The Crises of Due Process

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In this episode of The David Frum Show, David examines the dangerous path the Trump administration is charting by deporting and detaining individuals without hearings—an assault on due process that threatens the foundation of American justice.

He’s then joined by former Acting Attorney General Peter Keisler to explore what America’s institutions can realistically do to counter Trump’s executive overreach—and the serious risks facing the courts, the Federal Reserve, and the American public if Trump continues unchecked.

Finally, David answers listener questions on Republican contempt for blue states, the importance of reclaiming the term globalist, and how citizens can effectively fight back.

The following is a transcript of the episode:

David Frum: Hello. Welcome to the third episode of The David Frum Show. I’m David Frum, a staff writer at The Atlantic. This week, my guest will be Peter Keisler, former acting attorney general of the United States under President George W. Bush, former head of the civil division at the Department of Justice, a veteran of the conservative legal community. He clerked for Supreme Court Justice [Anthony] Kennedy and for Judge Robert Bork.

I have known Peter, also, as a friend for nearly half a century. He’s someone in whom I have enormous confidence in and for whom I have great respect. And I think as you listen to him today, you will see why, because of his extraordinary breadth of interest and depth of knowledge. I’m so grateful that he joined us.

Our theme will be issues of law and due process of law. And before I begin my conversation with Peter Keisler, let me offer some introductory thoughts on the subject.

As we’ve seen, the Supreme Court of the United States has rebuked the Trump administration for its contemptuous attitude toward courts and toward the dozens of people it has sent to a maximum-security prison in El Salvador without a hearing, without even allowing them to challenge that the government has got the right person.

Those detained people have now been in—supposedly the custody of El Salvador—in fact, in the custody of the United States government, because the United States government is paying millions of dollars to the government of El Salvador to hold these prisoners. They’ve been there now for five weeks, as I speak, without a hearing, without any show that the government has got the right person, incommunicado, and apparently for life. Now, it does look like there have been at least some instances of mistaken arrest, that some of these people may be outright innocent. Others may be genuinely bad actors. Who can know? Because there’s been no show of proof, no hearing of any kind.

United States law allows for a quite expedited process to remove people from the country, to deport them. You don’t get a big trial. You don’t get a jury trial. You are moved rapidly because the theory of the case is: First, you don’t have a right to immigrate to the United States, so you have not been deprived of your rights. And secondly, once you’re removed from the United States, you remain a free person. You are sent back to the place you came from or some other place to which you have some connection, and then you’re free to go about your business. You’re not sent to a prison—not sent to a prison for life.

But as I talk about this, the thing that has most gripped my mind with worry and anxiety is not only the effect on the individuals themselves, some of whom may be genuinely innocent, but the effect on those who are sending human beings to a prison without a hearing.

You know, the United States government is now building an apparatus of lawyers, of officials of all kinds, who plan and think every day, How can we apprehend people on American soil and bundle them to a prison without giving them any show of a hearing? They’re building skills and competencies at non-due-process forms of arrest and incarceration that are going to be very hard to limit.

There are many kinds of immigration status that people present in the United States have. There are citizens, of course. There are permanent residents. There are people here on many different kinds of visas. Now, you can lose your visa rapidly for many reasons. I remember when I was a Canadian citizen in the United States on a student visa, we were warned if you got into a bar fight, you could theoretically lose your student visa. Now, in those days, that meant that you’d have to go back to Canada and go to school in Canada, which is not the end of the world. In today’s America, that could mean you could lose your student visa and be accused of terrorism, and a bag put over your head and be put into a car and sent to a prison in El Salvador for the rest of your life.

Now, maybe that doesn’t happen in every case. Maybe that doesn’t happen in many cases. But there are people in the employ of the United States government, paid by taxpayers to think about how can we daily broaden the category of people who can be arrested and detained and imprisoned without any showing to any authority at all, without any opportunity to make themselves heard, without any evaluation by an independent fact finder—by any of the things we call due process.

Due process is not just one thing. American law—the American Constitution—specify different kinds of process for different kinds of crime. The crime of treason, for example, is defined in the Constitution as waging war upon the United States or giving aid and comfort to its enemies. And the Constitution then lists some very strict rules that have to be met to prosecute somebody for treason.

The rules for armed robbery and other things—even as strict as they are—are not as strict as that. Then there are rules for criminal prosecution. Then there are rules for immigration hearings, and there are other kinds of rules. We’ve all encountered traffic courts. You get a hearing if you want one. If you don’t, you can choose to pay the ticket, or you can contest the ticket. And then you don’t get a jury of your peers. You don’t get any of the other apparatus of criminal law, but you still get some kind of process. Always, the law says, the word of authority is not to be taken for its own sake. And we have that practice, not just to constrain authority, but to allow all of us to live lives of dignity.

A thing it means to live in a free society is that you can encounter the look of a police officer without fear. You do not feel like you must cringe and defer. You do not feel you are in the hands of someone who can do anything to you at any whim. You know that so long as you are following the clear and specific rules of the land, which are available to all to know, you can go about your business and meet the eyes of power without fear.

The Trump administration is changing all of that. Lots of people who have lots of different statuses—who are here for limited periods of time, who are here under conditions, who are not full citizens, but who are not illegal either—are now living lives of fear. Ordinary tourists are being apprehended, detained for days, sometimes for longer than that, treated in inhumane and indecent ways, and then deported from the country without showing that they had done anything wrong, other than maybe not having a hotel room booked at the time that they arrived.

We are building a society that is governed by fear, led by people who want to rule by fear. That’s not right. It’s not humane. It’s not American. It’s not democratic. It’s not decent. It needs to stop. And that’s what I’ll be discussing with Peter Keisler today.

[Music]

Frum: But first, a quick break.

