Preet Bharara:

From CAFE and the Vox Media Podcast Network, welcome to Stay Tuned. I’m Preet Bharara.

Jill Lepore:

Get rid of this guy. Save the country. Your party is doomed. Your political career is over. History is going to despise you. You destroyed this country. I wake up in the middle of the night and I think, why were there not those ten guys?

Preet Bharara:

That’s Jill Lepore. She’s a professor of American History at Harvard University, an author, and a staff writer at The New Yorker. This summer, she published The Deadline, a wide-ranging essay collection of her work over the last decade. She also recently wrote an explosive New Yorker piece about the failed prosecution of Confederate President Jefferson Davis. We explore the long-term resonance of Davis’ escape from accountability and its relevance to former President Trump’s many legal travails. We also talk about Lepore’s work with Amend, a project to archive and research all failed attempts to amend the U.S. Constitution. That’s coming up. Stay tuned.

Q&A

Now, let’s get to your questions. This question comes in an email from Evan. As a long-term devoted fan of you on this podcast, I have this question. Did Ginni Thomas get a pass from the January 6th Committee? I haven’t heard anything more about her since a brief account after she was interviewed by that Committee. Is there a chance she may face some criminal charges from her role in the Stop the Steal efforts?

Well, Evan, thanks for your question. Ginni Thomas, of course, is the wife of Supreme Court Justice Clarence Thomas, who was reported a little over a year ago to have had communications with Mark Meadows and the White House, Jared Kushner, the former son-in-law, and some other folks in connection with some of the things that happened in the leadup to January 6th. And she obviously has a particular point of view about what the election was and whether there was fraud or widespread fraud in connection with the election.

Well, as for your question, does she get a pass, well, I think that’s too strong a statement. I think she did get some extra courtesy and solicitous treatment from the committee. It took a while for them to bring her in. There was a lot of swirling, I think, controversy over the fact that maybe she was being treated a little bit better than other witnesses because she happened to be married to a supreme court justice. In the end, she did testify voluntarily almost a year ago before the committee. And a transcript of her statements to the committee and her testimony was made public.

In that testimony, you may recall she talked about texts that she had sent to Mark Meadows about asking him to remain strong. She referred to the election as a heist. She also said that she was emotional at the time and she regretted some of her actions and some of her comments. Whether she’ll face criminal charges were clearly in the minds of the January 6th committee, which made a bunch of referrals, she was not criminally responsible or criminally liable. According to an AP story about a year ago, “Investigators did not believe she, Ginni Thomas, played a major role in Trump’s efforts to overturn the election or his inaction as the violent insurrection unfolded.” The report goes on to say, as is known publicly, “Her name does not appear once in the committee’s final report released last week.” Now, I don’t think that’s because of solicitousness. I think they made a determination that other people were more responsible. I think Jack Smith has made a determination that other people were more responsible, and same for the prosecutor in Fulton County, Georgia.

Now, there’s another person in connection with the saga who probably did get a pass, and that’s Clarence Thomas himself, because whatever the standard should be for charging someone criminally with involvement in the insurrection of January 6th, the standard for recusing yourself if your wife has a direct association with and connection to those acts and that insurrection, even if wasn’t deemed to be high enough to meet a criminal standard, I think Clarence Thomas met.

And so, if there’s someone you want to be mad at in this process, it’s Clarence Thomas. And you’ll recall it remains to be seen what Clarence Thomas will do in a current pending case at the Supreme Court. As you may recall, Donald Trump’s legal team has argued that he deserves absolute immunity in connection with January 6th and that he’s protected by the double jeopardy clause of the Constitution because he was already tried in the senate with respect to conduct that occurred on January 6th. It’s the view of a lot of reasonable people that, based on Ginni Thomas’ connection to those events, Clarence Thomas, her husband, should recuse himself. He probably won’t, but he should.

This question comes in an email from Chuck, who writes, “I’m an avid listener of your podcast. I know you’ve discussed that Trump could tell DOJ to drop the federal lawsuits once elected. However, let’s assume Trump is convicted in the two federal cases and the Georgia case before the election or before his inauguration, should he win the election. Once elected, can he do anything to quash or negate the convictions?” That’s an important question and one that becomes more real and tangible as every month goes by and as Donald Trump gains momentum in the polls, both in the primaries and in various general election polls we’ve seen come out in recent days.

So, if he’s convicted in Georgia, there’s not much he can do about it, even if he becomes president again, with one exception that I’ll mention in a moment. And it’s also true, essentially, with respect to the federal convictions as well. Now, I can imagine one scenario in which he appeals from one or both federal convictions and for whatever reason, procedural, technical or substantive, the conviction is overturned and sent back to the district court for a retrial. That happens from time to time. Maybe there’s a mistake in the legal instructions that a judge might give in one of those cases. And an appellate court during Donald Trump’s second presidential term, an appellate court sends it back to the trial court.

Well, now it starts all over again. Obviously, in that circumstance, Trump could direct people at the Justice Department to not proceed with the prosecution, and it would end. With respect to the Georgia case, if there was a successful appeal and the case went back to the trial court for a retrial, similarly, the office of legal counsel opinion might be operative, the one that states that a sitting president can’t be prosecuted. That would apply to all three cases, the federal cases and the Georgia case.

But the main avenue for Donald Trump trying to avoid consequences for a conviction before he becomes president again, if he does, is the self-pardon. We’ve talked about this before. It’s a controversial subject. It’s never been decided upon by the Supreme Court or, I think, not really any other court. Can you pardon yourself? This question came up and occupy the attention of some people at the justice department five decades ago when Richard Nixon was in trouble and people at the Justice Department determined not without a lot of analysis that a self-pardon would violate the longtime principle in Western jurisprudence that one cannot be a judge in one’s own case.

And that said, Donald Trump has suggested that he might consider it. People close to him have suggested that he should consider it. So, it’s possible it would have to be litigated and it could take a while to be litigated. But that’s the only way I can think of off the top of my head that he could do anything to quash or negate the convictions, at least the federal ones. I’ll be right back with my conversation with Jill Lepore.

THE INTERVIEW

Jill Lepore’s recent essay collection details her reactions to this decidedly historical period in American history. Over the next hour, we revisit the recent past. Professor Jill Lepore, welcome back to the show.

Jill Lepore:

Hey, thanks so much for having me.

Preet Bharara:

It’s crazy because I was saying this before we started recording that, when I looked up when you were last on the show, it’s over four years ago. It was November of 2019. I don’t know how that could be.

Jill Lepore:

Well, that’s pre-pandemic.

Preet Bharara:

Have a couple, three things happened in the last four years, you think?

Jill Lepore:

Yeah. We’re in a new historical era.

Preet Bharara:

You have a new book called The Deadline. And in it you write about time and you say it was a time that felt like a time, felt like history. So, before we get to what you mean by that, this last four years of not talking to you felt like a time. How would you, and I know you’re not into summarizing, you write books and you write long form essays for The New Yorker, but if you had to sum up in a few sentences for someone who has been offline for four years since our last conversation, how would you describe the last four years?

