0:00

>> Richard Epstein: John, I can't bear looking at you.

0:03

[MUSIC]

0:14

>> Tom Church: Welcome back to Law Talk at the Hoover Institution.

0:17

I am your law talk guest host, Tom Church.

0:20

Still filling in for new father, less than new father Troy Senik, recently still new father.

0:25

We're coming at you from the faculty lounge of the Epstein NYU Law School.

0:29

And I'm joined by the stars of the sixth best legal podcast for

0:33

non-lawyers, according to some people on the Internet.

0:36

That is starting with Richard Epstein. Peter and Kirsten Bedford Senior Fellow at the Hoover Institution,

0:42

he's the Laurence A Tisch Professor of Law at NYU and

0:45

Senior Lecturer at the University of Chicago.

0:48

And of course, the other half is John Yoo. John is a visiting fellow here at the Hoover Institution, he is

0:53

the Emanuel Heller Professor of Law at the University of California, Berkeley, and

0:58

he's a former Deputy Assistant Attorney General in the W Bush Administration.

1:02

And John, I actually want to start with the People's Republic of Berkeley because

1:07

of course, a few weeks ago, the law school dean Chemerinsky had a bit of a dust up at

1:11

his house when some invited law school students tried to start giving a speech

1:15

and protesting and he kicked them out and it led to quite a kerfuffle.

1:19

But John, I'm here to blame you a little bit because you teach these students.

1:23

I want to know how do they not understand what constitutes free speech and

1:28

allowable protest? >> John Yoo: I have to say I don't recognize any of those students as ever

1:33

having taken any of my classes.

1:35

>> Tom Church: So they avoided your class, okay. >> John Yoo: That's probably not surprising.

1:37

That's probably not surprising.

1:39

But if they had been there, I'm sure I would have said things that would cause

1:44

them to go even more crazy than anything Erwin did.

1:46

Although I'm not Jewish. And gosh, I really think if you look at the-

1:50

>> Richard Epstein: You're not? >> John Yoo: Their poster, although I wonder, I'm Jewish adjacent,

1:54

I think is the technical term, having grown up in the Philly suburbs and

1:59

enjoyed dining out at many Jewish delis.

2:02

But I really do think this is anti-Semitic.

2:05

If you look at the poster that was put up about that showed Erwin as this kind

2:10

of bloodthirsty, yeah, bloodthirsty, yeah, it was terrible, terrible.

2:16

And I really think that revealed what's really going on behind these protests.

2:21

>> Tom Church: Richard, yeah, help me out here.

2:24

I mean, in terms of will there be any sort of punishment here or

2:27

are they just going and getting a stern talking-to?

2:29

>> John Yoo: Can I just say one last thing about that?

2:31

I did go to see Erwin Chemerinsky the next day and I said,

2:35

I imagine you're not going to do this, but as a faculty member,

2:38

I demand the expulsion of all the students who are there.

2:42

>> Tom Church: Wow. Richard, do you think it's reasonable?

2:45

>> Richard Epstein: I'm a very hardliner on all of these issues, and

2:48

I'm even harder liner than most of the people who are in charge of it.

2:52

This situation that we have at Berkeley is similar to one that's now existing at

2:57

the University of Chicago. And there is, quote unquote, as tendency,

3:01

as was stated by the President of Chicago, Paul Alivisatos, his name is.

3:06

He says, you always want to give the greatest leeway for free expression.

3:10

I don't think that's right. I think you want to give the proper scope of protection for free expression.

3:16

But if you start talking about giving leeway,

3:18

then it turns out that trespass under somebody else's property may,

3:21

under some circumstances, be justified because it doesn't involve the immediate

3:26

destruction of the property to which the entrance is made.

3:29

And so what happens with respect to Alivisatos in Chicago is, he said, well,

3:33

before the encampments became big, I was willing to live and let live,

3:36

even though they were clearly in violation of the time, place, and manner rules.

3:40

But now it's gotten to the point where it's a health hazard, disruption, and

3:44

so forth, so I'm going to throw everybody off.

3:46

I think he's right to do it now. I think he should have done it sooner.

3:49

The longer you wait, more people gather, the more likely there is for

3:53

disruption in the interim and for violence at the time that it ends.

3:56

And so I think that the good news about Erwin's situation is that it ended then

4:01

and there with the dustup and did not have any direct physical ramifications.

4:05

But I think what happens, you have to make a very strong statement that you can't do

4:10

things like this in order to make it very clear that the principles of freedom of

4:14

speech have to respect the principles of private property.

4:17

The two are perfectly reconcilable, and

4:20

what they're now trying to do is to say that speech is so

4:22

important that it overrides property interest, and it doesn't work that way.

4:27

The moment you allow that to happen, you're going to see trespass, and

4:30

then you're going to start to see worse, and it's going to lead to violence.

4:33

So my view is, the old expression is the moment that there's a wrong,

4:37

that is the trespass. You nip the situation in the bud by opposing sanctions at that

4:42

particular time. You don't want to wait until the thing becomes unmanageable then you're going

4:47

to have the kind of situation that happened at Columbia and NYU and

4:51

lots of other places, Indiana, UCLA, and so forth.

4:54

So you need a clear boundary line,

4:56

and good fences make good neighbors is the principle that you ought to apply.

5:01

And the students who don't comply with this after being told to leave should be

5:05

subject to sanctions. Certainly within the university,

5:08

the difficulty is that not going to be sufficient because there are many

5:11

people who enter the premises who are not students.

5:14

And in fact, at NYU, I think a majority of the so called protesters were,

5:18

in fact, outside agitators, to use the famous phrase.

5:21

And that is, they were not affiliated with the university,

5:24

which makes things even more complicated.

5:26

Because if you open the doors, all these people are going to come in, and

5:30

then you give a complete misimpression as to the level of sentiment and

5:34

support of the protesters on the campus.

5:36

So I think, in effect, a strong, prompt response is always needed.

5:40

And Erwin is, his own First Amendment stuff, much more pro-speech than I am.

5:45

And it turns out, in this particular case, I'm happy to say, he basically intended to

5:50

reverse gears and started to favor the per se rules about elimination of trespassers.

