Preet Bharara:

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

Jill Lepore:

Their thinking was, “Hey, one way to protect our rights, to live and have a family, and protect our children from violence would be to outlaw alcohol.” It’s not a crazy idea given there’s nothing else they can do. They can’t vote. They can’t charge their husbands with crimes.

Preet Bharara:

That’s Jill Lepore. She’s a professor of American history at Harvard University, a bestselling author and a staff writer at The New Yorker, where she’s now been writing for two decades. Her latest book is We The People: A History of the US Constitution. It recovers the forgotten history of constitutional change, the amendments that passed, the causes that failed, and the reformers who fought for both. Lepore joins me to discuss the intersection between history and the law, why she believes the Constitution should be easier to amend, and for those who were there, what your bicentennial celebration said about you. Then I’ll answer your questions about whether President Trump accidentally pardoned the January 6th pipe bomber and what the recent grand jury decision means for Letitia James. That’s coming up, stay tuned. Is any issue in American democracy truly settled? Jill Lepore and I discuss.

Jill Lepore, welcome back to the show. Great to have you.

Jill Lepore:

Yeah, thanks for having me.

Preet Bharara:

It’s been a while. Not much has happened.

Jill Lepore:

It’s a good thing not much has happened, yeah.

Preet Bharara:

Not much has happened. So I wanted to talk about one thing first that I noticed that has changed in your biography since we last spoke. You have for a long time been a professor of history. Great. Very important. You are now on the faculty of a different kind of school than I’m familiar with, the law school. Am I correct?

Jill Lepore:

Yeah, though I’m still a professor of history.

Preet Bharara:

No, no, no, sure, sure, sure. You don’t subtract. You only add, I know. What possessed you to become a member of the faculty at the Harvard Law School?

Jill Lepore:

Oh, I’ve been teaching at the law school for a long time. We have a pretty close relationship. There are a number of JD PhD students who also study history for their PhD. There are a number of us who’ve been affiliated faculty from the history department and vice versa. A lot of courtesy appointments of legal historians at the law school who are members of the history department. So a few years ago, I just said I wanted to formalize that and have a properly split appointment. Colleagues at the law school were gracious enough to allow that. So it’s been really fun.

Preet Bharara:

Do you think legal history should be mandatory at law schools?

Jill Lepore:

Oh, geez. I don’t have a JD. So I find legal education somewhat baffling. I’ve sat in over the years, way back to when I was working at Harvard as a secretary before I went to graduate school, I’ve sat in on a lot of law school classes. But I would say, most of my sense of legal education really just comes from Paper Chase and Legally Blonde and the same set of mid films that inform most people’s sense of legal education. I can give you a serious answer to that question. I mean, I think-

Preet Bharara:

Let me add a layer to it. I mean, in some ways, the study of law and the practice of law, it’s all about history. You have a thing called precedent, which we have as lay people can talk about it in any discipline, whether it’s history, or economics, or international relations, and you have these things called precedent, which are less formal. One would argue that maybe with the Supreme Court, they are less formal as precedents in the law as well. But you are required as a lawyer, if you’re going to argue any point in a court of law, in your brief or oral argument, to understand what came before on that particular point of law and to understand why the thing that came before is either exactly the same, totally different, or somewhere in between. And so in some ways, as I think about it, and this is what I want to get your sense of as a longtime historian, is the actual practice of law is an exercise in understanding history and convincing other people that your reckoning of history is correct. Is that fair?

Jill Lepore:

I think that is fair, but in some ways calling reliance on precedent a historical method is a bit of a misnomer. I’m not sure that history as a single term is capacious enough to contain the forms of reasoning that lawyers exercise in a courtroom or that judges exercise in writing opinions. And also, history as a social science that’s kind of an empirical form of research, a history as a humanistic form of inquiry that is a branch of literature. History is asked to bear many burdens. People also use history to describe what I would just call folklore and myth. So yes, I agree in principle that the study of law contains within it an attempt to understand the relationship between the past and the present, but the foundations of that method in law school are really deeply different because they’re based on instrumentality and advocacy, which are conditions and modes that are considered anathema and humanistic inquiry.

There are plenty of historians that say, “I’m an advocate. My work is political.” But the way I was trained as a historian, your work is never instrumental and it is never meant to be a form of advocacy. And ideally, it really doesn’t have anything to do with the present. So all the things that legal education and how lawyers talk about the past really violate the rules of the guild of history as an academic discipline. And I don’t mean in a bad way, I just mean they’re different. And I’ve always found that really fascinating.

Preet Bharara:

Well, there might be a bad way on this program and on the Insider podcast that I also do every week, we have talked about the Supreme Court Justice’s interest in history and selective examination of history to justify various things, including the right to choose and all manner of other things. Do you either in your teaching in law school or otherwise, have you formed a view about the quality of history, scholarship on the part of our Supreme Court justices or others to defend their legal points of view?

Jill Lepore:

I have many views about that. And I’ve certainly written about it a lot. I’m not-

Preet Bharara:

You can talk about originalism. You can talk about… This is an open field question. You are the qualified historian, judge the others.

Jill Lepore:

No, I’ve certainly written about it a lot. I don’t think it enters in much into my teaching. I think that’s largely a question students have kind of to settle on their own, which is what is the place of historical argument in injustice and rendering justice. I would say that like most academic historians, I find most briefs and opinions written by lawyers and judges that make historical arguments in the current moment, in the mode of originalism or the history and tradition to be bafflingly obtuse.

Preet Bharara:

That’s you being kind.

Jill Lepore:

That’s me being kind. They’re sort of-

Preet Bharara:

Kind. Wait, I’m going to write that down. Bafflingly obtuse.

Jill Lepore:

They’re willfully partial. And I don’t mean partial in the sense of non-objective. They’re willfully partial in the sense that the historian’s obligation as best as possible is to look at the entirety of the historical record and put it in a proper proportion that would make it recognizable. This is a little bit the way journalists sort of talk about the no surprises rule, that would make your account of the past recognizable to people who lived in it. That is, I don’t think anything like the case with originalist opinions, which are recognizable only to us really as political machinations, not as faithful accounts of how people lived and died. And I don’t really… I have this thing on my website because people often ask me how to write history. So I put up a handout that I used to give out in my American Revolution class, I think now 20 years ago. It’s called How to Write a Paper for This Class.

