00:30 Chris Hayes Hello and welcome to Why Is This Happening with me, your host Chris Ace. 00:36 Well, have you noticed something new about this episode that there was no teaser bite? 00:40 Very astute, very observant with pod heads. 00:44 First of all, Merry Christmas or Merry War on Christmas, whichever you celebrate, because if you're getting this, it's on... 00:50 This is going live on the day of Christmas, so whichever your personal devotional tradition, I hope you have a happy celebration. 01:00 Right now, as you're hearing this, probably if it's on that Tuesday, I am sitting around with my kids and a Christmas tree and my wife and our whole family opening gifts. 01:09 I hope you're doing something similar to that if that's what you celebrate. 01:12 Speaking of my family and my wife, we have a very special guest today. 01:16 Now... 01:17 Those of you who are original ride or die from day one with pod devotees will recognize the voice and the person I'm about to introduce. 01:27 Because this interview we recorded back in May, I want to say. 01:31 I think it was May. 01:33 My wife, Kate Shaw. 01:34 And here's the thinking. 01:37 When we started this podcast, we were getting like, you know, maybe like 50,000 downloads an episode, something like that. 01:47 Now we're up to like 200,000 downloads an episode. 01:50 The audience of this thing has really radically expanded in the days since we first put this interview out. 01:55 And so there's a lot of you, I think, who probably have not made your way through our whole archives, have not... 01:59 Yeah. 02:15 Because my wife, Kate, has just has an incredible bounty of experience and insight into questions of the president, the law, the rule of law, the courts, and kind of what are the binding constraints on how political actors and particularly the president acts. 02:33 So Kate clerked. 02:35 She went to law school and she clerked for Judge Richard Posner in the Seventh Circuit. 02:38 He's an appellate judge, a very, very famous jurist who's retired, probably one of the most influential and famous lawyers. 02:43 judges of the last 40 years. 02:46 She then clerked for John Paul Stevens on the Supreme Court, which is pretty cool. 02:51 It's also very impressive, just in case. 02:55 She she clerked for John Paul Stevens. 02:57 We spent a year. 02:58 We moved to D.C. for her to do that clerkship. 03:01 I actually had an office of the nation across the street and I would go play basketball once a week in the highest court in the land, which is the basketball court literally above the Supreme Court. 03:09 And then after that, she worked in the Obama administration as an associate White House counsel. 03:13 And now she is a law professor at Cardozo. 03:16 where she writes a lot of scholarship about presidential intent, presidential speech, executive power, how it's sort of constrained or not constrained by the courts and constitutional interpretation. 03:28 So she's got this like really incredible sort of 360 view of all the issues that we're treating day in and day out in the Trump administration because she's been in all these different places. 03:38 Right. 03:38 So she's clerked for an appellate judge. 03:40 Right. 03:40 So she can view things from that perspective because you see lots of Trump administration policy being challenged in district courts and then appealed to circuit and appellate judges. 03:49 She clerked in the Supreme Court. 03:50 Of course, a lot of things like the travel ban that went all the way up to the Supreme Court, possible that Mueller stuff will go up to the Supreme Court. 03:57 Then she also worked in the White House as associate White House counsel, where she worked on all kinds of issues pertaining to being a lawyer for the office of the president and the 04:07 Things like executive privilege and what Congress can and can't see and how you vet people and how you sort of move things through agencies and what the administration does or does not challenge or support in court, like all of those related issues. 04:19 So every day, every news story we're doing, there's issues around this kind of really fascinated, loaded, fraught. 04:27 Question of kind of where the law ends, where tradition begins, where the law ends and where sheer will to power begins. 04:34 Like the question that I think constantly circulates is like, can he do that? 04:39 Can he do that? 04:40 That's like the central question always in the Trump era. 04:43 And Kate just had this like searing insight as a kind of scholar, academic and practitioner into all of those questions. 04:51 And so back in May, the president was embroiled in a whole bunch of legal problems from every direction. 04:58 I remember at the time in the conversation being like, man, he sure got a lot of legal problems. 