An Insightful Journey through Law, History, and Society with Professor Richard Abel

In this episode, host Mike Donahue engages with the esteemed Professor Richard Abel, Emeritus and Distinguished Research Professor at UCLA, exploring his impressive academic journey and profound contributions to law and social science.

Abel recounts his initial intention to be a civil rights lawyer, his impactful work in Mississippi, and his academic pursuit at Harvard, Columbia Law School, and the University of London. He discusses his significant role in developing the field of law and social science, his critical research on professional responsibility within the legal profession, and his shift in focus towards social issues in the U.S. and the UK due to familial responsibilities.

Abel also delves into his inspiring research on the anti-apartheid movement in South Africa, sharing personal anecdotes about Nelson Mandela and the role of law in social change. The conversation transitions to Abel's concern over the U.S. response to 9/11, the war on terror, and the subsequent legal and moral ramifications under the Bush and Trump administrations.

Abel highlights the erosion of democratic institutions, the polarization within the judiciary, and the pressing need for electoral reform in the U.S. to protect democracy. Despite concluding on concerns for democracy's future and the challenges ahead, Abel shares his passion for music as a source of transcendence and peace, reflecting on the therapeutic role it played for him, especially during difficult times such as 9/11.

00:00 Welcome to Tilting at Windmills: Introducing Professor Richard Abel

00:34 A Distinguished Career: From Civil Rights to UCLA

01:31 Journey Through Law: Civil Rights, London, and Beyond

02:27 Exploring Law and Social Science: A Shift in Focus

04:59 The South African Adventure: Law Against Apartheid

11:50 From South Africa to the War on Terror: Legal Battles

24:26 The Trump Era: Autocracy and the Rule of Law

30:27 Exploring Resistance and Democracy in the Trump Era

31:12 The Decline of Book Reading and Political Polarization

32:55 The Impact of Social Media on Political Echo Chambers

33:28 The Role of Presidential Debates in Political Discourse

35:17 The Decline of Journalism and Its Long-term Effects

36:42 Judiciary's Role and Political Bias in Court Decisions

42:40 The Importance of the Rule of Law and Democratic Institutions

46:13 The Potential Threats to American Democracy and Optimism for the Future

48:30 Improving Democracy: Election Laws and Political Polarization

49:53 The Role of Media and Public Perception in Political Issues

58:50 Personal Reflections and Recommendations

01:02:12 Final Thoughts and Future Projects

I originally thought I was going to be a civil rights lawyer.

That's why I became a lawyer.

I started in 62.

This was 65.

So this was really the height of the civil rights movement.

I've led a very privileged life.

I feel I owe something.

And the only way I can fulfill what I think of my responsibilities

is to use my abilities.

So that's why I write books.

I am 82.

It took me 14 years to write the War on Terror books.

It took me eight years to write the Trump books.

Hello, and welcome to another episode of Tilting at Windmills.

I'm your host, Mike Donahue, and we are fortunate today to be

joined by By someone, this is the first podcast I've done where I'm

actually intimidated by the guest.

But with us today is a Sir Richard Abel, and I will let you graciously

allow me to call you Rick.

Why don't you go ahead and let everyone know what your actual title is.

My title is title professor of distinguished professor of

law emeritus and distinguished research professor at UCLA.

So the emeritus signifies that I've retired from teaching, which is true.

The research professors means that I continue to have an affiliation with UCLA.

Which I joined in 1974.

So now we're coming up to 50 years and I'm very happy and

proud to have that affiliation.

Do they give you

anything for that?

Do you get a watch or something?

I get an annual parking certificate for 200,

which is really a good deal.

I don't use it very much, but I get that.

I have library privileges.

I have the same use of a secretary that I've always had,

which is I think one ninth.

When I ask for things, they do them and I still, that's, I

actually interact with them then.

Then.

That's very valuable.

You've

had an interesting academic journey.

I think you, you started at Harvard and then you're, I know you were at

the University of London for a while, and where you got your JD from?

After Harvard, I went to Columbia Law School and I originally thought I

was going to be a civil rights lawyer.

That's why I became a lawyer.

This was the.

I started in 62, this was 65, so this was really the height

of the civil rights movement.

In the summers after each of my law school years, I did work on civil

rights, and then after graduating, I went to Mississippi, where I

was briefly a civil rights lawyer.

Very exciting.

But I got distracted.

I had a fellowship to University of London, and I spent two years

in London, and then a year in Kenya doing fieldwork on customary law,

and then I started teaching at Yale.

And I would have described myself at the time as someone in the newly emerging

field of law and social science.

That field had just begun to develop at that period, but I

certainly immersed myself in that.

I became.

an editor of the Journal of the Association, the Law and Society Review,

and a president of the association.

And I moved to UCLA in 74.

I had spent a sabbatical semester in Palo Alto and had fallen in lovely

California, as people who get a taste of California tend to remain.

I had been brought up by the East Coast and never really spent

time in California before that.

So I was very happy to return and have been here ever since.

And my, my research interests evolved over time.

Several of them are relevant to this conversation.

First, when I was hired by UCLA in 74, the American Bar Association had

just instituted a requirement that all accredited law schools, of which

UCLA was one, must require a course in professional responsibility.

So they needed a new, another PR teacher, they had several,

but they needed another one.

