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Reimagining the Rule of Law

This panel will discuss what’s at stake and what can be done to shore up protections for the rule of law in the federal government.

Past: Tuesday, October 6, 2020 1:00 pm
This is a virtual event
  • Preet Bharara
  • ,
  • Janai Nelson
  • ,
  • Donald B. Verrilli Jr.
  • ,
  • Christine Todd Whitman
  • ,
  • Daniel I. Weiner
  • Wendy R. Weiser
Reimagining the Rule of Law

In recent months, critics have frequently invoked the concept of the rule of law to denounce protests and other public displays of outrage against systemic injustice. Yet rule of law has always meant much more than the preservation of public order. In fact, police brutality and self-appointed vigilantism against Black Americans are offenses against the rule of law — to say nothing of grossly disproportionate and militarized responses to largely peaceful protests. 

The complicity of the White House and U.S. Department of Justice in these responses underscores the danger of eroding federal safeguards against abuse of power. These deteriorating protections compromise the rule of law and, by extension, the civil rights and liberties of all Americans. This is but one example of the many abuses of power related to law enforcement that we have seen over the last three and half years.

Restoring bulwarks against such abuses will be one of the most urgent tasks for the next Congress and president. This panel will discuss what’s at stake and what can be done to shore up protections for the rule of law in the federal government.

Introduction by Wendy R. Weiser, Vice President, Democracy Program, Brennan Center for Justice

  • Preet Bharara, Co-Chair, National Task Force on Rule of Law and Democracy; Distinguished Scholar in Residence, NYU School of Law; Co-Host, Stay Tuned with Preet; former U.S. Attorney, Southern District of New York
  • Janai Nelson, Associate Director-Counsel, NAACP Legal Defense and Educational Fund, Inc. (LDF)
  • Donald B. Verrilli Jr., Member, National Task Force on Rule of Law and Democracy; Partner, Munger, Tolles & Olson; Former Solicitor General of the United States
  • Christine Todd Whitman, Co-Chair, National Task Force on Rule of Law and Democracy; President, Whitman Strategy Group; former Administrator, Environmental Protection Agency; former Governor, State of New Jersey
  • Moderator: Daniel I. Weiner, Deputy Director, Election Reform Program, Brennan Center for Justice


WENDY R. WEISER: Good afternoon and welcome. My name is Wendy Weiser, and I am vice president for democracy at the Brennan Center for Justice, a nonpartisan law and public policy instituted affiliated with NYU Law School. We work to reform, revitalize, and defend our systems of democracy and justice, holding them up to the twin ideals of democracy and equal protection under the law. We are a nonpartisan 501(c)(3). We do not participate in elections or endorse or oppose candidates in any way.


And we are very grateful to be producing today’s event with the NYU’s John Brademas Center, which advocates for civil debate on politics and public policy, and NYU Votes, which works to give every NYU eligible student the information they need to vote. And I am especially grateful to be introducing an event with some of the country’s most important thinkers on what I think is one of the most urgent issues we face — and there is a lot of competition.

We’ve been witnessing a relentless and unprecedented series of attack on the twin foundations of our democratic system — free and fair elections and the rule of law. They are not unrelated. The president has made repeated threats to subvert the election, some with support from the attorney general, suggesting he’ll send law enforcement or military to the polls, which is illegal, promoting vote suppression and, perhaps most chillingly, refusing to commit to abide by the election results. Some are worried that the rule of law has been so eroded in this country that it may be possible to literally steal an election. And we think there are strong legal and institutional safeguards against that, but the dramatic erosion of the rule of law in recent years is unmistakable.

We’ve seen law enforcement weaponized for partisan and political gain, from threats of politically motivated prosecutions against political adversaries to the actual interference of prosecutions in favor of the president’s political allies and friends, to the improper use of the military to respond to protests and create political theater. We’ve seen politically motivated attacks on science and the scientific integrity of government institutions. And the Brennan Center has been actually tracking the impact of that on the health response to Covid-19.

And we’ve seen the administration politicize neutral institutions in the federal government — from the Census Bureau to the Centers for Disease Control to the Weather Service. And more broadly, we have witnessed a relentless stream of cases, many unpunished, of police violence against Black and brown people in America, the brutalization of those communities by people who are charged with protecting them. In short, we are facing a rule-of-law crisis.

But like other crises, this one has its roots in problems that predate this administration. Our country’s reckoning with racial violence and systemic racism is long overdue. We have tolerated the injustices and lawlessness directed at Black and brown communities for too long. The stream of abuses at the federal level have been made possible by longer-standing erosion of democratic and rule-of-law norms. And one thing this administration has made abundantly clear is that the guardrails that we have traditionally relied upon to check abuses of power in government are too flimsy.

And that’s why the Brennan Center convened the National Task Force on Rule of Law and Democracy, which is a group of eminent cross-ideological and cross-partisan individuals with experience working at the highest level of Democratic and Republican administrations at the federal and state levels. Their mission is to shore up guardrails against the abuse of federal government power. They are co-chaired by former U.S. Attorney Preet Bharara and Governor Christine Todd Whitman, who are with us today. And other members include former Solicitor General Don Verrilli, who is also joining us; former Delaware Governor Mike Castle; former White House adviser and Professor Chris Edley; former Secretary of Defense Chuck Hagel; former U.S. Attorney Captain David Iglesias; and former Director of the Office of Government Ethics Amy Comstock Rick.

The work of this task force has been to create legislative proposals to shore up limits on executive power, safeguarding the rule of law, enforcing ethics standards, preventing political attacks on science within federal government, all without undermining the proper functioning of the executive branch. Their proposals would put real teeth into the guardrails and unwritten rules that both parties have agreed to follow in the past, and almost every single one of their proposals is now reflected in legislation pending before Congress that should be a priority for the next Congress.

Of course, there is much, much more that we need to do to build a national commitment to the rule of law and in which every person is truly equal before the law. And so to discuss these issues and more, I am delighted to turn this over to my colleague, Dan Weiner. He is the deputy director of the Brennan Center’s Election Reform Program, and thank you all for joining us.

DANIEL I. WEINER: So needed to unmute there. Thank you so much, Wendy.

The panelists that we have joining us today really need no introduction, so I’m going to keep it very, very brief. But Preet Bharara was the United States attorney for the southern district of New York from 2009 to 2017. Prior to that, he was a prosecutor at the Department of Justice and he was also chief counsel to Senator Chuck Schumer. And today, of course, he is the host of Stay Tuned with Preet and the co-chair of our National Task Force that Wendy mentioned.

