Podcast / Start Making Sense / Aug 24, 2023

Drew Faust Remembers the Sixties—Plus Erwin Chemerinsky on Trump and Georgia

On this episode of Start Making Sense, Harvard’s first woman president describes growing up in the Virginia elite, and the dean of UC Berkeley’s law school analyzes the Georgia indictments.

The Nation Podcasts
The Nation Podcasts

Here's where to find podcasts from The Nation. Political talk without the boring parts, featuring the writers, activists and artists who shape the news, from a progressive perspective.

Drew Faust Remembers the Sixties, plus Erwin Chemerinsky on Trump and Georgia | Start Making Sense
byThe Nation Magazine

Drew Faust grew up in Virginia in the ’50’s, in the segregated south, in a family that was part of the white elite—and went on to make “necessary trouble” as a college student and activist in the ’60’s. The first woman to serve as president of Harvard University, Faust comes on the Start Making Sense podcast to talk about her memoir, “Necessary Trouble: Growing up at Midcentury.

Also on this episode: If it was a good strategy for Special Prosecutor Jack Smith to charge Trump with four felonies, is it also a good idea for Fulton County District Attorney Fani Willis to charge Trump and 18 other people with a total of 41 felonies? Erwin Chemerinsky, dean of the law school at UC Berkeley, is on the show to discuss.

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Fani Willis at center, at a podium, flanked by her colleagues.

Fulton County District Attorney Fani Willis announces the charges in the indictment of former president Donald Trump and his Republican allies over an alleged attempt to overturn the 2020 election results in the state.

(Joe Raedle / Getty Images)

Drew Faust grew up in Virginia in the 1950s, in the segregated South, in a family that was part of the white elite—and went on to make “necessary trouble” as a college student and activist in the ’60s.  The first woman to serve as president of Harvard University, Faust comes on the Start Making Sense podcast to talk about her memoir, Necessary Trouble: Growing up at Midcentury.

Also on this episode: If it was a good strategy for special prosecutor Jack Smith to charge Trump with four felonies, is it also a good idea for Fulton County District Attorney Fani Willis to charge Trump and 18 other people with a total of 41 felonies? Erwin Chemerinsky, dean of the law school at UC Berkeley, is on the show to discuss.

The Nation Podcasts
The Nation Podcasts

Here's where to find podcasts from The Nation. Political talk without the boring parts, featuring the writers, activists and artists who shape the news, from a progressive perspective.

Trump's Very Bad Week, plus Prestige TV, from The Sympathizer to Shogun | Start Making Sense
byThe Nation Magazine

Donald Trump on Monday became the first president in history to face trial on criminal charges; his polls are down, and the stock price of Trump Media fallen has 60 percent. John Nichols comments – he’s National Affairs Correspondent for The Nation.

Also: TV right now is featuring several prestige historical dramas. John Powers compares and contrasts “The Sympathizer,” centering on a spy for the Communists in Vietnam and then California in the seventies; “Manhunt,” following the search for Lincoln’s assassin; “A Gentleman in Moscow,” portraying a Russian aristocrat after the Bolshevik Revolution, and “Shogun,” about feuding 17th century Japanese warlords. John is critic at large for Fresh Air with Terry Gross

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Jon Wiener: From The Nation magazine, this is Start Makinng Sense. I’m Jon Wiener.  Later in the show:  If it was a good strategy for Special Prosecutor Jack Smith to charge Trump with four felonies, is it also a good idea for Fulton County district attorney Fani Willis to charge Trump and 18 other people with a total of 41 felonies?  Erwin Chemerinsky will comment; he’s dean of the law school at UC Berkeley.  But first: Drew Faust, Harvard’s first woman president, remembers how she became an activist in the sixties — that’s coming up, in a minute.


JW: Now it’s time to talk with Drew Faust about growing up in the sixties. She was the first woman president of Harvard, from 2007 to 2018. Before that, she was the founding dean of the Radcliffe Institute for Advanced Study. And before that, she was the Annenberg professor of history at Penn. Now she’s a member of the history department at Harvard. She’s the author of six books, including the unforgettable work, This Republic of Suffering: Death and the American Civil War. It won the Bancroft Prize and was named by The New York Times as one of the 10 best books of 2008. Her new book is Necessary Trouble: Growing up at Mid-Century. We reached her today in Wellfleet on Cape Cod. Drew Faust, welcome to the program.