And they hired me for that.

And I was happy to do that because my social science background made me think

that lawyers in the legal profession would be an interesting area in which

to apply social science methods.

And I discovered that there was a huge amount of really first

rate research already being done and more being done all the time.

So that became my central preoccupation.

So that was part of it.

The second was that with a growing family, I, by the time I came to UCLA,

I had three children of the age of six.

which was by itself a preoccupation and it meant that I was not going

to go to Africa with any frequency and I didn't for many years.

So I moved out of African studies and became more interested in the U.

S.

and then in the U.

K.

because I was invited to a conference on what was happening

to the legal profession in England.

And then, and I'm suddenly going to come to what has brought

me to these current books.

Then in 1989, I decided that my children were grown up, the youngest was about

to leave for college, I could go back to Africa, and I wanted to look at a

country that was experiencing major social change, that was confronting,

in effect, a constitutional crisis, the possibility of regime change.

I am hopeless at languages, so I could not work in a country

that didn't speak English.

And if you crossed English with revolutionary potential, there

was only one intersection, and that was South Africa.

So I went to South Africa, and I was fortunate in being able to make

contact with the African National Congress and some of its leaders.

I got permission to go despite the cultural boycott, because I was going

to study the anti apartheid movement.

I was introduced to the lawyers who were involved in that movement.

And I visited South Africa four times, several extended visits, and ended up

writing a book about the role of law and lawyers in the struggle against

apartheid, which came out in 1975, 1995.

So it came out just after the transition.

By that time, Nelson Mandela had not only been freed from

prison, but elected as president.

In the first democratic election in the country, and I was deeply honored to

have him write a foreword to the book, because Mandela himself had been a lawyer.

He had tried in his early career to oppose apartheid through legal

means, and only when that became impossible did he turn to military

means, and that's why he was jailed.

But by this time, after 37 years in jail, he was free and leaving the country.

That was an inspiring research opportunity, because

it had a happy ending.

And the lawyers and the movement were inspirational, um, highly

motivated, highly principled.

Uh, one of the things that Mandela says in his brief forward is that

the reason the transition could be so peaceful was that the ANC had always

committed itself to the rule of law and it led people in that direction.

And indeed there was, there's a, an incident that I read during

my, my, my stays in South Africa.

There's a, there was a newspaper called which was published in the township of

Soweto, outside of Johannesburg, and it described a meeting in Soweto, in which

the question was, should people who owned houses be able to sublease parts of the

houses, and if so, at what rental rates?

And somebody raises his arm in the meeting and is called upon And he

says, Comrades, we must consult the Charter, the Freedom Charter.

That will tell us what we can and cannot do.

Which was stunning, because the Freedom Charter was the

foundational document of the ANC.

But it was not a legal document, because the ANC itself was illegal.

But it prefigured the kind of constitutional framework that the

ANC envisaged, and which it in fact put into place, including a Bill of

Rights and a Constitutional Court.

As I said, it was a, it was an inspiring experience.

The years, late 80s and early 90s,

you've been, and so just keeping the South Africa timeframe

back, one of your bios had you listed or labeled you as a legal anthropologist.

And I'm assuming that's just the study of the evolution of law in general,

or?

Yes.

So when the movement for social science studies of law began, and it

began in the 1960s, I think, primarily in the United States, although

there were European counterparts.

When it began, it was multidisciplinary.

So there were anthropologists, sociologists, psychologists, historians,

political scientists, and others.

Thank you very much.

When I was in London, I was studying for a PhD in law, which is a degree

that's awarded in the UK, even though not in the United States.

And my focus, as I said, was on customary law.

And that's where I studied in Kenya.

I spent a year in Kenya studying the ways in which customary law was

changing in the newly independent

Kenya.

Have you gotten to analyze or at least take in different sort of

methods of law or applying the law?

The customary law is an oral body of law exclusively.

There are no written documents and It tends to be applied

in a very consensual fashion.

So traditionally there is often a group often a body of elders who listen to

the evidence and then discuss among themselves and then come to a decision.

It's often a decision that's intended as a compromise decision.

So in, in many ways, it's a radically different approach

to how to resolve disputes.

And what I was observing was the ways in which it was gradually becoming

Europeanized or Anglicized during the early years of independence.

Is that just by necessity?

That's a good question.

The newly independent government could do what it wanted, but it was

still sufficiently oriented toward the English colonialists that it

wanted to create a legal system that would look good to the outside world.

So, it was in the process of taking strong People who might have some familiarity

with customary law, but probably not a great deal because they were young,

not old and giving them at least a preliminary education in English law

so they could try to combine the two.

You've

also written about some of the legal ramifications that came about from

the Iraq war slash the war on terror.

And if I'm just from a 30, 000 foot few, so we have domestic

United States, civil rights.

We have South African apartheid, we have the impact of a shift.

I would think you would say a shift in our legal attitudes towards terrorism

and conflict, but there's obviously that theme running through it, right?

Sort of maybe where the U S is misstepping or supporting people who have misstepped

and just trying to balance that out.

Is that fair?

Or do your bit in terms of fighting against what that sort

of injustice, for lack of a better

word.

I have a story.

I'll tell the story.

It's a long story, and then I'll stop and see if you want

me to continue along that theme.

Okay, so I published the book on South Africa in 95.