Janai Nelson is the associate director-counsel at the NAACP Legal Defense and Educational Fund and a leading practitioner of civil rights litigation in the country. Prior to that, she was a professor at St. John’s Law School and is a noted scholar of both constitutional and civil rights issues.

Don Verrilli was the 46th solicitor general of the United States. He is also a member of our National Task Force, as Wendy noted. Currently, he is a partner at Munger, Tolles & Olson, a renowned law firm, and prior to that he was also a partner at Jenner & Block, where I actually had the privilege of working under him briefly.

And finally, last but definitely not least, Christine Todd Whitman was the 50th governor of New Jersey and also the 9th administrator of the United States Environmental Protection Agency, serving under President George W. Bush. She’s currently the president of Whitman Strategies and, as Wendy noted, the co-chair of our National Task Force.

So with that, I would like to jump in with the first question, and I’m going to address that to our co-chairs of our task force, Preet and Governor Whitman. And both of you have been speaking and writing about some of the issues that are kind of on the front page, from the president’s tax returns to the politicization of law enforcement to attacks on government science for years. Some might say you were a bit prescient on these issues.

But my question for you is, you know, there’s a lot going on in the world right now. So maybe you could talk a little bit about why people should care and also why these issues should be a focus for policymakers. And I think maybe, Preet, if you want to go first and then we’ll turn to Governor Whitman.

PREET BHARARA: Sure. It’s good to be with all of you. Thank you, Dan, for the introduction and it’s great to be with folks, and I see we have a large online audience. So pleased to be with you on something so important, and my co-panelists as well.

You know, people have said from time to time, “May you live in interesting times.” Our times are a little bit too interesting, and your question a little bit goes to this issue that we have of how many problems can we face as a nation. And, obviously, one of the most important things that’s happening right now and the most devastating things that the country has ever faced is this global pandemic. The whole world has been facing it; more than 200,000 people dead.

And so I take the spirit of your question to be, you know, when people are dying, how do we have time and energy to focus on issues like rule of law or norms? Those seem to be luxuries in a democracy. I don’t look at it that way. Obviously, we need to care about science, and science is one of the things that the task force that Governor Whitman and I co-chair has been talking about.

But at the same time that we’re trying to stave off disease and trying to keep our country safe from the pandemic, we have to, I think, keep an eye on what the values of our country are. At some point we’re going to come out of the pandemic — hopefully, sooner rather than later — and at what cost to our institutions?

I also see a parallel between the issues — and the challenges facing the Justice Department and the challenges facing the institutions that are dealing with the pandemic — and it comes to an issue of independence, expertise, truth. All of those things, I think, factor into this issue of rule of law. And the attacks on the Department of Justice’s independence, the attack on the Department of Justice’s rank-and-file lawyers — who have, you know, basic expertise in the cases that they bring and that they try, and that when appropriate they dismiss — those same things and those same attacks and challenges are happening with other institutions that also are supposed to be independent and I think laypeople understand even more so, like the CDC or the NIH.

And to me they’re part of the same problem, an idea that if you’re an administration who cares about politics over justice, or cares about politics over medicine and over epidemiology, then you’re going to bring us to ruin. And in the matter of the pandemic, that brings us to ruin with respect to human lives. And with respect to the Department of Justice and rule of law, it sometimes can affect human lives. It is a matter of life and death. For George Floyd it was a matter of life and death, and for so many others. But it’s also fundamental to what our democratic values are.

Are we a country in which everyone is treated equally before the law? Or are we a country like some other nations around the world where the president gets to decide — because he has the power of being the chief of the executive branch — we’re going to bring the weight of law enforcement on you if you’re an adversary and we’ll take away the weight of law enforcement against you if you’re an ally? And we’ve seen that in the Flynn case, we’ve seen that in the Stone case, and so many others. So it’s very important for us as a country to not lose sight of the fact that we have traditions and norms that are being trampled and that could be, you know, really choked for a long period of time even after the pandemic is gone.

And I’m sure Governor Whitman has a lot to add to that.

WEINER: Governor?

CHRISTINE TODD WHITMAN: Well, thank you, Preet. And thank you to the Brennan Center, as always, for the backup that you’ve given for putting this task force together, and to all the panel members for their dedication to it because this is a panel that’s taken things very seriously, as you well know. We’ve disused these issues on and on.

And what’s important to remember, it’s a task force on the rule of law and democracy. The rule of law is not just limited to those departments that have the obvious responsibility of enforcing the law. When we’re talking about the rule of law and democracy, we are also talking about institutionalizing those norms that have been the guardrails that have protected society and kept our government within bounds for so long.

Preet mentioned the pandemic. Obviously, this is one of the most egregious or obvious examples of where we have gone off the guardrails, because it used to be that there was a very clear respect for pure science — that while policy always determined at the end of the day how you went, how you used that science, it wasn’t politics, and there’s a difference between partisan politics and policy, and pure science has to be the basis of things. And what we’re seeing today — every day — has been a dismissing of science and scientists, a looking the other way, of false information going out to people so that they’re confused, conflicting messages that are being sent to people so they don’t know how to react, they don’t know how to respond to this.

And this virus is not just a medical emergency, it’s an economic catastrophe as well. And not only have we lost over 210,000 individuals in this country alone, we have also seen, first of all, the uneven impact on communities of color from this disease and the uneven impact on businesses from those communities, as well as small business overall, and big business as well when you see what’s happening with the airlines and the people who are put on furlough. They don’t know whether they’re going to have a job in another week or two or month if Congress can’t move forward to get some bills through. And you saw that our head economist, basically, the head of the Fed, said today — Jerome Powell — that, in fact, they can’t spend enough money on this stimulus right now compared to the damage that’s being done to our economy. And a lot of this is occurring because we have been ignoring those norms that we took for granted. And that’s one of the things that our reports — there are two of them — go to.

They go to commonsense, bipartisan, nonpartisan ways to address these issues and to finally put some parameters around science, transparency of science, so people can see it. Governing how the executive department — the White House, actually — intercedes with the Justice Department, when it’s appropriate, when isn’t it, and how do those things move forward. Putting some protections around the special prosecutors and the inspector generals, so that they can only be dismissed for cause, and even then that should be reviewed. There are a lot of things here that speak to beyond what those departments that have to enforce the law need to do but are very much a part of the rule of law and democracy, which is what this task force has been all about.