[Break]

Frum: Peter Keisler, welcome to The David Frum Show, and thank you for joining.

Peter Keisler: It’s a pleasure to be here, David.

Frum: So we’re going to be talking some about transparency in the next few minutes, and in the interest of transparency, let me disclose: You and I have known each other for—I don’t know that either of us would be comfortable in using the exact number—but suffice it to say, we were both typing papers on typewriters at the time when we got to know each other.

Keisler: Right. And that was a great time. I still think about it very fondly, and one of the things I think about fondly is our long conversations over lunches and dinners and dining halls.

Frum: Well, you’re very kind to remember all of that. We both started on the political right. You were active in the conservative legal movement. I think it’s fair to say that your legal views are probably quite continuous with where they were all those years ago, but you found yourself—because of those legal views—in a different political situation from where you were all those years ago.

Keisler: I think that’s true. Look—I mean, I voted for Hillary Clinton, for Joe Biden, and for Kamala Harris. You know, I was actually walking the streets in Pennsylvania this last year, knocking on doors for Kamala Harris. I never thought I would be doing that, frankly, for anyone. It’s not what I used to be doing to contribute to campaigns, and I certainly didn’t think I would be doing that in that setting for the Democratic candidate.

But look—I had always thought myself a conservative, because I believed in things like a strong and robust foreign policy to oppose authoritarianism abroad, in free markets, and personal liberties, and in constitutional values that underpin our democracy. I still believe in all of those things. I don’t think the current administration believes in any of them. And if that’s what conservative has come to mean, then I just decided quite a while ago that I didn’t want any part of it.

Frum: And yet on issues of the role of the judiciary, how statutes should be interpreted, have you changed your mind about those things? Or do you find yourself there saying, Yeah, that is still what I thought—you know, what I thought then I think now?

Keisler: Largely so. I mean, look—we all, over time as things happen, our ideas adjust in different ways to take into account new facts and new information. But on the whole, I still believe in the same thing about the courts that I always have.

Frum: Speaking of the courts, let’s start with the Supreme Court’s recent rebuke to the administration about due process rights of people it has detained and sent to foreign prisons. How big a story is this? I mean, you have represented the United States so long and so well. How big a story is this?

Keisler: What’s happening now is unprecedented and really serious. I mean, in some of the most high-profile cases out there, the administration’s been acting with what could only be described as contempt towards court orders. And that’s playing out most vividly in the cases involving their efforts to remove and keep people in the United States in that prison in El Salvador. And that those cases are really, at one level, very, very simple. And that’s unusual for a legal matter. Most of them are complex to some degrees, but this one is simple.

And just to back up: The administration had what it thought was a good two-part legal strategy for how to get certain people out of the country in ways that would not require them to ever go to any court and present evidence or justify the legal basis for what they were doing.

Part 1 of that strategy was an internal decision that, under a statute known as the Alien Enemies Act, they could bundle people into planes without giving them any notice about what was about to happen, spirit them out of the country, and do that so quickly that, as a practical matter, they wouldn’t be able to get into court to stop that from happening.

And then Part 2 of the strategy is—once they are out of the country and in that prison in El Salvador, if they try to file cases—to say, Well, it’s a fait accompli now. They’re no longer in our custody. They’re in the custody of a foreign government. So there’s nothing a court can do.

So, you know, even though there is a precept, which is deeply wired into the DNA of the country—and certainly in the Constitution—that everybody gets their day in court, under this approach, it would always be either too early or too late for them to get into court.

And what happened is the Supreme Court dealt what could only be described as a death blow to both aspects of that legal strategy. The Court held with no reported dissent that, no, you can’t hustle people out of the country in this way without giving them sufficient notice to enable them to go to court and challenge that if they wish to. And they also held, on the other part, that a court can direct the administration to do what it is able to do to get somebody returned who’s been erroneously removed.

Frum: Now, defenders of the administration will say, Wait a minute. Are you saying there has to be a jury trial for every person who’s in the United States illegally? It’s probably worth clarifying here that for a deportation where the deported person gets off the bus or the plane and is then at liberty, the process can be very, very expedited. The United States deports a quarter of a million people a year, and it removes many more than that without even the formality of a deportation. But the key to the streamlined, simplified process that leads to so many deportations is: Once you’re off the bus, you’re a free person. I think that’s a point that we need to underscore here.

Keisler: Absolutely. We are not talking about weeks-long jury trials. We are talking about there’s no jury at all. This is before either an immigration judge, or it can ultimately be before, you know, a federal judge. But the key, the minimum baseline is you have an opportunity both to present evidence—factual evidence—and to make legal arguments that the administration doesn’t have the authority to do this, and some independent decision maker will make a judgment as to whether or not they have a right to deport you.

So it is a very minimal level of due process, and it is not itself an extraordinarily time-consuming fact, but it does require the administration to submit to some neutral testing of its legal theory and its evidence.

Frum: At a minimum, the person gets to say, You’ve got the wrong person. I may have the same name as this other person, but actually, I’m here on this visa or this status. You’ve got the wrong guy. You should be able to say that.

Keisler: Right. And to translate this to our current context, it would mean saying, They’re saying I’m a member of Tren de Aragua, this Venezuelan gang, because I have a tattoo that looks like what they say is a logo of the gang. But in fact, that tattoo is something I put on 20 years ago because it’s my favorite soccer team, or something like that. And a judge would scrutinize the evidence.

And so the administration really, once it lost on these basic legal principles in the court, it had a very straightforward way to respond, which would be just to say, We acknowledge that these people in El Salvador are there only because we are paying millions of dollars to El Salvador to house them for us. So they are in our custody, effectively, both legally and practically. And their lawyers can file habeas petitions and present whatever evidence they can that what was done was unlawful. We can respond, and whatever a court decides, we’ll do.