I then go on to other topics, which we can come back to if you want.

Um, and then in May 2004, I'm driving back from the Grand Canyon to Santa Monica.

Anybody who's taken that drive knows that it's straight across the desert.

It's flat.

There's nothing there.

It was a Sunday morning.

It's a long drive.

You can easily fall asleep.

So I turned on the radio and got NPR, which had morning

edition on a Sunday morning.

And that was the moment when Seymour Hersh broke the story of Abu Ghraib.

It was a very dramatic moment.

He had come out in a New Yorker article and in this interview in NPR.

That obviously shook many people up, but I had a personal relationship

to it because Sy Hersh is my brother in law, and I knew him when he broke

the Milad story 30 years earlier.

So he's always been a hero of mine and a close relative.

And I said to myself, I've got to see how the United States deals with a war

on terror, which it's already begun to wage, and how that might differ

from the South African experience.

And my expectation was, let me just stop, I can explain the differences

between South Africa and the U.

S.

And why I wanted to pose that question.

Should I go ahead?

It's great.

I'm, I'm assuming that the perceived threat and I'm assuming this is,

so this would be pre, uh, Mandela's ascension and or pre full democracy

or more, a more liberal democracy that as the perceived threat continues to

rise, um, laws are enacted or laws are created that, uh, begin to impact it.

What traditionally would have been considered a pure civil right.

So as the threat is heightened, the, I don't want to say autocrats,

but the government tries to compensate through legal means where

that's exactly the legal justification that

was exactly the questions.

So we have the attack on September 11th in 2001, just as a matter of coincidence,

I was visiting at NYU law school.

So I was less than a mile from ground zero, and then experienced

the rest of that fall with the smell of the burning towers, which

persisted for months thereafter.

So you have the attack, and you have an attempt to eliminate Al

Qaeda in Afghanistan, which fails.

And then you have Bush's declaration of war against Iraq, which I've got to

say, personally, I was strongly opposed to, and which I think is one of the

greatest mistakes that any American president has ever made in terms of the

loss of life and cost the United States.

That had all happened.

And then 2000, and then we get the revelations of what

happened at Albuquerque.

And the question I posed myself was, okay.

The United States is in a crisis different from, but maybe as

extreme as that in South Africa.

It was called an existential crisis, although I don't think that is

accurate, because however terrible, and it certainly was terrible, the

attacks on the Twin Towers and on the Pentagon were, they did not threaten

the existence of the United States.

So you have those attacks, and the question was how was the U.

S.

going to respond?

And the upper grade showed that the response was to tolerate torture,

indeed to encourage torture.

And then the question was so what would happen?

What would Congress do?

What would the courts do?

What would the executive do?

And it was that I wanted to study.

So from 2004 and 2018, 14 years, I worked on that question.

In what ways would the fundamental legal structure and constitutional rights in

the United States withstand the pressure to use executive power to win this war

in ways that are potentially illegal?

And unfortunately, the conclusion I came to was that the law was a weak read.

And would do relatively little to, to control, to, to limit, to

regulate the power of the executive.

And I

remember that time and I remember the, the whole concept of

American torture, which sort of, it would have been anathemic, right?

Even 40, 50 years earlier, we just, Americans just don't do that.

The other guys do that.

But I remember that as a society, it was very easy to find people that

felt like, yeah, no, they're bad guys.

It's a different kind of war.

Too much is at stake and the general public acceptance of torture or just

like waterbonding is not torture or enhanced interrogation that we would

certainly if it was an American person being that was being done to it,

we would certainly call it torture.

But there was really no, no shortage of people who are really

firmly in favor of it or at least not negatively viewing that.

And in fact, like socially we had shows like 24.

And others that sort of tried to put torture in a better light.

Is that's, is that how you saw

it?

One of the appalling things is precisely that there were so many people prepared

publicly to become apologists for torture.

John Yoo at UC Berkeley is notorious for that.

Um, but I'll tell you, I'll give you another example, which I

was unprepared for, and I don't think I handled it all that well.

I didn't handle it that well.

I gave talks about the two books on the War on Terror, after they were

published, and one of those talks, was to the judges of the Southern District

of New York, the federal district judges of the Southern District of New York,

which is, uh, typically viewed as the preeminent district court in the country.

And the judges are highly qualified.

Uh, so I gave that talk and taught, and that was the Q and A.

And during the Q& A, one of the judges stood up to leave, but as his pouring

shot was, So professor, you say torture doesn't work, but the Israelis use it,

and they get very good results, so torture does work, so what's wrong with it?

At which point he walked out.

I was just, I could, I could identify it, but it's not important, I was blown away.

That a federal judge would make those kinds of comments.

And would obviously believe that.

And Bush believed it, and you may remember that Trump was asked, In

the campaign in 2016 about torture.

And he said he was in favor of torture.

We just should have done more of it.

And

yeah, we can, we'll, we'll have a whole section on Trump.

That's a, uh, especially as that's what your books are about.

Um, and just to remind everybody, Rick has just released or recently

released and the third book, a triplicate or a triple set of books.

I'm sure there's trilogy.

There we go.

A trilogy of books discussing.

Um, and, uh, autocratic methods as they apply to Trump in America.

Is that succinct enough

or?

Yes.

Yeah, absolutely.

Yeah.

