Show Notes
In this episode we review the Epstein scandal and discuss Deputy Attorney General Todd Blanche’s conflict-of-interest problems, the White House challenge, and the looming role of Congress. Consider becoming a free or paid subscriber to Executive Functions.
This is an edited transcript of an episode of “Executive Functions Chat.” You can listen to the full conversation by following or subscribing to the show on Substack, Apple, Spotify, or wherever you get your podcasts. Jack Goldsmith: Good morning, Bob. Bob Bauer: Good morning, Jack. So, this morning, we're going to talk about the Epstein scandal and how the White House is managing it, how the Department of Justice (DOJ) is managing it, and how Congress should be thinking about it. You've been writing about this the last few weeks, so why don't you just start off by—everybody knows about the scandal, but just briefly summarize where we are. In the last week or so, I don't know how many days ago it was, the Department of Justice became very much involved with the deputy attorney general flying to Florida for a nine-hour interview under a limited grant of immunity with Ghislaine Maxwell, former paramour and longtime associate of Epstein who has been convicted of participating in and facilitating sex trafficking, and she's now appealing those convictions. The administration apparently thought at the time it had come to show that it was taking an active interest in disclosures after the uproar in his own base and among his own MAGA community over the surprising announcement that after a review of the files, DOJ had concluded that Epstein had in fact committed suicide, he had not been murdered, and there was no additional information to suggest that other people had committed crimes. And as you know, from this point forward, the administration has been scrambling to address the frustrations of that community over the absence of the disclosures that they believe they were promised—the further disclosures about Epstein and those on the so-called list, those who were involved with him. Okay, before we turn to White House management of this and other scandals, you mentioned that the deputy attorney general had gone to interview Maxwell. Talk about how unusual that is and the problems you see with that. In my view, exceptionally unusual. There may be some cases that are comparable. I can't think of what they are. His role under the general organization of the Department of Justice is to manage day-to-day operations of the Department of Justice and to engage in overall supervision of the department's operations, not to, for example, assume specific investigative functions. In this case, he has done just that. He is a source of information under his own name from the administration about the status of the investigation. In the case of Maxwell, who is a central figure right now, he personally interviewed her. He flew to Florida and spent a couple of days, nine hours total, interviewing her and finding out what it is that she would say if she were to testify publicly under some immunity. We'll talk about potential clemency in a few minutes. For the deputy attorney general to do that is extraordinary. Plus, let's take something else well known: He’s a former personal lawyer to Donald Trump. Under departmental regulations, ethics regulations, his activities here implicate what is called the rule of impartiality. His involvement, having been so close to Trump, would trigger in a reasonable person a genuine concern about whether he could act impartially in this matter—whether he's actually serving the American public or serving the political and personal interests of Donald Trump. And do we have any reason to think that he or the department are taking these ethical and conflict of interest rules seriously? No. On the information we have, they're dismissing them. Normally, the employee who would have a legitimate concern about these issues or who would be faced with the rules’ indication that
More from Executive Functions Chat
Jack interviews Caleb Nelson, the Emerson G. Spies Distinguished Professor of Law at the University of Virginia School of Law, about his working paper, “Against the Dictatorial Presidency.” They discuss the modern history of unitary executive theory, Nelson’s criticisms of the theory in Slaughter, the relevance of the Necessary and Proper Clause, and the dangers of Slaughter, with special focus on the civil service. Goldsmith and Nelson close by discussing the Court’s unexplained Fed carve-out, with Nelson lamenting the Court’s selective willingness to consider consequences in crafting the unitary executive.
Bob Bauer and Jack Goldsmith discuss Jack’s October 19 piece on Senator Elissa Slotkin’s recent viral remarks at the University of Chicago, where she said she wanted accountability for the people who enabled President Trump, at least in part with the goal of sending a “deterrence message” to new graduates who might consider working for the administration. Jack explains why he thinks Senator Slotkin’s remarks were imprudent, and why he finds the prevailing reaction from pro-Trump quarters hypocritical. Bob presses on whether congressional investigation is different from weaponizing law enforcement, and whether worry about retaliation could lead to the most lawless conduct going unanswered. They also discuss Jack’s prediction that Trump will issue thousands of pardons, his case for prioritizing transparency, and why it is, and will continue to be, incredibly challenging for either side to de-escalate.
Bob Bauer interviews Francis Fukuyama, the Olivier Nomellini Senior Fellow at Stanford’s Freeman Spogli Institute for International Studies and author of The End of History and the Last Man. They discuss his new memoir, In the Realm of the Last Man, which, among other things, seeks to address misconceptions about the argument for which he is best known and to depict his intellectual arc; how excessive proceduralism fetters American government and drives voters toward populist candidates; whether reform would take a crisis; why Fukuyama posits that the post-Trump years may bring civil service and permitting reforms that were previously out of reach; and the necessity of educating young people on liberal values. Bauer and Fukuyama close by discussing changing one’s mind: the psychological barriers to it (particularly in an insular group setting), the liberation that expressing it can bring, and the interpersonal costs it involved in the case of Fukuyama’s departure from the neoconservative movement.
Jack interviews attorney and historian Catherine Grace Katz about her new book, Shadow Before the Flame: The Hindenburg Disaster and the Prelude to War. They discuss how a 1925 U.S. ban on helium exports required German airships to fly on flammable hydrogen, leading to the famous 1937 explosion over New Jersey. They also cover the Nazi takeover of the struggling Zeppelin company and the subsequent use of its airships as propaganda tools, and the later controversy surrounding whether to sell helium to Germany even after Congress relaxed the export ban. Katz closes by noting parallels to AI and other dual-use technologies, the necessity of balancing civilian risk against potential benefits, and the hubris that often accompanies large-scale innovation.
Bob interviews Nate Persily, the James B. McClatchy Professor of Law at Stanford Law School and co-director of the Stanford Law AI Initiative, about artificial intelligence and democracy, with particular attention to elections. They discuss what’s driving American anxiety about AI, why Republican and Democratic users alike rate AI models as left of center, and why Persily thinks the greater danger from deepfakes is not voters who are fooled but voters who stop believing what’s true—the “liar’s dividend.” They also take up the risks of relying on chatbots for voting information, state laws requiring disclosure of AI in political ads, and why Persily, though not “an unrepentant doomer,” thinks the time to regulate AI may be running out rapidly.