 Okay, we're back on a Monday morning with Scott Horschberger. He is an attorney. He was the attorney general of the state of Massachusetts He joins us by phone from Boston. Hi Scott. Thank you for joining us today Hey, thank you very much for having me and I'm sure you're having much much better weather in In Honolulu in Hawaii and we are here in Boston, Massachusetts. I feel your pain And I feel your pain But but speaking about pain, you know the country's in pain We feel it. We see it. We hear it on the news every day. It's it become an application Whether people admit it or not, they spend hours every day following, you know, the shenanigans going on in Washington with this government And it should be of concern to everyone, especially the lawyers who are presumably steeped in the rule of law And you've gotten heavily involved in that and I wonder if you could tell us the state of affairs in the government and uh, why we should be concerned about the about the um, the failure to abide by the rule of law by this administration So I think that the major concern that I have and that We've been all trying at least many have been trying to articulate Is that we have seen the executive president of the united states Engage in what seems to be a an intentional and systematic attack on core legal A democracy principles and values including the rule of law the independence of judiciary the independence of the justice department and to basically take the position that The rule of law is not a check and balance is not a guardrail But rather is something to be used primarily for personal self-interested and ideological reasons now not to be too uh arcane about this the fact is the rule of law the core institutions of democracy The constitution our center posts Uh, which are meant to ground us to ensure that we can Disagree without being uh disagreeable to have arguments to have debates to have Freedom of speech but with some core common ground and common cause understanding That there are limits. There are checks and balances. There's an executive role congressional role a role for the courts role for citizens And what is happening today is an abandonment uh a systematic attack on these and we're not Frankly seeing any defense particularly from lawyers j Of the rule to protect or sworn by the oath of the office we take in every state To uphold the law and the constitution And the laws of this of this commonwealth in massachusetts And those are being undermined. They're also being come highly partisan And I think without why I speak as a democrat on the republican side. We're also seeing elected officials Who are accepting Justifying and even praising these systematic attacks on core democracy Institutions Threatened the fragility the very strength of our democracy Every citizen could be deeply concerned about this regardless of party You know, you know, we've been we've been watching this since what uh 2016 2017 And uh and to focus on the time period I remember the uh, you know the protests right after the inauguration of donald trump where people said not my president Um, and it was like a cold bath of water to find that he was he was our president for many reasons But you know things have things have moved on from there And I wonder if you could comment on the sea changes involved. We were concerned. Yes. We were in january 2017 But here we are in 2019 going to 2020 Has it gotten worse? Is it the same? You know, what what are the what are the evolutions? We should be noticing here in the past what two or three years Very very good point and I think that um, and it's you know, to some extent Sort of easy to criticize a president who feels that he's constantly under attack So the questions about legitimacy of his uh election and that's how he articulates it That he's never been accepted and therefore it's a constant Attack by the media which is the enemy of the people he calls the press the Democrats who disagree with him are you know, socialists whistleblowers who Are a type of protections of law are you know viewed as terrorists It's anybody who is attacks or it criticizes The president is deemed to be Sort of a traitor to the cause and that kind of That kind of action has become increasingly apparent As and as the power of the executive the desire to control the desire frankly to be almost a king or a monarch um, and refuse to have any constraints Is being uh is being carried out the change is the change I think is and I don't Only mean to attribute this The death of john mccain senator john mccain For whatever reason meant that the end of the backbone or spine Of republican senators who know better For whatever reason, um The the fact that john mccain has not been there to try to hold the republican party To its principles not democratic principles, but its own principles In terms of standards of decency of honesty of integrity Uh of upholding the constitution and the constitutional balances The role of the senate has become a republican party has simply become the party of donald trump And he is operating by by by virtue of his tweets by virtue of his control of the media Um, I think it has escalated dramatically and more importantly. He has been successful in my view j He has been successful because he is convincing An unbelievable number of our citizens that He is under attack At the anybody who criticizes him is an enemy of the people Um and has essentially eliminated dissent as a meaningful A factor here, um And we can rely on the courts and all that but the fact of the matter is that We are seeing what I consider to be a consolidation of power In the name of the president not in terms of the legitimate public policy or interest that the president represents and And it's totally become a political partisan effort. Let's let's talk about all right Let's talk about the uh, the role of the attorney general now You've you've been in that role in in massachusetts and you can appreciate what it's like to be the attorney general in a democratic society And in in the national scene we have dramatic changes that have taken place Recently with regard to the department of justice and the attorney general Those changes are are of great concern. Can you talk about that? I think that the performance of Attorney general far has been shocking to me This is a man that served as deputy attorney general In the early 90s when I was attorney general in massachusetts And while somewhat conservative, certainly appropriately with the Seemed to be appropriately reflecting simply A conservative principles Now as attorney general has become essentially views his role as being Twofold one is to be the president's lawyer that the president the