Jill Lepore:

Oh, gosh. I was recently trying to write a new chapter for… I wrote this history of the United States, These Truths.

Preet Bharara:

Yeah.

Jill Lepore:

And I was revising it for a textbook, a college textbook edition. And they’re like, “Could you add a chapter that gets us up to the present?” And I was like, “Yes, but no. How do you make sense?” It’s so hard to make sense of the feeling that many people around the world assumed, many Americans assumed, especially about the United States, turns out to be no longer an assumption, something that’s up for investigation. It’s really more of a hypothesis than an assumption. It was really hard. It was very interesting to try to come up with that chapter.

But I had also, during the pandemic, I started a reading group with, I don’t know, a dozen political scientists, historians, mostly journalists actually called Four Years where we read a bunch of stuff about what had happened in the last four years. This was 2016 to 2020. And I went back and read my notes from those conversations because a lot of smart people had a lot of smart things, people who are maybe better than most historians at making sense of things as they’re happening. Historians are terrible at making sense of things as they’re happening.

Preet Bharara:

Let’s test that for a moment. Are there things that four years ago you predicted, either in writing or in your mind, that came true? And are there other things you want to concede you got totally wrong?

Jill Lepore:

An arena of writing where I have been sadly accurate has to do with the consequences of the cultural elites’s embrace of Silicon Valley. So, I wrote a piece, it was maybe 10 years ago now, 2013 maybe, about the idea of disruptive innovation. That essay is actually in this deadline book that was critiquing what was really then largely unquestioned gospel, that disruptive innovation is how change happens and will happen, and that it’s a good thing, and we should therefore defer and allow even more consideration for the demands put upon the economy and upon the workforce and upon the culture and upon our politics by serial entrepreneurs.

And I got really attacked for having criticized this idea, but I stand by it. And if you think about, just say the last year with what’s gone on with Elon Musk and Mark Zuckerberg and Sam Bankman-Fried, the list goes on, I think most people who would’ve defended the need to just make room for disruptive innovation rather than to ask questions of it would now concede that not necessarily that I would’ve been right. I don’t think these are people that are going to concede to me, but he would now offer up a different position. So, that’s the one side. I assume you’re asking more about politics, but that was…

Preet Bharara:

Yeah, that’s what I was thinking. But that’s interesting about how Trumpism evolved and gained momentum even after a loss. I don’t know, maybe you view it differently. Does it have momentum? And how do you think your predictions fared with respect to our own democracy?

Jill Lepore:

I think, for a long time as a historian, I was pretty unwilling to answer the question that journalists always asked before Trump, which was, is this unprecedented? There seemed to be a real journalistic tick right after Bush v. Gore to pull out your Rolodex and call whatever historians you might have heard of and ask, is this unprecedented? Is that unprecedented?

And of course, 9/11 followed quickly on the heels of that election and was unprecedented. But that actually really escalated that, I don’t know, just the prevalence of that gesture. And as a historian, things would keep happening, like, no, that’s not unprecedented. Our partisan division is not unprecedented. The risk of political violence in the floor of Congress, not unprecedented. Surging nationalism, ethnic kind of nationalism within the United States, not unprecedented.

So, I think I maybe idiotically prided myself on being the calm historian who’s like, “Yeah, well, there’s no other era that you’d rather have lived in. This is bad, but every other time before is worse.” And I think that was Pollyanna-ish looking back on. There were plainly things I thought were bad. I just didn’t think there was a novelty in the way in which they were bad.

And that changed for me around about 2018 when I just gave up on trying to defend the idea that things weren’t actually just getting worse and worse. So, that’s a sad, a very sad answer to your question.

Preet Bharara:

So, later in the program I’m going to ask you about your prognostications for the fear of the future, but I don’t want to do that yet, and I don’t want to end on that because that would be too demoralizing. But you said something that provides me with a segue to talk about a super fascinating piece that got a good amount of attention that you wrote in The New Yorker this month. Speaking about whether things have a precedent or unprecedented, you wrote an article called, What Happened When the U.S. Failed to Prosecute an Insurrectionist Ex-President? And of course, you’re talking about Jefferson Davis after the Civil War. I have a bunch of questions about this, but could you, to orient listeners, remind everyone who may not need much reminding, but remind everyone who Jefferson Davis was and what the predicament was for the United States after that war, with respect to him and others?

Jill Lepore:

Yeah. So, Jefferson Davis had been an eminent American statesman. He had been secretary of war. He went to West Point. He served in multiple American wars, became Secretary of War, was a Senator for Mississippi, and after Abraham Lincoln was elected in 1860. Davis was among the leaders of the movement for what became the Confederate States to secede. He resigned his seat from the Senate in 1861, and then a few weeks later was elected or appointed and then later elected president of the Confederate states of America. So, he was also commander-in-chief of the Confederate army.

In 1865, after Lincoln was shot, which was right after the Confederate army surrendered at Appomattox, Andrew Johnson, who had been the vice president of Abraham Lincoln, put out an order for Jefferson Davis to be arrested and brought to Washington for trial. He was suspected of having been involved in the assassination of Lincoln, but in any event, 750,000 people died during the Civil War.

Preet Bharara:

Yeah.

Jill Lepore:

There was an expectation that, really, all the leaders of the Confederacy would be tried for treason. Military leaders could be paroled. There were laws of war that would’ve obtain, but that many of the, especially the political leaders of the Confederacy would be tried for treason, that this was an important piece of the work after the war. So, he was captured and arrested. And you ask most Americans, people probably know who Jefferson Davis is only because during the George Floyd era, big statues of Jefferson Davis were yanked down by protestors. The name resurfaced in the last few years, but I think most Americans would probably assume he was tried for treason and disappeared and spent his life in prison or something.

Preet Bharara:

Yeah, but he was not.

Jill Lepore:

But he never was actually tried. He was charged. He was indicted multiple times. He was released on bail after two years in a military prison. And then, the trial just simply never took place. The government essentially dropped the prosecution. I had not known that.

Preet Bharara:

Wait, you hadn’t known that?

Jill Lepore:

I haven’t actually known that.

Preet Bharara:

You are the history…

Jill Lepore:

I know. I had just assumed that there would’ve been a…

Preet Bharara:

Yeah. Well, that’s why we need you to excavate these things. Now, you say something in this article that puts in words, I think just as finely as anyone I’ve heard put it, and I’ve been talking about this subject for a number of years now on the podcast and on television in writing, this question of whether or not there’s anyone above the law and should anybody be above the law. And we say, and judges say even in the Trump cases, no man is above the law. But you say, I think correctly, “The American presidency is draped in a red, white, and blue cloak of impunity. You write also, the insurrection of the Capitol costs seven lives. The Civil War costs 700,000. And yet, Jefferson Davis was never held responsible for any of these deaths. And then, you say, if Davis had been tried and convicted, the cloak of presidential impunity would be flimsier.” What do you mean by that?

Jill Lepore:

Well, remember when the first indictment came in, Alvin Bragg indictment came in, and there was, again, the whole flurry of, “This is unprecedented. No American president has been criminally indicted.” And of course, this has been through that now many times.

