0:00:00 > 0:00:04Now it's time for Hardtalk.
0:00:09 > 0:00:12Welcome to HARDtalk, I'm Stephen Sackur.
0:00:12 > 0:00:15The Trump Presidency promises to be a fascinating test of the
0:00:15 > 0:00:18resilience of the system of government crafted by America's
0:00:18 > 0:00:21founding fathers.
0:00:22 > 0:00:24The new president has already slammed the courts for
0:00:24 > 0:00:30overstepping their authority in blocking his so-called travel ban.
0:00:30 > 0:00:32A new executive order on the matter is imminent.
0:00:32 > 0:00:35My guest today is Donald Verrilli, US Solicitor General under
0:00:35 > 0:00:36Barack Obama.
0:00:36 > 0:00:38Does the constitution ensure that the White House is
0:00:38 > 0:00:47always subject to, not above, the law?
0:01:12 > 0:01:14Donald Verrilli, welcome to HARDtalk.
0:01:14 > 0:01:16Thank you, Stephen, it's good to be here.
0:01:16 > 0:01:18Let's start with a personal perspective.
0:01:18 > 0:01:20Having served five years as Obama's Solicitor
0:01:20 > 0:01:23General, how painful is it for you to watch
0:01:23 > 0:01:24Donald Trump pledging to
0:01:24 > 0:01:27undo so much of the legislative executive legacy left behind by
0:01:27 > 0:01:38Barack Obama, and of course a legacy that you defended?
0:01:38 > 0:01:40Well, had you asked me that question two months
0:01:40 > 0:01:43ago I probably would have said extremely.
0:01:44 > 0:01:47But as time has passed, I think the resilience of the
0:01:47 > 0:01:51achievements of the Obama administration, I think, is starting
0:01:51 > 0:01:52to show itself.
0:01:52 > 0:01:55And so I am more optimistic now that it's going to be
0:01:56 > 0:01:59a lot more difficult than it might have seemed at first blush for
0:01:59 > 0:02:02President Trump and his administration to undo the progress
0:02:02 > 0:02:03that was made under President Obama.
0:02:03 > 0:02:09I'm thinking in particular of health care but other things as well.
0:02:09 > 0:02:11Well, we'll go in detail through some of
0:02:11 > 0:02:13the things you worked most closely on,
0:02:13 > 0:02:14of course, Obamacare, the
0:02:14 > 0:02:16affordable health care act, is one of them.
0:02:16 > 0:02:19But just in general terms, this idea that the system is very
0:02:20 > 0:02:23resilient, that needn't necessarily mean Trump can't undo so much of
0:02:23 > 0:02:27what was done by his predecessor.
0:02:27 > 0:02:27That's certainly true.
0:02:27 > 0:02:33He's certainly got opportunities to act
0:02:33 > 0:02:36and he appears to be ready to seize those opportunities.
0:02:36 > 0:02:40But there are only certain things that he can do
0:02:40 > 0:02:42unilaterally as the executive without the co-operation of the
0:02:42 > 0:02:44legislative branch.
0:02:44 > 0:02:47And even with respect to those, the court system
0:02:47 > 0:02:49is there as a check.
0:02:49 > 0:02:52The institutions of civil society and
0:02:52 > 0:02:54the press are there as a check.
0:02:54 > 0:02:58So I think it's proving to be a lot more difficult than it might have
0:02:58 > 0:02:59looked at first blush.
0:02:59 > 0:03:01Well, let's take a specific example.
0:03:01 > 0:03:02Off the bat.
0:03:02 > 0:03:04And that would be the so-called travel ban.
0:03:04 > 0:03:07The executive order which Trump signed very early on in
0:03:07 > 0:03:10the presidency, which restricted travel or actually banned travel for
0:03:10 > 0:03:12a temporary period from seven mainly Muslim countries.
0:03:12 > 0:03:13And actually indefinitely banned the incoming
0:03:13 > 0:03:14Syrian refugees.
0:03:14 > 0:03:15Now, the courts have blocked that.
0:03:15 > 0:03:18They have thwarted it at least on a temporary
0:03:18 > 0:03:21basis, Donald Trump and his team are looking at reintroducing a new
0:03:21 > 0:03:22executive order.
0:03:22 > 0:03:23He isn't letting go.
0:03:23 > 0:03:33He is going to get this through, it seems.
0:03:33 > 0:03:35Well, we'll see.
