Neal Katyal: ‘At times, President Trump has behaved far worse than Nixon did.’

Adam Rubenstein: In 1999 you wrote the special counsel regulations that provide the basis under which Robert Mueller was appointed. Why were they written? Are they working as designed? Are you concerned by political interference with the special counsel?

Neal Katyal: I was at the Department of Justice at a unique time. I joined Eric Holder’s staff in January of 1998. He was then the number two person at the Department (the deputy attorney general). We were supposed to have lunch on my first day, and his assistant called in the morning to cancel. I then didn’t really even see Mr. Holder for two weeks. I later learned, from the newspaper, that my first day at DOJ was also the first day Ken Starr’s deputy came in to seek permission to wire Linda Tripp, in connection with the Monica Lewinsky matter. That independent counsel investigation, and the multiple others that were going on at the same time, were an enormous drain on the Department and the administration.

My first year in law school, when George Bush 41 was president, I encountered Morrison v. Olson, the case that upheld the Independent Counsel Act. Justice Scalia dissented, 7-1, explaining that the act created a headless fourth branch of government anathema to the Founders’ design, and dangerous in practice. I loved Justice Scalia’s opinion, so much so that then (and now), I considered it the finest opinion that had been written in my lifetime. I was open about it, had co-written a Harvard Law Review article about some of its points, and that’s how I got the assignment to convene a working group within the executive branch (and later with consultations on the Hill) to develop alternatives to the Independent Counsel Act.

The beauty of that working group is that we were behind the veil of ignorance—it was towards the end of a two-term presidency and no one knew who would be the next president—so it allowed both parties to really think through the best solution to the perennial problem of who shall guard the guardians. It was the rare time in government when it was really possible to do the right thing, particularly since the Independent Counsel Act’s sunset provision grandfathered existing investigations, so that even if the act went away the existing investigations would continue. And there was truly a bipartisan consensus to get rid of the Act—Republicans saw Iran-Contra and the Democrats saw Whitewater/Lewinsky.

At the same time, something needed to replace the act because there were going to be circumstances in which presidents or senior government officials would come under criminal suspicion. The 1999 regulations were borne out of that belief.

The centerpiece of the regulations is the idea that the president has the prosecution power, and that the Independent Counsel Act tried to fragment this power in ways that eviscerated accountability. Judges were picking who would serve as the Independent Counsel, the counsel could be removed by the president only under a Congressional standard, and so on. Accountability and independence are at bottom mutually exclusive—the act unfortunately erred too much on the side of the latter. So the regulations took the view that the president’s subordinate, the attorney general (or the acting AG) would be responsible for supervising the special counsel. The special counsel would be given day-to-day independence, but would still need the approval of the attorney general before undertaking significant steps, particularly if they contravened DOJ policy.

The attorney general couldn’t be cut out of the process constitutionally (and even the Independent Counsel Act didn’t try to do that). So there is always the possibility that the AG could do the president’s bidding and cover up something by ordering the special counsel to stand down. So the second big move the regulations make is to create sunlight—if the AG stops the special counsel from doing something, the AG’s decision has to be reported to Congress. And not just to the majority in Congress, also to the minority party.

I think so far the regulations appear to work as intended. But it is of course hard to evaluate this from the outside with such little information. Of course, none of this has stopped the president from threatening Mueller (and, to some extent, the acting attorney general on the investigation, the Deputy Attorney General Rod Rosenstein).

At times, President Trump has behaved far worse than Nixon did. To take one example, something that Ken Starr and I wrote about together in the New York Times this week: A lot of people forget that Nixon actually agreed to regulations whereby he would not fire the special prosecutor except for extraordinary cause, and then only if the majority and minority leadership in Congress agreed with a firing. President Trump has criticized the Mueller investigation, fired Jim Comey, savagely attacked the FBI, and repeatedly suggested the Russia campaign influence in 2016 was a hoax. In the wake of all of this, the American people need to be assured that Mueller can carry out his investigation without interference. The best way to do that is for Trump to agree to the Bork regulation. If he doesn’t, and can’t agree to what even Richard Nixon agreed to, that silence will speak volumes.