Preet Bharara:

Right, the fourth time, there are only three presidents for this.

Jill Lepore:

And the question of whether Trump will actually face trial, we have all these questions now, given the timing and these immunity motions, etc., a big piece of how Trump himself can mobilize his supporters to raise money for his campaign and whatever else he’s doing with this money is to say, this is unprecedented. We don’t prosecute former presidents. And in fact, we certainly shouldn’t, right? No one wants to live in a country where what happens when you get defeated electorally is that the new political powers prosecute you. That is a terrible way for political life to take place. On the other hand, no one wants to live in a country where you are immune from prosecution no matter what you do. And that’s the country that we live in. And we’re on the cusp of living in either one of those terrible situations. But the thing I get as a person who is dispositionally conflict averse and who longs for political quiet and is really-

Preet Bharara:

I think we all do now.

Jill Lepore:

… more of a reformer than a revolutionary, I can see, I will confess, I can see it being 1865, yeah, I want Jefferson Davis to hang. Lincoln’s just been killed. Yeah, let’s try that guy. And then, well, delays, whether there’s a lot of other… seemed to be some prosecutorial delays. Well, a year, 18 months later, two years later, well, I just want to forget it all.

Preet Bharara:

Get on it.

Jill Lepore:

I can get that.

Preet Bharara:

Yeah.

Jill Lepore:

And I can see how people could get themselves to that place. And yet-

Preet Bharara:

That’s a disservice.

Jill Lepore:

… it’s a disservice to the future generations. If this guy gets off, then who’s going to get off next? And that’s where I come down with, like, I wouldn’t have wanted to be in the position of having to file charges against Trump. But because I think it’s actually bad for reelection of Biden, honestly, I think the political cost is pretty high. But the cost to our posterity is much higher to not charge the insurrection-related charges.

Preet Bharara:

Yeah, there are no good choices here. Because of the conduct of the former president, it’s the lesser of the two evils. Now, what I found endlessly fascinating, maybe because I’m a lawyer and a former prosecutor, is what some of the complicated legal issues were that, in part, delayed and precluded ultimately the trial of Jefferson Davis, right? So, if the idea, and this I had not known at all before, the idea is you’re going to prosecute him for treason. That argument is undermined in part by the fact that Mississippi seceded from the union and Jefferson Davis engaged in all these actions after the secession of Mississippi. And if that was an operative fact, he couldn’t have committed treason because if you’re the subject of one sovereign and you attack another sovereign, that’s not treason. Do I have that legal complication correct?

Jill Lepore:

Right. That he was not a citizen of the United States during the Civil War.

Preet Bharara:

Right.

Jill Lepore:

And therefore, there’s no way you can prosecute him for treason. This was going to be his argument. So, to hold the trial on the charge of treason would give him a public platform to insist on the constitutionality of secession, which in part was what was at stake in the war, right? Secession was completely inseparable from the question of slavery. But having just finally defeated the Confederacy and ended the institution of slavery and now Congress is pursuing what becomes the 14th and 15th amendments, to have the leader of the Confederacy in a courtroom day after day after day going on and on about the constitutionality of secession, how important it was to defend the institution of slavery, the attorney general really didn’t want to be doing that.

Preet Bharara:

Yeah. So, that was a real argument. It was not a technical argument, but a real problematic argument. And it leads into the second reason, it seems to me, from your piece, why there was not ultimately a prosecution of Jefferson Davis, the fear and the alarm at the prospect of an acquittal, right?

Jill Lepore:

Yeah.

Preet Bharara:

How did people think about that?

Jill Lepore:

I think they just thought it would undo the union’s victory in the war in a certain kind of way. And as time passed, it became more dangerous, because early on that was just Davis’ argument, “I wasn’t a U.S. citizen.” But later on, that was the argument of radical Republicans. So, by 1867, reconstruction isn’t really working. So, congress passes the Military Reconstruction Act, which is, “All right, we’re going to occupy, the U.S. Army is going to occupy the South. The former Confederate States are going to be run by military generals. And that is because the South is essentially a conquered province. And there’s a whole arena of law regarding conquered provinces, and we can conduct a military occupation of this. And we can therefore guarantee that Black men will be able to vote,” which is what they’re moving toward with the enfranchisement of Black men.

And former confederate officers won’t be able to vote or serve in office. So, now, the radical Republicans are like, “Shoot, whatever you do, don’t try Jefferson Davis,” because government, the U.S. government, will have to say he committed treason, but is actually the official policy of the U.S. government that the former Confederacy is a conquered province, which actually supports his defense.

Preet Bharara:

Right, yes. So, there were actually real legal thickets here. It wasn’t 100% a failure of a certain will, or was it?

Jill Lepore:

I think the immediate slowing down, which was I think done in good faith, was probably the failure. I think that Frederick Douglass blamed Andrew Johnson. He was a real sympathizer with the Confederacy and said, “Johnson contrived it this way so that he could avoid prosecuting Davis.” I think Douglass probably right about that. If the prosecution had been done before 1867 in military reconstruction, I think it would’ve been fine.

But the other complicating factor by the time you get to 1867 is that there are Black men on juries now, including the federal grand jury that prepares a superseding indictment. And at that point, a lot of the public appetite among white northerners for convicting a man to death with a jury that’s going to be six Black men and six white men, people don’t have the appetite for that in terms of what kind of political violence it would unleash.

Preet Bharara:

So, let’s jump ahead to where you might see parallels. Does history rhyme? Is the predicament of Donald Trump in parallel, or does it rhyme with the predicament of the folks who were considering the prosecution of Jefferson Davis, either in the initial delay or in some fear of what kind of political violence might be unleashed now?

Jill Lepore:

I think there’s a lot of fear about political violence. I think there was a lot of hope. I am not an inside reporter. I’m not the guy who can say, the justice department took a really long time and they waited until the January 6th house committee report before pursuing actual indictments. And why were they dragging their feet? Maybe they’re just hoping that Trump would go away. That’s how it looks to me from a distance. But I’m not a Washington D.C. inside the beltway reporter who can report that. I think there was a lot of reticence. It’s going to be a godawful mess to hold these trials. And I can understand the reticence.

So, I think there is some of that there. There is also the overshadowing issue. And one of the reasons that people wanted Davis to be prosecuted was I found this great letter from Francis Lieber, who was a constitutional law professor at Columbia, to Charles Sumner, the radical Republican Massachusetts senator saying, “Look, we got to bring this guy to trial, or he’s going to run for president. He’s going to be sitting next to you in the senate the next time.”

Preet Bharara:

There’s another parallel.

Jill Lepore:

“He’s going to run by 1868. He has to be held accountable.” And I found that quite chilling, because in fact, on top of what’s going on with the Trump trials, there are these state efforts to disqualify Trump using section three of the 14th Amendment. And in fact, one of the things you see when following day by day the delays in the Jefferson Davis prosecution is the idea, “Oh, well, if we’re not going to try them, you know what we could do. We’ll just add this thing to the 14th amendment. That means that none of these guys can run for office again.”