They're fascinating.

Only two of them are available for purchase now.

I think the third is going to be available in March

28.

Let me just add the book is available.

I know.

Cause other people have been able to get it and it's available.

Some of the usual sources from Amazon, from Routledge and from bookstores.

They're all three are now in print.

So I guess the big question would be, what about the Patriot Act?

Have you done any study in terms of that?

Because that seems like a real big sort of

crisscross.

I do discuss it, although not in detail in the course of those two books.

So the US Patriot Act was seen as this wonderful opportunity to bring into force

all sorts of restrictive police measures.

That conservatives had been wanting to pass for years.

And now we had the reason for doing so, namely the defense of our country

from a foreign terrorist attack.

So the USA Patriot Act was brought into effect.

I would just add, however, the following that the ACLU rose to the occasion as

they have on, on, on repeated threats to, to American democracy, and they

brought numerous challenges to the Patriot Act, especially as applied,

And most of those challenges they won.

So I don't think that, well, the worst constraint of civil liberties was the

rounding up of people who looked Arab.

I have to put it as crudely as that, because that's what they looked like.

Some of them were Central American or Mexican, but they, but to, to a New

York cop's eye, they looked different.

So they were just taken off the streets.

They were locked up.

And then if they were out of, uh, The documentation, as many of them

were, because they were undocumented, they were kept indefinitely,

often in atrocious conditions.

Some of them were beaten in, in, in detention, and then

they were summarily expelled.

And at the same time, there was a demand that all people from certain

countries register, and tens of thousands of documented immigrants

registered, making them fearful of deportation, or at least of harassment.

So, there was, there were wide scale violations of civil

liberties in the wake of 9 11.

Yeah,

not one of our greatest moments.

And I guess, in fact, I guess America, when you look at America's

history in general, we have a tendency to do that, right?

When something either scares us or we think it's in our national interest, we

tend to move the law to the side a little

bit.

Absolutely.

One can go back to World War I and World War II and the Korean War.

And the Vietnam War, all, all of those were moments when civil

liberties and civil rights were curtailed, often quite stringently.

Lead of Americans?

Yeah.

American domain?

Absolutely.

So after these, honestly, these topics are all pretty depressing

to be really honest, but apparently you weren't satisfied with those topics.

And then now you've taken on Trump fears that Trump has created in

you and so many other people.

Why did you make that decision?

You've obviously, 40 years.

You could.

Rest happily on your laurels.

What made you take up that torch in regards

to Trump?

Okay Absolutely, the right question.

It's a question.

I've asked myself many times saying basically what happened is this that

The books on the war on terror were published in 2018 and I gave talks

in a number of those places and it was a Q& A But for the Q& A people

usually have to read the books.

Each of these books is 700 pages long So nobody had read the books and

therefore I They, they couldn't use the books as the basis for the question.

So the question that was most often asked was, Professor Abel,

you've written a book, but they thought of them as sequential.

You've written a book about the Bush administration.

You've written a book about the Obama administration.

Surely you're going to write one about the Trump administration

because it was in the middle of it.

To which my flip reply was absolutely not.

First of all, it took me 14 years.

And by, by that time I was in my.

Mid seventies.

Secondly, I said to them, look, Trump is a different animal.

I am no fan of Bush and I have, I'm a qualified fan of Obama, but they, and

especially their advisors, more or less believed in the rule of law and they

tried to operate within a legal framework.

Trump has made it clear that he doesn't care about any of that.

And he's just contemptuous of all the constraints on his power.

And therefore, a book about Trump does not follow from the other two books.

Well, I'm consulting and I didn't stop taking notes and I, and the newspapers

are incredible repositories of information, so I kept taking the notes.

And in December, 2020, when the Trump administration was about to

end, I thought, you know something, I think there's a book here.

And the question is, why did I write it?

And the answer there is very simple.

I've led a very privileged life.

I've been able to teach.

I'm well paid.

I've got good health.

I feel I owe something.

And the only way I can fulfill what I think of my responsibilities

is to use my abilities.

And my abilities are to amass information, to organize it, and

to use it in a critical fashion.

So that's why I write books.

And I've written many of them, and I continue to write them.

So, I had originally thought of a single Trump book, and I did present

the manuscript to various publishers, and one of them was finally interested.

Routledge.

But they said, By the way, how long is this book?

I said, it's 400, 000 words.

And they gasped and said, We can't do that, quite wisely.

Could you break it up?

And that's why there are now three books out, and a fourth in process.

And, and they're

not what I would consider big books, I

think.

That's right.

They're, they're, they're digestible.

And especially, even if you look at their length, uh, it's about

a third footnotes, because I want to make it possible for anybody to

go back and check what I'm saying.

So I give all the sources that I have used.

And as I said, I could not do any of this without journalism.

The journalists are indefatigable.

And they do the legwork and it's often boring and difficult and they're

challenged and I just get to, I wouldn't say a cherry pick, but I get to pick

the fruit that they have grown and it's, it's essential to what I try to do.

Yeah.

And again, I think, obviously there's been a lot of books on,

on Trump that have been released.

I think what I found about it, and I only got into the first book, what I

found unique was it's, it is extremely detail oriented with specific examples.

And then footnotes and references to those specific examples.

So if you are, if those of you out there listening are interested.