WEINER: Thank you, Governor. And there is a lot there in both your remarks that I want to come back to. But I’d like to bring Janai into the conversation. And specifically, Janai, we had a presidential debate last Tuesday. It seems like it was 100 years ago. May you live in interesting times, as Preet said. But you know, folks may have noticed that law and order was a bit of a theme, particularly for the president, although both candidates spoke to it. And I’m wondering if you can talk a little bit about, you know, these implications of the rule of law, but what the rule of law really means to you. And particularly, I think it would be great if you could situate that also in what’s obviously going on right now, which is a historic reckoning in the ongoing struggle for racial justice.

JANAI NELSON: Sure. Thanks for that question. And first, let me say thank you to you and the Brennan Center. And it’s just wonderful to be part of this discussion. And I’m very heartened that we’re having a conversation about the rule of law, because I don’t think that we as a society do it often enough. So I very much appreciate this opportunity to be in dialogue with such an esteemed group of speakers.

You know, it’s funny. A week after the 2016 election, I gave a lecture at John Jay College in New York about this very topic, about rethinking the phrase “law and order” and examining, you know, the very visceral response that those words evoke for different segments of our society. And that term, “law and order,” really gained political salience in 1968, when President Richard Nixon and Alabama’s infamous Governor George Wallace both campaigned on varying platforms of law and order.

And some of us are old enough — (laughs) — to recall President Reagan’s use of very coded racial appeals about so-called welfare queens to galvanize the white vote to restore law and order. We saw President [George] H.W. Bush famously run an ad on the revolving door, alluding to the violent crimes of an African American man — Willie Horton — also to invoke a call for law and order. So that phrase has been used throughout our political history.

And, as we just saw in last week’s debate, it’s used as a dog whistle. It’s used to foment racial resentment by associating the recent protests against police violence with lawlessness and disorder. And I just want to be clear about what the invocation of law and order is. And it’s not limited to any one political party, so this is in no way a castigation of a single party. And like the Brennan Center, the NAACP Legal Defense Fund is also nonpartisan and does not endorse parties or candidates.

And law and order has been used, you know, I would say abusively by both the Democrats and Republicans alike. But what I want to point out is that it is often, if not always, you know, tacitly referential of Black people and of other people of color, and the perceived need for greater law enforcement against them. And we’ve had, you know, nearly four years that have followed that call for law and order, and in that time it has become an increasingly fanatical appeal, laden with nationalism and white supremacist overtones, frankly.

And the fact of the matter is, law and order presumes a hierarchical racial order that uses law, and when that doesn’t yield the desired result, it uses other means to preserve the status quo. But I’ll say this: At the same time you also have a deafening crescendo of voices in the streets of this country and around the world demanding in very important ways their own version of law and order. They’re demanding a system of law, you know, that is protective of their lives, of the lives of their neighbors and community members, in the same way that it’s protective of all lives, in theory. And they’re demanding an order of justice where police can be held accountable.

And the rule of law is really central to this fight for racial justice because, you know, at bottom, the rule of law is about consistency and fairness and accountability at all levels of government. It’s the enforcement of laws to protect civil, human, and constitutional rights. It’s about preventing state-sanctioned lawlessness in the form of police brutality and, you know, unchecked vigilante violence against African Americans — which we’re seeing more often — and of course against other groups.

But if there were a true commitment to the rule of law, and to a real neutral concept of law and order, we wouldn’t have witnessed the mobilization of the National Guard and other federal resources to use brutal force against protesters in DC and Portland and other U.S. cities over the objections of state and local officials. We would not have witnessed law enforcement actively supporting and even sympathizing with far-right vigilante groups, or the president of this country lionizing an illegally armed 17-year-old, who traveled to Kenosha with the assistance of his mother to commit heinous killings.

And we wouldn’t have seen the president use his pardon power — which I think, you know, Preet alluded to — to reward political allies like Arizona Sheriff Joe Arpaio, who engaged in blatant racial profiling. He lied about it to a court; he was held in contempt for refusing to follow court orders. And we’ve seen other examples of abuse of that presidential authority. So, you know, I’ll just say in the end that this warped interpretation and application of law and order is diametrically opposed to the rule of law. And those of us who truly believe in the rule of law ignore that false equivalence at our own peril.

WEINER: Thank you.

Don, I want to bring you into the conversation and invite you to respond to what everyone else just said. But then also, another perspective actually that you and also, obviously, Preet can speak to is the experience of the attorneys and the other folks in the government who actually are doing the day-to-day work and are by and large, you know, at the Department of Justice, dedicated public servants. And how is this affecting the institution? And I know that’s something you’ve spoken out about before. So perhaps you could include that in your remarks.

DONALD B. VERRILLI, JR.: Thanks, Dan. It’s good to see you again. It’s great to be able to participate in this panel with the governor and Preet and Janai. And I commend the Brennan Center for the phenomenal work its doing on this vitally, vitally important set of issues.

I do actually want to focus particularly on what’s happening to the Justice Department, and what’s happened really to the Justice Department since the start of President Trump’s term in office. You know, it’s an institution. We talk about the centrality of the rule of law and how it undergirds not just our own sense that we live in a just society and that the power of government is being exercised justly but that it permeates everything that the government does. And it’s really the bedrock foundation of the public’s sense that they can have confidence in their government. And it’s the destruction of that faith, as we see with the FDA and the CDC and so many other organizations now at the time when we most need them that really is a devastating tragedy for our country.

And it really did start, I think, with the Department of Justice very early in this presidency, where really from the beginning of 2017 on President Trump essentially took a sledgehammer to the integrity of the Department of Justice. He was hammering at the FBI as being part of the deep state and untrustworthy; hammering at the Mueller team as being partisan and not public servants; hammering at the department. And it was really taking its toll over time, and it was really eroding the sense of mission of the career lawyers in the department.

But now, you know, you’ve got an attorney general who’s hollowing the place out from the inside, which is an even more extraordinary thing to behold and even more of a tragedy. And to see career prosecutors like Jonathan Kravis, the chief prosecutor for Roger Stone, feel the need to resign after many years as a dedicated prosecutor, other career lawyers going up to Congress and testifying about their disquiet, and, you know, on and on really is something.

And this is a small episode but one that really struck home with me because it involved my old office, the solicitor general’s office. The attorney general a month or so ago was trying to continue his campaign of discrediting the Mueller special counsel investigation and its report, and he talked about members of the special counsel’s team, and he said the following: he said, you know, two of those people — in trying to prove partisanship — two of those people were people who wrote briefs for the Obama administration. Now, what he was talking about was two lawyers who had worked in the solicitor general’s office, one of whom was Michael Dreeben, who is a legend. Preet knows him well, worked for Republican and Democratic presidents and administrations a lot. He was the consummate career public servant, looked up to by everybody in the department for his commitment to the public interest and to serving the United States and not serving any partisan agenda. And to see him dragged through the mud like that so that the attorney general could score a cheap political point, I mean, it was just terrible.

