 special honor today of having with us, in addition to Master of First Amendment expert, Jeff Portnoy, former University of Toledo Law School professor, and raconteur, Ben Davis, and former Northern Illinois and South Texas Dean and Professor Jim Alfini. We have a truly amazing and diverse cast of characters for this one. Gentlemen, welcome. Thank you for sharing your time, your wisdom, your insights, and most of all in these times, your sense of humor. Okay, putting the humor just to the side for a second. Rule of law, what are the things happening right now that are the farthest off the rails and most bother you or give you anxiety about our rule of law? Anyone want to take a first shot? I'll let our distinguished guests go first. People have listened to me for the last two months. Well, you know, one thing that hasn't been mentioned too much, Chuck, is the way the Trump administration is conducting sort of a guerrilla warfare within the machinery of the federal government, particularly administrative agencies, dismantling regulations that have been in place for decades, dismissing staff, not enforcing certain laws. And maybe the tip of that iceberg right now is the postmaster general, who's gone out and done things like decommissioned sorting machines in many key states. Why is he doing that? Well, it doesn't take too much of an imagination to understand that now he's setting us up for election challenges that are going to favor the president. So it's a harder thing to put your finger on, but sort of this disrespect for the governmental agencies that have been in place that are doing their job and now aren't doing their job for political purposes. And we now have three federal court decisions, basically telling Trump and the joint stop that stuff, put it back the way it was. I would go along with that in one way, which is I was really quite disturbed that the essentially political appointee who is head of the DNI now guy named Ratscape, I think it is just, you know, declassified stuff that the Senate Intelligence Committee has said had no credibility with regards to a basically a smear on, I think, of course, on Biden or something like that. In other words, you've got this Russian disinformation that's been discredited by the bipartisan Senate committee that in turn then gets declassified in that selective declassification game, which when you've got that happening out of the intelligence community, the people below it, I believe tend to complain internally, but they're not the kinds that necessarily will actually go out as much extensively as they might they might have the retired people who do it. So that bothers me. The other thing is, there's an arbitrator who just decided a case at the University of Akron, which is here in Ohio, where the university wants to essentially lay off about 100 faculty. And so the faculty union filed agreements and there was an arbitration that happened. And under the union contract, basically the power to do that for that university came from if there were catastrophic circumstances, such as force majeure. And he concludes that yes, this is the COVID and all that is a catastrophic circumstance. And so the process can go forward. So went forward for the administration of that university. And what bothered me about that was just that, you know, the kind of inept manner in which our government has addressed COVID then in the context of this layoff structure is basically allowing this particular administration to say, Oh, well, we can lay off people using COVID because it's so catastrophic. It's so catastrophic because of the inept way we've been dealing with it for six months as a country. You know, it just seemed to me a very bizarre way to end to to to see force measure or first of all, and secondly, to then allow it to be an excuse to lay off 100 people. It just seemed you know, it's like a lose lose game. You have an inept response. And then you have, we can use this to lay off people just doesn't seem right. Well, to me, what's left to the rule of law, which is supposed to be shared between the three branches of government is part of a single branch. And that's did you did share if it wasn't for the federal district courts, and sometimes the circuit courts and even occasionally the Supreme Court, and some democratic attorney generals, there be no rule of law, because both the Senate and the executive branch have no interest in the rule of law. And so we have lost two of the three prongs, at least during the last and present President administration. So I'm heartened. I mean, you can argue that there's too many federalist society judges and things like that. You can argue about the politicization of the Supreme Court. But when you look at what's happening around them in the Justice Department, in the executive branch in the administrative agencies, we are fortunate to still have an independent judiciary. And as long as we do, there's some hope. So let me ask you folks a question, taking Ben's point about the use of COVID as an emergency situation to justify departing from all kinds of legal precedents and authorities. But we now have a president who said, his idea is throw out the votes, don't count the ballots. I'm going to get the state legislatures to exercise their power over the electoral votes for the electoral college. And if there's a problem, I'm going to get the Supreme Court. This is going to wind up in the Supreme Court. That's my avenue. That's my method. And if people ask, so why does he need that sixth vote? Maybe one of the reasons is Trump has already come out against Chief Justice Roberts for decisions in the LGBTQ case and other cases. He knows he can't count on him for unfettered corruption. Maybe with that sixth vote, instead of a 4-4 tie with Roberts with the other three, he's got his certain majority. Well, you know, other than the hypocrisy, I really don't have much sympathy for the left on this particular issue. I mean, they should have thought about it four years ago when they allowed Trump to get elected by not going to the polls, et cetera. And they should have been more concentrated on state legislatures 10 years ago. I mean, they have