Donald Verrilli, US Solicitor General, 2011-2016 HARDtalk

Now it's time for Hardtalk.

Welcome to HARDtalk, I'm Stephen Sackur.

The Trump Presidency promises to be a fascinating test of the

resilience of the system of government crafted by America's

founding fathers.

The new president has already slammed the courts for

overstepping their authority in blocking his so-called travel ban.

A new executive order on the matter is imminent.

My guest today is Donald Verrilli, US Solicitor General under

Barack Obama.

Does the constitution ensure that the White House is

always subject to, not above, the law?

Donald Verrilli, welcome to HARDtalk.

Thank you, Stephen, it's good to be here.

Let's start with a personal perspective.

Having served five years as Obama's Solicitor

General, how painful is it for you to watch

Donald Trump pledging to

undo so much of the legislative executive legacy left behind by

Barack Obama, and of course a legacy that you defended?

Well, had you asked me that question two months

ago I probably would have said extremely.

But as time has passed, I think the resilience of the

achievements of the Obama administration, I think, is starting

to show itself.

And so I am more optimistic now that it's going to be

a lot more difficult than it might have seemed at first blush for

President Trump and his administration to undo the progress

that was made under President Obama.

I'm thinking in particular of health care but other things as well.

Well, we'll go in detail through some of

the things you worked most closely on,

of course, Obamacare, the

affordable health care act, is one of them.

But just in general terms, this idea that the system is very

resilient, that needn't necessarily mean Trump can't undo so much of

what was done by his predecessor.

That's certainly true.

He's certainly got opportunities to act

and he appears to be ready to seize those opportunities.

But there are only certain things that he can do

unilaterally as the executive without the co-operation of the

legislative branch.

And even with respect to those, the court system

is there as a check.

The institutions of civil society and

the press are there as a check.

So I think it's proving to be a lot more difficult than it might have

looked at first blush.

Well, let's take a specific example.

Off the bat.

And that would be the so-called travel ban.

The executive order which Trump signed very early on in

the presidency, which restricted travel or actually banned travel for

a temporary period from seven mainly Muslim countries.

And actually indefinitely banned the incoming

Syrian refugees.

Now, the courts have blocked that.

They have thwarted it at least on a temporary

basis, Donald Trump and his team are looking at reintroducing a new

executive order.

He isn't letting go.

He is going to get this through, it seems.

Well, we'll see.

I mean, I think, if you look at what happened

out of the gate here, in the first month, with respect

to the executive order, it was a combination of two

circumstances, I think, that were incredibly infelicitous

from the point of view of the executive

branch.

On the one hand you have an executive order that I think is

widely perceived as not being on the level, in the sense

that its purported justification was

protection of national security.

And yet there was no real consultation with the national

security experts at the Department of Homeland Security.

No consultation of any kind with the Pentagon,

with the result that one of the very first people who was picked up under

the travel ban was somebody, an interpreter who had worked

in Iraq with the United States Army and had been promised a visa.

Well, you might not like the way in which the consultation process

worked, but the bottom line is, national security

is the President's prerogative.

And if he frames this in terms of national security,

what right to the courts have to second-guess?

What I think that's what I'm trying to get out here.

That was, to me, a terrible combination of order that I think

was widely perceived as not being on the level in the sense

of not being the product of a considered judgment

about what was in the national security's interests,

combined with an argument to the judiciary that they had no

role whatsoever to play in reviewing the President's authority.

And I think, had you had a well-considered order that had gone

through the normal processes of the executive branch

of the United States government, with careful consideration

of national security issues and diplomatic issues and others,

and then had gone to the court, it might have gotten

a different reception.

But when you put those two things together,

it's no surprise at all that the courts reacted the way

they have done.

And in fact you'll notice that the administration did not even

tried to take this order up to the Supreme Court.

And I think that tells you a lot.