You know, when I was privileged enough to be running the SG’s office, I made it a point to hire conservative Republican career lawyers as well as liberal Democrat career lawyers into that office because the whole point of it was it was supposed to be a nonpartisan office that served the interest of the people of the United States. And that’s the mission that the thousands and thousands of people who work in the department — the many career lawyers, the FBI agents, and everybody else — that’s how they understand their mission. When they have the president of the United States and now the attorney general basically telling them that what they’re doing isn’t worth a darn, it’s just a devastating thing, I think, for our country. And it’s going to take an enormous, enormous amount of work — we have to not only rebuild the public’s confidence in the Department of Justice as an institution, we’re going to need to rebuild the sense of confidence and integrity on the inside because it’s been so terribly, terribly damaged over the last three-and-a-half years. It’s a colossal tragedy.

WHITMAN: Can I add something to that?

WEINER: Go ahead.

WHITMAN: You know, that’s true throughout the federal government under this administration, particularly any part of the government that has anything to do with science. Certainly, the EPA — they’ve lost over 900 scientists, and those that have been replaced have been largely replaced by scientists who come from the very industries that are regulated by the Environmental Protection Agency. You cannot expect them to be unbiased. You have to worry about the science.

Rebuilding that institutional knowledge throughout the federal government is not going to happen overnight, and we’re the poorer for it. Morale is down. Those who want to bring forward things that they think are really important that we should know around science are scared to do that because if it doesn’t comport with the political agenda of this administration they will find themselves reassigned. They will find themselves sent to other parts of the country to work, to be put into fields where they have no basic institutional knowledge.

So it’s just devastating to see what’s happening — the undermining of people who have devoted their careers to trying to make our country safer, stronger, better. And being demonized or being told that they aren’t worth anything, it doesn’t matter, that everything is political is mind-boggling to me, particularly with Justice. To have the attorney general doing this is just extraordinary. I expected it with the science because the president doesn’t believe in regulation, doesn’t believe that we need to touch the environment outside, that it’ll take care of itself. I would have hoped that this coronavirus would have shown that, in fact, that’s not the case, not to mention the fires and the floods and the storms that we’ve had from climate change. This is going to take us a long time from which to recover, but we need to start right away.

BHARARA: Can I just mention just one more institution that I think would have been a great surprise for anybody to think a few years ago would have been politicized? We talked about the CDC, we talked about the FDA, the Department of Justice — which has had issues in the past and scandals in the past, none like I think we’ve seen this time around. But the United States Postal Service.

WHITMAN: (Laughs.) Yeah.

BHARARA: In what universe would someone have thought that the United States Postal Service, which I think is the most highly respected, you know, agency within government — everyone loves their postal carrier and relies on postal carriers, less than they used to — but the idea that even that can become politicized and expertise can be taken away should be another example of why all of this work, you know, jibes with the work that we’re talking about with respect to rule of law.

WEINER: I’m glad you brought up the Postal Service because, obviously, the issues with the Postal Service are tied to the election, which is, as we know, actually ongoing right now. People have started voting. And we also talked a little bit about Attorney General Barr, who has made some statements about the election and about things like voter fraud or alleged voter fraud. Janai, I’m wondering if you could talk a little bit about what we should make of these interventions and, you know, what that means sort of for the integrity of our democracy.

NELSON: Yeah. I think “interventions” is a very polite word. (Laughter.) And I appreciate the opportunity to talk about it.

And I just want to pile on, though, to the last part of the discussion, and hopefully we’ll have a moment to talk about this as well. But the other institution that we should be deeply alarmed about becoming more and more politicized — at least in the eyes of the public and by virtue of all of the machinations of the Senate and Mitch McConnell in particular — is the Supreme Court. And for those of us who are litigators and who rely on the courts for justice and as a check on other parts of government, that is deeply, deeply alarming. And I hope that we’ll have an opportunity to talk about that.

But I do want to talk about what Attorney General Barr has done in connection with elections — along with the president — and we need to really name what’s happening here. We heard the president say that he would be sending U.S. marshals and, you know, attorneys, prosecutors, law enforcement, and others. And we heard Bill Barr allude to the idea of sending military and armed forces to the polls. This is the stuff of failing democracies that are, you know, descending toward authoritarianism, and it’s the kind of stuff that we ordinarily would be pushing back against if we heard any country abroad suggesting any of these tactics. But instead we have the president of this country, who’s also a candidate on the ballot, with the aid and abettance of the chief law enforcement officer of the country — who’s charged with enforcing civil and constitutional rights — threatening to use armed forces to intimidate voters at the polls. And even if you simply take them at their word that they’re trying to deter voter fraud, they have made clear that they’re willing to use intimidation tactics to do it.

And I first just need to make it clear that having armed forces at the polls is just patently illegal. Unless there are armed enemies of the United States threatening a polling site or voters at a polling site, 18 U.S.C. § 592 has made it a crime to deploy the U.S. military or any armed federal agents to a polling place since 1948. So to even suggest this tactic is a threat to our democracy from within.

And what’s more, as you know many have pointed out, including very excellent reporting by the Brennan Center, the premise of this is entirely bogus. In-person voter fraud is exceedingly rare. It’s so rare that in a study that Professor Justin Levitt conducted that surveyed over 20 billion votes, only 31 votes of those cast were prosecutable for in-person voter fraud. So the attorney general, just like the president, is peddling blatant falsehoods when they speak of rampant voter fraud.

But you know, whether they attempt to act on these ideas or not, these falsehoods are extremely dangerous, and we should understand them as part of a form of voter suppression and a long and sordid history of voter intimidation that’s as old as this democracy itself. And especially when you look at the intimidation of Black voters, which stems back to the 15th Amendment and Black men being granted the right to vote in 1870, and Jim Crow laws, and the upheavals that led to the passage of the Voting Rights Act of 1965 — all of these chilling messages that the ballot box is somehow forbidden ground for certain people.

And we don’t even have to look that far back in our history. I mean, in the 1980s the Republican National Committee sponsored something called the National Ballot Security Task Force, which, its very purpose was to patrol polls, and the people on the task force, many of them were off-duty police officers who were armed with loaded service revolvers and they wore armbands, and we basically had a militia at the polls.