0:03:35 > 0:03:38I mean, I think, if you look at what happened
0:03:38 > 0:03:41out of the gate here, in the first month, with respect
0:03:41 > 0:03:43to the executive order, it was a combination of two
0:03:43 > 0:03:45circumstances, I think, that were incredibly infelicitous
0:03:45 > 0:03:48from the point of view of the executive
0:03:48 > 0:03:52branch.
0:03:52 > 0:03:55On the one hand you have an executive order that I think is
0:03:55 > 0:03:58widely perceived as not being on the level, in the sense
0:03:58 > 0:03:59that its purported justification was
0:04:00 > 0:04:17protection of national security.
0:04:17 > 0:04:19And yet there was no real consultation with the national
0:04:19 > 0:04:21security experts at the Department of Homeland Security.
0:04:21 > 0:04:24No consultation of any kind with the Pentagon,
0:04:24 > 0:04:28with the result that one of the very first people who was picked up under
0:04:28 > 0:04:30the travel ban was somebody, an interpreter who had worked
0:04:31 > 0:04:34in Iraq with the United States Army and had been promised a visa.
0:04:34 > 0:04:37Well, you might not like the way in which the consultation process
0:04:37 > 0:04:39worked, but the bottom line is, national security
0:04:40 > 0:04:41is the President's prerogative.
0:04:41 > 0:04:43And if he frames this in terms of national security,
0:04:43 > 0:04:45what right to the courts have to second-guess?
0:04:45 > 0:04:49What I think that's what I'm trying to get out here.
0:04:49 > 0:04:52That was, to me, a terrible combination of order that I think
0:04:52 > 0:04:55was widely perceived as not being on the level in the sense
0:04:55 > 0:04:57of not being the product of a considered judgment
0:04:58 > 0:05:00about what was in the national security's interests,
0:05:00 > 0:05:03combined with an argument to the judiciary that they had no
0:05:03 > 0:05:05role whatsoever to play in reviewing the President's authority.
0:05:05 > 0:05:08And I think, had you had a well-considered order that had gone
0:05:08 > 0:05:11through the normal processes of the executive branch
0:05:11 > 0:05:13of the United States government, with careful consideration
0:05:13 > 0:05:15of national security issues and diplomatic issues and others,
0:05:15 > 0:05:18and then had gone to the court, it might have gotten
0:05:18 > 0:05:19a different reception.
0:05:19 > 0:05:21But when you put those two things together,
0:05:21 > 0:05:24it's no surprise at all that the courts reacted the way
0:05:24 > 0:05:25they have done.
0:05:25 > 0:05:28And in fact you'll notice that the administration did not even
0:05:28 > 0:05:31tried to take this order up to the Supreme Court.
0:05:31 > 0:05:33And I think that tells you a lot.
0:05:33 > 0:05:36But one thing I am really intrigued by, and I'd like your perspective
0:05:36 > 0:05:39as a recently former Solicitor General, is the response
0:05:39 > 0:05:41that Donald Trump, as chief executive, as president,
0:05:41 > 0:05:44gave on Twitter about the process, and in particular about the courts
0:05:44 > 0:05:45and the judges involved.
0:05:45 > 0:05:48For example, one tweet, early on in this farrago,
0:05:48 > 0:05:51"The opinion of this so-called judge, which essentially takes law
0:05:51 > 0:05:52enforcement away from our country, is ridiculous.
0:05:52 > 0:05:54It will be overturned."
0:05:54 > 0:05:57"I just cannot believe a judge would put our country in such peril.
0:05:57 > 0:05:59"If something happens, blame him and the court system."
0:05:59 > 0:06:02What do you make of those public pronouncements from the President?
0:06:02 > 0:06:05I think it's an unprecedented assault in American history
0:06:05 > 0:06:07on the independence and integrity of the judicial branch
0:06:07 > 0:06:08of the government.
0:06:08 > 0:06:11The judicial branch is there under our constitutional system
0:06:11 > 0:06:14to act as a check on executive power in appropriate circumstances.
0:06:14 > 0:06:17The President of the United States is not above the law,
0:06:17 > 0:06:20and to treat the judiciary in that manner, ad hominem attacks,
0:06:20 > 0:06:22undermining the integrity of the system, it threatens grave
0:06:22 > 0:06:27damage to our constitutional system.
0:06:27 > 0:06:30If your boss had tweeted those sorts of messages about the judiciary,
0:06:30 > 0:06:35what would you have said and done?
0:06:35 > 0:06:37It would have been, it's unimaginable to me that
0:06:37 > 0:06:42President Obama would have engaged in that kind of ad hominem
0:06:42 > 0:06:44attack on judges.