And it lists a number of sort of Trump grievances, the problems that Trump

has in terms of upsetting our norms.

But if you're detail oriented and you have any sort of interest in

Trump works legally within the United States rule of law, it's a

highly recommended set of books.

And you're not going to say that because that was a compliment.

So

thank you.

I appreciate it.

And that's why I put it out.

I'll give you again, one example.

Again, I was honored to have representative Jamie Raskin

write a foreword to this book, uh, How Autocrats Seek Power.

I have a slight personal acquaintance with Jamie and of course enormous

respect for him, and I had a way of getting this to his attention.

But one way in which I connected with him was that when the January 6th committee

was announced and he was a leading member of that committee, I wrote to him and

I said, look Jamie, I have notes for this, what I think are forthcoming books.

This is now several years ago.

Could you make use of them?

And I sent them all the notes that I had, hundreds and hundreds of pages.

I'm not sure how much use they made of them, but that's

what, that's why I do this.

I want this to be a repository of information, both now and for the future.

And perhaps even more importantly, I want to point to the forms of resistance, if

you like, or defense of basic democratic institutions that have been tried.

And try to figure out which ones worked and which ones didn't.

And some I do think have worked quite well and some have been a great disappointment.

I guess a

couple of questions is, do you get the sense, especially with the Trump

series or, or Trump in general, that you're shouting into the wind a bit?

There's a huge segment of the American population that doesn't even want to

hear what you're saying, let alone show any sort of interest in it.

Unfortunately, I know that book reading itself is going down.

That's that's part of the problem.

But no, you're absolutely right.

The polling data again is very good and very thorough and very sophisticated

and Trump's core supporters are not interested in hearing any of this and

indeed he has taken the tactical decision to make all of these legal cases a

source of He constantly invokes them.

He has, he, either he or his supporters have compared him to

Nelson Mandela, which I must say really bothers me, to civil rights

leaders, and actually to Jesus Christ.

Um, the, he does see himself as being persecuted, and asks his supporters to

identify with him, and then of course he tries to raise money with that.

See, you've had the fortune of being able to see America over,

over the years, over several decades, and I think, so, one of the concerns,

uh, liberals or people in general seem to have is that you mentioned

people not wanting to read or, uh,

So I guess the question is, because there's this generic sort of thought

that we're much less educated, much less informed now than we used to

be.

People get their information in different ways.

Um, given my age, you won't be surprised that I'm not on social media.

So I, I don't know that domain, although I read about it and clearly that is

where people get most of their news.

It's no longer even Fox news.

It is, It is a variety of chat groups and social media and, and

we know those are echo chinks.

That is, each, each person looks to those that confirm his or

her own beliefs and prejudices.

And there won't be many occasions on which they will be forced

to listen to both sides.

I, although in many ways, I'd read the prospect, the presidential debates,

and now we know who they will be between, the presidential debates.

Will be the one equation on which people, if they want to listen to Trump, will have

to listen to Biden, if they want to listen to Biden, will have to listen to Trump.

Do you think there will actually be a debate?

Yes, Trump believes he can trounce Biden.

He's going to use his body language.

You remember what he did to Hillary?

Yeah.

He's going to use his bulk to show that he's, he's tough and Biden is weak.

I'm not sure that bulk is equates to toughness, but he,

yes, he has plenty of bulk.

But it will be, it will be a large audience.

It will be in the tens of millions.

And Trump is like nothing better than an audience.

So yes, he'll, he will debate.

I will bet you one quarter, there is no debate that we're going

to have the first presidential election in however many hundreds

of years without any sort of debate.

Um, and you did something I want to touch on is that you did mention

earlier how critical journalists and journalism in general was

to your book and your writings.

And I think without much argument, we have seen a massive decline in,

in the amount of journalism and some would say the quality of journalism.

Overall, and that has long, it's more than just the immediate, it also impacts a lot

of things in the longterm as well, right?

No,

it's, it is highly distressing and we are losing a great deal and it's,

it is partly the economics, it's partly the attention span that there are multiple

reasons for why this is happening.

But I will say this again, it's purely anecdotal.

Um, I've gotten two inquiries in the last week, one from USC journalism

students and one from ASU journalism students, and I've chatted with them

online and they are well informed and they're doing investigative journalism

and they're students and they don't need jobs yet and the jobs aren't out there.

But the fact that right, motivated, informed.

Young people are still seeking to go into this field.

That's a sign of hope.

Let's get into

the non hopeful things.

Um, in regards to Trump and autocrats in general, I would have thought that one

of those defenses that you mentioned were the people around him, the supporting

cast, whether it's his cabinet, top advisors, Congress, the judiciary.

That those act as bulwarks against that extreme behavior or extreme lurches in

any one direction, but I think that we have seen, or my opinion is that we've

seen each of those fail in their own way, uh, as a bulwark against Trump.

Unfortunately, I have to agree with you.

Let me start with the courts, because that's what I know most

about, and actually I think I know things that are not relatively, have

not been written about elsewhere.

So, for both the War on Terror books and the Trump books, I did analyses

of the ways in which courts responded to executive behavior, to acts that

I thought were violating basic laws.

In the War on Terror books, I concerned myself with torture, Indefinite detention

in Guantanamo with extraordinary rendition, with eavesdropping, et cetera.

