stanford is taking in the context of how to potentially mitigate the potential attacks on the university here?

David Sklansky: Do you wanna start with that, Pam?

Pam Karlan: Yeah. So the president and the provost have been very, very upfront about the importance of academic freedom and academic research. They’re supporting faculty who take positions on the issues. The university’s also looking to make sure that … one of the things that’s very complicated here is that in addition to all of the stuff we’ve talked about so far, there’s the dealing with what’s called the “indirect cost” or the overhead provisions, and they’re trying to deal with that because Stanford, as a university has a huge medical center, has huge government grants and the like, and if the federal government clamps down on those, the university faces some serious difficulties.

And so they’re trying to work with other universities to deal with that issue. The universities are in this very vulnerable position and so faculty have to speak up about these issues. Universities themselves have to speak up about the issues. I don’t know what more I can say about it other than that the university is spending a lot of time and effort trying to figure out how to defend the various groups inside the … various communities that make up the university. We have a lot of international students here, and we’re spending a lot of time advising them. We have a lot of researchers who have federal grants and they need to be protected. We have academic freedom issues. That’s what we’re doing is trying to make sure that we’ve got everything in order so that we can defend ourselves effectively.

Question 2: So as we see this unfold, as someone who’s clearly very invested in this, you have your own background in it. What do you see the legal minds, the lawyers that do bend to this, will, any reasoning behind it outside of political gain? And if so, what might it be? What is your response to that? And also how do you ensure that the legal profession can ensure that it doesn’t continue to bend to that in the future.

David Sklansky: So the question is what do I think the lawyers who are pushing the threats that I’m describing are thinking what they’re trying to achieve.

Question 2: Right. Yeah.

David Sklansky: Yeah. I don’t know for sure. I don’t, but my impression is, and I’d be interested in whether you disagree with this, Pam, that it’s a mixture. That there are some people who really do have a contempt for democracy and the rule of law, and think that the country’s become too soft, we need a dictatorship, we need something like a Roman emperor. But I think that there are a lot of other people who are conflicted, who haven’t yet decided whether to exercise, exit, or voice and aren’t sure how far their loyalty should go, who may feel like if they stay inside the organization, if they stay in the Department of Justice, they stay in other government agencies with their lawyers, they can help moderate the worst impulses of the administration. And I think there are lawyers also who feel that there have been abuses on both sides. So they feel like, yeah it’s true that I’m … in theory, they understood they appreciate some of the gravity of some of the attacks that Pam and I have been talking about, but they would say well, under democratic administrations there was weaponization of prosecutorial power. And so we’re … this is in some ways a recalibration or a rebalancing. I think that’s wrong. I agree that there were abuses of prosecutorial power under previous administrations, but I think that the suggestion that there’s some kind of parity here is completely wrong.

Pam Karlan: I mean I don’t disagree with anything you said. I think there are a couple of other things that can be going on. One of them is personal ambition. There are people who are going to get better jobs out of this administration than they would get out of any other administration. Then there is, at some of the law firms, it’s these people are making millions and millions of dollars a year and they don’t wanna give that up and that’s a reason as well.

Then I think, there are people who have families to support and it’s not clear what other job they would get. And there are people who are naturally risk averse. A lot of people who are in law school are risk averse, and it’s not a bad thing to be risk averse in a variety of ways. Part of what makes a good lawyer is seeing the problems ahead, and somebody who’s a little more fearful is better at seeing problems ahead than somebody who has no fear of anything. You don’t wanna … you don’t want your lawyer to be risk-preferring. And lawyers’ natural temperaments are conservative with a small C and in large part.

So there are such a wide range of reasons why people might be supporting the administration ranging from reasons that are perfectly understandable and indeed things that we all think of as important in our lives, to things where you think people really should burn in hell for thinking that way. It really runs the gamut.

Question 3: Thank you so much for speaking with us today on this very timely and urgent topic. I was curious: a lot of your discussion was centered on the unprecedented attacks against the Department of Justice, which is a traditionally non-partisan role. So what long-term impacts do you think the politicization of the Department of Justice will have on criminal law and procedure?