And as to the guy in Maryland, who they’ve already conceded was erroneously deported, they could bring him back and then give him whatever process, and maybe he can be removed to another country. All of that would be for a judge to decide. All that’s being asked of the administration is that they go through that process. But whether because—well, I think it’s a mix of political reasons, ideological reasons, psychological, even pathological reasons—they are incapable of doing that. They want this fight, and it’s turned into a big power struggle. And that’s where it ceases being so simple.

Frum: Correct me if I’m wrong, but my impression is the federal courts have gone very, very far out of the way to avoid conflict with the first and then the second Trump administrations. And in between, they went even further because they seem to have greatly welcomed delay on all the criminal matters, hoping that somehow all this problem would go away—it would be resolved by some other decision maker, some other branch of government or public opinion or something—and they could be left well out of it.

And it culminated with the decision about the president’s exposure to criminal liability, which is like this complete castle-in-the-air legal structure that seems just to be based on, We’re going to lick our finger, put it up in the wind, and do a three-part balancing test based on no kind of ever previous authority. But mostly, what we’re trying to do here is just keep this off our docket. And if I’m right in saying that, then that makes this recent decision even more remarkable because for once, the Supreme Court is going all in to say something to the administration it doesn’t want to hear.

Keisler: I think that’s absolutely right. And if you want a really extraordinary example of that, you would look at the order that the Court issued at 1 a.m. on Saturday morning this last weekend, because even though they had held that everybody has to be given meaningful notice before they could be removed in this way, there was credible evidence that the administration was loading people onto buses without giving them anything like the notice that was required. And the ACLU went to the Supreme Court and said, you know, Please, as you listen to the rest of this case and get briefing, stop this from happening.

And if the administration were a normal administration and had compiled a record so far of being a normal administration, the Court would’ve said, Well, I can be confident they’re not going to do this while we are hearing your petition, so let’s give the government a chance to respond. Let’s see what they say, and then we’ll decide what to do. Because, of course, the government wouldn’t spirit these people away while we are actually in the process of deciding whether it can do so on this emergency application you filed. But they knew that the government had done exactly that with the first 200 or so people they had sent away.

The case was before a district judge, and they rushed to secretly get the people out before he could issue an order. And they didn’t quite succeed on that, which is why you have these issues of contempt floating around now. But at 1 a.m., the Court by a 7–2 vote said, Don’t remove anybody in the class represented by these lawyers until you hear otherwise from us.

And that shows that there is a cost to the administration of acting the way it’s acting towards the courts, because if you squander the reputation that governments of both parties have had for credibility and fair dealing and honest brokering with the Court, then they’re going to treat you different because they know they can’t quite trust you.

Frum: Well, but as we play this game out, who wins? Because in the end, the Court counts on the government to comply. And if the government doesn’t comply, and again doesn’t comply—if it shows contempt, and the Department of Justice refuses to do anything about the contempt—at the end of this chain of escalation, doesn’t the executive win?

Keisler: Well, that’s a really good question, because look—if you and I were disobeying a court order in a private case, there’s a very available tool kit that courts have to deal with that. We would face punishing fines, perhaps daily fines, until we comply, and we could even be incarcerated. It’s much harder, much trickier to apply that tool kit when the executive branch as a whole—not simply some rogue actor in it, but the executive branch as a whole—is the one that’s in defiance.

And in particular—and I think this is embedded in your question—a particular order that essentially directs the executive branch to conduct diplomacy is especially hard to enforce. If the Court had ordered, you know, that the government pay somebody money, that’s an easier matter. Or even turn the planes around, as was the case in one of these cases—that’s a binary thing. You either comply or you don’t. The planes turn around or they don’t. But the Court can’t deal directly with the president of El Salvador, so they’ve essentially directed the president to do what he can to get them out.

Now, you know, this is an easy matter because, as I said, they’re only there because we’re paying to house them. El Salvador has no independent—and so the administration just needs to ask. And I would just say this about that, which is that right now they’ve made it easy to see their contempt, because they’re not even asking. The attorney general has said, “He’s not coming [home] … End of [the] story.” Those are her words.

But let’s say they were just a little bit more smarmy about it, right? Let’s say they sent a letter: Dear President Bukele, an unelected federal judge without, in our view, any legal basis has directed us to try to get Mr. Abrego Garcia home. So we are conveying that request. Your friend, Marco.

Frum: (Laughs.)

Keisler: And President Bukele looks at that letter, and he can read the subtext as well as the rest of us, and says no. And then the administration goes back to court, with a kind of a cartoon halo above its head, and said, Well, Your Honor, we tried, but he said no. Now, the Court can find them in contempt because she can read the subtext just as well as President Bukele and the rest of us. But that still doesn’t get the man home, and it’s very hard for a court to work its will directly on a process that’s so necessarily entrusted to the actual carrying out and implementation by the executive branch.

Frum: On this larger question of defiance, a thing I find myself thinking about a lot is the president’s threats to Jerome Powell at the Federal Reserve. Now, the rule we all thought we knew is that the president of the United States cannot fire the chairman of the Federal Reserve for policy reasons. And Jerome Powell has, as recently as last week in an interview at the Economic Club of Chicago, stated, That’s the conventional view. You cannot fire me for policy reasons.

But we also used to have a strong tradition that was preserved by every president from Jimmy Carter to Barack Obama that the president couldn’t fire the head of the FBI for policy reasons. And some presidents, like Ronald Reagan and Obama, cohabited with an FBI director appointed by the opposite party for six or seven years before the term expired. And the one case where an FBI director was removed was by President Clinton. And that was a case where he’d inherited an FBI director from the Bush administration and also a big dossier from the Bush administration saying, Please fire this guy for fiddling his expense accounts, which may or may not have been fair—let’s bracket that.