And what I found was that votes of judges in cases concerning those

topics divided sharply along the lines of which President appointed them.

The difference between the votes of presidential appointees by

Republicans and by Democrats were correlations on the order of oh 0.00.

I did the same thing with respect to the cases during the Trump administration

concerning the pandemic, concerning immigration, and concerning the elections.

In this instance, the correlation was 0.

00001.

That's one, that's a likelihood of a chance result of one

in a hundred thousand.

That's extraordinary.

That's extraordinary.

And just to contrast it in both cases, with the fact that in prosecutions

of alleged terrorists during the war on terror and prosecutions of the

January 6th defendants in the District of Columbia courts today, there is

no big divide between the judges.

So it's interesting that when federal judges are dealing with relatively routine

matters as criminal justice, criminal courts, they treat them as other criminal

cases and they do the right thing.

They find some people innocent, some people guilty.

for listening.

They impose sentences that are reasonable, et cetera.

They don't split along political lines.

I'll just add this.

There's a lot of focus on the great divide within the Supreme Court.

And it is a great divide.

It's basically six to three.

But I've got to say that the divide is at least as great in the circuit courts

of appeal and in the district courts, which hear hundreds of times, many

more suits than the Supreme Court does.

So I think people ought to pay more attention.

Thank you.

To what's happening throughout the federal judiciary.

And those regionals, are there 13, I forget, but there's

those regional districts have their own sort of assumed biases, right?

You know, or

give you, I'll give you an example and others have written about this

and it's, again, it's very disturbing.

There are a few district judges who are situated in rural

districts where they sit alone.

So if you sue in that district, you know who you're going to get.

And surprise, the challenges to the Biden administration have been

brought in Texas and Louisiana.

And they have won because they knew what the judge was going to do

before they even filed a lawsuit.

Here's the most recent example of that.

is a judge in Texas who struck down an NLRB ruling that sought to

make gig workers actual employees.

But there are numerous examples, and of course Dobbs itself began that way,

where they picked a judge knowing how he would rule in overruling Roe v.

Wade.

Um, yes, the judiciary is being severely compromised, and

it's only going to get worse.

So is that part

of just the overall politicization of

almost every part of art?

Is it just it's an it's a natural thing that now the judiciary

is becoming politicized or have they always been politicized?

No, on the contrary.

It's interesting in in the 1950s The American Political Science Association

issued a report, so it must have been a consensus at the time, saying the

problem with the two major political parties, Republicans and Democrats, is

that they're too similar, and they're not giving people a real choice.

Hard to, 70 years later, hard to believe that that was the case, but it was.

And if you look at the way Supreme Court decisions came down during that period,

the division was not a mirror image of who the appointing president was.

And of course, Brown against the board of education is the most Notable

example of that that the the chief justice Warren held it up until

he could get a unanimous opinion

So I think a lot of this again in my head this sort of comes back to

the rule of law and the importance that Society has some sort of faith in the

rule of law and it really does feel like that's been decaying You Over the last

10, 15 years, whether it's because of the politicization, whether it's because

of just outright attacks on the law, it's, and I think I, my concern is that

without the rule of law, if there isn't a strict adherence, most of the time,

there's a strict adherence to the rule of law with occasional sort of wiggles.

That society itself just is going to have a lot of

problems.

I, again, I couldn't agree more.

I'm in the process since I'm working on this fourth book of reading everything

about really six cases that are pending or in, or against Trump in, in recent.

In the recent years, since he left presidency, there are so many disturbing

things about him, but one is that every time he loses, even if it's just

a motion, not a final decision, he denounces the judge, he denounces the

judge in advance, he denounces the judge during the trial, he does extraordinary

things, so here he is, he decides that he's going to attend the New York civil

case against him for overstating the value of his properties, so he attends

it, and he sits there and he scowls.

And then, while the judge is speaking, before the case is over,

he stands up and he walks out.

And this is a case that's going to be decided by Judge Ngoron,

because he's sitting without a jury, and Trump doesn't give a shit.

If you'll pardon the expression, he is determined to, to defy him.

And then he gets out, and he then starts to attack him on, on, on social media.

He does this, he's done this repeatedly, and his supporters read

what he's saying, and are convinced.

That the court is stacked against Trump in any lawsuit and that the courts are

rigged just as elections are rigged.

He thinks anything that he fails at is rigged.

And yes, the fundamental institutions of American democracy are being

undermined by this constant wr.

And

I think there's less of them now, but when I was having conversations

with election deniers, you would bring up the fact that it's been in front of

61 different judges across the nation, Trump appointees and non Trump appointees.

And they just say, yeah, no, they're, they've turned against

them or they're in the pocket.

There's always that, no matter what you say in defense of the

judiciary, it goes out the window because of Trump's rhetoric.

I guess that wasn't a question.

No, I, as I said, I read about in.

It's a big phrase, but, uh, anticipatory, deleg, legitimation.

So when Trump, uh, imagines that he might lose in a particular context, then he

denounces the institution even beforehand.

So he did that in 2016, and he did that in 2020, and he's doing it

now in 2024 about the elections.

And he does it about Congress and he does it at the courts.

He does it about the police and he does it about the FBI.

It's an extraordinary, it is the ripping down of basic institutions,

leaving nothing standing.