5:56

>> Tom Church: So, John, help me out here, because one thing Richard said was time,

5:59

place, and manner restrictions. And I know that's an established doctrine, but

6:03

can you help me wrap my head around that simply on what that means you are and

6:06

are not allowed to do as a school to prevent protest or your stifle speech?

6:10

>> John Yoo: Yeah, that's a great question also bears on this issue of what's

6:14

appropriate for protests and also what happened at Chemerinsky's house.

6:19

So time, place, and manner. So there's basically two approaches to reviewing restrictions by the government

6:25

on speech. There's what's called content based.

6:28

If the government is punishing your speech or

6:30

restricting your speech based on the content of the speech, or even worse,

6:35

the viewpoint in your speech, those are almost always struck down.

6:39

Those have to survive what's called the compelling government interest test or

6:44

strict scrutiny test, which used to be, there was a great phrase by, I think,

6:49

maybe Justice Frankfurter, who always said, it's strict in theory, fatal,

6:54

in fact, usually every line.

6:56

Yeah, great line. But then there's a different kind of speech regulation which is not subjected

7:02

to strict scrutiny, is intermittent intermediate scrutiny, which is basically

7:06

is the government's interest here outweighed by the speech interest?

7:11

That's really roughly what the court's doing. And this is.

7:13

This applies to restrictions which don't,

7:16

which are not based on the content of the speech.

7:19

And the most common one is what you referred to, time, place, and manner.

7:24

Is the restriction on speech based on the timing of it, the place you do it, or

7:27

the manner of the speech? So the classic example given by the Supreme Court is a city is allowed to say,

7:35

you can't drive trucks with loudspeakers on them in

7:39

residential zones after 6 PM or maybe not at all.

7:43

Even if you are a presidential candidate,

7:46

you can still be prevented from creating a lot of noise and ruckus.

7:50

So this, I think, is important for not just Erwin's house,

7:55

because you're a private property owner, you don't have to allow anyone.

8:00

On your private property to speak. And in fact, when, you can basically see Irwin, unfortunately,

8:05

getting very upset in the video and his wife getting upset,

8:08

basically saying, this is our home, you're guests, this is not a free speech zone.

8:12

You have to leave now. And weirdly, the ringleader, the student, says, I've consulted lawyers and

8:18

we're allowed to come here and speak.

8:20

>> Tom Church: Boy! >> John Yoo: I'm like, wow, [LAUGH] who did that lawyer have for constitutional law?

8:26

I hope she doesn't say Erwin, >> Tom Church: [LAUGH]

8:29

>> John Yoo: But she might well have.

8:32

But then if you apply it to the university context, actually,

8:35

it's obvious universities are constantly restricting speech.

8:38

Generally, when Richard and I teach a class,

8:41

we get to decide what's a legitimate speech or not.

8:43

We don't say, we're going to have a class on torts, and

8:46

then other people can come and say, no, I want to have it on contracts and

8:50

we decide what's read and discussed each class session.

8:53

Students don't decide what's going to be read and discussed.

8:56

I mean, that's a restriction on speech, though.

8:59

So the university actually has lots of restrictions on speech just by the mission

9:03

of education. So most universities, Berkeley, too, I don't know about Chicago,

9:08

but what we usually do is we say there's an area, the area we have is in front

9:13

of where the, unfortunately, the Vietnam war protests were first launched.

9:18

And Sproul Plaza, it's called, right in front of the administration building where we generally allow speech.

9:23

It's a public forum. We allow speech, we allow protests.

9:26

That's where our large encampment right now is going on.

9:30

But we don't allow speech all throughout campus and

9:33

every campus building whenever students feel like it.

9:36

>> Tom Church: John, is your encampment large and preventing people from moving around?

9:40

I mean, Richard, University of Chicago, I think the letter said something along

9:43

the lines of, it's created systematic disruption of campus.

9:46

Stanford's is quite limited and doesn't prevent anyone from moving.

9:50

UCLA's was obviously much more aggressive.

9:52

John, how was it at Berkeley? >> John Yoo: I was going to say Stanford,

9:54

would you even notice there was a protest there? >> Tom Church: [CROSSTALK] About 20 but it doesn't block walking paths, right?

10:02

>> John Yoo: I mean, it's five-tenths of it. Looks like a science experiment over there.

10:06

That campus is so vast. I mean, so yeah, I think the general rule is right, I agree with you.

10:12

I think most campuses have this rules that you can exercise your right to speech,

10:17

you can even stand up and demonstrate, but you can't do it in a way that blocks or

10:21

prevents the speech of other people in the same place.

10:24

So if you had an occupied zone and you physically excluded other students

10:29

from entering it, then I think you're in violation of university rules.

10:34

So I think we're getting close to that point. At Berkeley, we do have a bigger encampment.

10:38

There are all these tents. There have been reports I've been seeing this week of some of the people in that

10:44

encampment using physical force to prevent, say,

10:47

I don't even know if you would say they're pro Jewish students.

10:50

There are students who've tried to enter the area and just videotape what's going on.

10:54

>> Tom Church: Right. >> John Yoo: If that's true, then I do think at some point you're going to see either the university police or

11:01

the Berkeley police be called in to remove the encampment or enforce order.

11:06

We are not anywhere near where UCLA and Columbia are.

11:11

>> Richard Epstein: No, and you don't want to get there.

11:13

And that's why sort of prompt action begins to take the decisive role in all of

11:18

these cases. Look, let me go back and put this within a general framework.

11:24

The key element to understand about speech is not only it is a complement to

11:28

property, but the two of them are subject to the same kinds of restrictions on what you can do.

11:33

You're not allowed to create nuisances, and you're not allowed to trespass.

11:37

When you use bullhorns, it's a nuisance.

11:39

When you enter into property and set up an encampment, it's a trespass.

11:42

And what you need to do is to enforce all of those rules.

11:46

Now, if you're a private university, you're not subject to government.

11:49

And so one of the further things that you could consider, you're not obliged to do

11:54

it, is to say, we're going to shut down this protest at Sproul Plaza at this

11:58

particular point in time, because we think that the situation too unstable and

12:02

inflammatory, so we don't want to do it.

12:05

There's nothing whatsoever about the Constitution which prevents them

12:09

from taking that kind of prophylactic action.

