Could another campaign help Trump with some of his legal problems?

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President of the United States Donald J. Trump at CPAC 2017 February 24th 2017. Photo by Michael Vadon.

Former President Trump spoke at CPAC this past weekend, and it got some people talking (apparently, some of Trump’s advisers included): if he were to run for office again, would it help him with some of his legal issues? Would it make prosecutors more reluctant to sue him? Plus: Fulton County DA will appear in front of a grand jury this week, Michael Cohen’s selling prison jumpsuits as podcast merch, why a Trump appointee is suing the Biden administration, a fancy way of charging someone for f***ing shit up, and more.

Read the full transcript below.

Josh Barro: This is Josh Barro, host of KCRW's Left, Right & Center. You're listening to All The Presidents' Lawyers, the podcast about the legal problems of presidents and their associates. All presidents have legal problems, some have more legal problems than others. My co host is Ken White. Ken is a criminal defense attorney and former federal prosecutor. He writes the Popehat Report newsletter on Substack. Hello, Ken.

Ken White: Hello, Josh.

Josh Barro: So former President Trump spoke at CPAC this past Sunday, and people are wondering a little bit: what's he up to? I mean, obviously, he likes being back in the spotlight somewhat. He wants to continue to exercise some measure of political control over the Republican Party. But does he actually intend to run for president again in 2024? Is he still active in the manner of a political candidate? And Maggie Haberman tweeted something interesting about this in the lead up to his speech. She said that the former president's aides have cautioned him against things that could make him more of a target in the investigations of him. But some advisors believe Trump staying a political candidate will let him try to frame those investigations as political. So Ken, I'm wondering if prosecutors are looking at this — if they're investigating former President Trump or if they're investigating his businesses or his associates — does the possibility that he is or will be a political candidate in the near future, does that influence their decision making at all?

Ken White: You see, he's such a unique figure that I don't know that it does. This isn't some previously obscure middle manager someplace who's getting on the news, because he's acting out and will fade back into obscurity as soon as he stops. You know, this is the ex-president of the United States who is always a very outsized figure, and remains one. So he's always going to be able to deploy this defense that this is a political prosecution, whether or not he's being coy about possibly running for the presidency again in 2024. No matter what, he has that. So I don't know that him doing it explicitly or not explicitly or coyly or however you call it, I don't know that it makes that big of a defense. I certainly don't think it makes it a defense in how eager prosecutors are to go after him. He's still the great white whale, you know, the number one target of imagined criminal prosecution in the country and that's not going to change based on, for him, relatively minor antics and rhetoric. Nor I think, does that stuff really move the ball much with respect to the defense he has that he's being prosecuted because of his politics.

Josh Barro: Does that differ at all between federal prosecutors and state prosecutors? We've seen and we'll talk a little bit later in the show about some state level prosecutors who have seemed quite eager to get in the spotlight and may relish the opportunity to prosecute somebody so high profile as the ex-president and that his profile being even higher, if he is holding himself out still as a political candidate, but for for federal prosecutors, isn't the DOJ especially wary of prosecutions that can appear to be political? There are special procedures around them (procedures that James Comey did not follow very well in the 2016 campaign) but for the most part, this is a place where prosecutors are supposed to tread somewhat more carefully. And then presumably, when you do bring these sorts of prosecutions, they're more work than they would be if the person wasn't a political figure. So could this dissuade maybe the federal prosecutors a little bit even if it's not going to dissuade a local DA?

Ken White: I don't think so. I don't think that the additional issue of him saying maybe I'll run in 2024 really moves the ball on that at all. Yes, there are supposedly internal safeguards about going after active politicians, but the safeguards of at least that level are not higher were already going to be used with respect to anything going on with Trump. It's already going to be vetted at a very high level and everything is going to be done much more carefully than normal — and that's being done more carefully by normal than people who are already very averse to losing. So, I can't imagine, Trump being Trump, that just this rather mild level of flirting with the concept of running again can really make any sort of difference.