05:02 And like, that looks quaint now. 05:04 Fairly fresh was that Michael Cohen had been raided by the feds, which I think... 05:08 escalated everyone's estimation of the president's political trouble. 05:11 And that has borne out, obviously. 05:12 Since then, things have only gotten worse. 05:14 Cohen has pleaded to a bunch of stuff. 05:16 He's going to get three years of prison. 05:17 And he's also pleaded to something having to do with lying to Congress under Mueller. 05:21 Manafort's been convicted. 05:22 You know, Flynn is going to be sentenced at some point. 05:28 There are a lot of reasons to think the president's legal troubles from every direction have only compounded and increased since we had this conversation. 05:36 And yet the issues that she talks about, the ways that she talks about how this administration conducts itself and how the courts have been conducting themselves in relation to this administration, all are totally relevant to all the issues we're seeing today. 05:50 So that's this week's episode. 05:52 Next week. 05:54 New, fresh content, like a spring blossom shooting up through the winter snow is what next week's With Pod will be like. 06:03 Just a little, like a little crocus just pushing its way out of the snow in the middle of the winter is next week's very special fresh content where you will meet a brand new guest. 06:13 You will be able to meet, to hear from. 06:17 a secret personality who looms large in the Withpod universe. 06:20 It's very, very exciting for everyone involved. 06:23 So you should definitely check that out. 06:24 You're definitely going to want to download that on New Year's Day. 06:26 Also, we are in the midst of planning our second potential live show. 06:30 I know a lot of you are not going to be happy with this also in New York, but we're just trying to get the mechanisms of producing live shows down really well before we go to another city where it's going to be a little harder because we'll be traveling and we'll be dealing with 06:45 venues that are remote in a new market and all that stuff. 06:48 So we're going to do another live show here in New York in January, it looks like. 06:51 We're extremely excited about that. 06:53 And then we're going to start thinking about how to take live with pod shows on the road. 06:57 And we're super psyched. 06:58 So look out for more announcements about when the live with pod in New York will be in January and who it will be. 07:04 I don't actually know the answer to the second one. 07:07 The other thing I'll say is a lot of people have noted that certain episodes and conversations we have relate to other episodes and conversations we've had. 07:15 And if you want to kind of go deeper on the themes and you haven't been through the whole archive, you can look at other ones. 07:20 So today, conversation with Kate on sort of the rule of law and President Trump. 07:25 You can also listen to my conversation with Zephyr Teachout, which is about corruption, the rule of law, the history of corruption in the United States, why it's sort of uniquely pernicious and toxic to a democracy, and also how that relates to Donald Trump. 07:39 And you can listen to my conversation with Nick Ackerman, who's a frequent guest on our show, MSNBC contributor, and a lawyer who was part of the prosecutorial team during Watergate. 07:49 where he recounts what his experience was like back then, which has a bunch of crazy mind-blowing details that I had not heard until Nick told him. 07:58 So, without further ado, my favorite person in the world, the brilliant Anastomobile, Kate Shaw. 08:09 Kate Shaw Somewhere I need to say that I have not heard anything you said introduce me, and so I'm not co-signing it. 08:15 I just haven't had a chance to veto it. 08:17 No, only because I'm sure it's going to be some overstated recitation of my resume. 08:21 It's like the greatest lawyer who ever lived. 08:23 Chris Hayes You are the greatest lawyer of your generation. 08:25 I'm just saying I'm not co-signing. 08:25 No, I genuinely believe you are the greatest lawyer of your generation. 08:28 Kate Shaw Well, you should believe that about your spouse, so thank you. 08:30 Chris Hayes No, I objectively believe that, and there's lots of external reasons to believe that. 08:34 It's not just like some fantastical belief of mine. 08:36 Kate Shaw It's ridiculous. 08:37 Chris Hayes No, it's not ridiculous. 08:39 Let me start with this, why I wanted to have you on. 08:43 I guess you're wondering why you're here. 08:44 By the way, it's happy birthday. 08:46 Kate Shaw Thank you. 08:47 This is like our version of calling into Fox and Friends on your spouse's birthday, confessing you didn't get a present. 