But H. W. Bush’s attorney general, [Bill] Barr, the same as Trump’s second attorney general, had said, Look—we’ve compiled this dossier here. We think you should get rid of him. And the Clinton people squirmed and stalled and tried to entice the director to leave voluntarily, and fired him only at the end, but not for a political reason, but for cause: the alleged fiddling with the expense accounts.

Trump fired two FBI directors, both for political reasons, in his first term and his second, and then appointed a creature of his as FBI director and got him confirmed by the Senate and a deputy who’s an even more embarrassing creature, if possible, than the director. And that tradition is over. The FBI director is no longer independent of the president. The FBI director is a complete tool of the president. Why couldn’t that happen at the Federal Reserve?

Keisler: Well, it potentially could. But let’s talk about that, because it’s important to distinguish between the president’s power to fire Jerome Powell and the president’s power to demote him, because those actually stand on somewhat different footings.

And let’s start with the firing. But let me just step back and give a little of the background here, because the important thing to know is that the Federal Reserve Board has been the ghastly specter that has haunted the debate about the extent of the president’s removal power over officers for many, many years. And I’ll explain what I mean by that.

But just some additional background for your listeners: The default rule has always been that, with a few exceptions, if the president appointed you, the president can fire you. He could call up Marco Rubio tomorrow and say, Marco, you’ve done nothing wrong. You’ve been a great secretary of state, but I want Steve Witkoff, and so I am firing you right now. And at the end of that phone call, Marco Rubio would be a private citizen. The president doesn’t have to have a reason, doesn’t have to get anyone else’s approval. He’s gone.

And actually, that’s true of the FBI director too. The FBI director has a 10-year term by statute, and that was designed to give him some measure of independence. And there’s been a norm that presidents have mostly not removed their FBI directors, except for cause before Trump. But in fact, the statute doesn’t say he can’t be removed earlier than that. And because there is this default rule that says if the president appointed you, the president can fire you, that actually is generally accepted that, as bad as it is, it applies to the FBI director too.

But there is a small subset, mostly and most prominently, the regulatory commissioners at some of the key regulatory agencies, like the Federal Trade Commission and the National Labor Relations Board. Congress has written into those statutes not only a specified term, usually four years, but has specifically said, The president cannot remove you except for—there’s language like malfeasance or neglect of duty or inefficiency.

And back during the New Deal, the Supreme Court upheld Congress’s power to restrict the president’s ability to fire under certain circumstances. But there has been a long-standing debate—and one that predates Donald Trump—among scholars over whether or not that decision was right and whether or not Congress really should have that power. And the trend of Court decisions over the last several years has been to be increasingly skeptical of Congress’s power to limit that. But they’ve never quite gone so far as to overrule that key New Deal precedent. And part of it has been the haunting specter of the Federal Reserve Board, because the board of governors are one of those agencies where Congress has written in, You can only fire for cause.

And so if you are on the side of the people who want the Court to permit Congress to do that, and some cases come up—as they’re coming up now involving the president’s firing of FTC commissioners or National Labor Relation Board members—if you are on that side, the first thing you are saying is, My God, Court, don’t do this. Because if the logic and reasoning of their position supports that, it also supports being able to fire J. Powell, and everybody understands what a disaster it would be if our monetary policy were subject to that kind of direct political control.

And if you’re on the other side—if you are arguing in favor of the president’s power to remove—there are a few exceptions, but most people and anyone litigating the case before the court is saying, No, no, that’s different. The Fed is unique. Monetary policy is unique. I can come up with some reasons to distinguish it.

So that’s been kind of a long background. But what will the Court do? Right now, there are cases bubbling up and before the Court involving other agencies. The president hasn’t fired J. Powell, as you know, in part because he doesn’t want to contaminate those cases by making that vivid how much might be at stake. In those cases, the Court is perfectly capable of saying, Arguments about the Federal Reserve Board are not before us. We’re not going to decide that here. Even if they uphold the president’s right to fire FTC commissioners and NLRB members and so on, they can say, There are arguments out there that the Fed is different, and we will wait to address them for another day.

And that day may never come, because, you know, last week the president said—I mean, it was almost a joke—he said, “Powell’s termination can’t come fast enough [for me]!” Well, he’s the president. He hasn’t been shy about pushing the legal envelope. If he really wants to fire J. Powell, he would try to.

Frum: But when Trump says things like that, there’s a whole school of thought, which was, Well, Trump may say these things, but he would never actually do them. And that school of thought looks pretty battered. After January 6, you have to assume that anything Trump is talking about doing is something he might actually do.

Keisler: I think you have to assume the possibility. I don’t think he loved the experience when the stock market dived because of the tariffs, and he may not want to provoke a similar one, but he could wake up one morning and just be motivated to do it. And that’s why I mentioned at the outset this distinction between firing and demoting, because if he was going to do it, I think he would.

And by demoting, what I mean is this: So J. Powell is chair of the seven-member board of governors. The decision to designate one of the governors as chair, the provisions in the statute about that don’t have the same tenure protections that being a governor does. So if the president, instead of saying to J. Powell, You’re fired. You’re now a private citizen, like that Marco Rubio guy I was referring to earlier—if he instead said, You’re still a governor, but you’re no longer the chair, there would be, I think, a stronger basis for him to argue: Look—Congress has never limited that particular designation decision.

Frum: So interesting. Yeah.