And it’s my rules for writing history. And it kind of begins with like, it’s probably bad enough being dead without some asshole just basically using your life and times to make a political argument. And I really believe that. And that’s probably a fair description of what a lot of historical argument in the law does, right? I’m not sure that that’s all bad. So in your family, let’s say, you have a house and you have five kids and everyone has a different account of who forgot to bring the dog in and the dog got frostbit overnight. Well, there’s a kind of whole history to how that argument would play out in your family. There’s the one kid who never does what he’s told. And there’s the other kid who we know that she said she came in at 10:00, but really she didn’t come in until midnight, and so she had forgotten.

We walk through life with like, we carry around since we have precedence, right? When you get an argument with someone in your family, you’re going to point out, “The last time someone forgot to bring the dog in, it was you. And I know it was you, Preet, because I remember that time that we…” We’re litigious, right? We want to argue about things and we use evidence from the past to make claims. That’s how humans are. And it is a way that the law works, but the law should be subject to infinitely more discipline than the specious slightly fraudulent claims that kids are going to make in an argument with their parents over who failed to do something that needed to be done.

And I think sometimes the law looks that way to historians rather than… Well, I guess, I think I hope that historians that we hold ourselves to really high standards of evidence and to rules of evidence. That in fact, genealogically, our standards of evidence and rules of evidence come from the law. Just historically that’s where they come from, but they look different in academic scholarship.

Preet Bharara:

If I can draw a distinction between practitioners and judges, both of whom are supposed to be beholden to the law, and you could, I think, reasonably suggest should be held to these high standards of evidence, and argument, and historical fact, et cetera, et cetera. But lawyers as advocates, I sort of feel can be more easily forgiven for trying to sculpt an argument a little bit selectively out of history to be zealous advocates for their client. What is less excusable and more bafflingly obtuse is why the courts and indeed the highest court engages in that kind of thing, unless it’s the case that a lot of people think already that justices and judges are advocates too. And they’re not calling balls and strikes to pick a different metaphor used by Justice Roberts famously. Is that your sense that the judges and justices are just advocates too?

Jill Lepore:

I don’t want to think that.

Preet Bharara:

Well, you don’t want to think that.

Jill Lepore:

I take your distinction seriously, but I am also inclined just dispositionally to grant the benefit of the doubt to these people that they believe themselves to be acting in accordance to principles, that they believe that originalism is an intellectually consistent mode of constitutional interpretation, even indeed that they swallow some of the craziest things that people say about originalism, that somehow it’s democratic, or somehow it is original, or somehow that is true to history. I guess, I tend to believe that justices on the Supreme Court who are originalists are true believers.

Preet Bharara:

True believers in what?

Jill Lepore:

True believers that in originalism, that theirs is the one and only true way. It has always had a kind of evangelical vibe.

Preet Bharara:

Isn’t it a little peculiar? Originalism is a doctrine or mode of interpretation that originated to use a term when.

Jill Lepore:

So it certainly is not original. It’s not possible that it could have been original. First of all, there’s so many times when the framers say, “God help us if people actually wonder why we did what we did because that should not determine anything, or why we wrote what we wrote, or who knows if this will last.” The sense of contingency and accent, there’s a lot of puffery. You read the Federalist Papers, it’s like reading Marc Andreessen’s Techno-Optimist Manifesto. It’s like, “It’s a new era for humanity and all will be great.” But they’re selling it.

Preet Bharara:

That comparison I have not yet heard. Marc Andreessen is very flattered.

Jill Lepore:

No, he shouldn’t be flattered. I intend to no flattery, Mr. Andreessen. They’re selling it and they are excited about it, but they’re very clear. Don’t worry, we put Article V in there because we know we effed up all over the place. From the very beginning, first of all, a lot of these guys won’t sign it. Then Franklin makes this great speech where he’s like, “I’m only signing it because I know we effed up and it’s fine, because that’s we always do. We’re fallible, and it’ll be fine because future generations can fix it.” But also, one of the principal claims of originalists is that there’s this finite number of historical documents that determine the meaning of the Constitution and were meant to. And these and no other documents are available to us to understand the original intent, meaning of the Constitution. And most of those documents were not available to judges before the 1980s.

The notes of the state ratifying conventions, some of them weren’t printed until the late 19th century. Even the Federalist Papers were a little bit hard to get a copy of. Madison’s notes weren’t available until the 1840s. There’s just not… That stuff, it’s not original. It’s just on the ground that’s not true. So that is for sure a problem with originalism as a… You can’t really be defended on the grounds that it is original. When did it emerge? Well, you see deference to the original intent of the framers all the time. I would say most notably, and of course, most infamously in Dred Scott. Dred Scott is an originalist opinion. It’s not a label they would’ve used then, but his premise from the start is no Black people in the United States can ever be citizens because we must defer to the original intent of the framers. And as I read these documents, they could not have foreseen this moment.

But I would say the modern era… So you see this reference to original intent now and again, but you also see many other modes of interpreting the Constitution. It’s like one among many. It doesn’t become something that presents itself as the exclusive and only legitimate means of constitutional interpretation really until the 1980s. You see how strongly… A lot of this book that I published this fall, We The People: A History of the Constitution, most of it’s really not about the Supreme Court because my whole argument is the history of the Constitution is not the history of Supreme Court decisions. It’s the history of a lot of other things. But there’s this really important moment in 1954 when Earl Warren, having asked the two sides in Brown v. Board to submit historical evidence answering a series of, I think it’s six questions about the 14th Amendment. He just says in his opinion, the historical evidence is inconclusive. And if we were to defer to the history and tradition of segregation in this country, we would never end it. So therefore, it’s over.

Preet Bharara:

That’s not bad. That’s not bad.

Jill Lepore:

He just adheres the whole notion of that as a mode of constitutional interpretation. And yeah, sure. There’s the NMC Impeach Warren movement. There’s a huge backlash against it, but one form that the backlash takes is the early roots of originalism in its modern form.