Thankfully, there was a consent decree to prevent that sort of intimidation, but that expired in 2018, and now we see something called Army for Trump. We see a new effort that is a very concerning campaign with deeply militaristic overtones, and it is unchecked, not only because there’s no consent decree in place but because we have a Department of Justice that is not willing to play any meaningful role in protecting the constitutional and civil rights of voters in this election.

It has failed to enforce the Voting Rights Act in most instances. A real Department of Justice that was not captured by partisanship would be using its powers under the Voting Rights Act under Section 3(a) to send reliable and neutral federal observers to document potential voter intimidation and obstruction at the polls. But instead we see this Department of Justice engaging or at least threatening to engage in those sorts of tactics itself, and that is truly a threat to free and fair elections within our borders.

WEINER: Before we jump to other panelists, just I want to take the moderator’s privilege, just briefly, to note that all of that is very true and the federal government’s behavior is disgraceful. Of course the actual people administering the elections are the election officials around the country, most of whom are very dedicated public servants.

So, you know, we hope everyone should vote. You shouldn’t be intimidated from voting. But the behavior of the federal government, I think, in this context we can agree is disgraceful, both about the lies about voter fraud and then also vote by mail, which, as we’ve also documented, is very, very, very safe and secure.

But I want to give our other panelists a chance to jump in.

Preet, you might have some thoughts, particularly if you could address the outlandish statements that another United States attorney in Pennsylvania made in connection, particularly, to vote by mail.

BHARARA: So the problem is when you use what are supposed to be neutral institutions, whether it’s the CDC, the Postal Service, or, I think, most compellingly, the Department of Justice, to promote some political end, and sometimes political ends can be advanced by a political narrative, and this president has made very clear that all hands on deck to promote the narrative that absentee ballots, mail-in ballots, ballots are necessarily going to be rife with fraud.

The attorney general has done that on television, speculating without any evidence whatsoever — and asked if there’s any evidence, he said I don’t have any evidence, it’s just logic — that foreign nations will send thousands and thousands of fraudulent ballots, while on the other hand seeming to ignore actual election interference, both in 2016 and happening again in 2020, and where that’s coming from, a divergent view he has from the actual FBI director, who was also handpicked by the president of the United States, who’s out of favor a bit these days.

But when you subvert what is supposed to be a neutral, you know, rule-of-law process to advance a narrative, that’s a problem. And so you allude to this, you know, kind of odd case out of Pennsylvania where at one point it was nine ballots, then it was seven ballots, and there was an investigation of whether or not there was fraud, what happened with those ballots — it’s a little bit confusing, the narrative.

But the bottom line is standard operating procedure in the Justice Department is not to talk about investigations and reveal details of investigations, particularly revealing details of investigations, before they’re concluded and before some charging decision has actually been made. And by the way, you don’t make a charging decision, you keep your mouth shut, as Jim Comey has been made to understand, given what he did four years ago with respect to Hillary Clinton.

Nonetheless, this United States attorney, who I don’t know personally and am not really familiar with his reputation, made public statements that he had to then revise because they were erroneous with respect to these seven out of nine ballots that, presumably, were cast for Donald Trump and didn’t make their way to the right place.

And it may seem like a small thing, but it’s a signal to other people in the department or other people in other places that, you know what, the normal rules of keeping your mouth shut about an ongoing investigation maybe don’t apply. And maybe it’s the case that if I, you know, exercise my discretion in a way to put the thumb on the scale a little bit every once in a while for this thing, because we see the attorney general doing it — whether it’s the Mueller report, or voting by mail, or Roger Stone, or anything else that caused, by the way, the resignation of the entire, you know, career prosecutors from that case — then maybe that’s something I should do too. And maybe it will help me to curry favor and maybe it will cause my career advancement.

And the flip side is even worse. If I don’t do those things, maybe I’m in trouble. Witness just the statement made — again, I keep making the point that all of these are sort of of a piece. So jumping out of the election mode, I mean, literally the only thing that I think is clearly the correct, ethical move on the part of Jeff Sessions when he was in office was to recuse himself from the Russia investigation. And that’s literally the one thing that the president of the United States, this president, didn’t like about Jeff Sessions. And what did that lead to? That led to Attorney General Bill Barr, who broadcast this by the way at his confirmation.

At his confirmation hearing — unlike prior nominees who were confirmed to be the attorney general going back, I think, some time in the past, who said they would not only seek out ethics advice on recusal but they would follow the ethics advice given by career ethics people in the Department — Bill Barr said no, I’m not going to do that. So you have it coming from the White House. You have it coming from the head of the department. And I think you start to undermine the culture, whether it comes to elections or anything else. And what the U.S. attorney in the eastern district of Pennsylvania did was a dramatic departure of what is normally done.

WEINER: So, you know, I want to pivot soon to a little bit of hope, because I don’t want to scare the folks at home too much. But before we do that, I do want to just return briefly to a topic that Janai alluded to, which is the Supreme Court. And, Don, you know, nobody knows more about the Supreme Court than you, probably. I wonder if you could talk a little bit about the implications of what we’re seeing now there and the potential shift for the Supreme Court to act as a guardian of the rule of law.

VERRILLI: Yeah. You know, it’s a little bit like what I was saying with respect to the Department of Justice. It’s vital to the health of our republic, to our constitutional system, that the American people have faith in the Supreme Court as an institution, that they believe that it’s an institution about law, and that it’s not a political institution. And that’s really been shaken very badly. I mean, I think one could go back as far as Bush against Gore to see for at least half of the country — you know, that was a watershed moment that really caused many Americans to have doubt in the idea of the Supreme Court as an institution of law and not of politics.

But, you know, Democrats, people on the Left, I think they reconciled themselves eventually with Bush against Gore and, you know, got back to the point of thinking they could have faith in the institution of the Supreme Court. And then you got to the Merrick Garland fiasco in 2016, where President Obama nominated somebody in the early spring of 2016 who was, I think, as qualified as any nominee in the history of our country, a moderate, beloved judge on the DC Circuit. And look what happened. I mean, there’s only one way to interpret what happened there, which was the Republican majority in the Senate wanted somebody on the Court who was going to vote differently on issues they cared about than they anticipated Merrick Garland would vote. That’s the only explanation, right?