David Sklansky: I think it’s, it depends a lot on what happens over the next several years. The best-case scenario is that the Department of Justice is going to get hollowed out, but in four years we’ll have an administration that is dedicated to restoring and repairing the Department of Justice, and that could be an administration of either party. When I was a federal prosecutor, I heard stories from people who had been in the Department of Justice during the Nixon administration. They described those as the darkest days the department had ever experienced. 

What they described was not as bad as what we’re seeing now, but the aftermath of Nixon’s efforts to politicize the Department of Justice were efforts by the Ford administration and the Carter administration to restore and institutionalize the independence and professionalism of the Department of Justice. And the structures and rules that were built in those years under President Ford and then under President Carter created the nonpartisan professional Department of Justice that I was a part of and that Pam was a part of.

So, it is possible what we’re going through right now will lead in the long term to the creation of new systems and new processes that rededicate the Department of Justice and create new protections at the Department of Justice for the rule of law. That’s the best case.

Pam Karlan: Yeah I’ll just add two things to what David said. One of them is, this really is not a partisan issue. I did a bunch of litigation when I was a civil rights attorney during the George H.W. Bush administration, and the administration supported our positions, and there were career people in the Department of Justice who were hired during those years who were tremendous assets in terms of enforcing the nation’s civil rights laws. So this is not really a Democratic versus Republican issue at all, I think.

David Sklansky: It’s not even a liberal versus conservative issue. Some of the strongest, best criticisms of the administration’s policies with regard to the Department of Justice and the law firms have come from very conservative lawyers who write, for example, The National Review.

There are people that I’ve disagreed strongly with for years and they now are some of the loudest voices criticizing the administration’s approach for exactly the reasons that I object to their approach.

Pam Karlan: Yeah, the real problem is this hollowing out, so you’re losing centuries worth of experience in the Department of Justice. When I was looking at the letter that we signed on to, they tell you how many years each person worked at the Department of Justice, and there are people who signed this letter, who worked there 35 years, 36 years, 28 years, and the like. And a lot of those people are leaving because those people are all at the stage where they can retire if they want to. And a lot of those folks are retiring and that’s a real problem because institutional knowledge … I came in twice as a political appointee and the institutional knowledge of the career lawyers in the department was absolutely essential to my ability to do my job.

Question 4: I wanted to echo everyone’s thanks for your discussion today, but personally, this is very top of mind. I work in the risk management function of a large pro bono … of a large firm’s pro bono department. We’re currently preparing for how to respond when we are targeted. Specifically about firms who have settled with the president and have agreed to devote time and resources and money to whatever pro bono directives the president is going to order them at some point in the future. Bringing it back to Orwellian theories, does that change the definition of pro bono when you’re doing pro bono work at the behest of the president? And how are people in the legal community and the judicial community thinking about what pro bono means if now we’re having the president order that type of free legal services to whomever they choose to.

Pam Karlan: Yeah. So one of the things that I’ve been pushing for, and I think we did this in the amicus brief, I need to go back and check, is to stop calling the compelled pro bono stuff, “pro bono” and start calling it “uncompensated legal services.” That is the firms, if the firms are not making independent judgements about what is pro bono, that is, is pretentious Latin, pro bono publico for the good of the public. And so if you’re not making those decisions independently, then I’m not sure they should be called pro bono as opposed to uncompensated legal services. And the other thing about these settlements are going on is there’s nothing in them that guarantees the president won’t come back against the firm if the firm does a hundred million dollars worth of pro bono that he doesn’t like, he’ll then announce: you’ve done bad things again, and I’m gonna have to punish you even more severely this time around. This is not a legal settlement of the kind where the president waives all future ability to say anything to this law firm in return for which the law firm agrees to do this work.