refocused on that. I am not one of these people who's crying wolf about the Senate's attempt and the President's attempt to get Barrett appointed. You know, look, you want to put a litmus test on judges. I think that's wrong. He has the right to nominate. They have the right to confirm. Yes, there's tremendous hypocrisy based upon what happened with Garland. But you know what? That's the state of American politics, Chuck. So, you know, whether it's a sixth vote, I still am not willing to say that the justices on the Supreme Court are motivated by politics. I really am. I'm not. I mean, I think I disagree with certainly the four conservatives on almost every one of their judicial interpretations, but that's the way it goes. I mean, you know, during old Warren's days, this was reversed. So I'm one that is, I think there's a lot of crying wolf going on, on this particular issue. Not about throwing out ballots, by the way. I think what's going on there is outrageous, but I'm talking about getting the sixth vote on the court and how it might quote politically affect the outcome of the election. So, I go ahead. I was just going to say that. So I volunteered with the group of Reverend Barber's Poor People's Campaign, and we're actually going to have a demonstration on Monday, which is a car caravan to go around Senator Portman's local office here in Toledo and Cincinnati and other places, too. But one of the things that I liked about what they were saying is that, you know, stimulus has been held up for a long time. Okay. And then all of a sudden, we're moving earth and sky to get this confirmation of this judge. And that instead of focusing on the confirmation of the judge, let's focus on getting stimulus to ordinary people and getting that deal done. And I like that argument about all this. Obviously, it's not, you know, yeah, they have the power to do what they do. I agree with Jeff with all that, the nomination, the advice and consent. But can we get a few priorities straight here in regards to, like there are people who are really, really suffering right now. There's food banks here in Ohio are clamoring for help with regards to people. There's a whole evictions issue for people, even though they may be delayed till January, they're going to have these balloon payments on rent. There's, I mean, there's like a whole series of issues that a stimulus package can help. That's actually going to go into people's pockets. People need it badly. I'm doing okay myself. But you know, that's the news that I'm getting is I've been involved with this campaign. So that's the strategy that I think as opposed to this, let's pack the court stuff or what was the other things that they've been talking about. Let's have an 18 year term for the justices. I think that that's this, again, going along with Jeff, it's just poppycock really, but that to focus the energy on the stimulus package before anything else gets done, I thought was very smart. That's what we're going to try to do on Monday. We'll see what happens. Jim? Well, you know, I'd agree with Ben up to a point. I think Jeff is absolutely right. I mean, you can go back to Jacksonian democracy and to the victor belongs the spoils. And so the winner, if you can put a president in the White House and put the same party as a majority of the Senate, then this is what you would expect. Sure, there's going to be a lot of hypocrisy, but it's political. The process is political. It's part of our democratic infrastructure, if you will. I think one of the things though we could look to and some of the candidates who talked about this on and off is democracy reform. There are some things about our infrastructure that probably should be changed. A good example is the Electoral College. It comes, I mean, twice in the two decades of the 21st century, we had a president take office when his opponent, his or her opponent, had the popular vote. So the Electoral College has trumped the, see, that's a bad pun, has trumped the popular vote twice. It's a vestige of colonial, well, it's a vestige really of the, well, actually, even James Madison, who's the darling of the Federalist Society, was in favor of a popularly elected president. It was quite a debate. I think they took it out of the hands of the states when they created the Electoral College, so it was sort of a compromise. Why do we need that? I was teaching a constitutional law class about 10 years ago, not about 20 years ago, at Northern Illinois, and we had a debate following the Bush Gore election over why do we need an Electoral College? And there was a student from Montana and a student from North Dakota in the class, and I hate to say it, but they sort of won over the class with the argument that if we get rid of the Electoral Colleges, nobody will come to North Dakota or Montana. They'll campaign in the big cities, we'll all be forgotten. They'll go for the vote if it's a popular vote. So at any rate, I think we need to bring back some more discussion over democracy reform, if you will. We don't have a perfect system. No. I mean, why does each state have two senators based upon population? I mean, we're talking about systemic change that is very unlikely, James, as you know, but makes democratic sense. I mean, New York and California have the same number of senators as Hawaii. I mean, what sense does that make? So I think it goes hand in hand with your comments about the Electoral College. Try and remember how many states have already voted to do away. Is it like 18 already? I mean, there are a number of states which have already voted for a constitutional amendment. Yeah, I think that's right. You know, there's some other, that's another good thing to talk about. There's some other, the Equal Rights Amendment is still arguably out there. Needs one state. One state away. It's not a time bar, right? Yeah, that's right. That's right. So yeah, there's some unfinished business. American democracy is still an experiment. There's some unfinished business there that needs to be taken care of. This is probably not the right time to talk about it because we've got the election looming and stuff, and you know, people aren't going to