Preet Bharara:

So state the last point maybe more starkly, if I took your meaning, if originalism had been the prevailing doctrine of interpretation or mode of interpretation in 1954 and six of nine justices in the Supreme Court subscribed to that method of interpretation, what would’ve been the result in Brown v. Board?

Jill Lepore:

Well, if Fred Vincent hadn’t died of a heart attack, we probably would’ve had a different result. We didn’t have to be that counterfactual to get to your interesting formulation. Yeah, I don’t know. I’m not a very good castbacker and timer, but yeah, it took-

Preet Bharara:

Would’ve been different.

Jill Lepore:

It would’ve been different. And that was the whole argument of the NAACP, right? But in a way, it’s Warren who goes further, but that’s where the NAACP’s move of like, we’re going to bring in social science evidence because actually there’s plenty of other evidence than turning to the 14th Amendment, there’s plenty of other evidence than turning into the Constitution of 1787. There’s all the evidence about how we live now, and this should obtain. That work that began with Brandeis in whatever, it’s Muller v. Oregon or whatever, presenting reams and reams of statistics and quantitative evidence and social science evidence to break free of the stranglehold of the dead hand of the past. That’s what that move was about. That’s what the progressive movement was. Wow, we’re really stuck. We have this constitution. Great, great, great. It’s great. It’s lasted so long. We love it. But what about-

Preet Bharara:

We say we love it.

Jill Lepore:

What about maximum hour and minimum wage laws? What about ending child labor? What about having a federal income tax? How are we going to end indirect election of the Senate? Oh, I guess we can amend the Constitution. Okay, great. But then the Child Labor Amendment fails and I guess, we got to just find a way to convince the court. We got to really shake up the court and we enter a different era, but we’d enter the era of the Warren Court.

Preet Bharara:

I’ll be right back with Jill Lepore after this.

In the real world, outside of legal opinion and outside of lawyers arguing one side or the other, whether they employ historical analysis or not, whether they employ it correctly or not. It seems to me that American society sort of moves on from a controversy and decides in its collective wisdom or lack of wisdom that a certain thing was good or not, or right or not. Most people are not sitting around and necessarily parsing the rationale for the unanimous decision in Brown v. Board. But I think most people in the political, not just the center, but the wide swath of Americans have accepted and agree that that was a good decision. And that separate but equal is inherently unequal, not based on the mode of interpretation that was used, but based on some generalized… You’ll have better words than I will.

But some generalized overlapping consensus of where we are as a country, the same maybe set of generally speaking, minimum wage rules, child labor laws. We kind of fought those fights however those battles were done by whatever mode of interpretation, persuasion, et cetera, in the court. And that’s part of the infrastructure and governing law of the country that’s an inartful way of trying to make an establishing point. Is that all fair?

Jill Lepore:

Yeah.

Preet Bharara:

Okay. If that is so, in recent times, had Erwin Chemerinsky, the dean of UC Berkeley on the other podcast on this morning, we talked about the phenomenal rate of undoing of things. Does society need that kind of repose, say, on minimum wage laws, child labor, things like that? And what does history have to say about what does and does not work in a country when there can be reliance on something like reproductive rights for 50 years and that can be undone? That’s not an artful question, but could you talk a little bit about how American democracy functions insofar as it’s good not to have to re-litigate basic fundamental things every few decades, or should we?

Jill Lepore:

I was at an event at the Kennedy School here at Harvard, maybe two or three years ago, when a colleague at the Kennedy School did a little exercise with the audience, a few hundred people, mostly probably undergraduates. It was like, “Bring up your phone and scan the VR code and answer this survey.” And the survey was, in the matter of any of these questions, do you feel that your view on what is right lies beyond the realm of debate? So it was a lot of guns, abortion, birthright citizenship, immigration stuff, just different claims. And of course, it wasn’t clear what the audience believed on any of these issues, but it was just an alarmingly high number of people. Well, maybe not alarming to you, I don’t know, maybe not alarming to anyone. To me, kind of surprising.

Preet Bharara:

Bafflingly huge.

Jill Lepore:

I’m a frequently baffled person. Let’s say, it’s 50%. I do not remember. 50% of people were like, at least one of these, or maybe many of these issues were just completely beyond the realm of reasonable debate. And so his point was, these are things that we call fundamental law. If you don’t think that they… Then most of them develop constitutional rights, you’ll have discerned, right? And you’d think that constitutional rights ought to be stable, or if anything, they could be subject only to an additive process. We could add rights, but taking rights away seems counterindicated by the very notion of a constitution or a declaration of rights or a bill of rights. But people were so mad at this exercise because he was sort of making the claim that the fact that so many of these things feel emotionally to Americans like constitutional rights is one of the many factors that’s freezing up our democracy because people are unwilling to debate them. So it’s an interesting exercise, but I think that what it also misses is… Do you know that book by Jamal Greene, How Rights Went Wrong?

Preet Bharara:

I have not read it, but yes, I’m familiar with it.

Jill Lepore:

Okay. So it’s great. I highly recommend it to your listeners. Really brilliant book in which Greene is sort of arguing that all this stuff in our law goes in this bucket of constitutional rights in a way that’s always winner take all. My right to not being discriminated against for having a same-sex relationship that’s leading to a marriage and your right, your religious freedom right to not have to bake a cake for me, intersect, kind of come into conflict within one another. And only one of us gets our rights out of that. And that’s just a volatile system and that that’s the way that our rights revolution, that’s the form our rights revolution, or rights creep, or whatever you want to call it, that it has led to these insoluble conflicts over winner take all rights disputes. That’s a different vantage than Erwin Chemerinsky. So I guess, I was just kind of emphasizing that.

Preet Bharara:

Yeah. But I have sort of a bigger question that has been bothering me in the same vein of what is in fact settled and what percentage of the population has to believe in something for it to be settled. And the particular place that gives me great pause more than baffles me is something that a guest once said, and I always forget who it was, but someone very smart. That even in Western liberal longstanding democracies like the United States of America, there is a not in substantial percentage of people who, if the autocrat was on their side substantively in terms of outcomes, they would support authoritarianism to get the things that they want. And I asked this person, what was the latent percentage of people in a population like America who might think that? He said it was like 20%, 25%. That’s pretty fundamental. And then you get to more specific things that are also very big and important, not as fundamental as Constitutional Republic, but the First Amendment, free speech. And whether or not certain kinds of speech should be restricted, hate speech or otherwise.