And so they blocked it. And I thought at the time that that was going to just have a devastating effect on at least half the country feeling that they could trust the Supreme Court. And I do think it has had a very serious adverse effect. And now, you know, just in the last few weeks look at what’s happening. Having had as a country go through what we went through with the Garland nomination, to now have Justice Ginsburg — a revered, beloved justice — pass away just a few weeks before the election, and have an effort made by the president with the support of the Republican leadership in the Senate to try to fill that seat, on the eve of the election, right in the teeth of the argument that was offered in 2016 as a reason why the Garland nomination shouldn’t be considered.

I mean people should ask themselves, why would you think half the country would have any faith that this is a neutral institution that’s devoted to the rule of law when you see this kind of shenanigans surrounding the process of deciding who goes on the court? I think it’s a terrible problem. And I think we’re going to pay a price for it for a long time.

WEINER: Janai, do you want to jump in, since you’ve raised this before, too?

NELSON: Sure. I couldn’t agree more with everything that was just said. You know, the critical mass of the people in our country no longer see our judicial system as a potential avenue of relief, especially in a system like ours, where the Supreme Court ultimately determines the law of the land. We are in extraordinarily perilous terrain. And that feeling of distrust towards our system is growing. And that’s why we’re seeing sustained protests.

You know, many like to quote Dr. King. He described riot as the language of the unheard. And he was talking about the uprisings in the early 1960s in Watts and Harlem. But they leave off the next line. And the next line is, “And what is it that America has failed to hear?” And protesters are saying in no uncertain terms that there is a growing faithlessness in our system of justice. And that’s well-founded [disillusionment] because of the antics that we’re seeing in Congress, and all of what, you know, was just described in terms of how the nomination process has become completely politicized.

And you know, if we’re honest, we’ve always had to force our institutions to be accountable. And I think this circumstance will be no different. We will continue to see protests. And I’d be remiss if I didn’t acknowledge Fannie Lou Hamer and her activism on this day that celebrates her birthday. We’re going to continue to need that type of agitation in order to force our institutions and our elected leaders to serve all the people. It will not be an easy task, but it’s one that we must commit to, and no administration is absolved from that responsibility.

WEINER: Thank you. I think we’re actually running up almost to the two-thirds mark. So I’d like to pivot now maybe a little bit to solutions. And, Governor, I want to get to the Department of Justice. But as you noted at the outset, this is not just about DOJ, and it’s not just about law enforcement. And right now we are in a pandemic that is disproportionately affecting people of color, particularly Black Americans. And that disproportionate impact has come in no small part from, as the Brennan Center’s documented, the mishandling and the abuses that have gone into the pandemic response.

So maybe could you talk a little bit about solutions? And I’m going to ask you a two-part question. One is to talk a little bit about some of the things we need to address. Then also, though, as, you know, a Republican elected official right now you are seeing Democrats talk more about these issues. But they do need to be bipartisan. We hope they’ll be bipartisan. You know, what are the prospects for getting some bipartisan agreement on some of these efforts to shore up guardrails?

WHITMAN: Well, first, let me say that I think what we’re seeing has come into vivid relief. It’s ripped a Band-Aid off a wound that we’ve had for a long time in this country, which is the disparate way communities of color have been treated, whether it’s where the money that they can get from the federal government, whether it’s where because they don’t have the political voice. You have environmental justice issues that are rampant because companies were allowed to pollute in those areas, because they didn’t have a voice. This is something that’s been going on through multiple administrations and, unfortunately, is a real part of our history.

So, in a really perverse way, this might be a good time. I mean, it certainly is a time to address it. You can’t hide from it anymore. You have to recognize what’s happening, and the importance of these people’s lives and their businesses. And hopefully it will mean that there will be more attention paid to how discriminatory we’ve been. I mean, there’s no other way to describe it. But we have been discriminating right along. And that’s a stain. That’s a stain on this country.

But I do have some hope, both because the virus has brought this so to the fore and then also because you have groups like the Problem Solvers Caucus in the House and the Senate — a bipartisan group, has to be even Republicans and Democrats, no Republican can join on their own or Democrat on their own — and they are responsible for a lot of the bipartisan legislation that’s coming forward. And of course, what the first two reports that we did, this task force did, many of them are embodied in pieces of legislation that have passed the House. Some have gone to the Senate. Some haven’t gotten quite that far. But they were all bipartisan. And so there is hope.

I think the biggest hope is going to be we’re going to have a change at the top of the administration, frankly. It’s going to be very hard to get beyond this without that. An unbridled second term for this administration scares me to death, and I’ve never been so afraid for our democracy as I am today because those norms — the norms we’ve been talking about — have been thrown out the window. But we do have decent public servants. We have a lot of them, and they do want to do the right thing. And given the tools and the kinds of things that were recommended in our reports, they have the ability to do that. And you see that H.R. 1 had a lot of what we offered in it, and it was bipartisan.

And the big pieces of legislation that have really impacted the country, any of the major ones — whether you’re talking about Social Security, Medicare, Medicaid, Environmental Protection Agency — they’ve been bipartisan, because the minute you have a totally partisan bill that relies solely on one party, the next time the other party gets into a position of power they undo it. And people are starting to understand that more, but it’s going to be up to the public. It’s going to be up to the public to bring pressure on their elected officials at all levels and say, we cannot continue like this. If you purport to be a Christian, you have to think of what you do to the least among us you do also to me. We have to remember those values of treating people equally, how this country was founded — how the Republican Party was founded, as a party to free slaves as a major part of it. We seem to have left that totally behind.

But particularly young people today are coming together and saying we’ve got to make a change. We’ve got to care about climate change. That’s something that’s going to impact us for forever, frankly, because we’re not going to stop it. We can slow it, but not stop it. And women. But we have to understand that we are at a very perilous place right now, and what we have seen in eroding our basic values have long-term consequences that are going to be hard to really analyze. But I do see now that we have to focus. We can’t hide from the discriminatory practices of the past.

And we’re seeing more pressure put on companies and on local and state governments. And that’s where the changes are really going to take place, at least initially. The federal government — the first thing anybody taking the oath of office this coming year, in 2021, should do is corral the virus. I mean, that has to be job number one, before you can get the economy back. But for the states, while that is important, they’re also the ones that can take the steps on the other parts of this equation and start to bring the kinds of change that we want to see throughout the country and across the country. They can’t ignore their constituents because they live with them every day. You get to Washington and you kind of start to forget because you’re in a bubble, and that’s not something we can accept anymore.

WEINER: And would you say that, in terms of corralling the virus, are there things we can do to protect the integrity of government science in particular that’ll help us do that faster?