0:06:44 > 0:06:48Had he done so, I would have counselled him in the strongest
0:06:48 > 0:06:51terms that he needed to take further steps to retract or apologise.
0:06:51 > 0:06:55And if he didn't do so I would have been in a very difficult position.
0:06:55 > 0:06:59Yeah, it seems to me there's an interesting discussion to be had
0:06:59 > 0:07:02and I actually want to have it with you about what the point
0:07:02 > 0:07:04of this Solicitor General is.
0:07:04 > 0:07:06It seems to me, this is my characterisation,
0:07:06 > 0:07:10correct me if I'm wrong, but you are one of the top in-house
0:07:10 > 0:07:12lawyers working directly for the White House
0:07:12 > 0:07:14and for the president, representing the federal government.
0:07:14 > 0:07:17I mean, it is your job to make the federal government's case
0:07:17 > 0:07:20in the Supreme Court.
0:07:20 > 0:07:23So you're not exactly an independent voice, are you?
0:07:23 > 0:07:24It's, you know, it's complicated, Stephen.
0:07:24 > 0:07:30You have to hold two ideas in your mind that in some tension
0:07:30 > 0:07:32tension with each other.
0:07:32 > 0:07:34The Solicitor General, in particular, and the Department
0:07:34 > 0:07:37of Justice, the executive branch in general, they've got two
0:07:37 > 0:07:38functions to play.
0:07:38 > 0:07:41One is to carry out the legal policy of the administration.
0:07:41 > 0:07:43When a president gets elected, he's allowed to make judgments
0:07:43 > 0:07:46about such things as over incarceration, issues like that.
0:07:46 > 0:07:48You fight his corner, you're his guy!
0:07:48 > 0:07:50Well, it's more complicated than that.
0:07:50 > 0:07:52That's what I'm getting to.
0:07:52 > 0:07:55But there's another function too, which is to ensure that the laws
0:07:55 > 0:07:58of the United States are enforced in a manner that is faithful
0:07:58 > 0:08:02to the rule of law, that is not and is not seen as being infected
0:08:02 > 0:08:04by partisanship or by inappropriate personal considerations
0:08:04 > 0:08:09of the president.
0:08:09 > 0:08:12And the Solicitor General in our system plays a very important
0:08:12 > 0:08:16role in ensuring that that respect for the rule of law is maintained.
0:08:16 > 0:08:18And that means, sometimes, it's happened with every
0:08:18 > 0:08:22Solicitor General, it certainly happened with me,
0:08:22 > 0:08:26there were times when the White House wanted us to take a certain
0:08:26 > 0:08:28position on an issue, and we came to the conclusion
0:08:28 > 0:08:31that we could not, consistent with our commitment to the rule
0:08:31 > 0:08:35of law, do so, and we told the White House that we couldn't
0:08:35 > 0:08:36and they respected it.
0:08:36 > 0:08:37Fascinating.
0:08:37 > 0:08:38So on what issues?
0:08:38 > 0:08:41Because with so much talk now about the way in which Trump
0:08:41 > 0:08:44is challenging the judiciary, but when it came to these debates
0:08:44 > 0:08:44are
0:08:44 > 0:08:47in the Obama White House, when did you say, "Mr President,
0:08:47 > 0:08:48you're overstepping the mark."
0:08:49 > 0:08:50I'll give you one.
0:08:50 > 0:08:53And it wasn't so much Mr President, you're overstepping the mark,
0:08:53 > 0:08:55but the White House, I think, trying to take something
0:08:55 > 0:08:58in the direction they thought the president wanted to go.
0:08:58 > 0:08:59It was this.
0:08:59 > 0:09:02We had a case, my last term as Solicitor General,
0:09:02 > 0:09:03that involved the status of Puerto Rico.
0:09:03 > 0:09:07The Commonwealth of Puerto Rico.
0:09:07 > 0:09:09Whether it ought to be, as a juridical matter,
0:09:09 > 0:09:15considered to be virtually the equivalent of a state
0:09:15 > 0:09:18and have the same sovereignty as a state, or whether it should be
0:09:18 > 0:09:21considered a territory subject to plenary regulation by Congress.
0:09:21 > 0:09:24There was enormous pressure for us to take a position that it ought
0:09:24 > 0:09:27to be a state recognised as equivalent to a state.
0:09:27 > 0:09:29The Commonwealth Party in Puerto Rico was pressuring
0:09:29 > 0:09:31the White House very strongly with that.
0:09:31 > 0:09:33The president for that, the president, I think,
0:09:33 > 0:09:36was inclined to want to help the Commonwealth Party.