Josh Barro: And then what about at a trial? Are you allowed to raise an argument that says 'I'm being prosecuted here because of my politics'?

Ken White: Sure, and the extent to which you can do it and what kind of evidence and testimony you can put on is going to be guided by the trial judge. Now, we saw some of this in the cases against, for instance, Paul Manafort and others prosecuted by the special counsel. They wanted to put in more evidence that they were being targeted because of their connections with Republicans and the judges generally gave them a little leeway but mostly they were able to make arguments rather than go on to a long frolic and detour of tons of witnesses and evidence about, you know, the great conspiracy against Republicans. So I would think that Trump in a case like this would be able to argue fairly freely that it's a political prosecution, that that's why they're going after him. But his ability to put on evidence about that would be limited. He wouldn't be allowed to try, you know, every wrongdoing by the administration, in the course of his own case. Also, of course, he has the option to try to get the indictment dismissed on the grounds of selective prosecution. But that would be very difficult. To get an indictment dismissed for selective prosecution, you have to show that you were targeted for an impermissible reason, like say, because you're a Republican, and that similarly situated people are not being prosecuted for the same thing that you are. So in Trump's position, that's pretty difficult to do. 

Josh Barro: Why? Because there's nobody similarly situated to him?

Ken White: Exactly. I mean, it may be there are some other presidents or governors out there who have made, you know, threatening phone calls to secretaries of state telling him to find votes that didn't get prosecuted, and then, you know, maybe you've got a stronger selective prosecution argument. But no, generally, there are not a lot of people back home like that.

Josh Barro: [laughter] The two main local jurisdictions where we've seen a lot of action in terms of investigations that could ultimately ensnare the president have been in New York, and then more recently in Georgia related to the president's phone call to the Secretary of State in Georgia demanding that he find votes, and otherwise interfere in in Georgia's presidential election. And Fulton County DA (Fulton County is the county that includes Atlanta) Fani Willis is supposed to appear before a grand jury this week. What would she be doing before a grand jury at this stage? I assume it's too early to be asking the grand jury to indict anybody.

Ken White: I wouldn't assume that. So states tend to use their grand jury somewhat differently than the feds. The feds a lot of the time use a grand jury investigation as a way to very slowly develop a complicated case. And that's why we see them on the federal side going for years. And it's like a box you put evidence into until you're ready to open the box. And they'll bring in witnesses and flip witnesses and get new witnesses and use it to get subpoenas. State prosecutors, by contrast, tend to use grand juries in a more immediate way. Grand jury investigations by states tend to be much shorter, and tend to be much more of a 'well, now we're going to the grand jury to indict' type of affair, rather than, you know, 'now we're starting the investigation with the grand jury' type of affair. So could she just be at the beginning? Yes, it's possible that she's using it in a more federal model. But it would not surprise me if a state having said we're going to the grand jury on this has a relatively short timeline in mind about either getting an indictment or not.

Josh Barro: So the interesting thing to me about what you say there is the the Atlanta Journal-Constitution, their article about this, they suggested that, you know, maybe maybe the DA is following that sort of federal model that you described here unusually, that that's not how a state case would usually proceed, but that the context clues here suggest that might be happening in this instance, because if it's not that, if they're really ready to indict — I mean, could they could they really be ready to indict the president already? Or Rudy Giuliani or somebody around him? There wouldn't need to be more factfinding? That feels awfully rapid.