president certainly wants that to be the case That's what he criticized the former attorney general The obsessions for that's what he criticized former head of the fbi Jim comey for if they were not loyal to him Loyalty to him was the key In his mind And these were viewed as They acted felt they had some obligations to the institution sessions therefore got fired comey got fired And what you see throughout the administration is anybody who was not loyal to president trump And try to fulfill his legal his or her legal responsibilities is there no more jim mattis rex tillerson any number of cabinet secretaries Who left because of that now the attorney general usually has considered to be well, perhaps a partisan Understand that the first and foremost the responsibility attorney general is the law and the facts To represent the public interest not the president to represent the people's interests not The private interests the partisan interests of a party now that may the philosophy may be more conservative than mine It might well be policies that are different of mine, but the argument was about policy not about person And what has been shocking to me is attorney general bar beginning with his handling of the muller report essentially becoming A spokesperson as a personal attorney for the president defender He justifies it by his view of the unitary executive which almost No constitutional scholar that i know of agrees with even though There is a there has been increasing focus by him on that And essentially you have no checks and balances in the department of justice above all Attorney general whether democrat or republican in any state hawaii or elsewhere Job is his responsibility to the people to the law and the facts Not the partisan politics And I think that's been a grave grave change. Well, you know here at christmas time Here at christmas time scott I am always in fact we are all always reminded of the christmas carol by by charles dickens And in the in the christmas carol by by charles dickens There's the ghost of christmas future And I think we ought to be thinking about that now because of these processes These sea changes that you've described these conditions that have emerged under this administration Continue we are going to have a different world Can you describe what the ghost of christmas future is for the united states? In the future in a future under donald trump and his administration Let me I think first of all I I do want to focus on one Problem, which is I think and what mobilized us as lawyers defending american democracy not the only group to do this by the way Was that the legal profession Was remaining silent It is of all the interest groups of all the groups that exist The one profession that takes an oath of office explicitly Uphold the law and the constitution Are lawyers and when you have a situation where lawyers either approve of these kinds of fundamental fundamental erosions of checks and balances and powers and limits on the abuse of power And you see them systematically being eroded by the actions of the executive And do nothing Speak do not even try to speak truth to power And we have failed but we are the one instant profession that has a responsibility. I believe To call this out and speak truth to power regardless of party And therefore you look forward if this continues and I I I I believe I think we're now understanding how fragile The democratic institutions are how much they depend upon some Or assumption of civility of integrity of decency of expressions of free press Of independence of judiciary independence of law enforcement Of institutions and public servants that we're seeing in the impeachment hearings people who Will do their duty regardless of who the president is who have served for republican presidents and democratic presidents Who are willing to tell to speak What they believe to be problems and then to be ridiculed not only ridiculed but attacked by the president and attacked personally By members of the republican party cross examining them We are very close to the 1930s Rise of the of the fascists in germany in my view. This is exactly the game Plan that we saw years ago that we say can't happen again The future Could well lie in what we have seen in the past And we cannot simply assume that here we are in america With this democracy that these institutions will hold when there is such a systematic effort Every level to undermine them. So in 1968 Eldad was created the lawyers for the defense of american democracy At harvard as I understand it and and it has existed all those years But but the trump administration has given it a A more important mission these days and it is said under your guidance. So your leadership It has taken on the burden of making Lawyers aware or at least increasing their awareness of the problem. Can you tell us what eldad has done in the last year or so? This the lawyers defending american democracy which created at the gift reunion of our harvard law school class In last october Which one of which was an eminent professor from yale who happens to have used the name of idel And my brother you mean my brother gene, of course Brother gene But I I mentioned the harvard. Can I not not to make it? Well, it was harvard law school The key was here. We were lawyers coming back to reunion 50 years after we graduated From college from law school at a time that was equally in crisis in america That so many people forget that that was the time of vietnam The protests in vietnam civil rights movement just following the assassinations of martin ruther king and robert f. Kennedy Of a turmoil within the system which ended up among other things with the impeachment of richard nixon The the watergate disclosures, but also the firing of an attorney general was led to the resignations of Attorneys general when the firing of archibald cox and the one thing that I recall We all remembered was The legal profession stood and delivered not as republicans or democrats but heads of law firms deans of law schools The american bar association bar associations all over the country Said this was wrong That we had to continue to preserve civil rights and civil liberties We had to preserve the independence of the attorney general and special counsel We had to ensure that the court The congress powers of congress were upheld and could not be subverted by the executive In other words, we had a crisis which about which many have written but john meacham most particularly Uh a crisis of our democracy and among others The legal profession stood tall and said this shall not stand Stood and delivered protecting and defending the constitution and the rule of law today I cannot