12:12

What it does is requires good judgment on the part of the campus management.

12:16

And what this means is that when you want to protect private property,

12:20

you're never obliged to do so. You could always let the protesters in.

12:24

It becomes absolutely critical that you have a coherent central administration

12:28

that's running all of these situations.

12:30

And at Columbia, for a long period of time, the president and

12:33

everybody else was much too passive.

12:35

And then when they get strong, it's a welcome thing and a corrective, but

12:39

it's a much more jolty situation than if you had done it earlier on.

12:42

So I'm just going to say a broken record, but for one last time, the moment you see

12:47

the first sign of illegality, that's the time at which you start to act,

12:50

because if you wait, then things are going to get worse.

12:53

And by the way, when I do define illegality,

12:56

I'm not trying to define this very broadly.

12:58

So, for example, suppose people wanted to get together and say,

13:02

we support divestment from Israel, and

13:04

what they do is they want to sort of circulate posters and so forth.

13:08

The content is perfectly protected under the First Amendment as against

13:12

the government, and should be allowed on campus.

13:15

But it's not going to be the same thing if you start hurling insults and

13:19

defamation statements against other people, because defamation,

13:22

like trespass, is one of the sins within a libertarian universe.

13:26

And if you care about speech, you have to protect it against the assaults by words

13:30

or by actions of other individuals.

13:32

So violent and virulent anti-Semitism, threats of one kind or

13:35

another, are all things that should be stopped by the state, and

13:39

they certainly should be stopped on the campus.

13:42

And if it's not by legal action in the sense of an arrest,

13:45

it certainly can be by disciplinary procedures, holding back diplomas,

13:49

taking people and forcing them through suspension.

13:52

Universities should not remain passive in the face of mortal threats to their

13:56

particular operation. And I think the sentiment in favor of this position is beginning to grow as

14:02

the amount of outrages that seem to take place on campus is increasing.

14:06

I noticed there was a long story in the New York Times this morning about

14:09

all the difficulties in the University of Indiana.

14:12

We do not need to have these things going on, they will end education.

14:16

We do not need, for example, to have protests like this around

14:20

the Democratic National Convention in Chicago come 2024 in the fall,

14:25

in the storm that we had them in 1968.

14:28

I mean, the maintenance of water is only trivial when it's maintained.

14:33

But when people start to talk about law and order, when there's neither law nor

14:37

order, it's a very, very serious issue that goes to the society's survival.

14:43

>> John Yoo: I might have a slightly different view than Richard.

14:45

That's, on the one hand, more generous, but other hand,

14:48

maybe tougher on the students. So I would permit anti-Semitic speech.

14:54

As much as I abhor it, I would permit it.

14:57

I would not allow it to grow into threats.

15:00

But as soon as people violate the rules, I would be all for automatic expulsion.

15:05

I don't know if Richard would go that far.

15:07

Richard has taught thousands of students, I've taught thousands.

15:11

I think 99% of the students that we've had are good, hardworking kids.

15:16

They wanna get ahead, they wanna learn, and

15:20

their experience is being disrupted by 1%, maybe less than 1%, yeah.

15:27

And I don't think that those people.

15:29

And the other thing I think is actually,

15:31

even though it doesn't seem like it to faculty and students as I've gotten,

15:35

it's really precious, the community we've built in the United States,

15:39

to be able to create these amazing institutions of higher education.

15:43

It's actually really hard to do. And so you rely on this less than 1% of students to prevent everyone else

15:49

from really carrying on with the research and teaching functions in the university.

15:55

I would expel them all automatically.

16:00

See this, I don't think we should have these codes of conduct where they're

16:04

varying degrees of punishment. And let me end with this, because I think education is not a right,

16:09

it is a privilege. And so I would send them all back to their parents, I would even give them a refund,

16:14

here's your $100,000, here's your kid.

16:16

You're responsible for this, you take them back, we don't want them anymore.

16:19

There are tens of thousands of students who would happily take their place at

16:24

Berkeley or Chicago or Columbia or UT Austin or all these schools we're seeing.

16:29

And let them go somewhere else.

16:31

>> Richard Epstein: Look, I think there's a complication to this, John, which is

16:35

there's gonna be a lot of confusion as to who was or who was not there.

16:39

So suppose there was somebody who was claimed to have been there for 6 hours and

16:43

just jumped out, and at the time of the arrest was not there, and somebody says,

16:47

we saw him there. I think when you have claims like that, you probably wanna sit down, at least have

16:52

a factual inquiry, did they or did they not participate in these kinds of things?

16:56

So as a matter of self-protection, I think universities want to give some kind of-

17:02

>> John Yoo: Richard, I would just trust the AI to identify them [LAUGH].

17:07

>> Richard Epstein: I mean, that may well be correct, in fact, I think that's

17:10

exactly where facial recognition things are extremely important.

17:14

>> Tom Church: Well, they're all wearing masks, so good luck. >> Richard Epstein: Well, they're not all wearing masks, and some of them,

17:19

by the way, you can- >> John Yoo: All you need to see is

17:22

the retina. >> Richard Epstein: The retina is enough to do this.

17:24

I mean, have you ever gone through clear at the airport, Mister Tom Church?

17:29

>> Tom Church: I have, and I've gone through at overseas countries that

17:31

are less careful about privacy, where they scanned my eyes and I thought,

17:35

how did you already have that, I didn't sign up for this?

17:37

>> John Yoo: [LAUGH] Tom, there's so much about you in the Chinese security

17:42

database already, what are you talking about [LAUGH]?

17:45

>> Richard Epstein: It's always the problem about identification as

17:48

to whether it's gonna be done by the enemies or by the friends.

17:52

So I had a friend named Ronald Hamilway,

17:54

who was a hardline libertarian, and he was against license plates.

17:59

And the reason he was against them when he was alive, was that he thought that they

18:02

allowed the state to get undue information about people which they could use for

18:06

illicit reasons. >> Tom Church: Sounds like [CROSSTALK].

18:10

>> Richard Epstein: And also, I mean, the Cato Institute this, I think,

18:12

is a much more serious claim, is one of the reasons you don't like the income tax,

18:16

is you have to give too much information to the government about your personal

18:20

affairs that could be used for real illicit purposes.