Ken White: Well, in part we've been conditioned by, you know, Josh, during this show, for very, very long grand jury investigations, and so we're surprised when it happens, you know, quickly, almost like on TV or something, but not really on TV. I mean, if what they're looking at is this call that Trump made that's on tape, then they may see it as kind of like one of the Capitol insurrection cases where 'hey, if this dumbass is on video and then went and you know, made a TikTok about what he did, then why do we need to wait around? that's plenty of evidence, let's pull the trigger.' Similarly here, the real issue with Trump's phone call is about his intent. And whether you can show fraudulent intent, corrupt intent to interfere with the electoral process. And a DA more than a federal prosecutor is very much the type that would often say, 'hell, I'm gonna put it in front of a jury and say, look at that, what kind of intent you think that is?' and get them to convict. That's more of a DA, 'let's go in guns blazing' type of attitude. So I think it's completely plausible that they could decide that the call itself is enough to go in.

Josh Barro: So that could be pretty rapid then. How soon could we be seeing a trial if that really happened?

Ken White: Oh, it's it's it's hard to say. I don't know with state court there how long white collar cases tend to drag out. But it would certainly be quicker than with a federal proceeding. And for what it's worth, they may be right that she is actually genuinely doing a more federal style, that it's going to be a slow, methodical, careful, grand jury investigation. And to be on the cynical side, it could be that it's going to be used for publicity and attention and clicks and all that sort of thing and DAs love their publicity and love using cases like this as a staircase to higher political office.

Josh Barro: We talked last week about Michael Cohen's podcast. But he also has a merchandise line. He's frankly starting to remind me of George Sr. on Arrested Development, using his incarceration to build a personal brand and build out media product lines to sell to the public. And so for $60, you can get a personalized Michael Cohen orange jumpsuit. So Ken, Michael Cohen is still in the custody of the Bureau of Prisons. He's confined to his home. Is this hazardous to his legal position at all to build a cottage industry out of the fact that he's being punished?

Ken White: It's hazardous if he ever wants or needs anything out of the courts or the probation office that's supervising him. So anyone's going to see the 'look, it's hilarious, I'm selling jumpsuits' as showing a sort of sociopathic lack of remorse. And so if all he needs to do is close out his time and be done, then I guess it doesn't make a big difference. But if he ever gets sideways with the probation officer about something, or needs some consideration from the court, and an extension of a deadline, some sort of relief, then I think he's gonna regret that he did that. You know, it's funny,  I remember us talking, Josh, about where Michael Cohen was gonna go when he fell, when there was a search, and not too long after it became clear that he was going to take the route of cooperation. And I think I remember us talking about how this works in America now and how we thought that he would reinvent himself, reinvent himself as the anti Trump, and really lean in to everything that had happened to him. And it seems like we were right.

Josh Barro: Yeah, yeah. No — never doubt us. I guess you know, is the flip side to that, could could he argue if he had to argue this point with the probation office, that this is him having gainful and lawful employment? He's not defrauding anybody, he doesn't appear to be committing new crimes. What exactly is Michael Cohen supposed to do with his skillset at this point in his career? I mean, one of the most obvious things for him to do is exactly what he's doing be an anti Trump celebrity, sell merch. I mean, you know, isn't that just sort of an unusual way of being a, you know, a law abiding and productive member of society? Maybe this is the this is just the best alternative that's available to him and the probation office should be happy he's not doing something else.

Ken White: Yeah. But we're not talking about whether or not this is a violation. We're talking about how the probation officer and the judge are everyone else in the system thinks about him when they make other decisions about him. And, you know, the truest thing about the system is that if the system decides you're a dick, then things are going to go badly for you, regardless of the merits of whatever is happening at the moment. And that's why you saw, just for instance, that the people who acted during the Capitol insurrection in sort of overtly obnoxious ways — putting their feet up on desks, things like that — got treated worse on bail determinations, even if they weren't necessarily more of a danger. It's because just if you act like a dick, probation officers and judges and people in the system will think of you as a dick and you'll lose decisions, particularly when they're sort of on the margin.