Keisler: And there’s a default rule that says, I can change it. Now, there’d be limits there, right? He couldn’t just pick anybody to succeed Powell; he’d have to pick an existing governor because if there’s no vacancy, he can’t create one by firing a governor. He can only remove the chair, make the chair a governor, and elevate somebody. But eventually, there would be a vacancy. Or, you know, he could say to one of the governors that he wants to remove, How would you like to be secretary of the Treasury? Then fire his secretary of the treasury, move the governor to the Treasury Department, nominate somebody new, and say that person would be chair.

So there are ways to do this without putting himself in the weakest possible legal position. Because I think the Court would be as reluctant as the rest of us to usher in a situation where monetary policy is subject to presidential control on a day-to-day basis. And I think they would avoid a decision doing so if they if at all could.

Frum: But he’s going to need a scapegoat because the tariff policy is an immediate disaster. There’s no public backing for it. And the Federal Reserve has always been—and when he got into trouble in 2018, the Federal Reserve was his favorite villain then. And Trump thinks like a lifelong debtor. He always thinks, There’s nothing wrong with this business that cheaper credit couldn’t fix.

Keisler: Right. Look— at some point, he can’t keep on blaming Biden for everything that happens. So yes, he’s going to have to find other scapegoats. And maybe he will try to do this, and if he does, it will be yet another line being crossed that we may never be able to get back from.

Frum: One of the things I think we’ve all discovered—I mean, we must have known it, but we never thought about it—there’s a background law to a lot of powers of the president, which is: The president of the United States would never do that. So we don’t have to write that down, because the president of the United States would never do that. So is there a law that the president of the United States can’t run a profit-making business while president? Or sell scam meme coins? Well, we don’t have to put that in writing, because the president would never do that. So the president did it. So now we have this strange spectacle, where there’s this powerful agency created—or it’s not even an agency. What do you call DOGE? What is its status?

Keisler: It’s an entity.

Frum: It’s an entity that’s firing people, cutting budgets, impounding funds. And all of this is overseen nominally by somebody who has never, I think, even been photographed, but in practice by a hugely powerful and wealthy businessman who has never divested himself from any of his other businesses. Now, are there legalities here, or are we in a post-legality world where legalities don’t matter anymore?

Keisler: Well, there is a criminal conflict-of-interest statute, and it prohibits employees from participating in matters over which they have a financial or other interest that’s at all substantial. And that applies to Elon Musk because Elon Musk is what’s called a “special government employee,” meaning a temporary employee. But the conflict-of-interest laws apply to that.

And look—in thinking about this, I mean, there’s obviously a host of really complex government regulations. But basically, the potential for conflict with anybody coming to the government is a function of the answer to two different questions. One is, what is their set of financial and other interests? And the other is, what are their responsibilities going to be?

So you have those two circles. And think of it like a simplified two-circle Venn diagram. Where those circles—his interests and his responsibilities—intersect, that’s the area where there is a potential conflict. And if you have very few assets, you can be secretary of the Treasury, but there’s not going to be much intersection. You can recuse yourself from a couple of things. If you have lots of assets, but you’re a data-input operator at the Social Security Administration, there’s not going to be a big intersection point.

But with Musk, what you’ve got is two really big circles because you have an enormous amount of financial holdings, and you have, government-wide, vague but very significant government-wide authority. So there’s a huge intersection point there. Now, you know, that doesn’t mean he can’t serve. There are lots of people who go into government with lots of financial interests, but there’s a process for that usually. You disclose all your financial interests to—you know, you were in the White House; you know this process. You disclose your financial interests to various lawyers and officials who go over it and then give you guidance as to what you can and can’t do. With Musk, what he said is, Oh, if I see anything that’s a conflict, I just won’t do that. So it’s completely self-policing. That’s not how it works. It’s at least not how it’s ever worked, and it’s not how it should work.

Frum: But the president can dispense with a lot of, for example, the classification rules. Can the president say, Look—I know you’ve got a lot of SEC matters pending, but if you want to go ahead and fire everybody at the SEC so these matters won’t be resolved for the next hundred years, go ahead, be my guest. You have the power. Is that one of those, “But the president would never do that?” Or is there some law that would restrain the president’s ability to say, Yeah, you can gut the SEC so it will never get around to enforcing any of these matters against you?

Keisler: Well, I have two answers to that. One is a technical one, and one is a philosophical one. The technical answer is: There is in the conflict-of-interest laws and regulations procedures for someone to get waivers from various agency officials, and usually the waiver requires you to show that your interest is just not so substantial that would affect the integrity of the procedure.

Now, that almost certainly could not be sensibly granted here. But nonetheless, there could be a piece of paper where some agency official says, I grant you a waiver. I suspect they haven’t even bothered to do that. But I don’t know, because that’s where we get to the philosophical question here. And not to take this too high into the stratosphere, but the question is: What is law?

Like, to me, law is a set of binding requirements that you find in statutes and court decisions and regulations in the Constitution. And they exist, and they bind whomever they bind by their own terms. But you know, there was a school of thought in the early 20th century—the legal realists, very influential thinkers who said, No, no, no, that’s silly. Law is not an abstraction. Law is a prediction about what courts and people who enforce the law are actually going to do, because that’s the only place where law has meaning.

So who enforces the conflict-of-interest requirement? It’s agency general counsels. It’s inspectors general. For high-level appointees like Musk, it’s the White House counsel’s office. And in extreme cases where there’s a criminal violation, it’s the Department of Justice. If all of those institutions have been sufficiently compromised, that there’s nobody who’s going to say, This is a conflict, is it really law? Well, we could debate that philosophically. As a practical matter, I don’t think anyone’s going to be applying the conflict-of-interest requirements to Elon Musk any more than Elon Musk wants them to.

Frum: So it’s all gone?