If the

traditional bulwarks, again, the Congress, judiciary, advisors, etc, aren't

able to put safeguards in place, what do you think we as Americans should do?

Because this is a very real threat, right?

There's a very good chance that he could be president in 2025.

And we'll see, I think it'll make his first four years

look like a walk in the park.

So, what are our options?

What is the reason

for optimism?

The last recourse, and the essential recourse, is the ballot box.

So, clearly the November election is absolutely essential.

I'm hoping, That, like the 2020 election, turnout will be high because people will

realize just how high the stakes are.

But there's a real fear that people are so turned off by the political

process and disenchanted with Biden, rightly or wrongly, and so willing to

listen to Trump's statements that Biden is too old and has been ineffective

or worse, that they won't vote.

And that, I think, would be a disaster.

And it's essential as they vote it for Congress as well as the presidency

during Trump's first term because he did not control Congress He had to do

everything by executive order and those executive orders because he had bad

lawyers were badly drafted And illegal and unconstitutional and so they were struck

down despite the polarization within the judiciary That that sequence might well

happen again, and then we would have again paralysis For four years and paralysis

for four years given the the threats that america faces around the world as

well as domestically would be terrible

So you've obviously thought quite a bit about our democracy and democracy

in general Do you have any ideas if you were again an autocrat for a day?

What changes you might make to better improve our existing democracy?

You know,

I have a colleague, Rick Hasen, who is an election law expert.

I recently went and listened to him give a talk.

And there are other great election law lawyers.

And they say our election laws are a real mess.

They're state by state.

They lead far too much to the states.

They're badly managed.

One thing that the Republicans have been trying to do Is to replace

bipartisan or nonpartisan election officials with acolytes who will do

their bidding in local elections.

This is very low visibility stuff.

So we do need better election laws and those have to happen nationally,

which means they have to happen through Congress and the president.

So that would be my desideratum.

But that requires democratic control of both houses and the presidency.

And I'm not confident that that will happen.

But you remember that there were two attempts to reform election law.

There was the Electoral Count Reform Act, which was passed.

Which will make it less likely that the challenges In the certification process

on january 6th, and then there was the the second law which was going to be a

much more comprehensive Election reform and of course the republicans blocked that

so nothing nothing happened speaking of

the electoral vote count I think there was somebody sometimes

said american americans like their problems to be simple And I think maybe

that's more of human nature than just americans, but we do have this tendency.

I think to just sort of And when we look at something or when we're told about

something, whatever that prima facie content is that what we see or what we,

our first past tends to be what resides.

And there isn't a whole lot of effort to dig deeper, or is that

really true or to validate that?

I think it takes a lot of effort intellectually, mentally,

uh, psychologically sometimes to, to keep making those.

And I think part of the thing that we're running into in terms of January

6th is that Is that the way it's, you have to spend a lot of time to truly

understand exactly what was going on and why January 6th was an insurrection.

And there's so many people that say, okay, just because they stormed

the Capitol, that's not a coup or it's not an attempted coup.

But what would you say to those people that really don't think January 6th was

that big of a deal?

The Justice Department has prosecuted over 1, 300 people and gotten

convictions in all but two cases.

And the sentences have ranged up to 20 years.

And as I said, there's been bipartisan Um, behavior across the parties

by the judges on the DC district.

So there really is no question.

That's what the January 6th committee did so brilliantly to

show the video footage of what was going on and to have testimony.

But the people, the revisionists are coming back all the time.

There was just a report filed today, trying to disprove, a Republican

report, trying to disprove everything about what happened on January 6th.

I'll offer a historical parallel, because I think the point you make

is yes, people want things simple.

I grew up in a simple, a simpler era.

So I grew up during the civil rights movement.

And when you saw white police beating black people with their batons on the

street, sticking dogs on them in the South, shooting fire hoses at them,

standing in the schoolhouse door, barring the election ballot, it was pretty clear.

It was pardon the analogy, black and white.

There was really no, no moral ambiguity there at all.

Whereas some of these issues are harder to get your head around.

Take immigration.

Trump has made demonizing immigrants.

His central strategy and Biden has had to say, as he does have to

say, we need an immigration policy.

We've needed an immigration policy for decades now.

So he has to agree.

We can't have open borders, but we also can't have what Trump has said we're going

to have again, which is family separation.

He makes it very clear.

You rip children away from parents and then they won't, they'll stop coming.

He says that explicitly.

Do you have any thoughts, and I'm speaking in generalistic terms here,

but it feels again from a very, I'm a very liberal perspective that Democrats

in general try to make things fair, right?

See the district mappings that are done by a primarily Democratic panel there.

They seem very fair as opposed to say the Republican dominated panels.

And in general, it feels like Democrats kind of want things fair

and the Republicans just want to win.

And I, I don't know if that's fair to Republicans, but it

certainly feels that way.

And I just wonder, is there a way of winning that battle and making

everything fair if you have one side who's just completely disinterested

in having a good faith party?

Mark police of ideas battles.

I don't know the answer to that question.

There was a, an excellent column in the New York times within the

last couple of days by Ezra Klein, which makes exactly that point that

Democrats believe in playing by the rules and Republicans only play to win.

And again, you can see examples of this.

You look at the language that Trump uses against Biden, but against Democrats in

general, it's language that no politician in American history has ever used.