And so, it’s just unbelievably painful to watch state courts say, “That’s not really what they meant.” That’s absolutely what they meant. And the disqualification argument I think is extremely strong, and I don’t think it’s going to prevail. But so, yes, there’s another, geez, it’s not really a rhyme. It’s unbelievably dissonant, right? It’s atonal music. You don’t want to listen to it.

Preet Bharara:

Right. It’s funny, when I was reading about these complications with respect to Jefferson Davis and the comparisons you’re drawing to the predicament we face with Donald Trump now, there’s another parallel that came to my mind. I don’t know if it occurred to you also. Because one of the controversies was what’s the proper venue or forum to try Jefferson Davis, a military commission or not?

And then, all the pain and stern and drain about how difficult it is to deal with this situation also arose with respect to the prosecution of Khalid Sheikh Mohammed and his co-conspirators on the 9/11 case, where there was a lot of hand wringing, there was a decision to do it in a civilian court, that decision was overruled by the same White House, and nothing ever happened. And somewhere, you cite to somebody who claimed that the entire idea of rebellion is perhaps beyond the constitution. And I felt a little bit that way when we had the KSM debates a few years ago. And I guess my question to you is, how do you address the question of whether or not it’s the case that the January 6th insurrection and all that flowed from it is arguably beyond the constitution, in the sense that the constitution really didn’t anticipate and contemplate such a thing?

Jill Lepore:

Yeah. I do think that’s true. And yet, it’s what we have. So, we can bemoan that and regret it, but it’s what we have. And one of the ways in which I think it’s useful to think through that as a problem historically and politically is that the constitution was set up with article five, the amendment provision, which was sometimes known as the Peaceful Revolution doctrine. The idea that, well, we do believe, and this is in our Declaration of Independence, in a right to revolution, we erect this government through our own consent as a people, and we reserve to ourselves the right to alter or to abolish it.

Well, the abolishing was what the Civil War was about. And people in the aftermath thought, “Hey, maybe that’s actually not a good thing to just reserve. That’s maybe seceding, and having a revolution to overturn the government is not great. But what we’ll do instead is amendment.” So, there’s this amendment revolution. We get the 13th, 14th, and 15th amendment. The constitution hadn’t been amended in the previous 65 years by 1865 when the 13th amendment is ratified.

So, the idea is, “Wow, okay, here’s what we learned. We really need to amend the constitution because it is the peaceful way to change the system of government. And if we don’t amend the constitution regularly, what we leave open as the only possible avenue is insurrection, right?” That’s always the hidden behind the amendment provision, is the risk of insurrection. So, we’re living in a time now that constitution hasn’t been meaningfully amended since 1971. And so, it’s not as long a time, but past 50 years. And that kind of brittleness is a challenge, right?

Preet Bharara:

Yeah.

Jill Lepore:

We just know the ways in which these questions regarding fundamental rights are not resolved anywhere except by five justice majority in the supreme court. And that’s a really volatile situation. It’s the same kind of volatility that was evident in the 1850s. This is why you see historians on MSNBC all the time talking about the 1850s. I honestly don’t think it’s super helpful, because it just freaks people out. But as a matter of constitutional history, it is the relevant analogy.

Preet Bharara:

Do the counterfactual for a moment. Indulge me in it because you suggest this point. If Jefferson Davis had been tried and convicted of treason or something similar, do you think we’d be recalling that precedent today? And would it have a solitary effect on how we deal with former President Trump or not?

Jill Lepore:

I do think so. It would’ve unleashed a series of prosecutions, right? Everybody else’s indictments were put on hold until it was resolved with Davis, and then they were all pardoned, ultimately. An amnesty, we can be happy about a tradition of amnesty. But I think even say the Nixon investigation would’ve gone differently. You could also ask the counterfactual, what if Andrew Johnson had been impeached? So, radical Republicans are trying to impeach Johnson at the same time, partly blaming him for the delay in prosecuting Davis. We forget that part of why the impeachment investigation was begun.

And at that point, this Columbia law professor, Francis Lieber, writes his seat to a friend. He’s like, “I wish they’d impeached the guy because you know it would be really…” They keep saying, “We don’t want to have to impeach a president. It would be such a bad precedent.” And Lieber’s like, “No, it’d be such a great precedent. What would it mean to the world to show you have a leader who defies your constitution, you remove that person from office through a lawful process. That would be great. That would be great for American children to see, the same reason it would be great to try Jefferson Davis and convict him. It would be great to show this is how the rule of law works.”

So, would it have been great? I don’t know. What either of those things, either successful impeachment of Johnson or a successful conviction of Davis had led to a lot of political violence extended, maybe. But we do know what did happen, which was that the South one, the piece, partly because Davis wasn’t prosecuted, partly because the message was, “We disagree with you guys, but we don’t disagree that much. We’re happy to concede that you can continue to disenfranchise Black men and women and have a reign of terror against them. We’re not going to deal with lynching. We’re not going to realize the promise of the 14th amendment. We’re going to let you essentially ignore the 15th amendment.” I don’t know. Counterfactuals are really hard for historians, but I have to think…

Preet Bharara:

Yeah. And put up all the statutes you want.

Jill Lepore:

Right. You can tell whatever story you want about how great the Confederacy was, because we don’t care enough to prosecute this guy or anybody else. So, I guess I do think history would’ve unfolded differently. I think reconstruction might’ve gone differently. The myth of lost cause would’ve had a different cast. Or you might say, people could say another historian, look, Davis would’ve been a martyr. This is the whole thing about Trump. Well, you’re just making him a martyr. You’re just increasing his support. I don’t know.

Preet Bharara:

I don’t know either. But it is not crazy. Although, I think you and I are in the same camp that we disagree. It is not crazy to think, for the purposes of at least short-term or medium term and maybe even long-term harmony and peace, we forego accountability and what many people would call justice, because it’s hard to know. We are engaging this exercise of the counterfactual. Real policy makers and prosecutors and heads of state are doing that in real life and making decisions based on how they think plan A would fare versus plan B. And we can say 150 years later that they chose the wrong plan, but it’s not possible to really know, is it?

Jill Lepore:

Yeah, it’s impossible to know. And I found reading the letters written by lawyers whose commitment to the prosecution of Davis was dwindling heartbreaking because I could see how they were getting themselves to this place. But I think in the absence of any way to know what the political outcome will be immediately or down the line, you have to do what the law says. Someone breaks the law, you got to pursue the prosecution.

Preet Bharara:

I’ll be right back with Jill Lepore after this. Do you have a view about what will happen in terms of political violence if Trump is convicted on one, two, three, or four indictments?

Jill Lepore:

Mm-hmm.

Preet Bharara:

Maybe that’s not your wheelhouse, predicting immediate contemporary political violence.

Jill Lepore:

Yeah. No, I don’t think it’s anybody’s wheelhouse. People make these predictions, but that’s just what their job is. I just don’t think it’s super helpful.

Preet Bharara:

Yeah, maybe not.

Jill Lepore:

I’m pretty worried. I’m absolutely worried. But I think I’m more worried, at this point, seems more likely that he won’t be tried before the election, and that he’ll just pardon himself of all the charges. That worries me more.