Drew Faust: Thank you so much. I’m delighted to be with you.

JW: You grew up in Virginia in the fifties, in the segregated south, in a family that was part of the white elite. You write that you “grew up in the constant company of Black people, human beings central to my life, but” – but what?

DF: But they were always in positions of subordination. This was a segregated society and a hierarchical society. A bombshell went off in the middle of that decade with Brown v. Board. So change began to be imposed on Virginia and the politicians of Virginia resisted that very vigorously, didn’t want to integrate the schools, argued they should be closed rather than integrated. So that brought race to the fore and made it explicit in a way it hadn’t been before. Brown v. Board forced recognition and a coming to terms on southern society.

JW: You write that the only newspaper your family received in Virginia was The Morning Telegraph. What was The Morning Telegraph?

DF: The Morning Telegraph was a newspaper for people interested in horse racing, and my father’s business was horses and horse racing. So he read it avidly every morning to see what was going on the track and the past performances of horses running that day. And I suppose there was news about the industry of horse racing, but that was not of interest to me particularly. But I was fascinated by the stories of individual horses and their races.

JW: As a kid, you were a reader. Not surprising. You read Nancy Drew and books about girls and ponies, not surprising, but you also read The Diary of Anne Frank when you were nine or ten or something like that. How did that happen? Were you looking for a story about the Holocaust? Did you have friends who were Jewish?

DF: I don’t think I knew anyone who was Jewish at that time. I’m now married to someone who’s Jewish, so that’s a bit of a change. But I was a reader in part because I was looking for stories that provided a pathway for me to imagine a future other than my mother’s domesticity and the domesticity of all the women of our social circle. And so I loved reading about Nancy Drew because she was such an adventurer. Nothing seemed to phase her. She could do anything. And girls and ponies were a little bit like that too, because these were girls who were learning to be very proficient, often training horses and thousand-pound beasts would be subjected to their will. But I remember picking up Anne Frank in a bookstore in New York, and it had on the cover of this particular edition, which is illustrated in my book, A Story of Adolescence.

So I picked it up because I always wanted to be an adolescent from the time I was about nine years old on, I had an aspiration to get to that. So I thought this would be an interesting book and I had no idea what I was getting into or what I would be reading. And it was completely eye-opening for me in so many ways. First of all, introducing me to the story of the Holocaust. I’d always been interested in what had happened in World War II because my father had been in the service and came back from the war. And we knew that was really important. But reading The Diary of Anne Frank gave me a very different perspective on what the war had been about.

And she, of course, is so reflective and introspective and smart and interesting that you felt as if you just had a new friend. There was someone talking to you. And so I got deeply engaged in the book and then horrified by, of course, the outcome for Anne Frank and her family.

JW: I’ve read a lot of memoirs written by sixties people and virtually all trace the origins of their activism to the same moment: the sit-in movement in the spring of 1960 when Black college students in North Carolina sat down at segregated lunch counters and refused to leave until they were served–facing physical attack from white mobs with nonviolent resistance. Immensely inspiring. But your epiphany as you call it, the shock of recognition that spurred you to take your first political act came well before 1960, although it did involve the Civil Rights Movement. Tell us about your epiphany, what happened and how old you were at the time.

DF: My epiphany came as part of this aftermath of Brown v. Board. And the upheaval in Virginia that was caused by the demand that schools be integrated and the response from white Virginia politicians that this should be resisted, which meant that there was a certain amount of conversation about race that had never been made explicit before. And I also overheard one day coming home from school, I was being driven by a Black man who worked for my family, and I was sitting in the car, and I heard on the radio about some of the debates and issues and confrontations that were taking place around this issue of school integration.

And I suddenly realized in the car at that moment that my school was all white for a reason. It wasn’t an accident. And I asked the Black man who was driving me, is it true that if I painted my face Black or if I were Black, I wouldn’t be able to go to my school? And he hemmed and hawed. He didn’t want to take the risk of being involved in a discussion about integration with a young white girl. But his silence or his evasion underscored for me that I was right.

JW: And how old were you when you heard the news?

DF: Nine. I was nine years old.

JW: And then what did you do with this realization?