18:23

If you had an anonymous sales tax or a value added tax in which you

18:27

could collect the money but not know its origins, you can avoid that kind of risk.

18:32

So in these days, where surveillance is a tool that is more powerful,

18:36

it is a tool both for good and for evil.

18:39

And so what you have to try to do is put some process in to find out

18:42

what's going on. There have been many people who have objected to the legitimate uses of these

18:47

various identification techniques. I've not been one of them, my own view about it is you keep these things in

18:53

the closet and you need to get some kind of a warrant or

18:56

a showing of reasonable suspicion before you can activate them.

18:59

And this would apply to police cameras and to a lot of other things going on.

19:03

The reason I'm in favor of all this stuff is if you put it under the correct

19:07

auspices, it will make your determinations much more reliable.

19:11

And if they're much more reliable on the question of fact,

19:14

they're much more legitimate on the question of law.

19:17

>> Tom Church: Gents, the Columbia law students, I wanna say it's a law review,

19:20

has called for the suspension, actually, the cancellation of exams and

19:24

passing grades given to everyone or in the alternate, at least a pass-fail system.

19:28

So what do you think is gonna happen at Columbia?

19:30

[CROSSTALK] Grades pass-fail or just hold the exams as needed?

19:35

>> Richard Epstein: I think you hold the exams and if they flunk, they flunk.

19:40

>> Tom Church: John? >> John Yoo: Exams already so cushy as it is, I mean, we let them take the exams at

19:45

home, on computer, whenever they want in the exam period.

19:49

They're getting to pet llamas, eat free food.

19:52

I mean, how much easier are we gonna make exams as it is?

19:55

>> Tom Church: I went to college at the wrong time.

19:57

>> John Yoo: Here's what I've got to suggest for our very competitive Columbia Law Review students is how about we give all

20:03

the Columbia Law Review editors a pass and let all the other students take the grade?

20:07

I bet they wouldn't go for that. >> Tom Church: Wow.

20:10

>> Richard Epstein: Well, I mean, we had this problem back at the University of

20:14

Southern California in the spring of 1970,

20:17

after the invasion at Parrot Speak in Cambodia and the killings on Kent State.

20:23

And what happened is Norman Thomping, who was a great strategist and

20:27

the president of the university at that time, he did cancel examinations or

20:31

allow them to be taken on an optional basis.

20:34

And I remember somebody asked him why? And this was the story was told to me.

20:38

He said, these kids are in so deep now that if we do not allow them to take

20:43

a pass-fail or no examination, or they're just gonna keep on rioting.

20:48

And then in LA moment, he said, but if I basically say you don't have to take the examinations, what's gonna happen?

20:55

They're all gonna go to the beach. And he said, better at the beach than in the classroom.

21:00

There are here two things, one, at Columbia, they've stopped the riots, so

21:03

they don't have the beach problem. At that particular point, I think what you want to do is to keep going.

21:08

And if you looked at that letter, what distressed them was not the riots, it was

21:12

the fact that the police went in there and in a very clean operation, removed them.

21:17

If that's what they're upset about, the maintenance of law and order,

21:20

then I don't wanna give them any kind of excuse under these circumstances.

21:23

Because, as best I can tell, the police did an extraordinarily good job overall in

21:28

that you had no illustrations of excessive force, no illustrations, demonstrations of

21:33

abusive behavior in any kind whatsoever, and a relatively clean removal.

21:38

And the other lesson you learn is this is the domestic

21:41

version of the Powell doctrine. If you're gonna have a fight, you want it to be one with overwhelming force.

21:46

You don't wanna be there sending in a group of policemen who are small enough

21:50

that they can actually be beaten up by the protesters.

21:53

And the New York City pieces to be congratulated, and

21:56

their excellent behavior is not a reason to postpone examinations for the students.

22:01

>> John Yoo: Look, if you're an employer, would you want to hire someone who can't

22:05

take exams because of what's going on in the world?

22:09

I mean, would you say, if this student can't take exams,

22:12

they would make a fine lawyer to represent me in court?

22:15

Might get really upset if [LAUGH] something happens in the Middle East and

22:19

needs a timeout and can't file the brief on time.

22:21

>> Tom Church: I'll be interested to see what future law clerks,

22:24

look like coming from these schools selection.

22:27

And then even like if, said John, future jobs.

22:30

>> Richard Epstein: There are many judges who will not hire students like this.

22:34

What I have told some of them is that you don't punish the student at the school

22:39

where this behavior takes place, you figure out which the students are,

22:43

and then you could select on that basis as a kind of second-tier sanction.

22:48

And many judges will start to do this.

22:50

My view is that probably some judges say, you participated in these protests,

22:54

that's a reason to hire you. I mean, it is very clear- >> John Yoo: Really, do you think there

22:58

are judges out there who would say- >> Richard Epstein: I have no idea-

23:02

>> John Yoo: I want a mask. >> Tom Church: These students will become judges eventually,

23:05

this has likely been happening for a while, right?

23:07

So some people- >> John Yoo: You think a judge would sit

23:09

there and go, I love that mask-wearing, goggle-wearing,

23:13

keffiyeh-wearing disruptors, fighting with the police would make a fine law clerk,

23:19

can't wait to read their bench memos [LAUGH].

23:22

What do you think they're gonna do to the judge? They're gonna protest the judge, too, when they don't feel like doing any work?

23:26

>> Richard Epstein: Look, I'm not saying who they are cuz I don't know any people

23:30

who are this way. But, I mean, if you start looking at who Biden is likely to appoint,

23:35

anything becomes possible. And that's what's frightening about it.

23:39

And many of his judges are quite excellent.

23:42

I mean, you can't do this on an anticipatory basis.

23:46

If there's something that's gonna happen in chambers and you have to deal with it,

23:49

thank God I have not seen any evidence of that with respect to hiring clerks.

23:53

But on the other hand, and this is a kind of a nice segue to trump the trials,

23:57

it seemed to me, involve real kinds of excesses and abuses.

24:01

The most notable one is Judge Merchan doesn't seem to want

24:04

to recuse himself from a case in which his daughter is an active participant,

24:09

an antitrust movement with an elite list of clients.