08:53 Chris Hayes Really nice card, I think is what he said. 08:55 Yeah. 08:56 Yeah, it's awesome to have you here. 08:57 So Joshua just said to me, Joshua Chafee, he's a senior producer on the show, said to me that like, 09:03 So often in editorial meetings throughout the day and segment meetings, I'm always like, oh, well, Kate says this. 09:10 Kate says that. 09:11 Kate makes this point about the law. 09:12 Kate has this really good point that she made to me this morning. 09:15 I wish we could have Kate on the segment. 09:17 If Kate were here, she would say. 09:19 So you're like this sort of spectral. 09:21 Is this I'm not making this up. 09:23 Yeah, 100%. 09:24 So I thought, well, instead of referring to you, I could actually bring the embodied version of you onto the podcast here because you won't come on the television show. 09:36 I'm always thinking of you because both who you are and how you think about the law, how deeply felt it is for you. 09:42 but also that you worked in the White House, in the White House Counsel's Office, Associate Counsel. 09:45 You worked, you clerked in the Supreme Court of Justice John Paul Stevens. 09:48 You've been around very, very high stakes legal matters and have been there, like been on the front lines of making these determinations. 09:55 And so I guess maybe the best place to start is just like when you take a step back and you survey the amount of legal peril that both the president personally is and also as the president, it just seems like he's 10:09 He's got a lot of legal problems. 10:11 Is that wrong? 10:12 Kate Shaw He does, right? 10:13 Yes. 10:13 I think there are definitely a lot of legal problems, a lot of legal peril. 10:18 Sorry, I'm going to turn my phone off. 10:19 Crosstalk I just made a little beep. 10:22 Kate Shaw I feel like I should maybe keep on that in case, since all parents are now in this studio for children need us, someone should be listening. 10:31 But all right, I'm going to turn the phone off for a little bit. 10:33 They'll be fine. 10:34 Chris Hayes Their parents are podcasting Sunday. 10:36 We'll explain it to them. 10:39 When they're old enough, we'll explain what podcasting is. 10:42 When two people love each other very much. 10:46 They get in front of microphones with headphones and then a podcast is born. 10:50 OK. OK. 10:52 Kate Shaw So I think in terms of legal jeopardy that the president is facing, I think we can break it down into a few different categories. 10:58 So first are sort of all the successful legal challenges to the president's substantive policy initiatives. 11:04 Right. 11:04 So that is kind of one category. 11:06 And that's the DACA rescission, the travel ban, some of what he's done in the environmental sphere. 11:11 And, you know, the Supreme Court hasn't ultimately weighed in on this, but he has run into a lot of roadblocks right in the lower courts in trying to implement a lot of these policy initiatives. 11:19 So that's sort of first category of legal trouble or legal jeopardy. 11:22 Chris Hayes Like stuff he's doing is present. 11:23 Like I want to, you know, ban people from these countries or I want to take away DACA and the courts being like you not so fast. 11:30 Right. 11:31 Kate Shaw A lot of people would say that's the system sort of operating as it should if his staff members in the White House or in the cabinet agencies are just taking lots of risks and shortcuts. 11:41 And there's a lot of kind of reckless, sloppy policy making happening. 11:45 But that's sort of one category of kind of legal trouble. 11:48 The second one maybe would be investigations into staff members. 11:53 And I think that includes both White House staff and cabinet members. 11:56 So whether that's ethics issues or FBI background investigation issues, the Hatch Act, right, political activity. 12:01 So I would say that's kind of the second category of legal trouble or legal jeopardy that it feels like they're constantly enmeshed. 12:07 And then the third is kind of more the president's personal legal exposure, right? 12:11 So the Russia affair is obviously kind of the center of that. 12:13 Mueller investigation is the center. 12:14 Chris Hayes We cover that sometimes on the show. 12:15 Yes. 12:16 We'll do a segment here or there on the Russia situation. 12:19 Kate Shaw Well, and it just feels like it's moving at warp speed. 12:21 And so I don't know exactly when you're going to put these podcasts out, but I don't even know if there's that much to say about it today that's going to be all that relevant in like two weeks or a month or whatever. 12:28 Chris Hayes I mean, for all we know, this will be in like a post-P tape world in which like these people are going to like IMAX showings of the thing by the time this thing comes out. 12:36 Because who knows? 