0:09:36 > 0:09:39That view was communicated to me but I looked at the law,
0:09:39 > 0:09:42and I thought that under our legal system, Congress has plenary
0:09:42 > 0:09:44authority over territories, Puerto Rico is a territory.
0:09:44 > 0:09:47The fact that Congress gave Puerto Rico great autonomy
0:09:47 > 0:09:51in the past can't permanently disable Congress from acting
0:09:51 > 0:09:53in future, so I said, I can't take that position.
0:09:53 > 0:09:56So that's kind of thing does happen and has to happen.
0:09:56 > 0:10:00On an issue like that way you and the White House
0:10:00 > 0:10:03have a fundamental difference, you're saying, you would have been
0:10:03 > 0:10:06prepared to walk away, to resign, if the White House had insisted
0:10:07 > 0:10:10on a course of action which you felt was not in adherence
0:10:10 > 0:10:11to the Constitution?
0:10:11 > 0:10:12Yes.
0:10:12 > 0:10:16I think every Solicitor General has to be prepared to do that.
0:10:16 > 0:10:19So to get back to Trump, the talk around Washington,
0:10:19 > 0:10:21DC is apparently that the top nominee pick, the likely pick
0:10:21 > 0:10:25at the moment to take your job, because at the moment it's filled
0:10:25 > 0:10:28by an acting individual, but the pick may well be a New York
0:10:29 > 0:10:31senior lawyer called George Conway who is the spouse,
0:10:31 > 0:10:34the husband, of Kellyanne Conway, who is one of Mr Trump's senior
0:10:34 > 0:10:39advisers.
0:10:39 > 0:10:44Given what you've just talked about, the duality of this role
0:10:44 > 0:10:47of the Solicitor General and his need her need to always have
0:10:47 > 0:10:50in mind the constitution and the balance of powers,
0:10:50 > 0:10:53would that be appropriate, in your view?
0:10:53 > 0:10:56George Conway is to my knowledge a very able lawyer and I don't
0:10:56 > 0:11:00want to make any judgments about his integrity as a person.
0:11:00 > 0:11:05I think there are also some other serious contenders for the position.
0:11:05 > 0:11:08But whether it's George Conway or whether it's one of the other
0:11:08 > 0:11:11contenders for the position, that person is going to have
0:11:11 > 0:11:14to have the stature and frankly the courage to be able to draw
0:11:14 > 0:11:16the line in appropriate circumstances.
0:11:16 > 0:11:20And I think in the consideration of who should be nominated for that
0:11:20 > 0:11:22position and the Senate's consideration of who should be
0:11:22 > 0:11:25confirmed for it because that is a position that requires the Senate
0:11:25 > 0:11:29to confirm, that the need for that person to act with integrity and act
0:11:29 > 0:11:31with independence, it has to be paramount.
0:11:31 > 0:11:33And that would be true if it's George Conway
0:11:34 > 0:11:36or if it's anybody else.
0:11:37 > 0:11:40And I think it would be an appropriate question to ask.
0:11:40 > 0:11:43Partly this debate we are having is about the powers
0:11:43 > 0:11:45of the presidency in relation to the other branches
0:11:45 > 0:11:48of the government system in the United States.
0:11:48 > 0:11:50And we've already referred to this ability the president has
0:11:50 > 0:11:52to issue executive orders.
0:11:52 > 0:11:55And you've suggested to me that you think his opening salvo
0:11:55 > 0:12:00on the so-called travel ban was unacceptable.
0:12:00 > 0:12:02I've looked at the record.
0:12:02 > 0:12:06President Obama issued 18 executive orders in his first ten days
0:12:06 > 0:12:10in the White House, which is pretty much comparable to the 20 that came
0:12:10 > 0:12:12from Donald Trump.
0:12:12 > 0:12:16So Obama used the powers of the presidency it seems in pretty
0:12:16 > 0:12:19much the same way that Donald Trump is.
0:12:19 > 0:12:23I would take issue with that last phrase there, "in pretty much
0:12:23 > 0:12:23the same way".
0:12:23 > 0:12:26To begin with, you didn't see anything like what happened
0:12:26 > 0:12:29with the travel ban executive order in that first period under President
0:12:29 > 0:12:31Obama.
0:12:31 > 0:12:33None of those executive orders, which were carefully considered
0:12:33 > 0:12:35for many months in advance...
0:12:35 > 0:12:37Fair point, of course, that's specific.