But one thing I am really intrigued by, and I'd like your perspective

as a recently former Solicitor General, is the response

that Donald Trump, as chief executive, as president,

gave on Twitter about the process, and in particular about the courts

and the judges involved.

For example, one tweet, early on in this farrago,

"The opinion of this so-called judge, which essentially takes law

enforcement away from our country, is ridiculous.

It will be overturned."

"I just cannot believe a judge would put our country in such peril.

"If something happens, blame him and the court system."

What do you make of those public pronouncements from the President?

I think it's an unprecedented assault in American history

on the independence and integrity of the judicial branch

of the government.

The judicial branch is there under our constitutional system

to act as a check on executive power in appropriate circumstances.

The President of the United States is not above the law,

and to treat the judiciary in that manner, ad hominem attacks,

undermining the integrity of the system, it threatens grave

damage to our constitutional system.

If your boss had tweeted those sorts of messages about the judiciary,

what would you have said and done?

It would have been, it's unimaginable to me that

President Obama would have engaged in that kind of ad hominem

attack on judges.

Had he done so, I would have counselled him in the strongest

terms that he needed to take further steps to retract or apologise.

And if he didn't do so I would have been in a very difficult position.

Yeah, it seems to me there's an interesting discussion to be had

and I actually want to have it with you about what the point

of this Solicitor General is.

It seems to me, this is my characterisation,

correct me if I'm wrong, but you are one of the top in-house

lawyers working directly for the White House

and for the president, representing the federal government.

I mean, it is your job to make the federal government's case

in the Supreme Court.

So you're not exactly an independent voice, are you?

It's, you know, it's complicated, Stephen.

You have to hold two ideas in your mind that in some tension

tension with each other.

The Solicitor General, in particular, and the Department

of Justice, the executive branch in general, they've got two

functions to play.

One is to carry out the legal policy of the administration.

When a president gets elected, he's allowed to make judgments

about such things as over incarceration, issues like that.

You fight his corner, you're his guy!

Well, it's more complicated than that.

That's what I'm getting to.

But there's another function too, which is to ensure that the laws

of the United States are enforced in a manner that is faithful

to the rule of law, that is not and is not seen as being infected

by partisanship or by inappropriate personal considerations

of the president.

And the Solicitor General in our system plays a very important

role in ensuring that that respect for the rule of law is maintained.

And that means, sometimes, it's happened with every

Solicitor General, it certainly happened with me,

there were times when the White House wanted us to take a certain

position on an issue, and we came to the conclusion

that we could not, consistent with our commitment to the rule

of law, do so, and we told the White House that we couldn't

and they respected it.

Fascinating.

So on what issues?

Because with so much talk now about the way in which Trump

is challenging the judiciary, but when it came to these debates

are

in the Obama White House, when did you say, "Mr President,

you're overstepping the mark."

I'll give you one.

And it wasn't so much Mr President, you're overstepping the mark,

but the White House, I think, trying to take something

in the direction they thought the president wanted to go.

It was this.

We had a case, my last term as Solicitor General,

that involved the status of Puerto Rico.

The Commonwealth of Puerto Rico.

Whether it ought to be, as a juridical matter,

considered to be virtually the equivalent of a state

and have the same sovereignty as a state, or whether it should be

considered a territory subject to plenary regulation by Congress.

There was enormous pressure for us to take a position that it ought

to be a state recognised as equivalent to a state.

The Commonwealth Party in Puerto Rico was pressuring

the White House very strongly with that.

The president for that, the president, I think,

was inclined to want to help the Commonwealth Party.

That view was communicated to me but I looked at the law,

and I thought that under our legal system, Congress has plenary

authority over territories, Puerto Rico is a territory.

The fact that Congress gave Puerto Rico great autonomy

in the past can't permanently disable Congress from acting

in future, so I said, I can't take that position.

So that's kind of thing does happen and has to happen.