Josh Barro: The federal government has abandoned its forfeiture claims against four assets that had belonged to Paul Manafort. These are three homes: a house in the Hamptons, a condominium and a brownstone in New York City and a bank account. And the filing from the federal government says because of President Trump's pardon of Paul Manafort, we cannot proceed with these forfeitures. But there were nine assets that were forfeited in the agreement with Paul Manafort that were to-be forfeited. And so am I correct in my understanding that some of those forfeitures were completed, and that means Paul Manafort won't get the properties back, but these others there were some disputes, such as with banks that also had financial interests in these properties and that was delaying the forfeiture and because they were not yet complete when he was when he was pardoned, that's why the government now can't go take those assets?

Ken White: Yeah, it's not the clearest order I've ever read, and forfeiture is already a huge, complicated mess. That said, yes, it appears that what we're saying is, well, everything where forfeiture was completed, that's done and over. Just like you can't get, you know, if you're pardoned after you spent five years in jail, you don't get five years back. If you're pardoned after you've already lost the assets, you don't get the assets back. But the stuff that was in process, the government is saying, okay, we're dropping our claim. But those things still remain in limbo, while various claimants fight it out over them. And remember, some of what Manafort was accused of is defrauding banks. So it's gonna be the banks who have an interest in continuing to pursue those assets. It's not at all clear that Manafort will ever see them again.

Josh Barro: It also looked like the driver behind some of Manafort's financial crimes was the precariousness of his financial position and the extremely high cost of his living, somewhat similar to similar to Michael Avenatti in certain ways, and so Manafort presumably had pre-existing financial difficulties that were exacerbated by his criminal trial and by his loss of certain sources of income and his loss of certain other assets, so just because the government isn't going to take these assets doesn't mean they're not going to end up in the hands of a bank or something like that.

Ken White: He's got lots of creditors, he lived really high. He was never a man to wear a jacket made out of the common man's emu when he could spend more for ostrich, and that is still coming after him.

Josh Barro: You know, he still has that ostrich jacket, or at least the government didn't take it. We made a mistake on that a few months ago on this show, I believe, saying that he'd forfeited the ostrich jacket — that was actually not taken in the forfeiture, so you know, even if even if he's not going to get to keep that Hamptons house in the end, at least at least he has that jacket. Let's take a break and when we come back, we will talk about the fate of the Capitol rioters. You're listening to All The Presidents' Lawyers.

This is Josh Barro and I'm back with attorney Ken White on All The Presidents' Lawyers. About 200 people have now been charged with crimes related to Capitol riot, but in addition to simple charges of illegal entry and vandalism, prosecutors are bringing more complex conspiracy cases against members of extremist groups like the Three Percenters and the Proud Boys, alleging that they engaged in conspiracies to create this riot that would disrupt the counting of electoral votes. So let's talk about some of these Proud Boys cases. Proud Boy leader and Enrique Tarrio was arrested days before the Capitol riot because he is accused of having burned a Black Lives Matter flag belonging to a church in downtown Washington DC back in December. And so prosecutors say that a guy named Ethan Nordean ended up leading the Proud Boys on January 6, and they're seeking to continue to detain Nordean pending trial. His attorney has been objecting strenuously to this. Now, before we get into the specifics, I think we should start with a broad reminder, which is that generally, federal criminal defendants are entitled to be released on bail, provided they're able to meet certain conditions. Bail is not a moral judgment about the seriousness of your alleged crime, or at least it's not supposed to be such a moral judgment. Is that right?

Ken White: Absolutely. There's a presumption for bail, and it's the government's burden to prove, unless no conditions of bail would assure that you're going to come back for trial or that you won't be a danger to the community.

Josh Barro: And so some of the matters that Nordean's lawyer and prosecutors are arguing over relate to how that analysis should be conducted, and when one question is: is Nordean charged with a crime of violence? He's been charged with something called depredation of property. What is that?

Ken White: You know, depredation of property is... it's f***ing s*** up, Josh. It's kind of like...[laughter] it's kind of a high-level vandalism and breaking s***.