0:12:37 > 0:12:40But you could take other executive orders issued by President Obama
0:12:40 > 0:12:44which you ended up having to fight in the Supreme Court,
0:12:44 > 0:12:47to defend in the Supreme Court, I'm thinking of one crucial case
0:12:47 > 0:12:50which you lost, which was all about immigration
0:12:50 > 0:12:53and the status of immigrants.
0:12:53 > 0:12:55Sure.
0:12:55 > 0:12:59And Obama used an executive order to try to offer respite
0:12:59 > 0:13:03from the threat of deportation to roughly 4 million immigrants
0:13:03 > 0:13:06who are long-term, some of whom had arrived as children.
0:13:06 > 0:13:09Now it's quite complicated but in essence, you afford that case
0:13:09 > 0:13:14in the Supreme Court against the state of Texas and,
0:13:14 > 0:13:16I believe, 26 states, in all who said that Obama's
0:13:16 > 0:13:20executive order undermined the right of Congress to lay down the law
0:13:20 > 0:13:21on these matters of immigration.
0:13:21 > 0:13:28And the Supreme Court was tied, but ultimately...
0:13:28 > 0:13:30It was a tied vote!
0:13:30 > 0:13:30I knew that!
0:13:30 > 0:13:33But ultimately that tie meant that the court system upheld
0:13:33 > 0:13:36the view, the judgment that originally came out of Texas.
0:13:36 > 0:13:36You lost.
0:13:36 > 0:13:38But let's focus first on process.
0:13:38 > 0:13:40I think this is a vital, vital point.
0:13:40 > 0:13:47Compare the process for President Trump 's executive
0:13:47 > 0:13:51order with the process that preceded the issuance of the...
0:13:51 > 0:13:53it wasn't actually an executive order by President Obama,
0:13:53 > 0:13:56it was guidance from the Secretary of Homeland security.
0:13:56 > 0:13:58The significance was pretty much the same.
0:13:58 > 0:14:01But that order was the result of years of study.
0:14:01 > 0:14:05It was the subject of a thorough and detailed analysis
0:14:05 > 0:14:08by the Department of Justice Office Of Legal Counsel,
0:14:08 > 0:14:10which is the office in the department that weighs
0:14:10 > 0:14:13in on the legality of executive branch actions that produced
0:14:13 > 0:14:15a 30-page memo analysing legality and confirming that,
0:14:15 > 0:14:21in their view, the president had this authority.
0:14:21 > 0:14:29It was a closely contested matter, and I think we all understood that.
0:14:29 > 0:14:32And we acted, and the president acted and I defended the President's
0:14:32 > 0:14:35actions, against the backdrop of the inability of a legislator
0:14:35 > 0:14:39branch to deal with a problem that everybody understands to be a real,
0:14:39 > 0:14:41and substantial problem.
0:14:41 > 0:14:44Those 4 million people weren't just 4 million people who had been
0:14:44 > 0:14:47in the United States for a long period of time,
0:14:47 > 0:14:49they were the parents of American citizen children.
0:14:49 > 0:14:54Every one of those 4 million, in order to qualify...
0:14:54 > 0:14:56With respect, that is not really the point.
0:14:56 > 0:14:59The point is, who has the power to decide their fate?
0:14:59 > 0:15:01The president was adamant that he did,
0:15:01 > 0:15:04but the Congress was adamant that ultimately this was a congressional
0:15:04 > 0:15:04matter.
0:15:05 > 0:15:09I'm just going to quote to you the Republican Charles Grassley,
0:15:09 > 0:15:12senior member of the Senate, Judiciary Committee Chairman.
0:15:12 > 0:15:15He said, look, I agree that the immigration system needs
0:15:15 > 0:15:16revamping but circumventing Congress and
0:15:16 > 0:15:19attempting to rewrite immigration law simply because you couldn't get
0:15:19 > 0:15:21your way is unlawful and contrary to our fundamental
0:15:21 > 0:15:22checks and balances.
0:15:22 > 0:15:27Right.
0:15:27 > 0:15:30And this is not Trump we're talking about, this is Obama.
0:15:30 > 0:15:33This is your boss and on your watch.
0:15:33 > 0:15:35The Republicans said that about a lot of
0:15:35 > 0:15:37things that the Obama administration did, including the healthcare law.
0:15:37 > 0:15:39Which the Supreme Court upheld.
0:15:39 > 0:15:41Now, of course, this went to the Supreme
0:15:41 > 0:15:41Court as a result of the
0:15:47 > 0:15:48tie vote.
0:15:48 > 0:15:51It was invalidated but look what President Obama did in the wake
0:15:51 > 0:15:52of that.