Keisler: I think like so much, you know, ultimately, look—we’re a democracy, and we give the president a lot of power. We particularly give the president a lot of power when he’s joined with Congress. The reality is that so much of what we rely on, as you say, have been norms and lines that presidents don’t cross, not because they couldn’t but because they don’t wish to. If they wish to, we’re in a different world.

Frum: Well, this is where I want to invite you to look ahead to something that worries me a lot. And I don’t have any kind of answer to this, or I don’t even know how to begin to think about it.

But the United States has a strong tradition of turning the page on past chapters of political history. The outgoing president departs, and even if the successor thinks that outgoing president may have done some things that were wrong—there’s a very real-world example that during Watergate, it was uncovered that Lyndon Johnson had done many of the same financial things that Richard Nixon was accused of doing, and more so that would, in the post-Watergate world, look like violations of practice or even of law.

Strong impulse: Turn the page. Don’t look back. Once Nixon left office, pardon and don’t look back. And so on, it has always been. And it becomes—it’s not just a technical matter of: Do we look at the acts of past presidents? But there’s also been a kind of acceptance of them. So enough time passes, and however much you didn’t like Ronald Reagan or Jimmy Carter, that 20 years after they’re out of office, everyone agrees to pretend they’re to be chiseled out of marble and regarded as stalwarts and paragons.

One of the things that Trump people complain about is, when Trump left office in 2021, he didn’t get that treatment, right? There were investigations that because his acts had been so egregious, that he was prosecuted in all kinds of ways, or at least investigated. He was able to stop most of the prosecutions. But he was treated in a different way from any other ex-president, to which the answer is: Well, he behaved in a different way.

And as he’s now returned to the presidency, he’s doing even more egregious things. And the cycle—if and when there is a post-Trump presidency, if and when people who have different views ever reclaim any executive power, they’re going to confront either: These acts are so extreme; you can’t turn the practice of oblivion on them. But then we’re into a new kind of world that looks a lot more like French history than American history, where we’re digging up the bodies of dead kings and throwing them to the jackals.

Keisler: Yeah, I mean, look—I would just say this, which is that I think that will be a tough question, but at the same time, at the end of this administration—let’s assume it’s just a four-year administration—the to-do list is going to be huge. It’s going to include things like: How do we rebuild NATO? And how do we rebuild our alliances around the world, and how do we rebuild our economy from the different shocks and disasters, and how do we rebuild a functioning civil service after so many people are fired?

And I’m not saying that questions about accountability should be completely ignored, but I will just say that my priority is going to be less—and I think the new government’s priority is going to be less—How do we ensure accountability for past misdeeds? and more, like, How do we just repair the damage?

Frum: But if some staffer at DOGE has unloaded vast amounts of proprietary government data into a computer where they shouldn’t be, and is maybe hoarding them or even trying to sell them, that person is going to have some kinds of legal liabilities in his own right. And the defense will be, Someone told me to do it.

Keisler: No, that’s right. And look—you mentioned the Supreme Court’s decision about presidential immunity, with which I really disagree. The decision—I disagree with the decision. But at the end of the day, that only applies to the president. It doesn’t protect his subordinates. So there will be potential liability and exposure.

And I don’t mean to dismiss that. I just feel like there’s going to be so much repair work to be done. I feel like we’re going to have other priorities as well.

Frum: How does that rebuilding go? I mean, there is a practice where lawyers—no disrespect—tend to respond to breaches of norms by writing laws. And so after every scandal, you have this kind of museum of the scandal, which is the law written after the fact of: Outlaw the scandal, because it wasn’t maybe even illegal before, until you get ever greater accretions of law. And the bad practices, or the bad consequences of all this law, is you encourage the very American way of thinking, which is: If it’s not outright prohibited, then I’m free to do it.

Keisler: Look—democracy got into this mess, and democracy is going to have to get us out. And that’s going to mean, kind of, fostering a public understanding of why these principles and norms are important, so that we could get back to a place where, regardless of whether it violates the precise terms of a law, people who want to be successful in politics and want to be remembered well won’t do that. And that’s a broader education and persuasion campaign more than it is a question of writing new laws and regulations.

Frum: In Trump 1, just generally, the conservative legal establishment we knew, all the federal society people we were friends with—in so many cases still are—that was turned out to be quite a bulwark against the worst things the president wanted to do in Trump 1. During the interregnum between the two Trumps, it began to crumble. You found a lot of people who, one would’ve thought, knew better, making arguments to protect Trump that were obviously opportunistic for Trump, you know, one time only.

And now in Trump 2, it’s not just legal weirdos from strange places in American life, but it is: A lot of very distinguished people are ready to do the work to enable Donald Trump to break what everybody used to think were laws. How do we think about this? What do we do about it? Does any of this cast a backward glance on the conservative legal project? Or is there a new conservative legal project that we’re going to need to do to incorporate kind of concepts of morality along with concepts of law?

Keisler: Well, on the backwards-looking question, I mean, I certainly do look back and think, Well, you know, I thought there were people who shared certain principles that I hold dear, and that I thought we all said we held dear, that I guess turned out not to or changed their minds. So it does certainly make me look back with a bunch of question marks in my mind.

But look—looking forward in some ways, I think the answer is the same. Yes, there are a lot of people who have done things and joined things and advocated for things that I’m very surprised and disappointed about, and it certainly changed my view of them. But I think we need to work, person by person, throughout the country, just trying to persuade people that this is the wrong path, and moving to the right path anyone we can.

Frum: Is there a general rule, or is it so particular in each case, where you could say to a young person who intended to do good and who’s thinking of serving the second Trump administration, Look—here are the rules where you might be able to do good, and here are the rules where you might not be? Or would your advice to them just be, Stay away. This is all going to end in ruin and disaster?