see any Movement by an independent legal profession to stand and deliver and lawyers defending american democracy was an effort to gather The lawyers who believed that this was our role not a partisan issue Try to assemble republicans and democrats to take a stand on behalf of the rule of law And core principles freedom in the media independence of judiciary disability Not attacking people because of their race or creed those core principles and we Managed to accumulate over 800 white prominent lawyers Who have signed it is not that in a in a this era we are concerned. They're not as many as we would like We have had limited i would say limited if any impact because as you point out j things have gotten worse not better in the last year And for whatever reason it's not news that a core lawyers Stand for the rule of law if we were standing if we were all here attacking personally In a vicious partisan way. We would probably get more attention I am pleased that a group like checks and balances which represents conservative republicans Is getting some play making some of the same points that we're making about the rule of law And people like charles freed and larry tribe And people like george conway are being heard to some extent But i'm very concerned j and having a negligible impact on public opinion And more importantly on our fellow lawyers. What are why are people not listening? I don't understand That's a really good question is it's you raised the question before about why they're supporting trump You know despite all the things he does and doesn't do So I guess the question is if i'm If i'm a lawyer Go ahead and j here's the thing I have talked i've i've seen i've watched the impeachment I've watched the impeachment hearings. I hear people like former attorney former attorney general and congressman boyan mccallum Uh, I hear You know articulate good lawyers who will stand and and and and take the position That they are not they agree with the rules that we are undermining the rule But we have attorney general bar going to the federalist society And the event sponsored by facebook of all things uh for the federalist Attorney general bar speaking about speaking saying that it is The lawyers who are being critical Democrats who have been critical the president who are undermining the rule of law the subpoenas The subpoena power of congress is being challenged as being You know a disruption The the insistence of congress On the right to be to hear from executives to hold the executive accountable a whole hearings is being considered to be Is it they're using the rhetoric that we use which is if they claim it's undermining the rule of law They're claiming it is violating all the rules of decency. It is to me A 19th and or a george orwell world Yes, where the same words mean different things depending on your ideological or partisan view Well, so 800 lawyers have signed off on the letter. Where has it gone? Um, and I suppose the second part of that question is so it lands on my desk Why in the average case do I not do something about it? What passes my mind when I receive this letter? What fails to motivate me? What what do I what do I do with this letter and what have people been doing with it? Well, I think there's there's an excellent question and I think we probably all have many had many responses, but One has been one has been I think most disturbing to me Is that people are afraid to sign the letter That is it may be in law firms where clients might object They may be in situations where it's viewed as partisan It's ideological. It's too partisan. We're too partisan. We're mostly all of us. You have democrats or liberals of some kind We keep saying we we we want to encourage Republicans to join us. We're not It cannot be partisan in a democracy to stand and insist that the rule of law Core legal and democratic democracy principles apply that is not a partisan statement unless you believe that equal justice Affair in us new process freedom of speech are our you know our violate our ideological concepts. So one is If defense is as partisan The second one is that if I sign if I sign up it becomes public I may be criticized by clients Or by others who don't agree with me in this environment. That's one approach The second one is others who could rightly think that just signing a statement in this day and age Isn't good enough. So you got it. You you you need some sort of action Some some maybe are joining lawyers for good government or joining other organizations that are the aclu and others that are That are participating actively in certain things and I commend that many of our members are doing that Our point is We're trying not to be just advocates for particular issues We're trying to be advocates for something that really isn't the special interest It's sort of a broad public interest in the rule of law and to many many lawyers The third point is here jay many lawyers. This is vague. They don't they don't understand this They don't see this as being what I see as being The actions of the president as being abuses of power They think that the democrat that I've heard many of my colleagues say Well, the democrats are just as bad. Look the democrats are just as bad. Look at hunter biden Look at look at the press appears biased against the president of the united states You know the mauler report was you know was designed to get him new democrats have never accepted his elections All kinds of justifications and excuses By lawyers just like fellow citizens We're not being willing to stand up and simply defend the core idea That there are core principles That must exist or things fall apart the center will not hold If the lawyer won't do this Who will yes? Oh, what a great question You know, we all went to law school. We learned about the the federal government the balance of power the constitution Constitutional laws understand as a required course in every law school in the country And yet for some reason and I would like to ask you about this for some reason The bar in general and you can say there are exceptions. I would treat the 800 as an exception rather than the rule Um, the bar in general doesn't understand the crisis wherein They're out there. They're practicing. They're doing their job. They don't want to you know They don't want to get into a controversial situation They recognize or they appreciate wrongly. I think that um, that there's there's a divisiveness among lawyers as there is a divisiveness among The society in general that has been created over the past few years. So they don't want to take a chance They don't want to take any risk, you know, I suppose that's a business concept. Don't take