turn their attention to constitutional amendments and things like that. But let's not miss the forest for the trees. Right, right. Well, you know, we say that for the federalists, Madison's there, right? Well, I actually happen to be a kind of Madisonian in the sense that I really like the idea of the double security of the rights of the people with our separation of powers and federalism and all the competitions between everybody that would protect us because imagine if we had one leader with all that power as opposed to our governors and all the rest. And so, you know, I just look at kind of how the system works to see where am I being protected? Where are my rights? Where is the double security working for me as an ordinary American in terms of this battle between these competing groups? I think that the executives, the governors have done a number of good jobs with regards to blocking some of the more inane things that have been done. I know it works both ways. I understand that. The governors were only affordable care acts trying to get rid of it after November 10. But, you know, at least it's not just a central government with just, you know, the Congress, an executive president and a judiciary that goes all the way down. I mean, maybe I'm just kind of old school on that. But I like to watch the battle because the power is diffused somewhat at least. Well, you know, what I think is going to happen going back to Chuck's question about a six-vote court? I think it's pretty clear talking about James about where people are going to want to live. As this Supreme Court is going to strike down federal regulations and federal laws on everything from abortion to you name it, gay rights, whatever, they're going to throw it back to the states. And you talk about deciding where to live. I mean, we're lucky to live in Hawaii. I think about it every day for the last four years even more than ever, because I really don't care what the federal government does because our state, when it's allowed, does so much more than the federal government does. So, you know, in five years, if you're a liberal, you won't be living in North Dakota. You'll be moving even though you don't want to live in a state like California for other reasons. And vice versa. I think that's going to be the outcome of a six-vote majority on the Supreme Court, maybe even starting on November 10th with health care. And there's a big factor, Jeff, which I'll ask you folks about. That majority has also very consistently, strongly supported presidential control over the executive agencies and the heads of those agencies. So whenever they exercise any independence, even if Congress established them with a four-cause requirement for termination, that's been overrun. So the financial control over those agencies, that's our environment, that's our education, that's our health and human services, that's immigration. That's exactly the things you folks were talking about. Is that coming? Well, here's a thing that maybe gives me a little optimism on that, which is the Supreme Court's deference to some extent with regards to the executive branches statements of what has been eroding also, I think, over the last 20 years. I think that the part of it is because they found themselves to have been hoodwinked by, not necessarily by the lawyers involved, the lawyers were hoodwinked, and then they find out afterward that in fact there were shenanigans going in the background. That happened with torture and all that. I just was involved with the case on, believe it or not, international arbitration. So it's not really everybody's stuff. But there was a presentation made by the Solicitor General as to sort of what the law should be in this space. And it was Justice Thomas who wrote the 9-0 that was against my position. Yay! But Justice Thomas in that really hesitate to give any weight or decide what weight should be given to what was said by the executive branch, which I thought was a kind of interesting moment where we're not going to go there sort of thing, which I thought was an interesting statement of a little hesitancy or skepticism towards the the information coming from the federal government. Then of course you had the issue with the census and the ad hoc post hoc reasoning for trying to have the immigration status on there. And they said, you know, was it this administrative procedures acts were not respected with, you know, or something like that? I mean, those are those kind of little hooks in the road, so to speak, that the courts do that are important, you know. Here's the interesting thing for guys that are our age, James. Soon to me. Turn the whole state's rights arguments of 40 and 50 years ago on its head. Absolutely. You know, I mean, 40 or 50 years ago, the liberals were screaming about the federal government taking over all of these things, the segregation and, you know, public accommodations, you name it. Now, in the next few years, it's going to be the opposite. They're going to be screaming the state of California should decide vehicle admissions for the state of California. So it's just really ironic how things go over decades. Yep. Yeah. Yeah, and can I can I turn back to the rule of law question at the beginning, but take a slightly different tack on that, please. The one of my friends said to me the other day, knowing that I sit in the house of delegates of the American Bar Association, why aren't you guys speaking out about what Trump is doing to the rule of law here? You know, why isn't the ABA speaking out loudly? And, you know, so I mumbled something well to membership organization. There are a lot of people that support Trump. They're going to lose members if they take sides, that kind of thing. But our good friend, Ben Davis here, has submitted a letter to the Association of American Law Schools and Law School deans basically denouncing this administration's the eroding of the rule of law during this administration. And Ben, I think there's 16 different areas that you mentioned in that letter. And so I suspect that there'll be more movement along these lines of groups like law professors, doctors, who knows who, speaking out during