Josh Barro: Well, and so this has been a subject for tiresome debates on Twitter, and I think some newspaper op-eds over the last year, which is, you know, is destruction of property violence? We saw this come up in the context of the unrest that we saw in a lot of cities back last summer. And so now, it seems that's a legal question. Is destruction of property — is that a crime of violence in the sense of federal law about release on bail?

Ken White: Well, this is a common argument. So many laws in the federal system have exceptions or enhancements or things like that if something is a crime of violence, and then you go around spending the rest of your life litigating over what is or isn't a crime of violence. So usually, it's a crime of violence if it has an element of force to it. And the question of whether this, which is more or less plundering, has an element of force and violence is what they're arguing over.

Josh Barro: So is it literally like, is the question here, I realized that this is not what Nordean is charged with, but would with stealing a lectern out of the Capitol Building, could that be called a crime of violence?

Ken White: Well, plausibly, particularly if you use force to enter the place where you did it. So burglary, you know, breaking into some place in order to take something can be treated as a crime of violence.

Josh Barro: And so then another question in here is whether prosecutors have taken too long to give Nordean a hearing on whether he should be released on bail. This riot — I mean, we're approaching ... the riot was nearly two months ago — do his attorneys have a point that prosecutors are basically taking too long about this stuff?

Ken White: It does seem to be a long time, but that seems to be more on the judges who are running the particular case. I mean, you can demand your detention hearing and demand review of it and there are statutory limits on that, so you know, I question whether they've been pushing at every avenue to ask the court to order the detention hearing immediately.

Josh Barro: Is that something that we're gonna see a lot of with, you know, we've been discussing the strain that this is going to put on the federal court system to conduct so many of these prosecutions. It's a large increase over the number of prosecutions that are ordinarily conducted for federal crimes in the District of Columbia in a given year. As this works through the system, are we going to find a lot of these defendants waiting longer for justice than would be expected in a normal case? And is that going to give rise to legal claims that they can make basically saying, this process is too slow because it is underpowered and understaffed and therefore we have rights to certain relief? 

Ken White: Sure, well, there's the Speedy Trial Act, which has a set of rules requiring things to go to trial... first, it requires people to be indicted within a certain amount of time, and then requires trials within a certain amount of time. Normally, it's around 70 days. But there are a bunch of exceptions. Often the exceptions are imposed with the consent of both parties, because both parties don't want a trial very quick. Sometimes they are imposed with one side or the other dissenting. It's relatively difficult to do it on the ground of 'gosh, we're busy.' It's meant to prevent that from happening a lot, but when you have historic sorts of circumstances like this, I think you're gonna find judges making very specific factual findings about how historically unusually clogged the docket is and finding a way to bump things out when they normally might not.

Josh Barro: Do anything about the factual claims in these filings about what happened on January 6? I thought it was interesting, Nordean's lawyers basically saying, you know, 'you don't really have any evidence that he was actually in charge of any of this. Yes, he ordered this walkie talkie. But it didn't arrive until the day after the riots. So he didn't have it and his phone was dead. So how could he have really been leading these people around?' Now, I would also note the government alleges that he engaged in pre-planning about where people would array themselves in front of the Capitol so it's not just a claim about what he was doing in real time as the riot was happening. But are we at an early stage to be having arguments about the evidence in this case? It feels like there's a lot of evidence to still be collected or or is there something we can infer about the actual strength of the government's case here?

Ken White: It's the very early stage and the evidence is still being collected and its significance is still being assessed. So a little bit of evidence gets discussed at detention, but usually very little and not with a lot of specificity. Remember that to indict, you only have to hit the very low probable cause bar and so you don't need to bring in a huge amount of evidence and you generally don't, because you don't want to, you know, spoil it and let it all out ahead of time. It's really not until close to trial when you get a picture of, you know, what all the exhibits are going to be, what witnesses are going to be called, and what all the evidence really is.