And a lot of people come at those views in bad faith, but a lot of them come at those views in good faith and they look at other functioning constitutional democracies that do not have written into their charter the kind of First Amendment that we have. And I guess, the question is, how much is really settled? What are the things you can name that are fully settled by and among 85% or 90% of the American public?

Jill Lepore:

I’m not a political commentator in this sense.

Preet Bharara:

You’re a pollster. I know. I know.

Jill Lepore:

It’s not a historical question. I think history would tell you that nothing is settled. And how could it be?

Preet Bharara:

That’s scary to me. I’ve only recently thought, why am I so late in understanding that? Don’t even have to answer that question about my obtuseness.

Jill Lepore:

The introduction to this book is called the Philosophy of Amendment. And I argue that our written constitutional system is based on the philosophy of amendment. It’s based on the idea that things can always change. It may sometimes be necessary, might even be urgent, might be a little change, might be a big change, might be an improvement, might be a correction, might be a repair, might be making moral amends.

Preet Bharara:

Right. But it’s not suicide. As someone famously said, the Constitution is not a suicide fact. It’s not the doing away with constitutionalism. And that we should be, you would want a constitutional democracy to have 98% buy-in for the basic premise or let’s say even a subset, separation of powers. I don’t know. There’s some people who are pushing the line about co-equal branches of government, the one more co-equal than the others. I don’t have a question there. It’s just sort of a general lament and I wonder if-

Jill Lepore:

Yeah, but just to push back on that, and on the Chemerinsky point as well, is it things you like are being undone or things are being undone that concerns you? Because those are different claims.

Preet Bharara:

Yeah, but among the things I like are these very, very, very fundamental things like separation of powers and feeling antithetical towards autocracy, believing in due process, believing in process over outcome. Those things, I think… Yeah, I do. I like them. I would like to hope that everyone likes them. I’m not talking about things like abortion, or gun rights, or even some things that are not even creatures of the Constitution, but creatures of statute. I practice criminal law, I practice it now, I practice on the other side for a long time. Those laws change and have to evolve all the time. My own thinking about incarceration, and about imprisonment, and about punishment have changed fairly dramatically in the last number of years. That’s all good, but are there things about which there should be, as John Rawls used to talk about when he invoked Lincoln, an overlapping consensus to sustain this experiment going forward.

Jill Lepore:

Yes. And I don’t mean to waffle on that point.

Preet Bharara:

Yeah. Okay.

Jill Lepore:

Absolutely. That’s absolutely the case.

Preet Bharara:

Okay. So as we hit the 250th… So what do we call the 250th? It’s a very hard word.

Jill Lepore:

It’s a semi-quincentennial.

Preet Bharara:

Oh, that’s very difficult. Can you come up with a better word than that?

Jill Lepore:

No. No. The bicentennial was so… What I liked about the bicentennial… What’d you do for the bicentennial?

Preet Bharara:

So the bicentennial was 1976, I was seven or eight, and I was in second grade and I just remember the whole year was just full of stuff and we had the quarters and there was a train-

Jill Lepore:

Were you in New York?

Preet Bharara:

In New Jersey.

Jill Lepore:

Okay. Yeah.

Preet Bharara:

And I feel like… Immigrant family, I was not born in the United States, naturalized citizen, wasn’t even naturalized at that point. And I remember going to see a train-

Jill Lepore:

The Freedom Train.

Preet Bharara:

Was it the Freedom Train? That purported to have the Constitution on board? Can that be right?

Jill Lepore:

Yeah. Did you also see Wilt Chamberlain’s sneakers, though? Because that was a little bit more exciting.

Preet Bharara:

That’s a founding document.

Jill Lepore:

To me at 10, we went to the Freedom Train too. And I was like, “Oh yeah, I don’t care all these documents, whatever. They’re old.” But the sneakers. I remember the sneakers.

Preet Bharara:

But it was a big deal and I feel like there was a lot of civic education around it. I don’t think I was brainwashed too terribly in any particular direction. I don’t remember anything… I mean, I was seven, but it was great and it was cool. And I think we went to Disney World that year and for the bicentennial, maybe they still do this now, so maybe it wasn’t special. I think they had a 4th of July print every day.

Jill Lepore:

Every day, yeah.

Preet Bharara:

For 365 days. It was wonderful. Is this one going to be wonderful, Jill?

Jill Lepore:

I’ve been spending a lot of time thinking about that, reading about the bicentennial. Everybody I meet, I ask them what they remember from the bicentennial. It’s fun.

Preet Bharara:

Are there memories similar to mine?

Jill Lepore:

It really matters whether you grew up or not in what one historian I met calls the OG-13.

Preet Bharara:

So if you’re in Oregon, it’s different?

Jill Lepore:

Yeah, it’s just different. Oregon, they were like… And also a lot of the stuff didn’t go there, like the tall ships and the Freedom Train, didn’t make it all the way. But if you talk to people who grew up, especially on the Eastern Seaboard, but broadly in the OG-13, people have very detailed memories of it and not often deeply cynical ones. But maybe it’s just because just by definition, they’re going to be older people who look back with a certain nostalgia at that era. I remember talking to a neighbor when we were out for a hike and she said… Her little sister was really into it, but she was a teenager and it was like, “Oh God.” I can imagine the teenager on wee.

Preet Bharara:

Teenage on wee. That phrase has not been used on this podcast before.

Jill Lepore:

Teenagers really, really hated it. No, but actually I will say there’s quite fascinating work on how many civic institutions were founded or received sustaining funding during the bicentennial from the federal government. These are state, municipal, local, like little from your neighborhood history museum or house tour place to kindergarten curriculum about the town’s history or a city neighborhoods series of public artworks. Just the amount of money that was pumped out, really mostly via the NEH, which no longer is doing that. They’re doing something very different and in a much smaller way. And the federal government is certainly not pumping out money to the states, and to towns, and cities right now. So it is a very different moment, but I think the comparison is a really useful one. I guess, I just want to flag that the bummer of the semi-quincentennial name is you can’t, for instance, have Bike Centennial. Do you remember the Bike Centennial? Like there’s-

Preet Bharara:

Oh, yeah, I think so.