On an issue like that way you and the White House

have a fundamental difference, you're saying, you would have been

prepared to walk away, to resign, if the White House had insisted

on a course of action which you felt was not in adherence

to the Constitution?

Yes.

I think every Solicitor General has to be prepared to do that.

So to get back to Trump, the talk around Washington,

DC is apparently that the top nominee pick, the likely pick

at the moment to take your job, because at the moment it's filled

by an acting individual, but the pick may well be a New York

senior lawyer called George Conway who is the spouse,

the husband, of Kellyanne Conway, who is one of Mr Trump's senior

advisers.

Given what you've just talked about, the duality of this role

of the Solicitor General and his need her need to always have

in mind the constitution and the balance of powers,

would that be appropriate, in your view?

George Conway is to my knowledge a very able lawyer and I don't

want to make any judgments about his integrity as a person.

I think there are also some other serious contenders for the position.

But whether it's George Conway or whether it's one of the other

contenders for the position, that person is going to have

to have the stature and frankly the courage to be able to draw

the line in appropriate circumstances.

And I think in the consideration of who should be nominated for that

position and the Senate's consideration of who should be

confirmed for it because that is a position that requires the Senate

to confirm, that the need for that person to act with integrity and act

with independence, it has to be paramount.

And that would be true if it's George Conway

or if it's anybody else.

And I think it would be an appropriate question to ask.

Partly this debate we are having is about the powers

of the presidency in relation to the other branches

of the government system in the United States.

And we've already referred to this ability the president has

to issue executive orders.

And you've suggested to me that you think his opening salvo

on the so-called travel ban was unacceptable.

I've looked at the record.

President Obama issued 18 executive orders in his first ten days

in the White House, which is pretty much comparable to the 20 that came

from Donald Trump.

So Obama used the powers of the presidency it seems in pretty

much the same way that Donald Trump is.

I would take issue with that last phrase there, "in pretty much

the same way".

To begin with, you didn't see anything like what happened

with the travel ban executive order in that first period under President

Obama.

None of those executive orders, which were carefully considered

for many months in advance...

Fair point, of course, that's specific.

But you could take other executive orders issued by President Obama

which you ended up having to fight in the Supreme Court,

to defend in the Supreme Court, I'm thinking of one crucial case

which you lost, which was all about immigration

and the status of immigrants.

Sure.

And Obama used an executive order to try to offer respite

from the threat of deportation to roughly 4 million immigrants

who are long-term, some of whom had arrived as children.

Now it's quite complicated but in essence, you afford that case

in the Supreme Court against the state of Texas and,

I believe, 26 states, in all who said that Obama's

executive order undermined the right of Congress to lay down the law

on these matters of immigration.

And the Supreme Court was tied, but ultimately...

It was a tied vote!

I knew that!

But ultimately that tie meant that the court system upheld

the view, the judgment that originally came out of Texas.

You lost.

But let's focus first on process.

I think this is a vital, vital point.

Compare the process for President Trump 's executive

order with the process that preceded the issuance of the...

it wasn't actually an executive order by President Obama,

it was guidance from the Secretary of Homeland security.

The significance was pretty much the same.

But that order was the result of years of study.

It was the subject of a thorough and detailed analysis

by the Department of Justice Office Of Legal Counsel,

which is the office in the department that weighs

in on the legality of executive branch actions that produced

a 30-page memo analysing legality and confirming that,

in their view, the president had this authority.

It was a closely contested matter, and I think we all understood that.

And we acted, and the president acted and I defended the President's

actions, against the backdrop of the inability of a legislator

branch to deal with a problem that everybody understands to be a real,

and substantial problem.

Those 4 million people weren't just 4 million people who had been

in the United States for a long period of time,

they were the parents of American citizen children.

Every one of those 4 million, in order to qualify...

With respect, that is not really the point.

The point is, who has the power to decide their fate?

The president was adamant that he did,

but the Congress was adamant that ultimately this was a congressional

matter.