Keisler: So my advice on that—it changed between the first Trump term and the second Trump term. In the first Trump term, I had a lot of conversations with people about that very subject. They would say, you know, I don’t like Donald Trump very much, but I have these particular political values which coincide with some aspects of his program, and my only chance to serve in the government would be in a Republican administration. What do you think I should do? And my general view there was that, look—the only alternative to good people being in government was more bad people being in government, and so that we all had an interest in having good people be in government.

But I would say, Look—that’s what the country’s interest is. For you, I would just look for roles that don’t have you directly, you know, with the Eye of Sauron gazing upon you in the White House. Find something that’s a little distant from that where most of the government is functioning normally, and you can engage in public service in a wonderful way.

In the second term, I just don’t think there is a part of the government where you can say that anymore. I think at this point, that baleful eye is kind of much more pervasive and trying to turn everything in its direction. I mean, one thing that is just striking about this administration, whether you talk about law firms or universities or the media: They are systematically trying to use every available lever of government power that exists in order to punish their enemies and discourage people from speaking out against them. And I think it’s very hard to find a corner of the government today where you can feel good. So I think on that my advice has changed.

Frum: My very last question: You have had a distinguished career in private practice. You mentioned law firms just now. Why are the law firms buckling in the way that they are?

Keisler: Well, I think it’s a classic prisoner’s dilemma, which is that some individual—I mean, the way the president’s attack on law firms works, again, this is about using all the levers of government power. They’re trying to ruin the law firms by threatening the clients—by saying, you know, You’ll lose your government contracts if you’re a client of this law firm, in the hope that the clients will flee, the lawyers representing those clients will flee, and the law firms will crumble. And so some law-firm leaders have, I think, mistakenly concluded that the way to do this is to cut a deal and just get themselves out of the president’s gaze, and then they can move on.

I think they’re mistaken if they think they can move on. I think we’re already starting to see the demands escalate. Everybody knows that when you pay protection money, it’s not one and done—that they come back to you for more and more and more once they know you’re willing to pay. And so that’s why we see, even after these deals were inked, the president saying things like, Well, now I think I’d like to use these law firms to help coal companies with their leasing or help me with my trade deals. And there’s even reporting that they want these law firms to potentially work for DOGE and the Justice Department. Now, I don’t know whether any of those requests have been made. Maybe the president’s gaze will in fact turn elsewhere. But these law firms have indicated that they are willing to pay protection money, and I don’t know why they think it’s going to stop here.

Frum: I think the message from the federal courts through Trump 1 and through the interval between Trump 1 and Trump 2 is, Don’t look to us. This isn’t our job. It’s your job. And maybe we all need to heed that message and say, You know what? They’re not—the courts aren’t going to save us. They can do some things, but this is our job. And we have to do it.

Keisler: I think that is absolutely right. Look—courts are going to play a very critical function. They’re already playing that function. There’s a subset of issues where they are absolutely critical, and they’re often doing great work.

But that’s a subset of issues. Some things the president is doing are going to be terrible but lawful. Some things are going to be unlawful, but there’s going to be a long lag time between the act and a court remedy. And some things, the court remedy is just not going to be fully effective. So it’s ultimately up to the rest of us.

Frum: Peter Keisler, thank you so much.

Keisler: Thank you, David. It’s a pleasure.

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Frum: Thanks so much to Peter Keisler for joining The David Frum Show. I always learn so much from him. I have learned so much from him for so many years. I’m so grateful he joined us today.

Now some questions from viewers and listeners. Let me thank everyone who’s been sending in these questions. We really are impressed by the volume and flow and the thoughtfulness of the questions. This week I was only able to select three. Please continue to send them. We’ll be selecting more in the future.

But let me begin with a question from John in Richmond, Virginia: “Why is it much more politically acceptable to attack Democratic constituencies, cities, and blue states, but not Republican constituencies, rural areas, and red states. Republicans compete to see who has more contempt for the former. And everyone seems to accept that Democratic voters should not expect to be treated as equal citizens under a Republican administration, but not the other way around.”

Well, John, is it acceptable? I notice you don’t accept it. You know, a long time ago, President [Franklin] Roosevelt reprimanded one of his Cabinet members, the postmaster general, who was also the functional head of the Democratic Party. He had said something dismissive—the postmaster general—about Republicans in rural areas. And Roosevelt said to him, This is never wise. You don’t denigrate anybody. We need every vote and everywhere. And indeed, that year, President Roosevelt won the vote in Kansas and other midwestern states because he had practiced a politics of respect.

Republicans do this not because it’s acceptable, but because they’ve given up on competing in great parts of the country. And Democrats refrain from doing it because they continue to compete in great parts of the country. We have two political coalitions in the United States right now. One is the tightly bounded Republican coalition, with its strict upper limits and its lack of interest in competing in the areas of the country where probably more than half the population lives, and a much baggier, looser Democratic coalition.

It’s never good practice to insult anybody. You’ll always be surprised by votes that might be potentially available, and it’s just undisciplined and misbehavior for Republicans to do the opposite. It’s part of the self-indulgence, I think, that is intended to impel Republican politics in the Trump era. It’s not good for them. It’s not wise. And the lesson is not, Why can’t we be as obnoxious as them? but, When will they learn to stop being so obnoxious themselves?

A second question comes from a reader who identifies himself as an immigrant from Africa. He said, “Sometime ago, you said in one of your interactions with other podcasts that you want to reclaim the term globalist, which the MAGA folks use as pejorative. How important do you think reclaiming such terms as globalist and globalization is in accepting the inevitable interconnectedness and interdependence economically, financially, commercially, of the global community in the 21st century and beyond?”

You know, when a word gets contaminated, there’s usually a strong reason why the people who contaminate the word want to contaminate it. And then those on the other side have to think very hard about whether it’s worthwhile to try to rescue the word or not.