Jill Lepore:

… 100-mile bike race or something. All these fun-

Preet Bharara:

Nice punch. I think we’re just going to call it the 250th.

Jill Lepore:

Yeah, which I don’t know, it just seems old.

Preet Bharara:

I’m not even aware of what celebrations are underfoot. Are we going to drop bombs? Is there going to be a lot of military action? What does our commander-in-chief have in mind? I don’t even know.

Jill Lepore:

The Arc de Trump.

Preet Bharara:

Arc de Trump.

Jill Lepore:

You haven’t heard about the Arc de Trump? There’s a replica of the Arc de Triumph being built in DC or planned for being built in DC.

Preet Bharara:

How cute.

Jill Lepore:

I think he maybe has been distracted by the ballroom. So maybe the Arc de Trump is not going to happen. But there was such magical things. I wrote a piece for the New Yorker this fall about when Trump was making all these declarations like, “I’m going to get you Smithsonian. Watch out. I’m coming for you. Bam, bam, bam. Left, right, left, right. Look.” This nonsense. I went back to try to figure out what Trump was doing at the bicentennial and it’s hugely embarrassing. It seems like he just carries it among-

Preet Bharara:

Atlantic City, I guess, Atlantic City?

Jill Lepore:

Among the many… No. So I think his father had just been imprisoned. His father was very briefly imprisoned. I don’t say this without fact checking it against my magazine piece. I don’t want to say something untrue. But there had been all the scandal about the Trump companies fair housing violations. But Trump that year in that spring was pitching a big convention center at the site of what became the Javits Convention Center in New York. There was going to be all the things, the dictator style gold chandeliers, and the ballrooms, and the casinos. And it was going to be, he called it The Miracle at 34th Street. And he did this big presentation, a photo of him appeared to the paper with his 1970s tie and looking like a bearded Liston Jr. And he was kind of laughed out of Manhattan. People were like, “What are you talking about? We’re not doing this.”

And then he went really, I think maybe July 1st of ’76 to DC and pitched a very similar convention center to DC. And both of these were built as bicentennial infrastructure projects that would revitalize these failing cities. And in DC, he was really blocked by… He basically was going to demolish. Again, I could be misremembering certain details, but demolish some DC neighborhood that was majority Black and a neighborhood organization had a big presence at the meeting and they really laughed at him. The newspaper reporters are like, “They laughed this guy, this wise acre Trump from New York out of town.” And I just sort of picture him walking out of that meeting in DC in July 2nd or 1st of 1976. The city is flooded with tourists. There’s going to be just the biggest fireworks ever.

The whole National Mall is a display of American folk life. There have been the Smithsonian folk life programs have brought in people, banjo players, and dancers, and fly fishermen, and shrimp catchers, just people with all kinds of skills and dancers, singers, musicians, artisans. Just this huge celebration of American pluralism and creativity. And you picture this young Trump stomping away from a meeting, storming away in a fury at this, “He’s going to show this town.” That’s how I feel about the Arc de Trump. I think he’s finally getting what he wanted in 1976.

Preet Bharara:

Look, arguably on another occasion when he was mocked and made fun of and humiliated at the White House Correspondence Center in 2011, a lot of people think that’s the origin story of a successful one for president, not once but twice. So people humiliate Trump at their peril.

Jill Lepore:

Yeah, no, I know. That’s why it seems like a not unreasonable explanation for his particular vision for America at 250.

Preet Bharara:

Can we go back to something that we were talking about and back to your book from a couple of months ago about amendment? So on this point of which things are settled and maybe nothing is settled ultimately. Because I guess, we could have a constitutional convention and we could put it all on the table that’s difficult to do. And you argue, I think, very cogently about the need for there to be amendment and for lots of reasons, including log jams in the House and the Senate and the difficult ratios you have to meet, amendment has become a dwindling form of advancement progress or at least just generic change. In the Constitution, I’m not sure what kind of answer I’m looking for, but for the good of democracy, how difficult should it be to amend the Constitution?

Jill Lepore:

I think it’s worth emphasizing that the formula that is in Article V was crafted before there were political parties in the United States and at a time when they could not have been anticipated. Because the framers understood parties to be anathema, inamicable to Republicanism. A Republic couldn’t have parties or it wouldn’t survive. So they weren’t accounting for that. So the fact that it’s hard to the point of being impossible right now is not because it was meant to be impossible if that’s what we cared about most. It’s an accident of history. So there have been many attempts to fix that because that was the case within a matter of decades that it was too hard and it hasn’t been possible to fix it. So I’m not sure that there lies a lot of likelihood of it being fixed. My point in the book is that its difficulty introduces a deformity into our system of separation of powers, which you so cherish so rightly.

Because if really the main way to change the Constitution is going to the court, it just puts way more power into the hands of the court and more power into the hands of presidents, the executive and making those appointments. But then those appointments themselves also become far more consequential. And then in our lifetimes, of course, subject to incredibly intimate public scrutiny, which are really surprising. We shouldn’t really know the names of the wives and husbands of people on the court. It’s weird. So I guess, my point is more like that’s a deformity. And I think it also, you have to kind of become willing to tolerate that deformity before you get to the current deformity, which is the one in which the president decides what the Constitution means. That’s not part of our system, but you have to have become so comfortable seeding the power of the people to interpret or to amend the Constitution for a long time before you get to the point where people are like, “Oh, it’s okay. If he says there’s no birthright citizenship, okay.”

And if he put the people on the court who are going to say that there’s no birthright citizenship, maybe. I mean, okay, what didn’t… I mean, most Americans believe in birthright citizenship. That’s just one of the bigger swindles of all time. It’s in the Constitution because it was put in the Constitution by the people and Trump gets to take it out? So this wasn’t an answer to your question. I’m sorry. But I don’t really have an answer to your question about how easy or how difficult it should be.

Preet Bharara:

But it should be easier than it is, you think?

Jill Lepore:

Well, I think it should probably be easier than it is. And I think we should be less fearful of it, honestly. I think a lot of people… Historically, there’s tremendous evidence of people on the left being fearful to seek constitutional amendment because of the possibility of losing. And that’s also kind of how democracy works.