DF: I wrote to the president. I got a piece of notebook paper from my school notebook, and I penned a letter to Mr. Eisenhower, as I called him, and I told myself this story as I was growing up and making my way in the world. And then I was asked to write a piece probably in the early 2000s for a collection of autobiographical reflections by southerners who’d become historians. And so I was getting ready to tell this story about how I wrote to Eisenhower, and I thought to myself, maybe I made it up. Maybe I’m like all those people who fought with the French resistance, who didn’t really fight with the French resistance but claim to.

So then I thought, okay, you’re a historian group. If that letter was written to a president, there’s a good chance it would’ve been put in the archives. So I went to the National Archives asking them or wrote to them, actually, I didn’t show up, and they said, well, you really should be asking the Eisenhower Library in Abilene, Kansas. Lo and behold, this wonderful archivist there found my letter. So I hadn’t made it up. And there was my letter from my nine-year-old self, so I was reunited with that little girl.

JW: Your letter to President Eisenhower in 1957 is the fronticepiece of your book. Tell us a little bit about what your argument was there.

DF: Well, when I requested a copy of this letter from the archivist in Kansas, it was in the early 2000s, and so there wasn’t any scanning. He said, I’ll Xerox one and send it to you. So it took, I don’t know, a week or something. And I spent that week worrying about what on earth I might’ve said with the racial outlook of a white Virginia girl, age nine. And I anticipated that my arguments would’ve been the Declaration of Independence and so forth, but they were very religious actually, when I got the letter, I kept appealing to God who loved all God’s children. And I came from a family that wasn’t super religious. I got sent to Sunday school every Sunday, but we didn’t say grace at meals. There wasn’t a religious pervasive atmosphere, but nevertheless, I thought my best argument was God, I guess, especially since I was writing the President, I had to find some higher authority.

So I told the President, God told you to do this. And that was the foundation for my letter, which of course became the foundation for the Civil Rights Movement and Martin Luther King’s leadership and appealing to the Christianity of white Southerners. And that’s what I thought my best argument was.

JW: Moving ahead to 1964, you left for college at Bryn Mawr. Your father had gone to Princeton.

DF: Yes, and my older brother as well, and then the brother after me as well. So it was a family tradition. Had Princeton accepted women, probably they would’ve pressured me to also go to Princeton, but I had no pressure at all. My mother hadn’t gone to college, no one had any strong notions of where I should go. So when I said I’m going to Bryn Mawr, that was fine with everyone.

JW: Why Bryn Mawr?

DF: Well, I was a very bookish kid. I loved intellectual life and work. And so I was very attracted by Bryn Mawr’s identity as being highly intellectual.

JW: You write that Bryn Mawr in 1964 represented a peculiar sort of feminism. Please explain.

DF: Bryn Mawr was a place that believed in the ability of Bryn Mawr students to do almost anything. And we were encouraged to have that confidence because we could compete with any man. And Bryn Mawr was going to enable us to compete with any man and in a sense transcend the constraints that ordinary women confronted. And so it was a feminism about us, but it didn’t urge us or open us to think about women as a category or to think about the ways in which women were subordinated in society. So when I graduated, and I think this was true for a lot of women who graduated from Bryn Mawr, we felt emboldened. But also we were so unaware of the hurdles that we were going to have to confront and the ways in which sexism was going to operate in our lives, even though we were, as we had come to think of ourselves, so well-equipped to compete with any man. And that I believe was what I would call Bryn Mawr feminism.

JW: There was this saying that I heard often in those days about Bryn Mawr: “our failures only marry.”  What’s the story there?

DF: Well, Bryn Mawr had a very fierce president in M. Carey Thomas, who was a woman, grew up in a privileged family in Baltimore, was outraged when she couldn’t pursue graduate work in the United States, pursued it in Europe, became the second president of Bryn Mawr. She was a lesbian, had lived in two open lesbian relationships, and she believed women could do anything. The library, when I was at Bryn Mawr, the library was named after M. Carey Thomas. It’s since been de-named because she was an antisemite and a eugenicist along with being an avid feminist. So her name has been besmirched, shall I say, in the years since I was a student there. But one of the sayings attributed to her was “our failures only marry.” This was rendered sometimes as “only our failures marry.”

JW: That’s different.

DF: It is different. But “our failures only marry” gave us permission to marry, I guess. But it said, you better do something else with yourself as well.

JW: In 1964, your first year in college, you went to a meeting of SDS, Students for a Democratic Society. You read the Port Huron statement, which argued for participatory democracy. You learned about the SDS project to build an interracial movement of the poor in the north. Tom Hayden was organizing in Newark, Bryn Mawr and Haverford SDS were organizing in South Philadelphia. This was SDS before Vietnam. And you went to work with the SDS South Philly project. Tell us a little about that.