0:15:52 > 0:15:54There was no comment about "so-called judges".
0:15:54 > 0:15:56There was no comment about blaming the judiciary
0:15:56 > 0:15:59for the negative fallout that would happen as a matter of social policy,
0:15:59 > 0:16:00none of that.
0:16:00 > 0:16:03It was a fundamental difference, I would submit, in
0:16:03 > 0:16:05respect for the checks and balances of our system.
0:16:05 > 0:16:07Presidents do exercise their authority and they
0:16:07 > 0:16:10sometimes exercise and aggressively and that's part of the nature of our
0:16:10 > 0:16:11system.
0:16:11 > 0:16:14But part of the nature of our system is also respecting the
0:16:14 > 0:16:16checks when the other branches of government
0:16:16 > 0:16:17exercise their authority.
0:16:17 > 0:16:20Let's talk about a few cases which to me signify the deep partisan
0:16:20 > 0:16:23politicisation of the law in the United States today.
0:16:23 > 0:16:25Let's start with the one you just mentioned,
0:16:25 > 0:16:25Obamacare.
0:16:25 > 0:16:28You fought that, a very famous case, to the Supreme Court in
0:16:28 > 0:16:292012, you'd defended Obamacare.
0:16:29 > 0:16:31It's kind of complicated, the specific
0:16:31 > 0:16:34case, but in essence the whole policy was on trial.
0:16:34 > 0:16:34Twice, actually.
0:16:34 > 0:16:362012 and 2015.
0:16:36 > 0:16:37That's right.
0:16:37 > 0:16:40The policy was on trial and you won in the
0:16:40 > 0:16:40Supreme Court.
0:16:40 > 0:16:43But that didn't get away from the fact that what you saw
0:16:44 > 0:16:46in the legal arguments was, as I say, this
0:16:46 > 0:16:48partisan politicisation of the law.
0:16:48 > 0:16:51And we can talk about other cases as well.
0:16:51 > 0:16:53Isn't that what is happening in the United States
0:16:53 > 0:17:01today?
0:17:01 > 0:17:04Well, I think in fairness, the Supreme Court, and Chief Justice
0:17:04 > 0:17:08Roberts, and the other members of Court are struggling hard to push
0:17:08 > 0:17:08back against that.
0:17:08 > 0:17:11And I think as Solicitor General I was very
0:17:11 > 0:17:15cognisant of that trend, and very worried about it and tried in my own
0:17:15 > 0:17:18way to push back as well, and with respect to health care in
0:17:18 > 0:17:21particular, I tried to frame those arguments very carefully in terms
0:17:21 > 0:17:24that were not about partisan politics and politicisation but were
0:17:24 > 0:17:26instead about the appropriate role of the democratically accountable
0:17:26 > 0:17:28branches of government, the executive branch
0:17:28 > 0:17:30and the Congress, and the courts.
0:17:30 > 0:17:32And that when you have a considered judgment of
0:17:32 > 0:17:33the democratically accountable branches
0:17:33 > 0:17:35of government that this is the
0:17:35 > 0:17:37appropriate social policy, done after very thorough investigation
0:17:37 > 0:17:40and very thorough consideration, representing the will of the people,
0:17:40 > 0:17:43expressed through the legislative process, that the courts ought to be
0:17:43 > 0:17:44very deferential in those circumstances.
0:17:44 > 0:17:46So that was an effort to actually drain
0:17:46 > 0:17:48the partisanship out of the
0:17:48 > 0:17:53argument and talk about structural factors under our Constitution.
0:17:53 > 0:18:04But that is just the way it looks to the American people, isn't it?
0:18:04 > 0:18:07Well, it's a shame because, at the end of the day,
0:18:07 > 0:18:11although I can't get inside the mind of the Chief Justice, I do think his
0:18:11 > 0:18:15vote to uphold the law was very likely based on his sense that that
0:18:15 > 0:18:15was correct.
0:18:15 > 0:18:19Sure, but he had the casting vote, and in that one he
0:18:19 > 0:18:20went on your side.
0:18:20 > 0:18:22But the bottom line is this Supreme Court and even
0:18:22 > 0:18:24more right now that it's an eight-person
0:18:24 > 0:18:27court, because the ninth nominee hasn't yet been confirmed.
0:18:27 > 0:18:30But the point is, the Supreme Court does appear to be split.
0:18:30 > 0:18:32And because of the system, where the president
0:18:32 > 0:18:36gets to nominate a replacement when one of the Justices no longer
0:18:36 > 0:18:39serves, it is constantly the subject of political gamesmanship, isn't it?