Preet Bharara:

In a microcosm. A few years, I guess, every certain number of years, I guess various states, this must be true in various states, but certainly true in New York state where I live, you can open up the constitution of the state to a convention. And every time this comes up, there are people lobbying back and forth and it’s a pretty liberal constitution. And it seems to me, if I remember correctly, a few years ago, I was asked to get involved. I didn’t. I had other things to deal with, but the progressives are afraid of losing ground. And I wonder if that’s always the case. On a national level, if you have the executive branch, if you at least at the moment have the legislative branch and you have for a long time to come the judicial branch in the form of the Supreme Court, you don’t kind of need to open up the Constitution, right? You got your folks amending it ad hoc along the way, right?

Jill Lepore:

Yeah. Although those Supreme Court decisions that amount to a de facto amendment can be overturned by that same court once the ball’s going the other direction down the court.

Preet Bharara:

It’s a long court.

Jill Lepore:

You think about, say, the NAACP in ’64 and ’65 after the Civil Rights Act and the Voting Rights Act, you can go back into their papers and there’s some discussion of like, “Okay, great. So now should we try to constitutionalize these by way of an amendment?” And there’s not really much internal discussion because people are like, “We won. Why do we want to risk losing? We just finally fucking won. Shut up. No.” And that’s a kind of response after Roe v. Wade as well. Okay, you get this to the court, good. Why, you know.

Preet Bharara:

Why do we pass a law?

Jill Lepore:

But same thing with same sex marriage in Obergefell in 2015. Okay, we won, why would we take the risk of… Well, there is an answer to the why, which is because these things can all be overturned. Although fair to say, the 14th Amendment was basically ignored for 50 years, so it’s not clear that an amendment is all that.

Preet Bharara:

Do you have any amendments, Professor Lepore, that you would like to see considered and adopted?

Jill Lepore:

Part of this book came out of a project that I’ve done for the last four years, it’s over now, called the Amendments Project. It’s a free online searchable database of every meaningful attempt to amend the US Constitution. So it’s thousands and thousands of proposals. You could search them by year, by date, by topic, by state, by party. I spent a lot of time with my research team of Cracker Jack undergraduates compiling that. We used to do amendment of the week. I would give away prizes for whoever had found the most fun amendment.

Preet Bharara:

What was the prize?

Jill Lepore:

Oh, the prize was usually like a Frederick Douglass kitchen magnet or one of those cheesy-

Preet Bharara:

Exactly what I would’ve guessed.

Jill Lepore:

Yeah. One of those cheesy national parks, historic museums, shops, parchment, declarations of independence. So yeah, they weren’t hot items.

Preet Bharara:

It wasn’t like crypto.

Jill Lepore:

Oh yeah. I thought I’d give out crypto.

Preet Bharara:

You were not giving out Dogecoin to anybody. Okay.

Jill Lepore:

No.

Preet Bharara:

So wait, so what were among the popular amendments?

Jill Lepore:

It was more that people would bring in just the wackiest, and it is so long ago, I don’t even remember any of them. They just framed the language of them. So a lot of the amendments introduced on the floor of Congress, of which there have been 12,000, they’re just kite flying. So people, they know they’re not going to get anywhere. Before there was the C-span clip that you might use in your reelection campaign, there was the newsletter or you could tell constituents, “I introduced four constitutional amendments.” And so a lot of them were just constituent surfing. And so they were funny. They were hyper local and weird and statutory and just not anything.

Preet Bharara:

If I were to go look at that scholarship, and I mean to, what I find the most interesting amendment and then undoing of an amendment in history, I think, no booze, booze.

Jill Lepore:

Yeah.

Preet Bharara:

If you could give a very short history lesson, given your expertise on amendments and history, what the hell was going on in America that caused that?

Jill Lepore:

Yeah. The best thing is Lisa McGirr, my amazing colleague, Lisa McGirr, has a fantastic book on the war on alcohol. That’s the rise and fall of prohibition. I guess, here’s the thing that I often forget when I think, what were they thinking? Temperance was a women’s rights movement from the start. And it was before women had the right to vote, began before women had the right to own property, before the Married Women’s Property Act. And one way in all of the women’s rights campaigns were moral crusades. And one thing that women very strategically thought is, okay, we’re completely at the vulnerability of a husband who might become a tyrant, who can take all of our money, hide his wages, drink all the wages, beat me up to death, rape me with no legal consequence, all but murder the children in a drunken rage. And so their thinking was, “Hey, one way to protect our rights, to live and have a family, and protect our children from violence would be to outlaw alcohol.” It’s not a crazy idea given there’s nothing else they can do.

They can’t vote, they can’t charge their husbands with crimes. There’s no child welfare agencies before the Children’s Rights movement or even child welfare or the Anti-Cruelty to Children’s movement. So I think it’s actually, it looks just like such a kind of crazy like, who are these heretics? No, they were women’s rights activists who wanted a lot of things. They want all kind of rights, but they weren’t going to get those, so they want some protections. And a big avenue for that was temperance, which then the temperance movement becomes the home protection party, right? It’s all about protecting the home. So I think it’s charitable to remember that context. There’s also, that kind of marries a huge anti-German sentiment. The German beer halls are a huge distribution network for beer and the drinking of beer. And before and during the First World War, the anti-German sentiment is huge.

So you can see how those things could sort of explosively combine. Then there’s the military preparedness before the First World War. We need the troops to not be drunk too. We need to actually clean up the country in this drinking way. And the amount of drinking people did was of a scale that we could probably really not anticipate. It’s sort of more like the way we might think of the opioid epidemic today.

Preet Bharara:

What we see in Russia or the Soviet Union.

Jill Lepore:

Yeah. So that’s where I think you get prohibition. How you get repeal is-

Preet Bharara:

The oops. How the oops happen.

Jill Lepore:

Yeah. Also, the other thing that people forget about prohibition is the main way the federal government was funded was by taxes on alcohol. So once the 16th amendment is ratified in 1913, that granted Congress the power to tax incomes. That makes possible tax incomes enough to enter the war in Europe without alcohol money. How you get the repeal is it doesn’t work at all. People are incredibly miserable and-

Preet Bharara:

Crime.