DF: It was called an ERAP project, which stood for economic, you probably know better than I do.

JW: Economic Research–

DF: And policy?

JW: Economic Research and Action Project.

DF: Okay, thank you. We just always called it ERAP. This project was dedicated to improving the wellbeing and the fortunes of the people who lived in South Philly who were impoverished in many cases and very close to the poverty line in others. It wasn’t the most desperate part of Philadelphia that would’ve been North Philadelphia, but it was a part of Philadelphia that was clearly in need of economic assistance and uplift. So we were going to organize people to demand better things for their communities. And we started with an issue that was intended to bring people together so that then they could ask for other things once they were organized in a way to effectively voice their concerns. So the issue we organized around was rat control, something we thought everybody could agree on. So I spent much of the fall of 1964 in South Philly knocking on doors with my SDS teammates trying to persuade residents of the houses of South Philadelphia that they should join together as a community and demand rat control. And then we thought they’d go on and demand all kinds of other things. And that was the goal.

JW: Bryn Mawr had one legendary SDS leader, the valedictorian of the 1965 class, Kathy Boudin. Later she became a leader of the Weather Underground, and much later, she served 22 years in prison for the Brink Shootout of 1981. She led an exemplary life in prison, was paroled in 2003, died last year. Of course, she didn’t start out as a weatherman. After graduation in 1965, she went to work on the SDS ERAP project in Cleveland. Did you know Kathy Boudin in Bryn Mawr SDS?

DF: I did not know her because she spent her senior year of college in Russia. She was a Russian studies major. And she was a legend for being brilliant. Every progressive professor that I took a class with would talk about having taught Kathy Boudin.  But I never met her.

JW: And then March 1965, another high point of your book, that was Bloody Sunday on the Edmund Pettus Bridge in Selma, Civil Rights people marching from Selma to Montgomery were attacked and beaten. One of them was John Lewis. You write, “I knew I had to do something.” What did you do?

DF: I went to Selma. There was a follow-up march. And Martin Luther King eloquently said, America must bear witness and speak against these atrocities that were inflicted on John Lewis and others. And there’d been murder. There was a murder of a preacher. There’d been a murder of a young Black activist in the proceeding weeks. And so Martin Luther King said, this is America. You must stand up for the principles on which it been founded. And I thought to myself, this is a moral challenge. If I don’t do something now, who am I? Who can I ever be if I just pass the buck and say I’m not going to stand up for these fundamental rights? And so my boyfriend and I borrowed a car and drove to Selma and marched over the Edmund Pettus Bridge in the march that Martin Luther King had called for.

JW: And then the very next month, April 1965, you went to what you call your first anti-war rally in Washington. Actually, it was everybody’s first anti-war rally in Washington. It was the SDS’s March on Washington. This is the turning point when SDS and all the rest of us change our focus from Civil Rights to Vietnam. What do you remember about that day?

DF: Well, I remember people singing, folk musicians who I’d heard only on records, cherished records that I played in my dorm room. I remember mobs of people going every which way. I remember a sense of urgency and solidarity. It wasn’t the disillusion marches that came later, the angry marches. We had a sense that we were going to turn this around and that our voices would be heard, that people would listen to us, that we would be able to change things. And by the time I graduated from Bryn Mawr, which was not all that much later, only three years, which seems like an eye blink in my life now, but was of course an eternity when I was 18 years old–three years later, we were so frustrated because no one had listened to us at all. And the war had escalated steadily. And by the spring of my senior year, it seemed that maybe we could at least run a candidate. And Johnson was out. But then by the summer, it seemed that was impossible from the high point of spring ‘65 to the frustration and alienation of ‘68.

JW: You graduated in June 1968, you turned 21 in September 1968. What did your mother call it?

DF: Well, my mother wasn’t alive anymore by the time I got to 21, but there was a phrase she used frequently, and she would say, somebody’s “free, white, and 21, and they can do what they want.”

JW: Free, white, and 21.