AR: President Trump said “we have to beat the savages,” in talking about torture. He has said he would “broaden” the laws to allow the military to torture. When asked if he’d allow U.S. interrogators to waterboard terrorist prisoners he responded “absolutely.” He said, “you have these guys saying ‘torture doesn’t work’, believe me, it works.” Walk us through this: Does the president have the power to “broaden the laws” on torture? If, so, could members of the U.S. armed forces be held accountable in foreign or international courts, after acting on a president’s directive?

NK: All the smart work on torture reveals that we don’t live in a world where Jack Bauer saves the day: Torture doesn’t work nearly as well as cooperative interrogation. President Trump should listen to his intelligence professionals.

My first Supreme Court case, Hamdan v. Rumsfeld, put an end to a lot of these questions. The Court found that the Geneva Conventions, which the United States was a party to, guaranteed certain basic rights to individuals in military custody. President George W. Bush recognized the importance of the Hamdan decision right away, and banned waterboarding and other coercive techniques in its wake. I suppose President Trump could try to get out of the Geneva Conventions (it is an interesting question in constitutional law about whether the president can himself void a treaty), but even if he had that power, he’d face enormous resistance from our military. Talk to any soldier who has served abroad—the last thing they want is for us to weaken the Geneva Conventions, because if they are captured they know that the only protection they have is those conventions.

AR: On January 27, 2017 President Trump signed Executive Order 13769, which some call the “Travel Ban” and others, the “Muslim Ban.” You’ve spoken out against it. Can you tell us a bit about the status of the EO today? How does its current instantiation bear on “sole organ doctrine,” the principle that the president is the sole actor as it relates foreign matters?

NK: Well, I’ve done more than speak out against it—I’ve been the State of Hawaii’s lead counsel for more than a year now, challenging every version of the travel ban. I’ll be arguing the case in the Supreme Court in April. We have won these challenges at every round, in Travel Ban 1, 2, and 3.

The challenge is two-fold. First, President Trump has isolated majority-Muslim countries for his ban. He campaigned calling for a complete and total shutdown of Muslim immigration, he later said “Islam hates us,” and his actions and words as president have made it very clear what he thinks his ban is all about. Our Founders created a powerful First Amendment, which bars the establishment of religion but also the disfavoring of religion as well. The president is using immigration policy to do something no president in our lifetimes has done, discriminate against an entire religion. Our Constitution doesn’t permit a president to pick the Norwegians who share his religion, and exclude foreigners from “shithole countries” who do not.

Second, our Founders gave power over immigration to Congress in Article I, Section 8—not to the president. There is no Article II immigration clause. You are absolutely right the president has foreign affairs powers, but our Founders were clear that immigration lay within the purview of Congress.

Congress has done two important things here: in 1965 it banned discrimination on the basis of nationality, and after 9/11 it established a multi-factor test before someone could be prohibited from coming here because they are suspected to be a terrorist. Those two guideposts have worked—and that is why no president has taken the step to wholesale ban immigration from a particular country in the years since. If the president doesn’t like what Congress has done, he is free to propose legislation to change it. But he can’t just undo Congress’ handiwork with a few strokes of his pen.

AR: Although you’re a Democrat, you enthusiastically supported the nomination of then-Judge Neil Gorsuch to the Supreme Court. You outlined why in a New York Times op-ed. You wrote: “Right about now, the public could use some reassurance that no matter how chaotic our politics become, the members of the Supreme Court will uphold the oath they must take: to ‘administer justice without respect to persons, and do equal right to the poor and to the rich.’ You were “confident Neil Gorsuch will live up to that promise.” Could you tell us if he has so far? What exceptional quality has Justice Gorsuch brought to the Supreme Court?

NK: I think it’s a big mistake to evaluate any justice on the basis of a handful of opinions, which is all we have right now when it comes to Justice Gorsuch. Yes, I supported then-Judge Gorsuch, and even formally introduced him at his confirmation hearing, because of one simple belief: I thought he was qualified to be a justice. Every experience I had with him, whether watching him as a judge or as part of the Federal Appellate Rules Committee, was exceptionally positive.

I try hard (but often fail, I’m sure) to be consistent. But that was what drove me to speak my mind about then-Judge Gorsuch. I had the privilege of serving as Elena Kagan’s deputy solicitor general, I thought she was fantastic, and I was very upset at the Republicans who voted against her. I felt the same way about the Republicans who voted against then-Judge Sotomayor. And I felt the same way about the Democrats who voted against then-Judge Roberts and then-Judge Alito. All of them are exceptional jurists, and the test for confirmation cannot be whether you agree with a particular nominee. If I were president, I wouldn’t nominate Neil Gorsuch; but I didn’t win the presidency, and indeed my party lost. I expected folks in my party to confirm Gorsuch, just as I expected Republicans to confirm Kagan and Sotomayor.