WHITMAN: Absolutely. I mean, first of all, we have to stop denigrating science and pretending it doesn’t matter. We need to have a leader who says this is important, this is the number one job, we are going to rely on the experts on this and scientists. And it’s got to be pure science, not directed by a political end — not something that’s because you want it to turn out this way, we’re going to torture it into this.

And fortunately, as happens with so many of the regulations at the Environmental Protection Agency, you can’t just get up one day and say, eh, I don’t think arsenic’s a big deal, I’m going to take away the regulations on how much arsenic to which people can be exposed. No. You have to say this is the new scientific evidence that I’ve seen that tells me we’re in the wrong place with this particular regulation. So when they have done all these rollbacks, when they have started to disregard that part of the process, when it gets to the courts even today the courts are striking down the efforts to undermine the science. And we can hope that that’s something that is going to continue, because the regulations are pretty clear and the enabling legislation is pretty clear on how you address these issues, and you have to have some basis in science.

But it is going to take a directive from the top that this is important, that science is valued, and we need that transparency to understand that this is what the science really is saying, and then let people have a look at that. Obviously, interpretations are going to be different depending on your bias as you come to it, but they need to see that underlying science. And that has to be available broadly to the community.

WEINER: Preet, before we go to Q&A from our listeners or audience, maybe if you could just talk a little bit about some of the reforms that could help us bring the Department of Justice back. And there’s a bill, actually, the Protecting Our Democracy Act, that was just introduced that contains some of these thing that you can maybe speak to.

BHARARA: Yeah. Look, the first thing I’ll say — and this was the whole thrust of a book that I wrote after I got fired by the president — policies are important, codifying rules are important, norms are important, but people are important too. And you can have the best constitution in the world, you can have the best criminal code in the world, but if you don’t have good judges and you don’t have good prosecutors and you don’t have good defense lawyers and you don’t have good public press, all of those go to hell. And you know, some of the abuses that people talk about with respect to this administration or prior administrations, in the main no law has changed. In the main — and not in the main, in totality — the Constitution is the same. Most of the laws are the same. Most of the policies are the same, whether it’s a contact policy or something else. What has changed is the personnel who are involved and participating in all of those things. And if they choose to exercise their discretion in a way that doesn’t do good for the public and eviscerates the rule of law and public faith in the rule of law and people being equal in the eyes of the law, then, you know, as Learned Hand once famously said, no constitution, no law, no court can save it. That has to come from people.

So as an initial matter — I know people don’t love to hear this because it’s an amorphous thing — but the leaders in the department and the leaders in the Congress who oversee the department have to care about those values and have to care about what the spirit of those values are and inculcate them among, you know, the entire, you know, group of people who’s at the department. Beyond that, there are some things you can do both to signal that these things are important, whether it’s oversight by Congress — and I used to work in the Senate, and we did some vigorous oversight of the Department of Justice back in ’06 and ’07 and ’08 — but there are other things you can do.

And it seems to me that there’s another theme here, which is the protection of people who are career and trying to do the right thing, whether they’re assigned jobs like the special counsel to try to figure out from a neutral perspective — because there are too many conflicts of interest in the department — how to figure out who did what that was wrong, more protection for people like that; more protection for the inspectors general. I think one of the provisions in that act would give a for-cause standard to fire inspectors general. That’s another thing we haven’t had a chance to talk about because there’s so much — that for the first time in 11 years an inspector general was removed, and then there were five in total — by the president of the United States on the ground that basically he just lost confidence. And so, among other things, the protection of special counsels, the protection of inspectors general, and the protection of ordinary rank-and-file people — even high-ranking people — in the Department of Justice.

As some of you may famously know, the day before I was asked to resign, the president of the United States called me directly, the United States attorney in the southern district of New York — I had never been called by Barack Obama, I’d never been called by any president — presumably to talk about something. I’m not sure because I never returned the call, because I observed the norm that a political person like the president of the United States should not be engaged in a direct conversation with the United States attorney without the involvement of any other people, including the attorney general, when among other things my office had jurisdiction over his home, his residence, his business, his charity, all sorts of other things. No good could come of that.

So you need a contacts policy. And for people not familiar, there has been written guidance for some time — and it gets revised from time to time — that makes it clear that certain people in the White House cannot talk to any but a very, very select small number of people in the Justice Department. Certainly, a president or a vice president shouldn’t be calling a local United States attorney, and there are provisions in the bill and in our proposals from the task force that require reporting to Congress with respect to those contacts so that there can be some oversight.

So those are a couple of things. They don’t replace the integrity of the people. They’re not a substitute for the integrity of the people who are responsible for overseeing the system, but they’re a start.

WHITMAN: And those same protections should apply to scientists, too. When they find [things that don’t match] what the administration wants to hear, we need to have protection for them, and the Scientific Integrity Act that we have talked about has a lot of that in it. And that’s something else we need to do, but, as Preet says, it relies on the people, ultimately, those who are going to enforce these things and are going to watch these things. We can put those barriers in place. We can go for that transparency. But we really have to have the people who are willing to enforce it and to stand up.

VERRILLI: If I just add a quick note on that. You know, I think we’re going to be, I hope, a few months from now in a moment like the post-Watergate moment where Congress enacted a lot of statutes to try to respond to the corruption and lawlessness that became well known out of the Nixon administration, and as somebody in the executive branch many years later, I thought those laws, like the Ethics in Government Act and FOIA and the Privacy Act and all those, made my life more difficult and they were frustrating.

But they were really important and they were symbolically really important because, as the governor and as Preet have said, and I 100 percent agree, at the end of the day, you have to have people of integrity in these positions who believe in the rule of law and believe in these norms, believe they’ve got to fight for them. But it also matters, I think, to us as a country — both practically but also symbolically — when Congress takes a step like enacting laws in the post-Watergate era, Congress is saying, “These are our values. This is what really matters to us as a country.” And so I do think it will be important for Congress to do that again, and hopefully, we’ll be in a position for that to happen during 2021.

WEINER: So we are almost out of time. Before I go to the last question, which is from the audience, I want to just take a quick moment to acknowledge there are many, many Brennan Center staff who contributed to this event. I want to briefly just note my colleagues Rudy Mehrbani, our fellow, Martha Kinsella, Gareth Fowler, and Julia Boland, who really worked tirelessly. Also, our crack event staff led by Mellen O’Keefe and Adrienne Yee. You know, these events over Zoom actually are time consuming and they really worked very hard. So I want to take a moment to acknowledge them.

And, you know, to finish I’m going to leave you all with, and hoping all of you can comment, just briefly, on one question that we got, which is there’s been some criticism of the current administration during this call, and we’re a 501(c)(3) organization and the impetus of this project, I do think, has always been, though, that these need to be bipartisan concerns.