DF: And 21. And it turns out that this was a phrase frequently used in American popular culture. You can find it in many films. It was a phrase that in one film, Harry Belafonte expressed his disdain for when someone says it in front of him, it appears all over the place. And so it was very much fixed in my mind, this terrible phrase. And it’s interesting because it doesn’t say “free, white, 21, and male.” It just says “free, white, and 21.” So a lot of the people you see using it in popular culture are women claiming the right to be “free, white, and 21,” even though they’re women. And so it’s a very interesting phrase and an appalling one in the centrality it played in the public consciousness.

JW: So “free, white, and 21” meant among other things, you were old enough to vote in the 1968 election. As you say, LBJ had been forced to withdraw from his own reelection campaign that spring by anti-war sentiment in the Democratic Party led by Jean McCarthy, Senator from Minnesota, my home state, and then by Bobby Kennedy, who of course was assassinated the night of the California primary that June. And that left Hubert Humphrey, Johnson’s vice president as the Democratic candidate facing Richard Nixon, who had lost to JFK in a very, very close election. This was your first vote in a presidential election. Who did you vote for?

DF: I voted for Dick Gregory. Dick Gregory, African-American comedian.

JW: And anti-war activist.

DF: Yes, yes. Anti-war activist, progressive in every way and funny besides. And he was endorsed by a number of Ivy League newspapers, publications. He became a protest vote, but it was also for me in some ways more than that. He wrote a book, a campaign biography called Write Me In!, which is really a classic of that era. And when I voted for him, little did I know that what I found out as I was researching this book, I was one of two votes in my county for Dick Gregory, one of some 1600 votes in the whole state of Virginia for Dick Gregory. So even though it was a protest vote, I could see it. I could see my vote right there and preserve for posterity. So I was not alone in choosing this among people my age.

JW: And what were you saying with your refusal to vote for the Democrat, Hubert Humphrey?

DF: All I was saying was give peace a chance.

JW: Great. So Nixon won by less than 1%. I remember that when I told my father I wouldn’t vote for Humphrey because of the war he said, think of the Supreme Court. He was a good Minnesota Democrat.

DF: Yes. Yes.

JW: Of course, now we see how right he was. Did anyone suggest anything like that to you at the time?

DF: I’m trying to think who might have. Most of the people I hung out with, my friends were of similar political views. But I’m sure people must’ve said that to me. Any sensible adult who was of progressive views would’ve said, “think of the Supreme Court,” or “Humphrey will come around,” or “he’s so much better than Nixon.” But Humphrey had been so subordinated to Johnson in ways that it just turns your stomach almost to think, why didn’t he stand up? Why didn’t he speak out? Why didn’t he make more of a space for his own views if indeed those views were anti-war or progressive.

JW: One last thing. The title of your book, “Necessary Trouble.” Where does that come from?

DF: “Necessary Trouble” is a phrase often attributed to John Lewis. It’s one of his catch words. He says, “make trouble, good trouble, necessary trouble.” And I got to know John Lewis a bit when I was president of Harvard. He very generously came to Harvard for a number of occasions. One was when we put up a plaque to remember enslaved workers who had toiled within the Harvard president’s house in the 18th century. And my last commencement, he gave the commencement address, last commencement as president. And he turned to me at the beginning of his talk and said, “Thank you, Madam President for writing to Eisenhower and for making necessary trouble.”

And when I thought about this book, “necessary trouble” really is what it’s about. It’s about how I had to extract myself from the expectations of being a girl, of being a little white person in segregated Virginia, to survive I had to make trouble. It was necessary trouble. So I called him just a couple months before he died and asked if it’d be all right if I called my book Necessary Trouble. And John Lewis was such a gracious, wonderful person. And of course he said, “I would be honored, please do,” and so forth. So the title is a bit of an homage to him, but it’s also a really accurate description of what my life was like as a young person in the fifties and sixties.

JW: Drew Faust, her new book, Necessary Trouble is the best memoir about growing up in the sixties that I’ve read in a long time. Drew, thank you for this book – and thanks for talking with us today.

DF: Thank you.


Jon Wiener: We’re still thinking about the charges brought against Trump for crimes around the 2020 election in the state of Georgia. 13 felonies there brings the total to 91 charges in four criminal cases. And so we turned once again to Erwin Chemerinsky. He’s Dean of the Law School at UC Berkeley, a frequent contributor to The New York Times and The LA Times, and the author of 15 books, most recently, Worse Than Nothing: The Dangerous Fallacy of Originalism. It’s out now in paperback. Erwin, welcome back.

Erwin Chemerinsky: Always great to talk with you, Jon.