0:18:39 > 0:18:41It's very unfortunate, you've accurately summarised
0:18:41 > 0:18:43the public perception, I completely agree with
0:18:43 > 0:18:44you that that's the perception.
0:18:44 > 0:18:45I think it's a terrible shame.
0:18:45 > 0:18:51I think it's actually be lied to a significant
0:18:51 > 0:18:54measure by the reality.
0:18:54 > 0:18:55-- belied.
0:18:55 > 0:18:57if you think about it, the Supreme
0:18:57 > 0:18:59Court in front of which I argued was, by all
0:18:59 > 0:19:00historical measures, one of
0:19:00 > 0:19:03the most conservative Supreme Courts in American history, in terms
0:19:03 > 0:19:04of its ideological orientation.
0:19:04 > 0:19:07And yet the Obama administration, while we lost
0:19:07 > 0:19:09a couple of big cases, one of which you focused
0:19:09 > 0:19:10on, immigration...
0:19:10 > 0:19:12And the other one I wanted to talk about
0:19:12 > 0:19:15was voter registration, which was a huge case which again
0:19:15 > 0:19:16was deeply partisan.
0:19:16 > 0:19:18Because in essence, to outsiders, it looked
0:19:18 > 0:19:18like the
0:19:18 > 0:19:21Southern states were fighting for the right to impose rules on
0:19:21 > 0:19:24elections which they seemed to have carefully calibrated to make it more
0:19:24 > 0:19:27difficult for minorities to go to the polls and vote.
0:19:27 > 0:19:30Let me get to that.
0:19:30 > 0:19:31I'll just finish the other point.
0:19:31 > 0:19:34In addition to healthcare and marriage equality there were a
0:19:34 > 0:19:36whole series of issues on which the Obama
0:19:36 > 0:19:37administration prevailed in
0:19:37 > 0:19:39front of the Conservative Supreme Court.
0:19:39 > 0:19:42Which I think tells you that it is actually in practice
0:19:42 > 0:19:44more anchored in the rule of than in partisanship.
0:19:44 > 0:19:45Despite the perception.
0:19:45 > 0:19:48It is possible that you're just a wild optimist, and
0:19:48 > 0:19:51there was a holdover of Justices from a previous period of
0:19:51 > 0:19:53Democratic presidents and that that holdover won't last much longer!
0:19:53 > 0:19:57We've got Neil Gorsuch coming in, and I suppose, looking forward
0:19:57 > 0:19:58rather than quarterbacking all the decisions that
0:19:58 > 0:20:01you were involved in, looking forward, one can see now,
0:20:01 > 0:20:07there is a possibility of a long-term fight over, for example,
0:20:07 > 0:20:09Roe v Wade, a woman's right to have an abortion
0:20:09 > 0:20:10in the United
0:20:10 > 0:20:13States, which could preoccupy the court and indeed America for the
0:20:13 > 0:20:17next four or eight years.
0:20:17 > 0:20:20Could happen.
0:20:20 > 0:20:25I do think, assuming that Judge Gorsuch becomes Justice
0:20:25 > 0:20:27Gorsuch, and goes on the court...
0:20:27 > 0:20:32A very solid conservative, down the line conservative judge.
0:20:32 > 0:20:32..Yes.
0:20:32 > 0:20:35But I think that will restore the court roughly
0:20:35 > 0:20:38to the equilibrium that existed when Justice
0:20:38 > 0:20:41Scalia was on the court, in other words, the court I argued
0:20:41 > 0:20:43in front of, that I was just describing.
0:20:43 > 0:20:47I think the real question will, and I do think you're
0:20:47 > 0:20:49quite right, issues about Roe against Wade reproductive freedom,
0:20:49 > 0:20:52issues that might come before this court, but the court that I argued
0:20:52 > 0:20:56in front of resolved those issues in a certain way, given that
0:20:56 > 0:20:56composition.
0:20:56 > 0:20:59I think the real key will be if one of the four so-called
0:21:00 > 0:21:01liberal justices steps down, or passes away,
0:21:01 > 0:21:04and that could lead to
0:21:04 > 0:21:05a fundamental shift in the jurisprudence
0:21:05 > 0:21:09and in the kinds of issues that come before the court
0:21:09 > 0:21:10and the resolution of them.
0:21:10 > 0:21:12But I think it's going to take that second
0:21:12 > 0:21:14appointment for that to happen.
0:21:14 > 0:21:16But we are talking about four years of
0:21:16 > 0:21:20Donald Trump, possibly eight years of Donald Trump.