Preet Bharara:

Here’s a thing that I’m curious about and that I don’t know how to deal with. So, Trump says crazy stuff. And he sometimes says them with a grin or with a smile or with a twinkle. And anti-Trump people, I think legitimately, because they think there’s lots of signs of strong man tactics and a love for strong man dictators, and they get all up in arms, and then the Trump supporters say, “There goes the left again, overreacting and being silly and ridiculous.” So, just one example in recent days is in response to the argument and the claim that Trump wants to be a dictator, he says, “I think in a very wily way, I don’t want to be a dictator.” And then, he pauses for dramatic effect, “Except for one day,” right?

Jill Lepore:

Mm-hmm.

Preet Bharara:

And he says it with enough humor, and I’ll grant him that, and a wink that the anti-Trump people go bananas, I think for good reason. And then, the pro-Trump people go bananas at the left going bananas. Do you have a view on any of that in that tactic?

Jill Lepore:

Yeah. It’s a very tiresome dance.

Preet Bharara:

It is. But he is very good at it.

Jill Lepore:

He’s really good at it. And a lot of the media really hasn’t learned that lesson, I would say. I think the whole Trump derangement syndrome, if you go back and read that stuff, I’m sure if I read stuff that I wrote in 2015, 2016, I would say, what an idiot.

Preet Bharara:

Wait, how so? What would the self-critique be about?

Jill Lepore:

I just think not getting it. Just not getting it. I think still not getting the appeal. I wrote a long piece when the January 6th report came out. I sat. It was just this time of year. It was right after the holiday came out. And I had a PDF. It was 1,300 pages. I sat and read the whole thing. Everybody in my family was annoyed. Aren’t you going to play Trivial Pursuit? Whatever? No, I’m reading this wretched document.

Preet Bharara:

“I’m in a consequential pursuit, family.”

Jill Lepore:

Yeah. I know a lot of trivia now about the fake electors and the ginger mints. And what I was fascinated by it, my piece was mostly about, it was a very effective bill of indictment against Trump. The committee, as a matter of, I’m sure, political compromise specifically with Liz Cheney, just didn’t explain Jack. Nothing was explained by way of his hold on his supporters, how people became convinced that the election was stolen, the means by which that idea was disseminated and supported, and an architecture of belief was built around it. There was just no explanation at all, even though the committee had held, the exec conducted investigation into the role of social media or whatever.

So, I think there’s a real preference to focus on Trump over focusing on the nearly half of the country that supports Trump. And you think about the last two years where he emerged from political exile, really. Once the Kevin McCarthy handshake took place, he wasn’t never really a political exile, but has emerged as the leading contender for the Republican nomination. I think we bear the costs of not having explained the half the country that supports him instead of focusing on him. And by we, I mean the press, but I also mean the academy, people who study politics and political history.

Preet Bharara:

I’m going to use this word that we don’t love. And instead of talking about whether or not a particular event, like the potential prosecution of someone who’s betrayed his country as Jefferson Davis arguably did, and as Trump arguably has, is Donald Trump himself an unprecedented figure in presidential politics? Or, does he have as a figure and as a particular person who involves a particular rhetoric, is he unique?

Jill Lepore:

Yeah, he is unique, thank goodness. People try to make these kind of Mr. Potato Heads using George Wallace’s eyeglasses and Charles Lindbergh’s bow tie or whatever. If you put together a bunch of crackpots and wealthy businessmen and fanatics on the far right and Barnum-like conman, you could put together an orange Mr. Potato head and get Trump. But I don’t know, what is the point of that exercise.

Preet Bharara:

Yeah. It doesn’t teach you anything.

Jill Lepore:

The guy is who he is. I just don’t… yeah.

Preet Bharara:

Well, to me, the relevance of the question is you never know about the future. But if he is unique, one of a kind, sui generis, whatever other phrase you want to use, maybe if you’re on a particular side of the fence like I’m on, you can rest easier that, when he’s gone, there won’t be another one like him. Or can you not rest easy in that respect?

Jill Lepore:

Yeah, you can’t risk, I’m sorry. You cannot risk easy.

Preet Bharara:

You’re being a downer again.

Jill Lepore:

I’m sorry, but the party system needs to be completely rebuilt. The Republican Party is over. It doesn’t exist anymore. The party that calls itself the Republican Party is a completely different party. So, the Democratic Party is, I think, insignificant disarray in its own right. To circle back to your, what do I think as a historian, I got right looking around in 2015 or 2016, I wrote a piece called The Party Crashers that was about the dismantling of the party system. There are many forces that have contributed to the dismantling and hollowing out of the party system. But if Trump were struck by lightning tomorrow, the party system would still be in complete disarray and need to undergo a real wave of reform and restructuring.

Preet Bharara:

It would. But I guess my question is, if you’re be struck by lightning and go away, and if there’s nobody quite like him who can speak to that base in quite the same way that he could, can inspire that base in quite the same way that he could, and instead are lousy facsimiles of him bring to mind all the bad traits of the establishment, whether it’s Ron DeSantis or Nikki Haley or anyone else, what happens to the expectations of that base when Trump is gone if there’s not someone left to fill the void in quite the way that he was able to fill it? This is the more wishful thinking on my part, that the party has to change because there’s no one there to be the Barnum for that particular base anymore. I don’t know that there is anyone. Or maybe someone will arise. Maybe it’s Vivek Ramaswamy, I don’t know. I’m looking for optimistic thesis on which to talk about a post-Trump Republican Party.

Jill Lepore:

Yeah, I think that there needs to be… do you remember all those years when people thought, couldn’t just 10 Republican senators get in a room and agree to jump ship?

Preet Bharara:

Yeah.

Jill Lepore:

I’ll buy you guys dinner, just 10 of you. I don’t care who. Just get some spine, save the fucking country. I’m sorry. I’m like, where were those guys? What were they doing all those years, even during the second impeachment? Just get rid of this guy. Save the country. Your party is doomed. Your political career is over. History is going to despise you. You destroyed this country, that. I have that. I still have that. I wake up in the middle of the night and I think, why were there not those 10 guys?

Preet Bharara:

Well, Mitch McConnell, who clearly, with every fiber of his being, every bone in his body, every neuron in his brain, despises Donald Trump. Everything he’s done to the country other than the supreme court and how he’s destroyed the party and whatever you think of Mitch McConnell, he liked his party and he didn’t even vote for a conviction.

Jill Lepore:

Yes, right. So, that’s why I’m answering your you’re looking for hope with my…

Preet Bharara:

There is no hope. Mr. Bharara, there is no hope.

Jill Lepore:

When it just did not, how much would it have taken, honestly? Yes, you’re not going to get reelected. Yeah, you’re going to get a lot of hate mail. The whole Romney and Cheney memoir, where they were fearing for someone who was going to go to their house and attack their children, okay, you ran for political office, you hold political office, get your wife and children to a safe place and vote to impeach the guy. I don’t forgive that. And I don’t see, unless those people, unless you were to go around and scoop up the old octogenarian Eisenhower Republicans and have them make an awesome save the world, save the children video in round song or whatever…

Preet Bharara:

Starring Jeff Flake.