JW: Last time we talked it was about the federal charges brought against Trump by special prosecutor Jack Smith. If it was a good strategy for Jack Smith to charge one person with four felonies, is it also a good idea for Fulton County District Attorney Fani Willis to charge Trump and 18 other people with a total of 41 felonies?

EC: I don’t know. And I don’t think any of us know until we see how it plays out. On the one hand, the benefit of this is, this is being presented as a so-called RICO case, saying that there was a criminal enterprise. What the district attorney is saying is that these 19 individuals were part of an overall effort to defraud the state of Georgia and to undermine the election. On the other hand, trying 19 people together on 41 counts is enormously complicated and could make it far more difficult to go to trial in a timely fashion and much harder to gain convictions. So it’s a strategic choice and we’ll only know in hindsight whether it’s a wise one.

JW: Aren’t these two cases really about the same crime, attempting to overturn the 2020 election?

EC: When stated that way the answer is yes. But they’re also quite different. The Georgia indictment is just about what happened in Georgia, so in many ways it’s much more specific than what you find in the federal indictment. So it includes, for example, pressuring the Secretary of State to find votes so that Trump could carry Georgia. That’s not part of the federal indictment. There was harassment of election officials who they were perceiving as hostile to Trump. That’s not part of the federal indictment. There’s an overlap, certainly the desire to create false electors was present in Georgia and is also present in the federal indictment, but I think this is more specific to Georgia and it includes a much larger array of behavior. Maybe the easiest example I can give you, one of the charges here is making false statements to Georgia government officials, which is itself a crime that’s not presented in the federal indictment.

JW: Well, let’s talk a little more about charging Trump under RICO, which I recently learned means The Racketeer Influenced and Corrupt Organizations Act. I understand it’s been around for 50 years. It was created to convict Mafia bosses and one of the great practitioners in the early days was Rudy Giuliani at the start of his career. But it’s also been used to convict pharmaceutical executives who are accused of fueling the opioid crisis. Of course, it’s never been used in a case about elections, and of course never in a case about the president, so this is a novel use of the RICO law. Tell us a little bit more about the strategy here.

EC: What the district attorney is saying is that there was an overall criminal enterprise, and what you need to do is look at everything that occurred as part of this criminal enterprise, and that’s the advantage of RICO. Instead of looking at one charge in the evidence to support that charge, this lets the district attorney present everything that would support the existence of the criminal enterprise and everything that was done in furtherance of the criminal enterprise, and so it really opens the door to a broader array of evidence. It also frames the issue different for the jury. The jury isn’t just asked, ‘was this specific crime committed?’ The jury will be asked to answer that, but the jury is asked more generally to look at overall what was done and then see the specific act is in furtherance of what’s called a criminal enterprise.

JW: Of course, neither the federal nor the state charges in Georgia deal with what, for many of us, was the worst part of Trump’s attempt to overturn the 2020 election, the violent attack on the Capitol by thousands of his followers, which of course stopped the counting of the electoral votes temporarily. Shouldn’t this be part – a charge somewhere somehow?

EC: Well, wouldn’t be part of the Georgia indictment itself because the incitement, if we want to call it that, occurred in DC, the actions and furtherance of the incitement occurred at the capitol in DC. For the federal prosecutor, it’s a harder call. I, like you, believe that Donald Trump engaged in incitement. The test for incitement is, was there a substantial likelihood of imminent violence and was the speech directed causing imminent violence? I think the answer is ‘Yes.’ My guess is that the special prosecutor federal level didn’t want to charge this because of First Amendment concerns. This really goes to the question of Trump’s speech itself, and I think the district attorney, or the federal prosecutor wanted to focus much more on the actions to subvert the election.

JW: I want to go back to this question of a case with 19 defendants. We’ve all been learning the last couple of days about Fani Willis’ current active RICO case. It’s called the Young Thug Case, which has 28 defendants, and this one, the court has been working on selecting a jury since January. Eight months. If you have a case with multiple defendants, does the attorney for each defendant get to question each potential juror?

EC: Each defense lawyer gets to participate in the trial. That means that each defense lawyer gets to participate in the selection of jurors. It does not necessarily mean that each defense lawyer gets to question each prospective juror. In fact, in most courts now, the judge does the questioning of prospective jurors. It’s not left to the individual defense lawyer. If, however, it were to be left to the defense lawyers, then all 19 would get the chance. That’s just one of many problems with trying 19 people all together.