24:12

All whom would be quite happy to see Donald Trump put in jail for life,

24:16

it's just not the kind of appropriate behavior.

24:19

Same thing with Judge Engoron, crazy behavior, and Brown and Bragg.

24:22

So at least in the Trump Derangement syndrome,

24:25

we do have a large number of people who express the kinds of views

24:28

that I think should disqualify them from taking the case forward.

24:31

John, do you think that these cases should go forward?

24:34

What do you believe in the old rule about an appearance of

24:37

impropriety is enough reason to disqualify somebody from hearing your case.

24:42

>> John Yoo: I'm gonna defer to Tom to let him restore his control over the host

24:47

function. >> Richard Epstein: That's good for you, Tom.

24:51

>> Tom Church: I'll make him answer a little bit later, I do wanna talk

24:53

about Trump, but since we've gone through a lot of Israel protests, hang on for

24:57

a second, let's end with that. But I wanna zoom out a little bit on the Israel position, because some reports in

25:03

the last week or two about the International Criminal Court looking into

25:07

arrest warrants against Netanyahu, other senior politicians in Israel.

25:12

And I step back for a second and said, what's the jurisdiction here?

25:15

Because I guess I had missed that the ICC in 2021 said, all right,

25:19

Palestine isn't a state. They tried to accede as a state party the Rome Statute in 2015, but in 2021, a two

25:25

to one ruling said, we're not arguing or we're not issuing a statehood ruling.

25:30

We are saying, for all intents and purposes, they fit the vibe of a state in

25:35

a sense, and so we will let them accede to the Rome Statute.

25:38

So Hamas, basically in Gaza, in the West Bank, over Jerusalem as well,

25:43

any crimes covered by the Rome Statute are apparently now covered.

25:48

And so Israel's actions in Gaza are subject to review of

25:51

the International Criminal Court. And the United States, previously, under Trump administration, had said, hey,

25:57

if you go after after any of our allies, we are coming after you.

26:00

So I'm turning this over to you two right now,

26:02

do you believe that the ICC will actually follow through with this?

26:06

Do you think that Israel will stand for it?

26:09

Will Biden stand for the International Criminal Court coming after Netanyahu in

26:12

the middle of an operation? I mean, it looks like Israel's given Hamas another week to agree to a ceasefire,

26:19

otherwise they're going into Rafah.

26:21

>> John Yoo: Let me take this, yeah, I've studied the ICC for a while.

26:26

Sadly, I think the answer to both your questions, Tom,

26:30

is yes and yes, but it shouldn't be.

26:32

And this is actually the fundamental problem with the ICC.

26:36

And this kind of new international law that's characterized by groups similar to

26:41

the ICC is that they don't believe in the traditional view of international law.

26:46

And the traditional view of international law was, when you're in a world,

26:51

anarchic world, where there are no supranational courts,

26:54

executive bodies and legislatures, law is based on consent.

26:58

So the international law that governs you,

27:02

treaties are the primary tool, are ones that you consent to.

27:06

So here, as you notice, Tom, the ICC, I'm sorry, Israel has not consented.

27:13

So the ICC has not joined this, neither has the United States.

27:16

Neither have most of the large countries that fight wars.

27:21

One, because they don't think that these group of officials who are from

27:26

countries that never fight wars should be in charge of reviewing what they do.

27:31

And the case of Israel and the United States in particular,

27:34

they don't feel that they need an ICC because we have robust military justice

27:39

systems already that punish soldiers for war crimes.

27:42

>> Tom Church: Well, so the ICC operates according to complementarity, right?

27:45

So it's, if you're going to be investigated at home,

27:48

we don't have jurisdiction, however, these are kind of more macro level accusations.

27:52

>> John Yoo: Well, they have, yeah, I mean, that's the thing the ICC says,

27:55

but then they also say, if we don't think you in good faith conducted

27:58

your investigation, then we're still gonna investigate you.

28:02

So this is the thing again, and this is why the US has traditionally not only refused to join the ICC.

28:08

But from generally under Republican administrations,

28:11

actually actively opposed it, is because we don't think that our

28:15

soldier should be subject to the review of this international body.

28:20

When we think we have our system that actually is better than

28:24

anything that they would produce.

28:26

Now, the reason why the ICC is gonna go after Israel is because they want to

28:30

claim power over every war in the world,

28:33

no matter whether someone's joined the treaty or not.

28:36

And the fact that it's Israel, so

28:39

most of its investigations have been into African countries.

28:42

So third world countries, if we could call them that, are less developed,

28:47

developing countries, we call them now,

28:50

protests that the ICC is a tool of the West against the developing South.

28:55

So Israel's perfect for the ICC to go after because it allows it to, say,

28:58

deflect those kind of claims. No, we're neutral and they know, not anybody,

29:03

people are not going to get up and defend Israel from the ICC.

29:07

And look, Biden has become so, I think, so

29:10

hostile to Israel that I would not be surprised if it stood aside and

29:16

let the ICC come after Israel's leaders.

29:19

>> Tom Church: Richard, if they go after Israel's leaders, but

29:21

also issue indictments against Hamas leadership, is that acceptable?

29:25

>> Richard Epstein: No, because what it does is it creates evil and good and

29:28

treats them as though they're equivalent.

29:30

What has happened in this particular case is that there was a prior proceeding

29:34

before this court. The one ruling that it made definitively was, of course,

29:39

that Hamas ought to release immediately and unconditionally the hostages that

29:43

it took because they were taken in violation of international law.

29:47

Well, when you then see what follows from Amnesty International and everybody else,

29:51

they don't say, my God, you people are absolutely in violation of everything and

29:55

nothing should be done in your favor. They urge compliance, and what that is treated as compliance on condition that,

30:01

and then all the conditions, in fact, are, pull out of Gaza.

30:05

Release these thousands of prisoners,

30:07

make sure that your military never enters again.

30:10

And what happens with Biden is he has committed a massive disservice,

30:14

the man is almost mindless on this.

30:16

And Blinken is no better, the two of them are absolutely destructive.

30:20

What they're doing, in effect, is they're waiving all the charges against Hamas and

30:24

they're asking for a ceasefire right now.

30:26

The Israelis will not give on the terms that they want.