Jill Lepore:

… it’s really the sort of criminal underground and you also, it’s a little bit that attached to opposition to federal power and the New Deal.

Preet Bharara:

Yeah. Look, it could have been more crazy, right? It could have had a system in which public education was funded by tax on alcohol, why that’s any more weird than on property. Can I ask you about one more amendment?

Jill Lepore:

Yeah.

Preet Bharara:

So Franklin Roosevelt, if I remember correctly, was a very popular president and he did a lot of things and the New Deal still is not settled, but he was credited with a lot of good stuff. So popular that he crushed the opposition four times. And not long after that, we amended the Constitution to limit terms to the George Washington preference of two terms. Is that unusual? What lesson is there to take from that? And the reason I mention it is in these conversations that I would have with people at think tanks and elsewhere about Trump’s first term and certainly in the second term, there’s a lot of discussion about the kinds of things on a bipartisan basis we might do to codify norms. It was a norm that a president would only serve two terms or was not in the constitution or in the law. And on a bipartisan basis, we did some of that. We didn’t really do any of that after Trump won. Pick any aspect of that to comment on.

Jill Lepore:

Well, this isn’t commenting on that, but I do spend a lot of time in the book talking about why FDR pursued amending the Constitution by way of the court instead of constitutionalizing the New Deal by Article V. That’s a big piece of the story, the history of amendment. I think the presidential term stuff, actually one of the evergreens, it’s constantly introduced. I think even in 1787, 1788 was introduced as a proposed amendment, is a single non-renewable six-year presidential term, which is an idea that I really, really like. It’s been dormant for a long time. It’s not infrequently reintroduced, but by constitutional design, it’s something that actually to me makes a lot of sense. But we’re not in a position right now as a country by way of this process to codify norms, right? We have to find other mechanisms for codifying norms and the methods that are on the table seem pretty weak, right? That’s the source of your anxiety about nothing being settled.

Preet Bharara:

Last words before we let you go back to your other business of the day. Say something hopeful, professor, for the country.

Jill Lepore:

Hope is cheap.

Preet Bharara:

That was not it. We’re going to have to cut that out of the program.

Jill Lepore:

What? No, it’s true.

Preet Bharara:

It’s the end of the year. People are both happy and in the doldrums. Look, a year has gone by and when a month had gone… So I’ll say something, it’s not hopeful, but it’s about how I’ve experienced time. When a month went by, it felt like years of the Trump 2 administration. And now after, it’s been almost a year and it doesn’t feel like 10 years to me. It feels like we got three quarters of the way to go. It’s not much of an optimistic note, but how have you experienced the passage of time?

Jill Lepore:

I have experienced-

Preet Bharara:

The one day at a time, you’re going to say.

Jill Lepore:

Yeah. Yeah. No, I think it’s actually interesting as a historian noticing that people really perceive of themselves as actors in the historical moment. And I think that’s actually useful because it gives us a vantage on which way to steer the ship.

Preet Bharara:

Jill Lepore, the book, We The People: The History of the US Constitution. We’ll talk about amendments some more when we get a chance. Thanks so much. Take care.

Jill Lepore:

Thanks a lot.

Preet Bharara:

My conversation with Jill Lepore continues for members of the CAFE Insider community. And the bonus for insiders, we discuss her reporting on the No Kings movement, whether rallies can still make a difference and the line she draws as a journalist in a political moment.

And you didn’t bring a sign.

Jill Lepore:

No, I’m a reporter. I’m not allowed to participate in such a thing.

Preet Bharara:

You are not allowed… Wait, let me refer you back to the Constitution.

To try out the membership, head to cafe.com/insider. Again, that’s cafe.com/insider. Stay tuned. After the break, I’ll answer your questions about whether President Trump accidentally pardoned the January 6th pipe bomber and what the recent grand jury decision means for Letitia James.

Now let’s get to your questions. This question comes in an email from Diego who writes, “I’m curious. The FBI arrested a suspect in the planting of pipe bombs related to the January 6th riots. Is this person covered or can they claim to be covered by President Trump’s blanket pardon of January 6th rioters?” So Diego, that’s a very interesting question and not necessarily a hypothetical one or a speculative one. Now, as many people will remember, amid the chaos of January 6th, 2021, law enforcement also discovered two pipe bombs in Washington, DC.

One was placed in an alley behind Republican National Committee headquarters and the other next to a park bench near the Democratic National Committee headquarters. Fortunately, the devices did not detonate, but the FBI has always been clear, quote, “These pipe bombs were viable devices that could have been detonated resulting in injury or death,” end quote. So federal authorities have been searching for the person responsible ever since. Last week, they announced the arrest of a suspect, Brian Cole Jr. In making the announcement, Kash Patel, the FBI director and others made a couple of points. One, they blamed the Biden administration and prior FBI director Chris Wray for not pursuing the case with enough vigor. Kash Patel also held a press conference praising the investigative work that led to Cole’s capture, saying this.

Kash Patel:

When you attack American citizens, when you attack our institutions of legislation, when you attack our nation’s capital, you attack the very being of our way of life. And this FBI and this Department of Justice stand here to tell you that we will always refute it and combat it.

Preet Bharara:

Kind of an interesting statement, given the blanket pardons of all the January 6th rioters. And that leads us to your question. So I agree with part of Director Patel’s statement, but the administration he now serves may have already pardoned Cole because they don’t really believe the thing that Kash Patel said about attacking the Capitol. Some legal analysts have suggested that Cole could claim protection under President Trump’s so called blanket pardon related to January 6th. They point to how broadly that pardon was drafted, extends to, and I quote, “All other individuals convicted of offenses related to events that occurred at or near the United States Capitol on January 6th, 2021.” Because the language is vague and expansive, some lawyers believe a creative defense attorney could argue that the pardon covers conduct connected to the events of that day, including the pipe bombs. It seems a lot will depend on what the word near means.