JW: Of course, for a lot of us, the best thing about charging Trump with violating Georgia law is that even if he is reelected president next November, he could not pardon himself for convictions in a state court. And in Georgia, RICO is a felony charge that carries stiff penalties. I read that if you’re found guilty, you can get a potential prison term of five to 20 years or a fine or both and to get a pardon for a felony in Georgia, you can’t apply until five years after you’ve completed your sentence, not five years after you start serving it. But speaking of pardons, is there anything in the Constitution that says the president cannot pardon himself?

EC: The Constitution doesn’t speak to whether the president can pardon himself. No court has ever addressed that. There’s an obvious reason why no court has done so. The issue has never come up before. No prior ex-president has ever been convicted or for that matter, even indicted of a crime. Now, I want to emphasize something you said. A president can pardon for federal convictions, for violating federal law. We don’t know whether Trump, if he were elected president, could pardon himself that’s an unresolved question. But a president cannot pardon for state law convictions, so there’s a New York State criminal case pending. There’s now the Georgia State criminal case pending. If Donald Trump were reelected president, he could not change the course of those criminal prosecutions and he could not pardon himself for those crimes.

JW: David French wrote an interesting piece in The New York Times recently arguing that “the beating heart of the Georgia case is the 22 counts focused on lies, false statements, false documents, and forgery with a particular emphasis on a key Georgia statute that prohibits false statements and writings on matters ‘within the jurisdiction of state or political subdivisions.’” There’s a similar federal law, but the Georgia law is broader. Both federal and state laws say you can lie to the public, but you can’t lie to government officials about important issues that they oversee. According to this analysis, that’s a much easier case to prove. Federal law requires proving that any given Trump lie was part of a larger criminal scheme, but Georgia prosecutors have to prove only that Trump willfully lied to a government official about important, relevant facts. If they can do that, those lies in and of themselves violated Georgia criminal law. Is that the way you see it and is that the right way to proceed against Trump?

EC: It is an accurate statement of the law, and it may be the easiest way to proceed against Trump. Lying to a federal official is a crime. It’s what a number of people have been convicted of. They’re interviewed by an FBI officer, and they lie to the FBI officer and then that’s a basis for a conviction. That’s what’s going on here. False statements to government officials in pursuance of their duties. I think that it’s going to be very hard for Donald Trump to say he didn’t make false statements knowing they were false, given what’s been alleged in the complaint and given what we’ve heard, but I also think there are other strong charges against Trump in this indictment. Take for example, pressuring the Secretary of State to find votes to put him over the top. We have a recording of that, that we’ve all heard at this stage, where he says, ‘get me those votes.’

The harassing of election officials in the state of Georgia. There’s strong evidence, it’s alleged in the complaint, of how election officials, especially Black election officials were harassed and lied about. There’s the complaint that Trump was trying to get a false slate of electors that then they want Mike Pence to recognize that seems a strong charge. There’s even charges that they were trying to tamper with voting machines, and that I think was one of the revelations of the indictment when it came out. So this seems to me a strong indictment. I think the question is just what you posed. Would it have been better to have it narrower in terms of the number of defendants, in terms of the counts, or is it better to make it broader to be about this criminal enterprise?

JW: Five of the people indicted along with Trump in the Georgia case are his lawyers. Critics of the prosecution say that Fani Willis is criminalizing the practice of law. Is it legitimate to indict the lawyers for the accused along with the accused?

EC: It’s unusual, but it happens. To go back to something you mentioned in organized crime cases, there have been instances where the lawyers have been indicted for furthering the criminal activity. Having a license to practice law doesn’t give you an excuse for violating the law. We’ve got to remember in some of the other cases, lawyers were deeply enmeshed for the federal indictment against Trump. In Washington, DC there were six unindicted co-conspirators. We have every reason to believe that all or almost all were lawyers. If a lawyer is participating in illegal activity, he or she can be criminally prosecuted and convicted too.