0:21:20 > 0:21:23He has made it plain that he will only, to use
0:21:23 > 0:21:26his words, appoint pro-life justices.
0:21:26 > 0:21:36So the likelihood is that America is going to re-fight this
0:21:36 > 0:21:38battle and perhaps other hot button, social-conservative battles.
0:21:38 > 0:21:39It's quite possible.
0:21:39 > 0:21:40It's quite possible.
0:21:40 > 0:21:42But, you know, sometimes the court does surprise
0:21:42 > 0:21:42you.
0:21:42 > 0:21:45And I think the consideration of race in university admissions, a
0:21:45 > 0:21:47formative action, there you have the Supreme Court
0:21:47 > 0:21:50with Justice Kennedy joining the Liberals this past term
0:21:50 > 0:21:53upholding the constitutionality of that, which is just one of these
0:21:53 > 0:21:55better hot button partisan issues that divide the country.
0:21:55 > 0:21:57And that was, I think, in large measure
0:21:57 > 0:22:02because they decided that they wanted to let society
0:22:02 > 0:22:04rest, leave this where it is, don't reopen this
0:22:05 > 0:22:05old wound.
0:22:05 > 0:22:07So you don't always know for sure.
0:22:07 > 0:22:10Before we end, I do want you to reflect on the significance
0:22:10 > 0:22:13of one other of your most famous moments, before the Supreme Court,
0:22:14 > 0:22:16as the government advocate.
0:22:16 > 0:22:19And that was your making of the case for the
0:22:19 > 0:22:22legalisation across the nation of same-sex marriage.
0:22:22 > 0:22:2630 years ago, that would have been unthinkable.
0:22:26 > 0:22:28But it's reality today in the United States.
0:22:28 > 0:22:32So what does that, do you think, tell us about change in
0:22:32 > 0:22:36America?
0:22:36 > 0:22:39I think what it shows is that a phrase like "Equal protection
0:22:39 > 0:22:41of the laws" is something that, what constitutes
0:22:42 > 0:22:43equal protection of the
0:22:43 > 0:22:45law, equal protection before the law, is going to be
0:22:45 > 0:22:48influenced by society's understandings of itself.
0:22:48 > 0:22:51And with respect to gay and lesbian people in
0:22:51 > 0:22:55particular of the place of gay and lesbian people in society.
0:22:55 > 0:22:59I think that what the court's decision did
0:22:59 > 0:23:05was nothing more than reflect the fundamental transformation in
0:23:05 > 0:23:06American society that had occurred.
0:23:06 > 0:23:10Do you think we are facing over the next four years a long-term
0:23:10 > 0:23:13concerted and intense battle between the executive branch and the
0:23:13 > 0:23:13judiciary?
0:23:13 > 0:23:15I think we could well be -
0:23:15 > 0:23:18I think we could well be.
0:23:18 > 0:23:20And how dangerous could that be?
0:23:20 > 0:23:20Quite dangerous.
0:23:21 > 0:23:23Because, the way our system of government works, the idea
0:23:23 > 0:23:26of checks and balances is absolutely integral to the system.
0:23:26 > 0:23:29There are three ways in which the power of the
0:23:29 > 0:23:31executive, which otherwise could be quite formidable, is checked.
0:23:31 > 0:23:34One, to the legislator process, not so much going on there now.
0:23:35 > 0:23:35Second, through the press.
0:23:35 > 0:23:38You see with respect to the press and civil
0:23:38 > 0:23:40society that there's already an organised
0:23:40 > 0:23:41effort to undermine the
0:23:41 > 0:23:44legitimacy of the press as a watchdog and a cheque, and the third
0:23:44 > 0:23:45is the judiciary.
0:23:45 > 0:23:48And you can see at least in this initial burst of
0:23:48 > 0:23:52statements from President Trump that he is focused on the same way he is
0:23:52 > 0:23:55with respect to the press, in undermining the legitimacy of the
0:23:55 > 0:23:57judiciary as a check on executive power.
0:23:57 > 0:23:58Now it's only been a month.
0:23:58 > 0:24:01Maybe things will settle and we returned to a more normal
0:24:01 > 0:24:05equilibrium in our system but based on this first month I think you
0:24:05 > 0:24:10really have to be concerned.
0:24:10 > 0:24:12Donald Verrilli, we have to end there, but
0:24:12 > 0:24:13thank you for being on HARDtalk.
0:24:13 > 0:24:14Thank you.
0:24:14 > 0:24:15I enjoyed it.
0:24:15 > 0:24:28Thank you very much indeed.