So I’d like to just close out with maybe a thought about why, no matter who is president in January 2021, we need to keep these issues front and center and we need to make them a priority.

And Janai, maybe I’ll start with you.

NELSON: Sure. I’m really glad that we got that question because to suggest that the dysfunction and dystopia in which this country is presently engulfed is the fault of a single president or a single administration is, one, to credit them too much, and two, to dangerously oversimplify the complex history of racial caste in this country and how deep-seated its roots are, and the revolution of imagination that it will take to transform this country into something truly deserving of being called a multiracial, multiethnic democracy.

We have an opportunity at this moment because of the confluence of issues that are facing our country — not just the frailties of this administration but also because of the shared suffering that the pandemic has imposed on all residents of this country. Also, because of the new illumination that mass protest has provided to some of the deepest inequalities that still plague our society, we have an opportunity for a third reconstruction that encompasses issues of racial justice, democracy, and many other ways to strengthen our society through science, looking at climate change, looking at all of the ways in which we have linked destinies.

And so I think it’s important that we recognize that this is beyond party. This is beyond any factionalism. This is about our shared humanity. And if we don’t see it in that way, we will continue down this very dangerous path. But I am rather hopeful. Often out of these moments of tumult and these moments of struggle we see some of the most promising transformation in our society, as we continue to advance towards really inhabiting the full potential of our democracy. So I remain hopeful. And I look forward to continuing this type of discussion as we head in that direction.

WEINER: Don, do you want to go next?

VERRILLI: Yeah. You know, in fact, if there is a new administration in 2021, I think it’s going to be more important to focus on the norms and values that we’ve been talking about today and the Brennan Center has done so much amazing work to promote. Because I think with a new administration there is going to be enormous pressure on it — first of all, I think there’s going to be enormous pressure on it for retribution against the old administration. I think there’s going to be enormous pressure on it to make fundamental changes very fast, in ways that our lawmaking system maybe can’t accommodate under the Constitution. And that there’re going to be a great temptation to embrace the argument, well, look what these other SOBs did. How can you possibly say that we can’t take these steps ourselves when we’re actually doing this to make things better?

And they might be doing it to make things better. But I do think that the problem with norms and values and rules is that you can get into a downward spiral. One side cheats, the other side feels like it’s okay to cheat, and then it gets worse and worse. And so I do think that kind of vigilance with respect to the new administration, particularly in the early months and year, is going to be quite important.

WEINER: Governor, why don’t we go with you, and then Preet you can have the last word.

WHITMAN: Well, I mean, it would be nice and easy to blame it on one administration. That’s just convenient. But unfortunately what this has shown us is how deep these issues go. And the dysfunction that we’ve seen in Congress over the last decades can be laid at the feet of both parties. We have allowed this to happen also. It’s our fault because we allowed it to happen by not participating in elections and primaries, when the voter turnout is 10 or 12 percent. That isn’t giving you candidates for the fall that reflect the majority of people. It gives you candidates in the fall who reflect the most partisan of their particular party who got them those nominations.

So we have to look in the mirror and have to understand that it’s both parties. And it’s been administrations over the past. Racism didn’t just happen. This has been, unfortunately, a part of our history for a long time. And I don’t believe there’s been any administration that’s fully faced it — Republican or Democrat — and taken it on and tried to address it in ways that it should. And the same thing with all the issues we’re talking about. This has been a gradual process; it just may be more highly illuminated and suddenly moving faster, blowing aside those norms than we’re used to, than we’ve seen in the past. But it is not just one party. And it’s not just one person. That’s too convenient, too easy. And it absolves us of having to do much, should the administration change in the fall. And that would be a devastating mistake.

And I couldn’t agree more with what Don was saying. What we have to be really be careful of is retribution from one side on the other. They did it, so it’s okay for us to do it. And somebody’s got to rise above that partisanship and show real leadership, and show what the country is truly about, and serve the country rather than their party.

WEINER: Preet.

BHARARA: Rare. I’m broadcasting from my home, and in my own home I never get the last word, so thank you. I appreciate it. (Laughter.)

Look, I’m actually fairly optimistic if there’s a new administration about bipartisan support for some of these reforms, because a lot of these abuses we’re talking about — you know, many of them have occurred before. I think not to a degree that we’ve seen in the last four years. There have been bad pardons before — see, e.g., Marc Rich and Bill Clinton. There has been nepotism before — see, e.g., Bobby Kennedy. There have been lots of things that had happened before. I think in this timeframe to a size, and scale, and scope that we’ve not seen before.

But it is going to be true, I think, if human nature is what I think it is, that once this administration ends, Republicans who were prepared to keep their mouths shut because of fear of attack by the president or something else are not going to want a future Democratic president, billionaire or not, to be able to engage in these abuses that they know in their hearts and their minds were, in fact, abuses, right? Republicans are not going to want a future Democratic billionaire or reality star or whatever, you know, future populist you might imagine, perhaps demagogue, to be able to get away with having all sorts of financial entanglements, or take advantage of the emoluments that they’re not supposed to take advantage of, or be able to hire their daughter and their son-in-law and keep them in the White House without the ability to really hold them accountable just because you don’t pay them a salary, or all sorts of national security abuses, or be able to fire inspectors general with no explanation at all and completely without consequence. That’s a thing that everyone is going to care about when the shoe is on the other foot.

And so I think there is an opportunity in a new administration for both the Democrats, who I hope don’t do what Don, you know, worries about as well, and say, well, now it’s our turn — (laughs) — and we should be able to do whatever we want — and understand that, like in the post-Nixon era, it’s to everyone’s advantage to curb the things that — on a bipartisan basis, I think people will be more open about this without fear of attack from the president and say, these are a few quick things we need to fix: the contacts policy, inspectors general, nepotism, oh, the exercise of the pardon power, you know, giving some explanation. It is not going to be true that Republicans in the future will be fine if a Democratic president starts pardoning members of his family. It’s just not going to be acceptable. And I think once we get on the other side of this, my hope — maybe it’s naive — my hope is that people will see the sensibility in all this and we’ll get something done.

WEINER: Thank you. And on that note, we are out of time. On behalf of the Brennan Center for Justice I want to thank our outstanding panel for a really wonderful conversation and I want to thank everyone who is watching this discussion. Thank you all and have a wonderful day.

BHARARA: Thanks, folks.

WHITMAN: Thank you.


NELSON: Thank you.

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