Jill Lepore:

Yeah, there’s just has to be a different, Ben Sasse is going to come out. I don’t see the stepping stones across that rushing river. Now, that’s not to say that they’re not there. I can’t see them from here because I’m historian. I’m too busy looking backward at that second impeachment. And just still the betrayal that that involved of public office just staggers me.

Preet Bharara:

Yeah, there’s been a lot of betrayals. I’m going to talk about something that you’ve already mentioned a couple of times, and that is a project that you’re working on. I think it’s called Amend.

Jill Lepore:

Mm-hmm.

Preet Bharara:

You’re on sabbatical this year, researching all the ways in which the constitution has ever been amended or sought to be amended. And you said earlier in the conversation that there’s been no meaningful amendment to the constitution in over 50 years, and that when the Equal Rights Amendment failed in the early ’70s, something about that has rendered our constitution essentially unamendable. Why is that?

Jill Lepore:

Well, the U.S. has one of the most difficult constitutions in the world to amend, our federal constitution, and the lowest amendment rate. It just has a function of how many amendments per year. There are 27 amendments. And we’re well over two centuries old as a constitution. It’s not that Americans don’t believe in amending constitutions. State constitutions are amended all the time. Just think about just the abortion amendments over the last couple years.

Preet Bharara:

Yeah.

Jill Lepore:

There have been 12,000 attempts to amend proposals to amend the U.S. constitution introduced on the floor of congress as joint resolutions. There have been about 12,000 amendments introduced in the states in that same era. So, 27 of those have been ratified federally, 8,000 have been ratified in the states. So, a 75% amendment rate, which is about consistent with other countries around the world. Just written constitutions tend to be amended about that often, the way our state constitutions are amended.

So, you have a bunch of questions. Well, why is it so hard or why are Americans so reluctant to amend the federal constitution? Well, partly it’s much more difficult than it was intended to be. The double super majority requirements of amending the constitution were devised before the existence of a party system. So, it’s just much harder to reach those super majorities when there are parties. And it’s impossible when there are polarized parties. So, there are just plenty of structural things you could point to.

You could also look at, there have been long periods of constitutional amendment droughts in American history. Amendments have come in spurts, but there’s a pattern to the spurts. Usually, there’s a lot of political agitation around a set of things and almost revolutionary political agitation. And then, it leads to a spate of amendments. The Civil War leads to these three amendments. The progressive era, the populist insurgency of the 1880s and ’90s, and progressive reform movements the beginning of the 20th century lead to four amendments in just a few years.

What’s weird about our era, my lifetime, your lifetime, is the political revolutions of the 1960s and ’70s did not produce constitutional amendments. They produced instead supreme court decisions. That’s the other way that we can change the constitution. If you don’t revise it, you can read it differently. So, starting with Brown v. Board of Education in ’54, go forward, there’s more change in terms of judicial decision-making than there is in terms of amendments. But the people that pursued the ERA were like, “All right. Well, 1971, the voting age was lower to 18.” That’s a 26th amendment. In a significant way, that has to do with the anti-war movement, which is a political revolution of the 1960s.

So, these people were like, “Well, we would try to get the Equal Rights Amendment since 1923, it was first introduced into congress. We’re going to push for it now.” Goes through Congress in 1972, goes to the states’ ratification, and is derailed by the STOP ERA movement led by Phyllis Schlafly. And we really have an amendment that has been one more amendment. But the 27th was introduced in 1789, and its ratification was essentially just an oversight. It’s a great story. This kid at UT Austin wrote a paper for a political science class about how, actually, that amendment was ratified. He got a C minus, but then he went on…

Preet Bharara:

Wait, which one is 27?

Jill Lepore:

It’s congress involves congressional salary. It was an anti-federalists demand in 1789. And essentially, it’s a paperwork problem that it never was ratified.

Preet Bharara:

Right. Wait, he got a C minus?

Jill Lepore:

Yeah. But you know what? A friend of mine who I worked with, a guy who runs a comparative constitution project, went back and petitioned a couple of years ago for him to get an A plus. So, he got a great change.

Preet Bharara:

That’s another kind of grade inflation. I remember reading once…

Jill Lepore:

That’s another [inaudible 00:49:10] grade inflation.

Preet Bharara:

You’ll maybe remember this because you know and remember everything, but maybe it’s apocryphal, that the person who founded FedEx wrote up the concept of FedEx, I think, in business school or maybe in a business class in college and got a D or an F. He should have his grade amended as well.

Jill Lepore:

Yeah, that’s funny. I wish I could go back and get some of my grades fixed.

Preet Bharara:

I think you did quite fine, Professor Lepore. Is there a particular amendment or two that the country really needs?

Jill Lepore:

Yeah. You know what? The progressives point to three, one for each branch for the federal government to the top three, which abolish the electoral college, deal with equal suffrage in the senate, and do something about the supreme court term limits or the size of the court, right? So, those are the evergreens. In fact, those have been proposed from day one. And they’re repeatedly proposed and proposed and proposed and proposed.

Preet Bharara:

I don’t think the size of the court is prescribed in the constitution, right?

Jill Lepore:

No. So, that isn’t required. You could do that congressionally. And in fact, the senate equal suffrage is you can’t amend that. That’s why the article five says you can’t. There’s one way or two ways in which you can’t change the constitution, but one was that you weren’t allowed to change equal representation, equal suffrage in the senate. So, that’s a really tricky one. You’d have to amend the constitution before amending it. And the other perennial is the, like, if a genie offers you three wishes, the first one you should ask for is to ask for more wishes.

Preet Bharara:

More wishes.

Jill Lepore:

Yeah. Ask for the constitution to be made easier to amend is a perennial ask. Progressives are actually beginning to make these amendment wishlist because the conservative movement to call for a second constitutional convention has a lot of support behind it. And I think there are a number of legal scholars who will say, that’s quite likely to happen-

Preet Bharara:

Really?

Jill Lepore:

… in the next 10, 15 years. And if there’s going to be a constitutional convention and it’s going to be called for, chiefly, with a conservative agenda, then progressives ought to have a wishlist, a plan for the proposal for a set of rules, instead of just wishing that it isn’t going to happen.

Preet Bharara:

You also have talked about, and we on the podcast have talked about many times this trend line in the supreme court to base decisions, including the one on guns and many others, on the concept of tradition in history. If there was a tradition in the history of a particular regulation or encumbrance on a right or the provision of a right at the founding, then that makes all the difference in deciding a case or of controversy in 2023 or 2024. And so, my question to you, I’ve been dying to ask you this question, given the court’s reliance and, particularly, the people on the right on court, their reliance on “history,” and given your study of the court, and I will note also you’re about to join, in addition to all the things you do now, the Harvard Law School faculty, so you have some standing in this area, how are the justices as historians? Would you give them a C plus?

Jill Lepore:

No, it’s malarkey. It’s egregious. I reserve the right to offer up all of the proprium available to me as a scholar of history for the court’s record on history.