30:29

The Biden administration has given us proud signal to

30:32

Hamas that the tougher you get, the more you ask, well,

30:35

we're not gonna do anything to stop you, it's all carrots for them, no sticks.

30:39

And so, what happens is Hamas gets South Africa to raise these charges,

30:43

then there's an indictment. And they say, well, you look at the indictment, it's just fine, but

30:47

you don't look at any of the evidence and you don't look at any defenses.

30:50

And what they're gonna do is continue to follow with this, and

30:53

the Israelis have to say absolutely no.

30:55

Who knows what the United States will say?

30:57

I've never seen a group of more amateurish politicians in

31:01

high places trying to figure out how to deal with security issues.

31:05

If you don't know who's right and who's wrong, if you've got everything that you

31:09

said on October 8, then there's just two random combatants.

31:12

And what you do is you basically pick on the one who's stronger in an effort to

31:16

equalize the strength, that's what Biden's plan turns out to be.

31:19

The Israeli should ignore it, the Israelis should go into Rafah.

31:23

Israelis should do everything they can to try to spare the rest

31:27

of the civilian population, Hamas will do exactly the opposite.

31:30

And doubtless, we will start to see more situation where they're going to use human

31:35

screens in one form or another, and continuous violations of the rule of law.

31:39

Such as wearing no uniforms when they're engaged in combat, so

31:43

they could be mistaken for civilian population.

31:46

What Hamas is gonna continue to do is to have this non existent health auxiliary

31:50

report total deaths and not distinguish between combatant deaths on the one hand and non combatant deaths.

31:56

And God forbid they should ever ask the question, how many people who were

31:59

civilians were killed by Hamas either through Arrhenius or exploding rockets or

32:04

by using them as human shields or something of the sort.

32:07

So this is farce. You have to ignore it, and

32:09

let's hope that the rest of the world comes to senses on this thing.

32:13

But I have no doubt that one of the reasons why there is so much more

32:17

activity on the domestic front in terms of pro Hamas activity is they believe

32:22

that they can shove Biden around and that this is a very effective way to do it.

32:26

He did make a commendable statement, too little and too late,

32:31

about instilling campus chaos on this issue.

32:34

But he did nothing whatsoever to change his insane stand with respect to Israel.

32:39

I've never seen a president who seems to think he uses all his moral suasion to

32:43

attack the good guys in favor of a bunch of people who violated every norm and

32:48

engaged in unmitigated slaughter.

32:50

It's amazing how little the hostages and

32:52

the turmoil of October 7th are managed today.

32:55

That's sort of past history. It's like the partition of 1948 or something of that sort.

33:00

The Biden policies could not stand.

33:03

And, in fact, my prediction will be that if this goes a little bit further,

33:08

he will lose Jewish financial support and a large fraction of Jewish voters.

33:13

He's simply gone over the edge on this particular issue.

33:16

>> Tom Church: John, I wanna turn to a little bit of history of the ICC,

33:19

because Palestine, well, Palestinian Authority, Hamas, they've tried to accede

33:24

to the ICC before, back in 2008 and 9 was Operation Cast Lead.

33:28

Israel went into Gaza following that.

33:31

They tried to go to the ICC and say, hey, these are examples of war crimes and

33:35

other areas covered by this. Ended up the ICC not ruling on this because they couldn't determine whether it

33:41

was a state and whether it was allowed to refer the matter.

33:45

But following that operation, the Goldstone Commission was commissioned and

33:49

came out as an interesting one. As three judges, they came out and said, listen, on both sides, they were evidence

33:55

of war crimes, of crimes against humanity and the rest of it.

33:58

And then one year later, Judge Goldstone came out and

34:01

kind of walked it back a little bit and said, hey, knowing what we know now,

34:05

Hamas didn't look into any of these issues.

34:08

And Israel has got processes in place, and as a matter of intentionality, they don't

34:13

intentionally target civilians and kind of walked it back and was yelled at.

34:17

But now we're at this point now where the ICC is going to have to weigh in and

34:22

make actual decisions. Doesn't get to hide behind, they're not a state, and we can't do that.

34:27

And my question to you is in terms of, we've covered this before,

34:31

genocide, not happening.

34:33

When it comes to Israel feeding the people, trying to put tent

34:37

cities up before this Rafah operation that doesn't meet the definition there.

34:41

War crimes, you get exact language that reads something along the lines of

34:46

willfully causing great suffering or serious injury to body or health,

34:50

extensive destruction and appropriation of property not justified by military necessity.

34:55

So how can Israel stand up and say, hey, this is just a war that is being waged

35:01

as opposed to these are, I mean, are all wars characterized by war crimes?

35:06

>> John Yoo: No- >> Tom Church: I know that.

35:09

But John, how does the ICC do this?

35:11

>> John Yoo: Well, part of the problem is, I mean,

35:14

the ICC is trying to kind of make it up as it goes along.

35:17

I mean, there are, of course, a whole body of lawyers out there,

35:21

international lawyers and non governmental organizations and

35:26

un bodies that think that you can create a code to govern war that's like

35:30

a criminal code that you use to govern domestic affairs.

35:34

But the standards for war are really loose and require and

35:38

defer to judgment at the time by the people who are fighting wars.

35:43

And so it's very easy to. And I think we, look, this is not a problem that's unique to war.

35:49

I mean, think about how, you know, how hard it is to review what police officers do.

35:54

We have standards that basically say police officer has to act reasonably

36:00

under the circumstances when they use force and, but they use a force to

36:05

protect imminent threats to their life or the lives of others.

36:09

That is not the standard for military force.

36:11

And yet we still, with police, we have a lot of difficulty, you know,

36:15

with litigation and standards to review them with the military is, some of it is,

36:20

as you said, Tom, the standard is not, you know, imminent threat.

36:24

I mean, you're allowed to attack any member of the enemy military

36:27

regardless of whether an imminent threat to you or not.

36:31

You can attack people far behind the front lines, right?

36:34

You can attack civilian targets that are contributing to the military

36:37

effort, right. You can attack oil and gas pipelines that are providing oil and

36:44

gas to civilian, but also to military forces and so on.

36:50

And so in the war context,

36:52

we generally think of proportionality and military necessity.

36:58

So actually, it's not necessity. That's the tough phrase.