Question 5: Yeah, just echoing everybody else’s thanks. This is probably not the most profound realization, but when we’re talking about the rule of law, it seems like a big part of it is willingness on the part of the government to follow court orders and given what we’ve been seeing of either flirting with the idea of ignoring court orders or arguably already having done so, I’m curious about your thoughts on getting creative with maybe empowering courts to have a little bit more teeth, in ability to enforce their orders. Whether that’s, I don’t know, being able to temporarily freeze congressionally-appropriated funds if the executive isn’t listening or having a beefed up marshal service. I’m just wondering if that’s something people are thinking about or not so much?

Pam Karlan: The first thing to note is, here’s the problem with the U,S. Marshals service. It’s part of the executive branch of the government, it’s not part of the judicial branch. So a beefed up marshal service doesn’t actually protect the courts against the executive branch. It protects the courts against random nuts threatening judges, but it doesn’t protect them in that sense. We haven’t yet come to the point of an outright refusal to obey a final court order, and I’m hoping that we will not get there.

David Sklansky: I think that there is room for thinking creatively about remedies.

Pam Karlan: Yeah.

David Sklansky: Because it is true that the courts are now being faced with an administration that is operating in much less good faith, much worse faith than previous administrations have operated. So I do think you’re going to start to see judges thinking about how they can give a little more teeth to their orders. But there are limits to how much the courts can do because ultimately the power of the court comes through the power of its words and its reasoning and it…The power of the court depends ultimately on the political culture and on the commitment of all of us to make sure that what the courts say is followed.

Question 6: Thank you so much for this conversation. I work in immigrant rights, so this is a very important, timely topic. I did want to think about what was mentioned earlier: in thinking about who is at fault or who’s really driving these changes, and of course, the White House makes sense, but to me also seems like it’s a public electorate. It’s the American electorate that seems to be changing public opinion on how people feel about the rule of law or giving respect or deference for it. I don’t have polling numbers, but based on just how the election outcomes happen, and just how it’s being talked about in the public, that’s my current assessment or gut feeling. Do you have a sense, or do you have any thoughts on how changing public sentiment on the rule of law can affect the future of the judicial system and the legal field at large?

David Sklansky: Yeah. I think a clear majority of American voters think that the rule of law is important and are opposed to the efforts that the administration is making. I don’t think that a majority of Americans want to see courts trashed, the legal profession cowed, the Department of Justice hollowed out. I think there could be more commitment to protecting against those things, and I think people vote based on a range of concerns and the rule of law democratic processes could be given more weight in people’s minds than I think it was given in many people’s minds last November. 

But I don’t believe that the attacks that we’re seeing on the rule of law are a response to any kind of public demand. I don’t believe that Trump’s election was the result to any significant degree of people saying, we’re tired of courts, we’re tired of lawyers, we want less rule of law. I don’t believe that’s why he was elected. I believe that if people cared more about those issues, it’s possible he wouldn’t have been elected, but I don’t believe that a majority of Americans support this, and it’s part of why I think that there’s room to hope that through the efforts of lawyers and courts and the rest of us, it can be resisted.

Pam Karlan: Yeah, there was this very powerful moment in the oral argument in the Court of appeals in DC where Patty Millett is a judge on the Court of Appeals said, look, if you’re right in saying what you’re saying, I could be put on a plane tomorrow to El Salvador and I would get no due process either. And I think once people understand that the rule of law doesn’t just protect other people, it protects them, it protects their jobs, it protects their liberty, it protects their right not to be shoved onto a plane and sent to a prison in a foreign country, they will support the rule of law, and some of it is that people often don’t understand just how much all of this rule of law protected them. That’s why their grandparents are getting social security and can’t be just cut off of Social Security. That’s why if you’re entitled to Medicaid, you get Medicaid. If you’re entitled to Social Security disability, you get Social Security disability and the like.

And some of it is that we really have failed in the country for a long period of time to have real civics education in which people understand how the system works. But I agree with David that it’s not that people thought we need more of a dictatorship in the United States, we need to be more like Hungary. I don’t think that’s why people voted the way they did in 2016 or in 2020 or in 2024.

Sharon Driscoll: Thanks very much.

Pam Karlan: 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 new listeners to discover us.

I’m Pam Karlan. See you next time.