any risk But you know, but I see this as a huge problem And a reflection of a really bad tendency among the bar Not to remember the critical social compact that led to the development of the establishment of our country You know the the social compact that makes us all part of the government Makes the government part of us. You know that essential connection between the citizen and the government Why is it? It's a hard question, but why is it that american lawyers so many the majority if not the great majority Don't see this. They don't realize they don't recognize what you've been talking about I I I wish I knew the answer what I what I am Encountering I think is generally Uh a shared view by many many many lawyers that the system is Great that there is the system is corrupt That somehow the government has become the enemy I mean, I am intrigued by the the fact that so many lawyers are so concerned about not Being are concerned about their own reputations their own clients Being perceived as in any way a critical of existing power Remember that many of these lawyers at least in large big law represent major corporations represent wall street firms all of whom are doing well And most of those corporate executives are not taking positions at all in these things others And look at many legislative congressional people. I look at somebody like a lindsay graham I look at somebody like the senator from from ohio good good lawyers who Including mit romney who are sitting who are doing Not speaking at all to the issues about the rule of law Uh, they may not like the person. They may not think that president should tweet They don't think the president should be degraded Denigrating criticizing people and bullying people, but they will not stand up Because they're concerned about their own elections. They're concerned about being criticized by fox fox news They're critic their turn. They're they're afraid that their base will turn on them And therefore I am convinced now jay That the only answer here is going to be somehow That the people speak you you use the term. I mean john gardener spoke highly of these issues democracy is not a spectator sport Uh, and this is a government of buying for the people And his other third concept was that the most important office in democracy is the office of citizen Yeah, and frankly we as citizens are failing dramatically to be engaged To focus on Some of these things now some of these are illegal concepts and that's why lawyers I focus on particularly I mean maybe the average person does not understand why it's a problem when congress issues a request an executive agency for documents Uh, and that's viewed as partisan when in fact congress has the responsibility to oversee the executive Yeah, the essence of checks and balances But let me take you let me take you to the last question scott because we're almost out of time And it's my uh, it's it's my what can we do about it question? So if I watch this show if I listen to you scott Um, and if I you know appreciate and i'm a lawyer and I appreciate these things But I haven't done anything yet. I haven't signed the letter. I haven't taken any affirmative steps I've been trying to you know, push it off to the side somehow and lead my life Independent of all these things that are happening But I appreciate what you're saying and I agree with what you're saying And I want to do something. What do I do? Tell me what to do I think the The very first thing I would ask you to do j is to look at our open letter go to our website Lawyers Defending American Democracy and do two things one is look at the open letter and the statement of principles And if you agree fundamentally with With our statement and our examples that we give that you you become a signer of that letter The second thing is look at the other people who have signed look at the range of folks who have already joined this effort and third Begin to look a bit at the things we've posted in terms of the the articles the post and At the effort we're making Be non-partisan in dealing with us now we're being challenged about that because many people think that you can no longer simply Stand and focus just on describing things that you need that we need somehow to take action and take a position on The impeachment Specifically that we need to take a position on that whether the attorney general bar is violating his oath Many of the elected officials who are not Not here are criticizing the rule of law are violating their oaths as lawyers That is that kind of an attack syndrome which we have tried to avoid because it Simply seems to play into the general narrative But but my hope would be that if somebody does this I would then like them to write a letter to their local newspaper And explain why they as a lawyer as a lawyer Uh are concerned about what appear to be violations of core democracy principles I would like them as as uh as lawyers to reach out to their network of friends and simply say i'm signing I would be interested in and having you sign this document as well That's a great idea if the acting plan that's under it It's just there's some simple steps here now I'm not going to take the position that therefore we're going to change the world by doing it What I am going to say is that somebody somebody's going to look back here and say Where were you? Uh in the middle of these times of crisis this This by the way does not ask you to stop being a republican if you're republican It does not stop you from supporting the president if you support the president politically It does and the same way with democrats be an advocate in the civil or region be an advocate for lawyers for good government Take on all the causes you want all we're saying in addition is do what our fellow lawyers did An archibald cox By President Nixon and stand and deliver As law independent lawyers as members of legal profession and say this shall not stand and we We insist on the independence of this and the result of that was people need to remember It was Leon Jaworski and that special counsel continued archibald cox wasn't replaced doesn't return But they stood and delivered to make sure a good independent lawyer Question Thank you. Thank you Scott we we've we've we've run out of time. I'm sorry I hope we can continue this conversation because what we've been talking about will continue The same issues will rise up again. Uh, the same evolutions will be at hand So I hope we can talk again scott harshberger former attorney general of the state of massachusetts Now a practicing lawyer in in boston. Uh, we greatly appreciate your appearance on think tech I'm honored to be here. Thank you. Jay. Thank you scott. Aloha