37:01

There's a lot of deference given. Usually- >> Tom Church: Usually, not in Israel,

37:04

it seems like they're the only ones that don't have this deference given.

37:08

>> John Yoo: Yeah, yeah, yeah, exactly. Cuz the ICC is not gonna really defer, give deference.

37:13

They aren't gonna oppose this kinda armchair Monday morning quarterback

37:17

standard to it all. But actually, the harder one is not necessity, it's proportionality.

37:22

You are allowed, unfortunately, it rises in war, to attack military targets

37:27

where you cause collateral damage to civilian targets or kill civilians.

37:32

The question is, what's proportional?

37:34

And Israel, actually, from what I've seen, I've been following,

37:37

there's a great blog at West Point.

37:40

I think they have the top people who study urban warfare writing there.

37:44

>> Richard Epstein: John Spencer. >> John Yoo: And, yeah, and if you look at their commentary, they are amazed at

37:49

the low level of civilian casualties that have been achieved by Israel.

37:54

But, right, you could see the ICC, given all the protests and everything,

37:58

political controversy. They seem to think, any civilians who are harmed,

38:03

even though it's Hamas's fault that the civilians are being put in harm's way.

38:07

Any civilians that are harmed in some way contributes to the idea that

38:10

Israel has committed war crimes when under the laws of war,

38:13

as they've been traditionally understood.

38:15

That is not the case, it turns out.

38:18

>> Richard Epstein: I'm gonna go one step further. What the Spencer group has said is they compare ratios of civilian casualties and

38:25

military casualties by American operations or

38:29

the British operations in Manila and so forth in Singapore and Malaysia.

38:35

And what they find out is some of these things used to have as many as nine

38:38

civilian deaths. For every military death, the israeli ratio is closer to one to one.

38:45

Nobody knows exactly what it is because you can't get reliable

38:49

information on the ground of the number of Hamas dead and

38:52

number of people that were killed by Hamas.

38:54

But, you know, this far exceeds anybody else.

38:57

And one of the things that happened, it's not an accident.

39:00

It turns out that the techniques that are available now are used to the nines.

39:04

So the Israelis are able to do all sorts of very sophisticated visual and

39:09

cell phone surveillance to figure out where civilian populations are and

39:13

where military populations are.

39:16

Their explosives are much more effective than they've ever been before.

39:19

And so you could take out the fourth floor of a building and

39:22

not hit the third floor or the fifth floor, or get very close to that.

39:26

All of these advances have been incorporated and

39:28

they've all been ignored under these circumstances.

39:31

And again, the president of the United States has started to say,

39:35

Israel has lost its way and is engaged in indiscriminate slaughter.

39:39

Well, that's a charge of a war crime, if it's true, but it's just utterly false.

39:44

And so what you do is you see here that the American situation is such where

39:49

what we are doing is mischaracterizing the Israeli situation in order to

39:55

create pressure to give them the sort of ceasefire that is wanted by us now.

40:00

The American ceasefire and the Hamas ceasefire are somewhat different, but

40:04

it's very clear, every time the United States puts pressure on Israel,

40:08

what happens is Hamas moves the Gold Coast.

40:11

And these guys are very shrewd negotiators, they're trying to fight for

40:14

their survival. And so, you then have this kind of very weird situation,

40:19

what kind of ceasefire do you want to put into place that is not

40:23

going to end Israel's demand for the total elimination of Hamas in Gaza?

40:28

I can't think of how you could square that particular circle, and

40:31

I don't even think that you should try. The most important thing in order to get a rebuilding of that particular community

40:38

under decent leadership is to get this conflict over as quickly as possible.

40:43

So, I'm gonna make the same remark here that I made about this situation with

40:47

respect to the riots, if you wait as long as they did at Columbia,

40:51

it's too late, and the same thing is true in the military situation.

40:55

At the first sign of danger here, utterly unambiguous, you use maximum force,

40:59

and you don't stop until the whole thing is over, and we just don't believe that.

41:04

And the humanitarian cause that the president espouses will result

41:08

through disease, starvation, collateral damages of one form or another,

41:12

more civilian deaths than if you let Israel go about this business in

41:16

the way in which they've done it. The American policy on this is dizzyingly incompetent,

41:21

and I basically think both leaders have to go, and they have to start over again.

41:26

This is an outrage in terms of the way in which we conduct ourselves.

41:30

And the ICJ is simply one part of that kind of strategy to change the terms of

41:35

trade so as to allow, in the end, Hamas in some form, to survive, and if it survives,

41:40

it will regenerate itself, and that's something which we cannot bear.

41:45

Remember on October 6th, there was a ceasefire in place,

41:49

did a lot of good on October 7th.

41:51

>> Tom Church: Yeah, all right, let's actually turn back to former President Trump and the immunity trial.

41:58

I think we'll have more to say on this in June, July,

42:00

when the supreme Court weighs in. But President Trump's claim of absolute immunity was heard

42:05

before the Supreme Court. And it seems to me that the discussion centered on when

42:10

a president's actions would constitute part of his or

42:14

her official duties, versus when they were private actions.

42:19

This affects the January 6th case that he's being charged with but

42:22

implications for his other cases as well.

42:24

So, I'd love to hear from you two, do you think former President Trump is gonna walk

42:29

away with this ruling that says, hey, president's basically immune from all

42:33

activity unless impeached and convicted, and then we take it from there.

42:38

>> John Yoo: I am still, on the merits, dubious that there's any kind of

42:42

presidential immunity from federal criminal prosecution,

42:45

there well could be from state, but I don't think there's one from federal.

42:49

>> Tom Church: Okay. >> John Yoo: But I think, if you think the court should follow an originalist methodology.

42:56

But what struck me about listening to oral argument is that the court didn't seem

43:00

interested in originalism hardly at all.

43:02

I'd say 90% of the oral argument was actually fought on

43:06

the grounds that President Trump would prefer,

43:10

which is functionally, presidential immunity a good thing or not?

43:15

What incentives does it create for future presidents?

43:17

And then a lot of discussion about how do you cabinet, if you have presidential

43:22

immunity, how do you make sure it applies to the right things, but

43:26

does not sweep in serious misconduct?