this campaign season. What do you think, Ben? Well, I do know that there's one going on with con law professors, too. Only by people who teach substantially in con law, by the way. Decided only by them. That's an inside joke. It's an inside joke. Con law is like at the top of the hierarchy of law professorships. Another one that I saw is interesting. Four international law professors have sued the Trump administration with regards to the sanctions on the International Court people coming. Because they have been working with the International Criminal Court for a long time. And it has an effect on what they do and all that. And that's just been filed, I think, in New York as a case that this is... I haven't read the case, but I just got it today, actually. So that's another example of sort of... Unfortunately, if I remember correctly, the United States is not a signatory to the Rome Convention, which created the International Criminal Court. No, no. There's Trump's out, right there. You guys are just dealing in fake news. Oh, fake news. You know, look, guys, the bottom line is nobody listens to the ABA anymore. Not the 40% that are going to vote for Trump, even if he does shoot somebody on Park Avenue. How many judicial appointees, nominees has the ABA come out against, and it's meant zero as being unqualified? I mean, let's just face it. I mean, I always love these dialogues because we talk to the same people that... But there's 40% of the people that are not listening or agreeing with a single thing we're talking about today. There's 50% of the people who agree with 90% of what we're saying. Maybe there's 5% to 10% that can be moved a little bit one way or the other. That's the sad thing about what's going on in the country. How many former Justice Department U.S. attorneys was it? 2,000 have read the letter? Yeah. Who cares? I mean, I'm not being cynical. I'm just trying to be realistic of where we are as a country. How Trump has so poisoned and the internet has so poisoned 40% of the country into believing that there's child molestation going on in a pizza restaurant in Washington, D.C. Yeah. Well, I was talking the other day when they were cutting down at the city, was cutting down a tree outside with a guy who was working on that crew. He was saying that he's basically Trump because he thinks that he'll bring back the economy. That's really the thing. And when you're desperate, and I remember back in 2016 some of these folks in small towns in Pennsylvania and all that, that's what their thing was is that he's a businessman and so he'll bring back the economy. One of the things interesting about this guy was that he said that George Floyd thing, this is a white guy, okay, older white guy. He was like that George Floyd thing. That was wrong. That was really wrong. You know, I mean, he said that was just really awful. And so, I mean, I think that's the best people are making is that they think that he'll bring back the economy. And that's, I mean, I mean, there are the wild proud boys and all that types. But I bet you a lot of folks, that's what's going on. And now we know that he turns out to the tax stuff is pretty devastating. I thought for me is that I mean, not that anybody cares. But the guy's like, you know, he really is a bullshitter in chief. Sorry. I don't know if I could say that on this, but I mean, he's a bullshitter. In fact, I got myself a t-shirt made that just came before here. I didn't want to put it on with COVID, but it says tired of the bullshitter in chief. I mean, it's just, you know, I, you know, I, let me take Jeff on for a moment. Jeff, I suspect you and I are one mind on 99% of the issues that we could bring up. But the one thing I challenge you on is that it doesn't matter because he's got this base. His base is big, but it's not big enough to elect him. And that's why he's trying to screw around with the elections. Because he knows that he's probably going to lose the vote. I was listening to the view this morning, the television program. I got about 25% of what I know I learned from the view. And Whippy Goldberg and somebody else were basically making Jeff's point. And one of the other, what's her name? Joy, Joy Bayard? No, not Joy Bayard, the woman who used to be a prosecutor at any rate, she basically, she pointed out that there's still a 14% undecided vote out there. I mean, 14%, that's a big number to influence. And we should do everything we can to try to get those undecideds in the right column. All right, I don't, James, I agree with you completely. I don't think it's 14%, but it's certainly somewhere, you know, seven to 12. But, you know, I'm not an expert. It depends what poll you read. I don't disagree. I think it's, you know, God willing, Trump doesn't have a chance. I think we see that his numbers aren't going anywhere. He's going to get 40, 42%. Yes, the electoral college is a real issue, as you pointed out. Big time, big time. And I agree. I mean, the only thing that's going to save this election, in my view, the only thing is a massive Biden victory. Otherwise, we are not going to know the winner of this election until February or March. But you know, and I'm sure Ben knows that both sides have hired an army of lawyers. In fact, I'm volunteered to assist Biden, but the Republicans have an equal number, and they are going to challenge the results in every state in which there's a margin of error. And so when people say, oh, well, you know, Biden wins Florida, you know, where he's up by 1%. It's going to make, you know, Bush versus Gore look like nursery schools. So. Thank you. Yes. I agree with you, James. We need all 14% because we need a 55 plus percent popular vote victory and 300 plus electoral votes. And on that, I want to speak down the ticket to just remember down the ticket to it's not just the president all the way down the ticket, especially the Senate. Gentlemen, thanks so much for your time. We're out of time for today, but we've got momentum. We'll be back in two weeks. Hope you folks will join us. Eric, thanks for monitoring and running this. Enjoyed it guys. Great. Thank you. Thank you. Thank you. Thank you. It was fun. Excellent. Lot of fun.