I do think what the Senate Republicans did to Chief Judge Merrick Garland was unforgivable. He was perhaps the most qualified Supreme Court nominee in our lifetimes, perhaps ever. People forget just how much support he had: Miguel Estrada, a brilliant conservative lawyer, came out very strongly for him, and he was just one of many. Incidentally, I think folks like Miguel that do something like that and cross party lines should be celebrated, it’s not easy, as I know firsthand. (The difference—and what makes Miguel’s stance so much more impressive—is that, after all, I have tenure!) Miguel himself was nominated to the nation’s second highest court and not confirmed—a sign of the toxicity in Washington that has barred outstanding professionals from public service.

AR: Last year, you argued seven different Supreme Court cases in six different oral arguments—almost 10 percent of the entire Supreme Court docket. What is it like to argue before the justices?

NK: It is one of the most extraordinary privileges imaginable as a lawyer and as a citizen. Unlike most other courtrooms, the podium is really close to the justices, maybe 10 feet. If you start to sweat, the chief justice is going to see it. But what that physical proximity does is it helps make the oral argument more of a conversation (a highly intense conversation, to be sure, but a conversation nonetheless) than some sort of actual arguing. A good chunk of my job is to try to figure out the questions they are going to ask, and relentlessly prepare answers to them ahead of time. But there is no substitute for the real thing. I get 50 to 70 questions put to me, all in a 30-minute oral argument!

Every time I go up and argue, it’s very moving. In an era where our other branches of government don’t always perform, the Supreme Court is different. Each of the nine is bringing their A-game, every day. They are respectful and hard-hitting at the same time. If I have one regret about the Court right now, it is that I think it’s a shame that Americans can’t see the Court in action. There are only a couple of hundred seats for the public, and no cameras. If the public could see what I get to see, I think their faith in the Court would go up many-fold.

Let me give you a concrete example. Twenty-two months ago, I argued a case about the jury, and faced a relatively quiet bench. I was struck through the argument about what was missing: It was my first time appearing after Justice Scalia’s untimely death. I left the courtroom, and I remember having a tear (or rather a few) in my eyes. Justice Scalia was usually particularly challenging to me at oral argument, but I so respected his intellect and commitment to the pursuit of truth. The bench felt sad and quiet, and it was a case he would have loved. If you go listen to oral arguments on oyez.org, you’ll see they changed dramatically in 1986, once Justice Scalia took his seat. Before then, it was a bit more like speechmaking for the lawyers. But Justice Scalia shook it all up.

AR: What should the president be reading? And why?

NK: The joy of great fiction is that it transports the reader to another world, where new characters live in otherwise unimaginable ways. It is one of the most powerful ways of generating empathy that I know. So I would urge the president, frankly, to read any great fiction, anything at all, because I feel that he lacks empathy for people who are not like him. I wish, for example, that President Trump would read Jhumpa Lahiri’s The Namesake or Abraham Verghese’s Cutting for Stone, but heck, I’ll settle for Harry Potter.

In the nonfiction side, a lot of my academic work is about internal separation of powers—how the best presidents created processes to obtain the most accurate information instead of just being told what they want to hear. These presidents pitted agencies against one another, creating an internal debate that yielded better policy. One good book about this is Richard Neustadt’s Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan. Neustadt explains that FDR succeeded because he “guaranteed a flow of information, using his own contacts in agencies: ‘He would call you in . . . and he’d ask you to get the story on some complicated business, and you’d come back after a couple of days of hard labor and present the juicy morsel you’d uncovered under a stone somewhere, and then you’d find out he knew all about it, along with something else you didn’t know.” FDR used the interagency process to catalyze debate and disagreement.

Neustadt describes how Eisenhower, by contrast, imparted “more superficial symmetry and order to his flow of information. . . . Thereby, he became typically the last man in his office to know tangible details and the last to come to grips with acts of choice.”

I’ll leave readers to assess whether President Trump sounds more like FDR or Eisenhower.