I'm just going to quote to you the Republican Charles Grassley,

senior member of the Senate, Judiciary Committee Chairman.

He said, look, I agree that the immigration system needs

revamping but circumventing Congress and

attempting to rewrite immigration law simply because you couldn't get

your way is unlawful and contrary to our fundamental

checks and balances.

Right.

And this is not Trump we're talking about, this is Obama.

This is your boss and on your watch.

The Republicans said that about a lot of

things that the Obama administration did, including the healthcare law.

Which the Supreme Court upheld.

Now, of course, this went to the Supreme

Court as a result of the

tie vote.

It was invalidated but look what President Obama did in the wake

of that.

There was no comment about "so-called judges".

There was no comment about blaming the judiciary

for the negative fallout that would happen as a matter of social policy,

none of that.

It was a fundamental difference, I would submit, in

respect for the checks and balances of our system.

Presidents do exercise their authority and they

sometimes exercise and aggressively and that's part of the nature of our

system.

But part of the nature of our system is also respecting the

checks when the other branches of government

exercise their authority.

Let's talk about a few cases which to me signify the deep partisan

politicisation of the law in the United States today.

Let's start with the one you just mentioned,

Obamacare.

You fought that, a very famous case, to the Supreme Court in

2012, you'd defended Obamacare.

It's kind of complicated, the specific

case, but in essence the whole policy was on trial.

Twice, actually.

2012 and 2015.

That's right.

The policy was on trial and you won in the

Supreme Court.

But that didn't get away from the fact that what you saw

in the legal arguments was, as I say, this

partisan politicisation of the law.

And we can talk about other cases as well.

Isn't that what is happening in the United States

today?

Well, I think in fairness, the Supreme Court, and Chief Justice

Roberts, and the other members of Court are struggling hard to push

back against that.

And I think as Solicitor General I was very

cognisant of that trend, and very worried about it and tried in my own

way to push back as well, and with respect to health care in

particular, I tried to frame those arguments very carefully in terms

that were not about partisan politics and politicisation but were

instead about the appropriate role of the democratically accountable

branches of government, the executive branch

and the Congress, and the courts.

And that when you have a considered judgment of

the democratically accountable branches

of government that this is the

appropriate social policy, done after very thorough investigation

and very thorough consideration, representing the will of the people,

expressed through the legislative process, that the courts ought to be

very deferential in those circumstances.

So that was an effort to actually drain

the partisanship out of the

argument and talk about structural factors under our Constitution.

But that is just the way it looks to the American people, isn't it?

Well, it's a shame because, at the end of the day,

although I can't get inside the mind of the Chief Justice, I do think his

vote to uphold the law was very likely based on his sense that that

was correct.

Sure, but he had the casting vote, and in that one he

went on your side.

But the bottom line is this Supreme Court and even

more right now that it's an eight-person

court, because the ninth nominee hasn't yet been confirmed.

But the point is, the Supreme Court does appear to be split.

And because of the system, where the president

gets to nominate a replacement when one of the Justices no longer

serves, it is constantly the subject of political gamesmanship, isn't it?

It's very unfortunate, you've accurately summarised

the public perception, I completely agree with

you that that's the perception.

I think it's a terrible shame.

I think it's actually be lied to a significant

measure by the reality.

-- belied.

if you think about it, the Supreme

Court in front of which I argued was, by all

historical measures, one of

the most conservative Supreme Courts in American history, in terms

of its ideological orientation.

And yet the Obama administration, while we lost

a couple of big cases, one of which you focused

on, immigration...

And the other one I wanted to talk about

was voter registration, which was a huge case which again

was deeply partisan.

Because in essence, to outsiders, it looked

like the

Southern states were fighting for the right to impose rules on

elections which they seemed to have carefully calibrated to make it more

difficult for minorities to go to the polls and vote.

Let me get to that.

I'll just finish the other point.