Josh Barro: There is an obscure government board called the Administrative Conference of the United States, and it advises executive branch agencies about how to make rules. This is not a powerful agency. In fact, it doesn't have any power of its own and only gets to give out non-binding advice to other agencies and the president gets to name people to sit on this board. So when Joe Biden came into office, he fired a number of Trump's appointees who had been on the board but some of them are refusing to leave. Roger Severino, who is a conservative activist, says he has a fixed term of a number of years on this board, and that Biden isn't allowed to just decide to fire him from it. Mark Joseph Stern wrote about this at Slate and what's interesting about this is it seems to be trying to set up a test case. Normally, it's Republicans who make the argument that the president can fire any executive branch political appointee at any time for any reason — that's what the unitary executive means: it means that all the power is ultimately vested in the president within the executive branch. And so when Severino refuses to quit, that would seem to push Biden to argue the usual Republican position, which is, you know, 'I'm the president, I get to make these decisions.' But I guess the contradiction here isn't quite what it would seem to be.

Ken White: It's not entirely because of the nature of the boards. So generally you have this long standing hostility over the issue of the president being restricted from firing people, and it's run through statutes about special counsel and about a dozen different agencies where Congress has tried to create positions that are nominally executive, but they put limits on the president firing, and the courts have generally come down in favor of the idea that the president gets to fire somebody or the agency shouldn't exist. Here, you've got something that's purely advisory and doesn't wield executive power. So there's some ambiguity about whether or not these people can, by the creation of this entity by Congress, be insulated from presidential firing. On the other hand, you also have the long term tradition of hostility towards that — towards the appetite for the so-called unitary executive, the supreme executive power and how the president should be able to wipe out all these people. So that the script does get flipped a little bit, but it's not in this body because it doesn't wield more than advisory power. It's not quite in the same box as other ones that wield genuine power, where it seems clear the president has to have the power to fire.

Josh Barro: Well, the other thing Stern raises is there's nothing in the statute creating this body that says the president can't fire its members, which you do see in the statutes for certain others, the Federal Reserve, the're only supposed to be able to fire members of the Federal Reserve board for cause. The president can't just walk in and say, 'I don't like the policies these people are making, I want to appoint my own people to the Fed.' And so that's not in the law here. So it seems like this wouldn't raise that specific issue. But I guess that it feels like this is part of a broader trend, and we saw this also with efforts to embed certain political appointees at agencies, giving them civil service jobs, where their career government employees are not supposed to be political, and you can't just replace them when you come in. And there have been some high profile disputes over that. But it looks to me like an effort where a lot of people associated with the Trump administration said, you know, 'we came in and we face the Deep State,' which is a buzzword, but it's also describing a real phenomenon, which is that the federal bureaucracy was broadly hostile to a lot of goals of the Trump administration, in some cases, because what the Trump administration was trying to do was illegal and and other cases, because of ideological differences between the makeup of the federal bureaucracy and the political goals of the Trump administration. But it just seems to me that you know, that we're talking about, you know, tens or hundreds or thousands of federal bureaucrats there, versus a handful — a literal handful — of people that you're trying to embed in career positions here. It just doesn't seem like that's going to be an effective strategy to give Joe Biden the same sort of headaches there that President Trump faced over four years.

Ken White: No, and these ones in particular, if it's a dissenting voice in a purely advisory board, that's not going to be much of a thorn in the side. 

Josh Barro: Finally, I want to talk about this lawsuit over the Biden administration's attempted 100-day moratorium on deportations. A federal judge had imposed a temporary restraining order to block that moratorium. He's now issued a more permanent order or more indefinite order anyway, saying the Biden administration cannot implement that policy. And so where does this leave Biden? We saw this a lot in the Trump administration, where you would have one federal district judge who would make a ruling that was adverse to the administration, then issue an order that applied not just within his or her own judicial district but across the entire country. This has now happened to Joe Biden, and I assume, if he wants to get this overturned, he has to go through appellate courts, maybe to the Supreme Court and get a favorable ruling that might not be availing there.