So the word globalist is used to connect together a series of ideas, some very popular, some less so, and some quite crazy. So globalism is sometimes used to refer to advocacy for free trade, free movement of capital, investment goods—which, as we’re now discovering, most Americans support, and especially support when someone tries to take those things away. It can also mean a reference to the apparatus of global governance that makes this trade and makes these flows possible. These things don’t just happen by themselves. The United States and other advanced countries are bound together in a series of arrangements. The World Health Organization, conventions on postage and moving parcels, rules on intellectual property, all kinds of institutions like the World Bank and the International Monetary Fund.

Now, these institutions are harder to understand. They have many different missions; some are more popular, and others are not. And I think people who use the term global and globalist as pejoratives are trying to link something that is generally approved of—which is international trade—to things that people find more mysterious and maybe threatening, which are the institutions that make international trade possible.

It is also, I suppose, linked to feelings about immigration, which are more complicated than feelings about trade and goods and services and capital. And finally, I think it is intended to suggest at the back of all of these arrangements lies some shadowy conspiracy—maybe Jewish, maybe some other kind of conspiracy—that is manipulating the lives of people and controlling our thoughts, through 5G telephones or whatever paranoid conspiracy has the upper hand that week.

I think the terms global and globalist are worth fighting for, because, as we’ve discovered, you can’t surrender part of this project and hope to keep the other parts alive. Once you accept the idea that there’s some kind of shadowy conspiracy that is making institutions work, you weaken the ability to defend international trade and other international benefits. The Trump administration has singled out for attack the World Health Organization. Now, it is only thanks to the World Health Organization, with its admittedly many, many problems, that we have any eyes into what is going on inside China at all. And China is a place where epidemics do tend to originate, for reasons that it’s fascinating to speculate about but ultimately don’t matter.

They just, again and again—epidemics going back into the middle years of the 20th century have tended to originate in China. So you want eyes and ears. The World Health Organization is a way to do it. If you denigrate that because you have succumbed to some crazy conspiracy theory, you do yourself no good. And if globalist and globalism are used as synonyms for anti-Jewish prejudice, then I think you need to take it head on.

Last question comes from Jamie, California: “As someone deeply disturbed by what’s happening, I’m at a loss for what meaningful, immediate action I can take. Like many, I feel shocked by our country’s descent into autocracy and kleptocracy, but also paralyzed by it. What can individuals like me actually do right now that might truly move the needle instead of just waiting helplessly for the midterms?”

You know, there was a saying during the first Trump term: “LOL nothing matters.” And I always answered that by saying, actually, everything matters. It’s just that there’s a lot of everything. The needle is enormous, and its movements are often imperceptible to the individual eye. But that doesn’t mean that when you apply whatever force you have to moving that needle, however little you see the needle moving, that doesn’t mean it’s not moving. It is moving just so, so slowly and with such weight. And all our individual strengths are one by one, so limited, but together, so powerful.

I am a great believer in elections over movements. There is a time and place when people need to come into the streets, and that is when the possibility of free and fair elections has been taken away. You see that happening in places like Serbia and soon, perhaps, in Hungary, where people come into the streets because the electoral process doesn’t work. And that day may come in the United States. I worry a lot about the integrity and fairness of the elections of 2026 and 2028. But for now, we have to assume and work on the assumption that those elections will be more or less free and fair, that the efforts that individuals put into organizing and voting will matter, and that is the place to go.

You shouldn’t be waiting helplessly for the elections; you should be preparing now. All those elections have begun. The 2028 election has begun. The 2026 elections have well begun. Money needs to be raised. Candidates need to be recruited. An organization needs to be done. If you live, as I infer Jamie does, in a state that is overwhelmingly blue, like California, you can still play a part by, for example, volunteering your time to phone bank into nearby states. California may be blue, but Nevada is contested. You can take time to help candidates in Nevada. And even in California, there are districts that can swing one way or another.

Another thing that a good citizen like Jamie can do is to try to make the Democratic Party more effective in government. You know, one of the things we all have to face is: A reason that Donald Trump came back to power in 2024 was because so many Americans were dissatisfied with the record of the Biden administration before it—both about things that maybe they couldn’t help, like the surge of global inflation, but the Biden administration also decided it wasn’t going to make a big deal out of issues like immigration enforcement, anti-crime enforcement, civic order. And that’s an important reason why Kamala Harris lost in 2024 and Trump was able to return.

So there has to be a Democratic Party that can not only win but govern if you’re going to keep the forces of Trumpism at bay, so being involved in those sectarian or factional disputes within the Democratic Party to say effective governance is going to be indispensable to keeping the lower-D democratic institutions in power, making them work, making them succeed.

There’s a lot to do. And you shouldn’t measure the success, the efficacy of your efforts by: Is there some immediate, big result? Everything moves so gradually. Everything moves so slowly, but everything does move.

I think it’s the faith that individual effort can matter that brings me back here week after week. I hope it will bring you all back here week after week. Thank you all for watching. If you are watching on YouTube, please like and subscribe. If you’re listening on an audio platform, please rate and review. We’ll be back next week with more of The David Frum Show. Send questions to producer@thedavidfrumshow.com, and please keep watching.

Thank you for joining. I so appreciate it. And I am so strengthened, cheered by the comfort and company of you all. Thank you. See you next week.

[Music]

Frum: This episode of The David Frum Show was produced by Nathaniel Frum and edited by Andrea Valdez. It was engineered by Dave Grein. Our theme is by Andrew M. Edwards. Claudine Ebeid is the executive producer of Atlantic audio, and Andrea Valdez is our managing editor.

I’m David Frum. Thank you for listening.