Was the pipe bomb near the RNC and the pipe bomb near the DNC sufficiently near the Capitol to qualify? Certainly Kash Patel in talking about an attack on our nation’s capital seemed to think so. By the way, this wouldn’t be the first time Trump issued an overly broad pardon. His earlier pardons relating to the fake elector scheme named 77 individuals, but also extended beyond the list. As a reminder, that pardon covered, quote, “Conduct relating to the advice, creation, organization, execution, submission, support, voting, activities, participation in, or advocacy for or of any slate a proposed slate of presidential electors.” That’s a mouthful. Because of the sweeping scope, at least one defendant charged with casting ballots in two states has already tried to invoke that pardon, even though that isn’t what it was intended to cover. The language nevertheless opened the door to the argument. As for Brian Cole Jr., I believe as of this recording, he has not yet argued in court that Trump’s January 6th pardon applies to him.

It’s still pretty early in the process. He was just arraigned on Friday and declined to enter a plea. So we’ll have to wait and see whether his legal team raises the pardon as a defense and how far it gets. But if President Trump actually believed Director Patel’s statement that, quote, “When you attack our nation’s capital, you attack the very being of our way of life,” end quote. If you really believe that, we wouldn’t now be grappling with whether an overly broad pardon might let someone accused of planting live explosive devices walk free.

This question comes in an email from Stephanie who writes, “A Virginia grand jury recently returned a no true bill in the mortgage fraud case involving Tish James. Does this effectively end her legal problems or is there still a possibility that federal prosecutors could bring charges again?” Thank you for the question, Stephanie. I’ve addressed this question generally in the past, but let’s address it specifically here. To recap where all of this began, Letitia James, the New York State Attorney General, in the past brought a major civil fraud case against Donald Trump. She had alleged that Trump repeatedly lied to banks and insurers by inflating and deflating his assets when it suited him. After Trump returned to the presidency, his Justice Department appeared to target, I would say, did target a number of officials he believed had wronged him, including James. Federal investigators scrutinized James’s financial records, including mortgage documents, claiming she had made false statements on mortgage applications, thus the first indictment.

At the time of the indictment, as we’ve discussed on the podcast, the relevant US Attorney’s Office in the Eastern District of Virginia was led by Lindsey Halligan. Last month, as you also remember, the federal judge ruled that Halligan’s interim appointment was unlawful, and because Halligan was deemed unlawfully appointed, the indictment she brought, including the ones against Jim Comey, not just Letitia James, were dismissed. Importantly, they were dismissed without prejudice, meaning prosecutors were free to seek new indictments. Now, in the Comey case, there’s a complicating factor and issue of the statute of limitations that is not as dire an issue in Letitia James case. So what did the government do? It represented the James case to a new grand jury in Norfolk, Virginia using different prosecutors and presumably a legally proper chain of authority. But this time around, as you say in your question, the grand jury rejected the indictment, returned what we call a no true bill.

So it did not find probable cause to indict James on mortgage fraud charges, which is kind of a big deal. Because as we have opined many, many times on the show, and as you may have understood and read, if you’re not a lawyer, the standard for a grand jury issuing an indictment is not proof beyond a reasonable doubt, doesn’t require unanimity. It’s a majority of the grand jury on a lower, lower, lower standard of probable cause. After the decision, Letitia James issued a statement saying, “As I have said from the start, the charges against me are baseless. It is time for this unchecked weaponization of our justice system to stop,” end quote. So back to your question, are her mortgage fraud problems over? Well, not necessarily. Every time this issue comes up, it tends to surprise some people, but there is no actual legal or constitutional limit on how many times prosecutors can present a case to a grand jury.

Double jeopardy does not apply here because a no bill is not an acquittal after a trial. It’s simply a decision by the grand jury not to charge. It’s not an acquittal, it’s not a dismissal of the charges, and prosecutors are free legally and constitutionally to proceed again. Now, whether they should is another question. On an episode a few weeks ago, I read the guidance from the Justice Manual that has followed the DOJ, and there have to be very, very good and compelling reasons to go back to a grand jury again, and again, and again if the grand jury returns a no true bill again, and again, and again. Anyway, we’re keeping an eye on it, as you might imagine. And if prosecutors make another attempt at an indictment, we’ll be talking about it here on Stay Tuned. This question comes in a voicemail from-

Andrew:

Andrew Scarborough. Good morning, Preet. We’re having a little conflict here in my house that I thought you could resolve. Was the answer to yesterday’s Wordle plead or pled? It makes the big difference here. Thanks very much.

Preet Bharara:

Well, thanks, Andrew, for your question and for the voicemail. I stopped playing Wordle some time ago for reasons that are not really clear to me. For purpose of the answer to the Wordle question, if I remember correctly, every answer is five letters, so the answer must have been plead, and that doesn’t offend me or us at the show because the controversy that I have weighed in on from time to time, and it’s a pretty significant as they come, grammatical word controversy, is what the past tense of plead is. Is it pled or is it pleaded? Longtime listeners of Stay Tuned And the Insider Podcast know that I have pretty strong opinion about the past tense. Pleaded, I guess, is the favored version for people who I might say are living in the past. I know these are fighting words, but people who are living in the present and see the future, I think, use pled. Pled is more elegant, pled is shorter, pled is better.

And for sticklers, you should know that among other sources, Merriam-Webster approves both pleaded and pled. And if you have a choice between those two, why on earth would you choose pleaded? By the way, speaking of pled versus pleaded, the age old controversy, our new Stay Tuned merch shop is now open right in time for the holidays. So you can grab your own pled versus pleaded t-shirt and other fan favorites, like our signature Stay Tuned sweatshirt, just head to cafe.com/shop. That’s cafe.com/shop. I’m pleading with you, buy something.

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. You can reach me on Twitter or Bluesky at @PreetBharara with the #AskPreet. You can also call and leave me a message at 833-997-7338. That’s 833-99-PREET. Or you can send an email to letters@cafe.com. Stay Tuned is now on Substack. Head to staytuned.substack.com to watch live streams, get updates about new podcast episodes and more. That’s staytuned.substack.com.

Stay Tuned is presented by CAFE and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The deputy editor is Celine Rohr. The supervising producer is Jake Kaplan. The lead editorial producer is Jennifer Indig. The associate producer is Claudia Hernández. The video producer is Nat Weiner. The senior audio producer is Matthew Billy. And the marketing manager is Liana Greenway. Our music is by Andrew Dost. Special thanks to Torrey Paquette and Adam Harris. I’m your host, Preet Bharara. As always, stay tuned.