Ken White: Sure. So what happened here is originally there was a temporary restraining order, which is a very short term block until the matter can be argued out more. After those further arguments, the judge issued what's called a preliminary injunction, which is, you know, an order that's going to go for the rest of the case until it's resolved. And this is the time when often there would be an appeal, because the judge has basically said, 'well, this is the way it's going to be for the rest of the case, you know, unless it changes after trial.' So that's the long term. The judge's basic decision was something that echoed a lot of the cases in the Trump administration, saying that, really, that Biden hadn't shown his work — that this is something where the rationales had to be explored more and the pros and cons and so it wasn't just arbitrary and capricious, you had to consider all the countervailing factors as well and there was no showing that they had done so. It was too much of a just a fait accompli presented. So the question will be whether or not they go back to the drawing board and go after it in a way of trying to redo the order administratively, which could take a long time, because the Administrative Procedures Act often requires things to take a long time, or whether they try to overturn this in a fairly hostile appellate court there and maybe all the way to the Supreme Court.

Josh Barro: And so the challenge with that, and we saw the Trump administration had to do this a number of times where they didn't follow the Administrative Procedures Act, so they had to withdraw an order that they issued, go back, do it again in a way that complied with the act or at least plausibly enough complied with the act to convince the courts. And that can take a fair amount of time. If this is really intended to be a temporary policy, the putative idea with 100-day deportation ban is that they were going to figure out what their new deportation procedures are going to be, they're going to figure out whether the people who've been ordered deported were people that they really wanted to deport under those procedures... by the time that they would be able to, to issue a new rule in a way that would be satisfactory to this judge, presumably, they would be already through that review and the the moratorium would no longer be useful if the moratorium really was intended for a temporary purpose. So it sort of seems like a delay here is effectively a loss for the Biden ministration, at least on this aspect of its strategy for implementing immigration policy.

Ken White: It is. I mean, it's definitely a loss if they want breathing room. But on the other hand, that just incentivizes them to make up their mind to decide what the policy is going to be and then to implement it and document it in a way that satisfies the Administrative Procedures Act. So you know, focus less on the breathing room they wanted and more on the substantive outcome they were hoping to get to. There's one kind of extra wrinkle that's going on here, Josh, and that is that everyone's interest in the mechanics here, this litigation, is not the same. So the Biden administration, as a Democratic administration and sort of centrist administration, is broadly interested in the operation of the administrative state and administrative agencies. By contrast, in general, the Republicans and the forces that are trying to stop this really want to see it all burned down. So they're hostile to the entire project of the administrative state and administrative power, and so much in America being done through the Administrative Procedures Act. So they, by litigating, can screw things up and make the system work less well than they've won by doing that and they've sort of achieved their goal of making governing through regulatory agencies less appealing and less effective.

Josh Barro: There is so much more to talk about, but I think that's a good place to leave it. Ken White, thank you so much for speaking with me.

Ken White: Thank you, Josh.

Josh Barro: If you have questions, please send them to us. You can find us on Twitter at @LRCKCRW. You can also leave us voicemail at 424-538-8888. All The Presidents' Lawyers is produced by Sara Fay. Todd M. Simon composed our theme music. Our technical director is JC Swiatek, and I'm really disappointed to announce that this is JC's final All The Presidents' Lawyers with us. Thank you so much, JC, for being with us from the very beginning, for making the show sounds so good, and for all of the bleeps and swear jar sounds. Ken was in rare form today. I think that's the way he shows his gratitude on your last episode. But I really, I really want to thank you so much for everything you've done to make this show such a success.

Ken White: Thank you, JC.

JC Swiatek: Thank you, Ken, and f*** you for making me do all these bleeps today. [laughter]

Josh Barro: I'm Josh Barro. Thank you for joining us and Ken and I will be back next week with more All The Presidents' Lawyers.



Sara Fay