Preet Bharara:

Which is a lot.

Jill Lepore:

Here’s a number of things. If anyone wrote a paper in history class in which they artificially constrained the body of evidence they were willing to consult in order to answer historical question or problem to these five things because they thought they were the most important documents, you would fail. History is a form of inquiry. It’s not a set of justification. They’re using, essentially, the methods of the analysis of precedent and pretending that it is an investigation of history.

So, the example I often give is, so what they’re interested in looking for… if you’re just doing straight originalism, as opposed to the history and tradition test, you’re looking at the constitution, the records of the state ratifying conventions, Madison’s notes on the constitutional convention, and the federalist papers. And if you’re a super sexy literate, you’re going to quote Tocqueville and you’re going to think it’s cool that you were broad-minded, or we look at Samuel Johnson’s dictionary from 1755 or whatever, there’s a great moment where Robert Bork says… he’s asked about this, and he says, “Well, if George Washington wrote a letter to Martha from the constitutional convention explaining what he meant by direct taxes, that would not matter to me because it’s not part of the body of evidence that we use.” First of all, they were sequestered. Nobody wrote letters from the constitutional convention. But it’s just a very bounded body of evidence. Just doesn’t what the notion is of the public involving the original public meaning is bizarre.

So, the example I gave is, so Jane Franklin, Benjamin Franklin’s sister, wrote him a letter right before they were sequestered in May of 1787, in which she’s making fun of the constitutional coverage. She’s like, “If all you wise gentlemen involved in writing a new frame of government for us, maybe you could keep in mind that we would like you to beat the swords into plowshares.” And she’s suffered a lot during the revolution and the British Army’s occupation of Boston, women were raped by British soldiers.

And if we wanted to be creative with our reading of Jane Franklin’s letter to Benjamin Franklin, we could use it to think about violence against women. This Rahimi case that recently involved gun rights and domestic violence, we could say, “Well, unfortunately, women could not vote, were not represented in any meaningful way, could not hold office, could not participate in any way in the debates over the ratification of the constitution.”

But because they didn’t, but we are their descendants and we’re extracting ideas about the constitution now they’re going to apply to women, we have to look at all the possible evidence that women left about their lives. Why can we use Jane Franklin’s letter to say, men who have restraining orders against them for domestic violence cannot own guns? But you can’t do that because of the narrow body of evidence that is considered relevant. Because none of the men at the constitutional convention said that. Because that’s a letter written by a woman to a delegate, it just doesn’t fall within the ambit of what the supreme court considers to be the historical record. It’s crazy.

Preet Bharara:

Even within the bound, is it fair to say that, not only is the record bounded, but it’s also selective within the bounded area as well?

Jill Lepore:

Yeah, they are selective within the bounded area because conceptually… so, the gun history and tradition thing, which is, if you’re going to have a regulation involving individual ownership of firearms, there has to be a historical analog for it. So, if you want to say you can’t have guns within X number of feet of nursery schools, you need to find something that’s like that. But there weren’t nursery schools, then… it’s defining the problem in a way that makes it impossible for people that you disagree with to prevail.

And then, calling that justice. It’s bizarre to me. A thing that might be relevant, honestly, to the AR-15 mass shootings are rules about hunting. I don’t mean bearing arms. I mean regulations on, what is hunting season? How many deer you can take in a season? At this point, there are Americans who are hunting other Americans. If we have to live by this insane history and tradition rule, we actually have to open that up and think meaningfully about the world that we’re living in and what could possibly be an analogy to it. And it might be, for instance, the extinction of the passenger pigeon and just people going out and just slaughtering on a single day thousands of birds. That became illegal. That’s the closest. But why we should be torturing ourselves to come up with these just bizarre analogies instead of looking at the policy implications? I’m sorry, now, I’m just being irate, but drives me crazy.

Preet Bharara:

No, it’s okay. But is this why you joined the law school faculty, to teach future judges how to understand history properly in the way you’re describing?

Jill Lepore:

I’ve been teaching at the law school for a lot of years now. And I really like it. And I really like teaching those students.

Preet Bharara:

Could you teach at the supreme court? Could you do an extension school class, maybe, for some of those folks? I’m going to ask you a question about your personal writing style. First of all, I think you’re wonderful to read and all of your writing is wonderful to read. But in your last book, you address an issue in your own writing and in other people’s writing as well. And that is the degree to which if you’re engaging in history or historical analysis or other kinds of political analysis, when do you tell stories about yourself? When do you become reflective? When do you tell anecdotes about yourself?

And you talk about a memoir that has bugged you in the past. And I’m going to quote from you here because it’s a great set of lines. “The tits out memoir, where the only authority the author can imagine is the authority of personal experience. I watched a lot of fascinating women, scholars, investigative reporters, novelists, who had all kinds of knowledge about all kinds of things end up writing instead about girlhood, womanhood, motherhood, and widowhood. I despise a lot of that writing and I also love a lot of that writing.” And I’m cutting off the quote, but that gives you a sense. Could you just elaborate on that?

Jill Lepore:

Yeah. Have you seen the trailer for American Fiction?

Preet Bharara:

I’ve seen the trailer, yes.

Jill Lepore:

So, it’s a little bit of that, right? You come of age as a writer or scholar and you look around. And you realize, I can see the way people who are like me get ahead. And that is the vagina monologues. There’s a certain Prozac nation. It wasn’t like I was in graduate school in the ’90s. So, it was like, “Oh, I see.” The women who have public platforms that are big voices, a seat at a certain table, they’re all writing about their body parts. They’re all writing about their experience of, in some ways, the physicality of being in a female body. And it drove me nuts. Once I noticed that, it just happened and happened and happened. And I’d gone to graduate school to study women’s history. That’s what I really wanted to do. I did an about face and was like, “Damn if I’m going to do that. I’m not going to do that.” And I wrote a dissertation about this completely obscure war and then continue to just write about these topics that had, to me, deep political and moral importance.

But that were really involved turning away from a lot of things I was genuinely interested. I’m genuinely interested in the vagina monologues or whatever it is. I am genuinely interested in that work. And I got to a certain point in my career where I started thinking about what the cost was of turning away from that kind of thinking. So, this collection of essays has some of both, yeah. I’ve written more personal essays since it’s not what I exclusively do, but this collection of essays is mix of those things, trying to build a bridge between them.

Preet Bharara:

We’ve discussed lots of things that are naturally downers. One thing you’re optimistic about, and if you can’t say anything, we’re going to edit this portion out on the podcast.

Jill Lepore:

One thing I’m optimistic about? I think we’re on the edge of a sweeping reform in local government and state government and a lot of creative ingenuity. I think a lot of people working in municipal and state governments are acting in tremendous good faith. And I think we’re on the edge of a resurgence of local news and new attention and new humility on the part of the national news media around what local really means. I’m excited about that. I happen to be a fan of, for instance, the Vermont Digger, which is a local paper. I think they do tremendous reporting on almost no money. I think there are news organizations like that all over the country that are doing fantastic and exciting things. And I think they’re on the edge of something great.