And so the degradation of language is something that we have to,

that we have to cope with.

There was this recent incident, and I know it's minor and it's only in one

place, but it is extraordinarily telling.

So in a county Republican meeting in Kansas, a couple of days ago, a martial

arts group put together a booth in which they dressed a dummy in a Let's

Go Biden t shirt and a Biden mask.

And then they gave people baseball bats to beat it up and

people paid money to do that.

That, that's, that's, that, that is like enacting lynching in 2024.

It's just unthinkable.

And

I'm, I'm afraid to ask this question, but in terms of

America and America over the next, say, 50 to 75 years, are you more

optimistic than you are pessimistic?

Do we have a chance to turn this around, or have we started the, the mass effect

spiral downward?

That is the most basic question, and I don't know the answer to it.

The fundamental problem is that democracy includes, incorporates the possibility

of autocracy, because Democrats can vote out of, not Democrats, small D Democrats,

the people can vote out of the law or the protections that are currently in the law.

The German Constitution has a couple of unamendable clauses,

but we don't have those.

If, and we have this totally screwy election system, where the

Electoral College is a disaster, and the Senate is a disaster, and

gerrymandering is a disaster, so, we're working against long odds.

But if enough Americans want an autocrat, As people do around the

world, the demand for strong leaders in other countries we know is growing.

So if enough Americans want an autocrat, we'll get an autocrat and

you will be able to do what he wants.

That's yeah.

That's a depressing note.

I will, and you don't have to answer this or speak on this because it's a

little bit off subject, but obviously the Israel Gaza situation, Palestinian

situation is across the headlines now.

And I'm just wondering if you see any analogies between, uh, the South African

Apartheid state and Palestinians, whether you feel that that does Palestinian

situation does consider it is by your definition, Apartheid or just any

sort of corollaries at all between

the two.

I'm going to give you a sort of sideways answer, because the question itself is

too big, I think, but the sideways answer is that I have long been uncomfortable

with the use of words or phrases that are historical analogies, so I don't

have Much, much as I am highly critical of Israel's treatment of Gaza and

the occupied territories generally, the West Bank, highly critical and

strongly sympathetic to the Palestinian cause, I don't think apartheid

captures what was and is in Israel.

And similarly, Although I condemn the assault on Gaza, the 30,

000 plus deaths, and now the prospect of widespread starvation.

I don't think the Holocaust is the right analogy.

Those are unique events and they deserve to be kept as unique events.

And we think we need other language and terms to address

these contemporary problems.

That's, I think that's a pretty good answer for a sideways answer.

Thank you.

I want to wrap up on maybe on a lighter note, if that's okay.

Sure.

So you've attended, you're a professor at UCLA, you've attended Harvard,

Columbia, and the University of London.

Of those universities, which one is your absolute favorite, and why is that UCLA?

Well, that's a question which I could give you a long answer

to, but I'll make it a short answer.

I'm actually going to Harvard for a conference, and actually

I will talk to the law students there next week, in two weeks.

It's not my favorite institution by any means.

I did not have a good experience as a student.

I didn't think I'd get a particularly good education.

I taught at Yale.

I feel equally strongly that Yale has many drawbacks.

The University of London is a bizarre institution.

I was actually at the School of Oriental and African Studies, and I had two years

to read and enjoy the delights of London.

I'm very grateful for that, but I didn't learn anything from the institution.

My 40 years at UCLA have been an utter delight.

I've had good colleagues.

I've had good students.

I've had good administrators.

I've been able to work across disciplines.

I've been involved in other schools and departments among the

institutions I've been associated with.

It's my first choice by far.

Excellent.

And then something we ask all of our guests at the end of the interview,

we ask them, has there been any sort of media that you've come across lately?

Whether it's music, a book.

TV streaming, is there anything that you've enjoyed that you think the

listeners should know about that they

need?

My taste is probably not that of most of your list is.

And so I'll tell you one, but it doesn't actually lend itself to easy listening.

I'm a very amateur musician and I've done choral singing my entire

life from a teenager until now.

And last night I was at a rehearsal of my local chorus, which is performing

the Brahms Requiem in Pacific Palisades in a And it's a great piece of music.

And that for me is cathartic, um, to, to be able to actually produce great music.

And I'll give you just one last observation.

On 9 11, I was downtown at NYU in Greenwich village, less

than a mile from ground zero.

My apartment was uptown near Columbia.

At the end of the day, I made my way with difficulty back from one to the other.

And I was with my family, which was terribly important, but

that was also to be the night of my New York chorus rehearsal.

And I thought, ah, to be able to rehearse Bach, that would be the only thing.

That would allow me to stand back from the horrors of the day.

Of course, Universal was canceled, so I couldn't do it.

But music is for me, a place of transcendence and peace, and

I recommend it to everybody.

Again, professors, thank you so much for your time.

I wish you all the best.

I guess I would be remiss if I didn't ask what the next series of books is

going to be on.

Like I am.

82, it took me 14 years to write the War on Terror books.

It took me eight years to write the Trump books.

I'm not starting another big project.

I think I'm probably going to look backwards on what I've done

over 50 years and try to make sense out of that and leave it to

younger people to look forward.

There you have it.

Thank you again for taking the time.

We really

do appreciate it.

My pleasure.

Thanks.

Thanks for having me.