JW: And finally, we need to return to the topic of the 14th Amendment, Section three. That’s the part that bars anyone from holding federal office, including the presidency, who “engaged in insurrection”. As we’ve said before, it was passed after the Civil War to bar former Confederates from holding office. But historians and now two prominent conservative law professors, William Baude and Michael Stokes Paulsen have argued at length that it applies to Trump. And in the Atlantic this week, two prominent legal scholars from opposite sides of the political spectrum, former federal judge J. Michael Luttig, a conservative and Harvard Constitutional Law Professor, Lawrence Tribe, a liberal, endorsed the argument that the 14th Amendment bars Trump from office. Of course, Trump has not been convicted of engaging in insurrection. As we’ve said, he hasn’t even been charged with that. But Baude and Paulsen argue that Section three is self-enforcing. They say it’s like the requirement that the president has to be at least 35 years old. Did they convince you on this crucial point?

EC: I think they make a compelling case that no conviction is required to trigger Section three. Nothing in the language of Section three says there has to be a conviction. What’s still unclear though is who makes the determination of whether or not somebody who had taken oath of office participated in rebellion or insurrection? Section three doesn’t tell us that. I think the way this is going to play out is some state election officials will deny Trump being on the ballot, invoking Section three of the 14th Amendment, and Trump and his supporters will sue. Or there’s going to be lawsuits against state election officials to keep Trump off the ballot saying that’s required under Section three of the 14th Amendment, and then that will be in the courts.

So I think that this issue inevitably is going to go to the courts and to the Supreme Court. Who decides if the requirements of Section three are met, and does it require a conviction? Is the evidence here enough? I think what’s telling and what you said is who is saying this. William Baude, Michael Stokes Paulsen, Steven Calabresi, Michael Luttig, those are very prominent conservatives. Those are individuals who are founders of and active in the Federalist Society.  That they’re now out there saying, ‘Donald Trump isn’t eligible to run for president’–it matters a lot more than people like Larry Tribe or me.

JW: You say that there are going to be cases brought in maybe several states to keep Trump off the ballot on the grounds that he engaged in insurrection. Can you tell us anything more about where and when this is going to happen?

EC: Well, there was, for example, a New Mexico State court last year ruled that a New Mexico County supervisor was ineligible when he participated in the January 6th insurrection. So I’ve suggested two paths this will happen. One is I would expect some election officials in blue states will say, Section three is to use the words that you mentioned, self-enforcing, that they have to therefore follow it and keep Trump off the ballot. Once they do that, Trump and his supporters will sue and say that this violates their rights to run as candidates. Or in states where the election officials allow Trump on the ballot, you’ll find lawsuits by individuals who say it violates the Constitution for Trump to be on the ballot, take him off the ballot. There’s all sorts of difficult procedural questions that will need to be faced along the way. For instance, in the latter instance, who would’ve the ability to go to court to keep Trump off the ballot? Who has an injury that would give rise to standing?

I think also what the courts are going to have to decide is what does section three mean? The argument on the other side isn’t trivial. It says, in a democracy, that should be for the people to decide who they want as president, and courts shouldn’t be making the decision for them. On the other hand, as you point out, there are already provisions that limit who can run for president. You have to be 35 years old. You have to be a natural-born citizen. You can only serve two terms. Why is this any different in limiting what the political process can do than any of those restrictions?

JW: I want to focus on the bigger question, not about the legality or constitutionality of the 14th Amendment case for keeping Trump off the ballot, but this issue of the wisdom of doing it when he is running for reelection. As you have said, some people argue that while Trump is indeed a criminal, it would be better for American democracy if the voters rejected him at the ballot box than for the courts to rule that he can’t be a candidate; for the courts to deny voters the ability to make that decision. What do you think?

EC: I think it’s a hard question, but ultimately it shouldn’t be a policy question, but a question of interpreting a Constitution. I think it’s unwise that the Constitution says to be President of the United States, you have to be a natural-born citizen. But that’s what it says. And courts have to decide ‘what does natural-born citizen mean?’ I think it’s unwise that the president has to be 35 years old. If people want to elect somebody younger, shouldn’t they be able to? But that’s what the Constitution says. Well, section three of the 14th Amendment says, somebody who participated in an insurrection or rebellion or gave aid or comfort to the enemy, once having taken an oath of office, is disqualified from ever serving again. I think that language has to be interpreted and enforced. Even if from a policy perspective you say, wouldn’t it be better to let the people decide?

JW: Erwin Chemerinsky – he’s Dean of the Law School at UC Berkeley. Erwin, thank you for talking with us today.

EC: Always my pleasure.

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Jon Wiener

Jon Wiener is a contributing editor of The Nation and co-author (with Mike Davis) of Set the Night on Fire: L.A. in the Sixties.

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