In addition to healthcare and marriage equality there were a

whole series of issues on which the Obama

administration prevailed in

front of the Conservative Supreme Court.

Which I think tells you that it is actually in practice

more anchored in the rule of than in partisanship.

Despite the perception.

It is possible that you're just a wild optimist, and

there was a holdover of Justices from a previous period of

Democratic presidents and that that holdover won't last much longer!

We've got Neil Gorsuch coming in, and I suppose, looking forward

rather than quarterbacking all the decisions that

you were involved in, looking forward, one can see now,

there is a possibility of a long-term fight over, for example,

Roe v Wade, a woman's right to have an abortion

in the United

States, which could preoccupy the court and indeed America for the

next four or eight years.

Could happen.

I do think, assuming that Judge Gorsuch becomes Justice

Gorsuch, and goes on the court...

A very solid conservative, down the line conservative judge.

..Yes.

But I think that will restore the court roughly

to the equilibrium that existed when Justice

Scalia was on the court, in other words, the court I argued

in front of, that I was just describing.

I think the real question will, and I do think you're

quite right, issues about Roe against Wade reproductive freedom,

issues that might come before this court, but the court that I argued

in front of resolved those issues in a certain way, given that

composition.

I think the real key will be if one of the four so-called

liberal justices steps down, or passes away,

and that could lead to

a fundamental shift in the jurisprudence

and in the kinds of issues that come before the court

and the resolution of them.

But I think it's going to take that second

appointment for that to happen.

But we are talking about four years of

Donald Trump, possibly eight years of Donald Trump.

He has made it plain that he will only, to use

his words, appoint pro-life justices.

So the likelihood is that America is going to re-fight this

battle and perhaps other hot button, social-conservative battles.

It's quite possible.

It's quite possible.

But, you know, sometimes the court does surprise

you.

And I think the consideration of race in university admissions, a

formative action, there you have the Supreme Court

with Justice Kennedy joining the Liberals this past term

upholding the constitutionality of that, which is just one of these

better hot button partisan issues that divide the country.

And that was, I think, in large measure

because they decided that they wanted to let society

rest, leave this where it is, don't reopen this

old wound.

So you don't always know for sure.

Before we end, I do want you to reflect on the significance

of one other of your most famous moments, before the Supreme Court,

as the government advocate.

And that was your making of the case for the

legalisation across the nation of same-sex marriage.

30 years ago, that would have been unthinkable.

But it's reality today in the United States.

So what does that, do you think, tell us about change in

America?

I think what it shows is that a phrase like "Equal protection

of the laws" is something that, what constitutes

equal protection of the

law, equal protection before the law, is going to be

influenced by society's understandings of itself.

And with respect to gay and lesbian people in

particular of the place of gay and lesbian people in society.

I think that what the court's decision did

was nothing more than reflect the fundamental transformation in

American society that had occurred.

Do you think we are facing over the next four years a long-term

concerted and intense battle between the executive branch and the

judiciary?

I think we could well be -

I think we could well be.

And how dangerous could that be?

Quite dangerous.

Because, the way our system of government works, the idea

of checks and balances is absolutely integral to the system.

There are three ways in which the power of the

executive, which otherwise could be quite formidable, is checked.

One, to the legislator process, not so much going on there now.

Second, through the press.

You see with respect to the press and civil

society that there's already an organised

effort to undermine the

legitimacy of the press as a watchdog and a cheque, and the third

is the judiciary.

And you can see at least in this initial burst of

statements from President Trump that he is focused on the same way he is

with respect to the press, in undermining the legitimacy of the

judiciary as a check on executive power.

Now it's only been a month.

Maybe things will settle and we returned to a more normal

equilibrium in our system but based on this first month I think you

really have to be concerned.

Donald Verrilli, we have to end there, but

thank you for being on HARDtalk.

Thank you.

I enjoyed it.

Thank you very much indeed.