43:28

If that's what the court's gonna do,

43:30

I think they have to brush aside then the approach they took say for example,

43:35

Dobbs, look first at the constitutional text.

43:38

There's no presidential meaning of the text, look at the original understanding,

43:44

my view is that the founders rejected the idea of presidential immunity when

43:49

you look at the debates and the federalist papers, and then practice.

43:55

But I could see the court, here's what I would float though,

43:59

I could see the court based on oral argument going in this direction,

44:03

which is to say if immunity exists or not.

44:06

And I think President Trump's lawyers conceded this,

44:09

it only applies to official presidential activity.

44:12

>> Tom Church: Sure. >> John Yoo: And so, we're gonna send the case back to the trial judge to go through

44:16

January 6th, and first decide, is this official presidential conduct,

44:21

the acts that Trump is being prosecuted for?

44:24

Or is this his conduct as a candidate, which by definition,

44:28

the courts have said is not official presidential conduct.

44:32

That actually might serve, I think what might be present here,

44:37

which is Chief Justice Roberts' desire to make no decision on this

44:42

case that would influence the 2024 election [LAUGH].

44:46

I think what he would really like to do is figure out a way to shimmy his way

44:51

out of this so that no one can say, the Supreme Court decided the 2024 election.

44:58

So, anything that could delay the January 6th prosecution, like this option,

45:02

I think is something that might be the compromise that brings the court together.

45:07

>> Tom Church: Richard, is it a split decision or a unanimous one?

45:10

>> Richard Epstein: Split, because I think the three left judges are going to be very reluctant.

45:16

I wanna start with John's last point and

45:19

note what happened with respect to Justice Gorsuch, who says,

45:22

I wanna get this right, I don't want it to be get done quickly.

45:26

And given the fact that the law is completely fluid on this point today,

45:30

he basically said, I want to hear what lower courts have to say about this.

45:34

I'm going to remand to the District of Columbia Circuit Court, and

45:37

they're gonna remand it down to a District Court, and we're gonna hear about this.

45:42

And it will put it well past the election, probably by one or two years.

45:45

And I think that's the right thing to do, there are some people who say,

45:49

it's extremely important that we have the trial so

45:52

that people know the full extent of Trumps rightness or wrongness.

45:55

I think that the people could make their judgment based upon the voluminous

45:59

information already available. But every one of these particular prosecutions, as far as I'm concerned,

46:05

is deeply flawed in one way or another.

46:07

Wrong prosecutors, Fannie Willis, Alvin Bragg and so forth,

46:11

wrong Judge Merchan and so forth.

46:14

And I think in effect, my own attitude has changed in the following way.

46:18

If you look at immunity, John is right that there's no explicit statement on

46:22

official immunity, nor is there any explicit statement on sovereign immunity.

46:26

But when very early on in the Supreme Court in Chisholm against Georgia,

46:30

when the Supreme Court indicated that there was no sovereign immunity if you

46:34

brought a case under diversity jurisdiction in federal court,

46:38

you got the 11th Amendment in response.

46:40

And so, what that tends to lead me to believe is that the practices on immunity

46:45

that existed in England and in the colonies at that time were to some extent

46:49

incorporated by implication on this particular topic.

46:53

You then look at the president and the immunity, and

46:55

here's the fundamental difficulty, there's no intermediate position that works.

47:00

So, if you're dealing with automobiles and so

47:03

forth, you say, you're not gonna be immune from the traffic laws, and

47:07

if you engage in a willful destruction of some other individual, we can sue you.

47:12

So, there's not gonna be an absolute immunity,

47:14

there's gonna be a qualified immunity. But the moment the discussion turns to words, or to assertions of one kind or

47:20

another, everything is presumptively defamation or

47:23

something of the sort, or enticement or inducement.

47:26

And so, an intermediate position crumbles,

47:29

so you have to go to the one extreme to the other.

47:32

Now, the way in which I think about this is which extreme gets us more abuse coming

47:36

out of the problem. And when I started about this, say six months or

47:40

a year ago before the trial started to unfold, I was more sympathetic to

47:44

the position of the District of Columbia Circuit court, which says,

47:48

these are not official acts, they're personal acts, no immunity whatsoever.

47:53

But given the way in which the prosecutions have gone, and

47:56

their massive effect on the outcome of an election, I think you,

48:00

You probably have to have a broader rule, because I think the sanctions against

48:04

Trump are going to be pretty strong, even if he gets some immunity.

48:07

But I think that the ability to overcome a trial result is going to be

48:12

extremely difficult. And I think, therefore, on the error analysis, you want to extend the immunity.

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And I'm not sure whether this personal official line actually works.

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Nobody's really sure about it, so I'm willing to listen.

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First thing is to postpone this. And in general, I would probably err on the side of an excessive presidential

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immunity, not just for Trump. But remember, Joe Biden has done a lot of things that people can very much go after

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because of his own willful disregards of lots of laws on lots of subjects and so

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forth. And I don't want him being a subject of prosecution after he leaves office

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for them. In general, I think it's a very bad practice, and

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it's an especially bad practice when you have a former president who's running for

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reelection after a split in the term.

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So in this case, I'm glad that it's postponed.

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And if I had to decide the issue, much as I'm unhappy about doing it,

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I would probably support the immunity.

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Now, based upon the way in which the trials to date have gone,

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every one of them is, in my mind, a real source of potential prosecutorial abuse.

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Jack Smith, none of these people, it seemed to me,

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deserve any deference whatsoever because they're so

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overly aggressive in the discharge of their official duties.

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So there. >> Tom Church: So there. think that'll do it for this episode of law, talk with Richard Epstein and

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John Yoo, whose participation today I'm determining constitutes private actions

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and therefore grants them zero immunity.

49:39

[LAUGH] Yeah, no immunity for you, too.

49:42

If you found our conversation thought provoking,

49:45

please share it with your friends and rate this show on Apple Podcasts,

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Spotify, or wherever you're tuning in so that others can hear from us.

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For Richard Epstein and John Yoo, I'm Tom Church.

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We'll talk to you next time. [MUSIC] >> Hoover Representative: This podcast is a production of the Hoover Institution,

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where we advance ideas that define a free society and improve the human condition.

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For more information about our work, or to listen to more of our podcasts or

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