Preet Bharara:

Well, that’s great. My view has always been that local reporting is essential to combat corruption in local office.

Jill Lepore:

Yeah.

Preet Bharara:

And a rise in corruption can be, I think, directly attributed to, in part, the diminution of local reporting. So, that’s good. We can be happy about something.

Jill Lepore:

Okay, good.

Preet Bharara:

Jill Lepore, thank you so much for spending time with us.

Jill Lepore:

Thank you so much.

Preet Bharara:

My conversation with Jill Lepore continues for members of the CAFE Insider Community. In the bonus for insiders, Lepore and I talk about her aversion to the massively popular film, Barbie.

Jill Lepore:

I have a problem with a kind of feminism that is a century old and markets itself as a new idea, because in a way it’s at the worst possible representation of feminism.

Preet Bharara:

To try out the membership for just $1 for a month, head to cafe.com/insider. Again, that’s cafe.com/insider.

BUTTON

Last week, I remarked at the end of the episode that the law isn’t just about abstract concepts, but as real impact on real people’s lives. I think it’s important to highlight stories of how the law shows up in everyday experiences. So, this week, I’d like to highlight the story of a young girl named Grace. Over the summer, a district court judge in Montana ruled in favor of a group of 16 young people who sued the state for violating their constitutional right to a clean and healthful environment by promoting fossil fuel projects. Grace, who just turned 20, is from Missoula, Montana. She was one of the plaintiffs who sued her state government in the case called Held v. Montana.

Grace:

It really is a spectacular place because it is surrounded by mountains. It has a river running through it. And because I grew up in this amazing place, I’ve spent a large chunk of my life outside.

Preet Bharara:

The lawsuit challenged a provision under the Montana Environmental Policy Act, known as the MEPA limitation, which prevents the state from considering the climate impacts of fossil fuel projects when conducting environmental reviews. The suit also challenged provisions of Montana state energy policy, which explicitly promotes the use of fossil fuels. The lawsuit also relied on the Montana state constitution, which has special protections for minors.

Julia Olson:

It has some special provisions, and one of which is it’s one of the only constitutions in the country that explicitly recognizes the rights of children under the age of 18 as having equal rights as adults. It is an explicit recognition that these rights are for children and they’re for young people and future generations. And the Montana constitution really calls that out.

Preet Bharara:

That’s Julia Olson, the executive director and chief legal counsel at Our Children’s Trust. She represented the youth plaintiffs in Montana. In order to prove that the laws violated the plaintiff’s constitutional rights, they had to show that children are impacted by climate change. That’s where Grace’s story comes in. Grace played soccer growing up. And every August, her practices would get interrupted by wildfires.

Grace:

The wildfire smoke settles into the Missoula Valley, super dense, coming from Montana, coming from California, sometimes from Canada. And so, it gets ugly, but it also gets uncomfortable. And it’s unhealthy to breathe at all, much less run around and kick a ball and sprint and all of that.

Preet Bharara:

Her games and practices would get canceled. But more than that, the smoke impacted her and her teammate’s health.

Grace:

Feeling the scratchiness in my throat and my lungs and your burning eyes, and then also seeing it in my teammates with, especially those who had asthma and other breathing problems, weren’t able to play at all. And so, this really key part of my childhood was interrupted pretty regularly because of the increased wildfires that we’re seeing because of climate change.

Preet Bharara:

Climate change can also impact young people’s outlook on their futures, which can take a toll on their mental health, too.

Grace:

I think I’m part of the generation who’s grown up knowing about climate change, pretty much as long as I can remember. I don’t have a distinct memory of the first time learning about it. And I see the things that I stand to lose already beginning to change, that I have this perpetual fear of loss, which is a very convoluted emotion, really. I have so much frustration that this is a problem that I’m even having to think about, that this was a problem that wasn’t solved 50 years ago. I also have frustration that the burden of solving this problem is being put on my shoulders even now. Yes, we have a problem, but no 16-year-olds, the other youth in our cases, we’re not in positions of power. We shouldn’t be the ones having to fight for this.

Preet Bharara:

They shouldn’t have to fight for this, but they are. Here’s Olson again.

Julia Olson:

Every young person we represent in all of our cases at the state level and the federal level, they’re all experiencing harm and injury to their lived experience. Sometimes, it’s to their health or their homes or their religious practices. So, it varies across the young people. They each have their individual unique story, but they’re all harmed and they’re all able to express it and talk about it and share it with the world and with these judges.

Preet Bharara:

Which is exactly what Grace did, she testified in a Montana district courtroom on the first day of trial.

Grace:

The room is this gorgeous old courtroom with a balcony. It’s lovely. But it was full of people who had come from all over the state to support us. I walked up and was sworn in. And I was looking out, and I could see all the attorneys sitting at a singular bench and all of the people behind them. And it was a big moment, and that I was nervous, and I’m sure my voice was shaking, but I felt so assured by the fact that all of the support exists, both in Montana and nationally, in my family and my extended family and all these other plaintiffs.

Preet Bharara:

District court Judge Seeley’s opinion was groundbreaking for environmental law. It struck down the Montana law, the MEPA limitation, that allowed the state to approve fossil fuel projects and ignore their impact on climate.

Julia Olson:

And what that means practically is that, now, when the state is asked to approve new fossil fuel projects, which happens regularly, it has to take climate change into consideration and it has to take the Montana constitution and this judgment in Held versus Montana into account and consideration.

Preet Bharara:

I cried for about two hours after getting the verdict. I’m a big crier, so that’s not that notable. But the biggest emotion that I felt in response to the ruling was relief, which is not an emotion that we feel often in the climate space because it’s such an urgent issue that faces so many setbacks. A feeling of relief is intense. And I think it comes from me from the fact that this ruling in our case takes some of the burden off my shoulders and places it back on the state. The state whose responsibility is to protect its people now has regained that responsibility, has been legally told to maintain that responsibility. And so, it no longer feels like it’s my duty to be pushing for this.

The setbacks continue. The state of Montana is appealing the decision.

Grace:

The simple fact that they’re appealing the ruling indicates a lack of inclination to do what I see as their basic job, which is to protect their citizens, particularly the citizens who have fewer protections in the sense of economic and voting rights, etc., which is us as youth, the youth plaintiffs. And so, I’m discouraged by the continued resistance from our government, but this is why we’re going through the courts, is because the government is bound by the law, just as much as we are.

Preet Bharara:

This fight is not over, and we’ll be keeping an eye on this landmark case. But it’s inspiring to see young people stand up for their rights and tell their stories so that we can all understand how the law impacts their homes, backyards, schools, soccer teams, families, and futures.

Well, that’s it for this episode of Stay Tuned. Thanks again to my guest, Jill Lepore. If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me at Preet Bharara with the hashtag #Ask Preet. You can also now reach me on Threads, or you can call and lead me a message at 6692477338. That’s 66924-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The editorial producers are David Kurlander and Noa Azulai. The technical director is David Tatasciore. The audio producer is Nat Weiner. And the CAFE team is Matthew Billy, Jake Kaplan, and Claudia Hernández. I’m your host, Preet Bharara. Stay tuned.