12:37 Yeah. 12:37 It does feel like it's moving fast. 12:38 Although it feels like it's both moving fast and also like there's like a treadmill quality to it. 12:42 Right. 12:42 Like it's like ever accelerating and also staying in the same place at the same time somehow. 12:47 So you've got these three categories, which I think is a good way of thinking about it. 12:51 Right. 12:51 Kate Shaw Just kind of legal exposure, legal jeopardy in the White House. 12:54 Yeah, I think that's so right. 12:56 Chris Hayes So so the stuff he's trying to do, the stuff around like staff and cabinet officials and then the president. 13:02 And that's it's the last thing that we talk about the most on the show. 13:04 But maybe let's talk about the first thing, which in some ways for the consequences of people in the world and in the country is the biggest. 13:12 Like it seems to me that he's had a tough climb in the courts, particularly on these big signature things like DACA and the travel ban. 13:20 Why do you think that is? 13:21 Kate Shaw So sloppiness and recklessness, I would say, are kind of at the heart of both. 13:25 They've just done a really bad job of dotting I's and crossing T's and just actually implementing these things in really basic ways, the way government conduct has to occur. 13:36 So take the travel ban, the first executive order, right? 13:38 So we're now in the third iteration of the travel ban. 13:40 So the first one is issued a week after the administration begins. 13:43 And it's clear that there's been no process whatsoever, right, that predates the issuance of that executive order. 13:48 So typically when the executive branch in general rolls out a major new policy, it does it after extensive consultation with the relevant affected cabinet agencies. 13:57 It's convened, you know, usually weeks and months. 14:00 And sometimes obviously these processes can feel like excessive. 14:03 Right. 14:04 But there's a lot of subject matter expertise in the federal government. 14:06 And so you want to bring in with a policy like this Department of Justice, the Department of Homeland Security, the State Department, the Defense Department, the intelligence community. 14:14 Right. 14:14 You'd want to sort of run a robust interagency process that would result in a series of recommendations the president would adopt. 14:20 There'd be notifications given. 14:21 You'd also have a communications rollout strategy. 14:24 Right. 14:24 You'd put calls together. 14:25 with reporters who cover this stuff and sort of explain how the policy is going to work. 14:29 You put out guidance to the field so that, you know, on the ground officials in airports and embassies and consulates understand the policy change. 14:36 And none of that happened. 14:37 Right. 14:37 So literally an executive order was issued and nobody understood anything about how this policy was supposed to work. 14:44 Because in addition to kind of all these process failures, it just contained some real drafting errors. 14:49 Right. 14:49 Or ambiguities. 14:50 Right. 14:50 Wasn't it all clear from the face of the order whether green card holders who happened to be abroad when the order was issued could even reenter the country? 14:56 Ultimately, the White House Council ended up issuing a memorandum that purported to clarify the green card holders weren't supposed to be covered. 15:03 Chris Hayes Even that, though, that detail like always struck me is so like, OK, so the White House Council just like writes a memo. 15:08 It's like, what the heck is the legal status of that document? 15:11 Right. 15:11 Kate Shaw And basically said, well, there's no real authority for the idea that the White House counsel can through a memo amend an executive order and probably can't. 15:20 They don't usually try. 15:21 But so that's an example of kind of the policy failures, but also just the document itself reflected this kind of rushed and sloppy and careless policy development process. 15:31 courts struck it down, right, fast and hard. 15:34 And eventually the administration decided just to stop fighting for it and withdraw it and replace it with another executive order. 15:40 You know, they've tried to run a more robust process. 15:42 So a year and a half into the administration, they were taking sort of more care and following processes, I would say, much more than sort of in the first week. 15:49 Chris Hayes To me, the sloppiness there... 15:52 It's endemic. 15:53 And this relates to something. 15:54 Part of the reason I want to talk to you, like you are a very, you are an extremely careful person. 15:59 Like the way that you like compose emails, you know, any document you're dealing with, like you are a natural like proofreader. 16:06 Your grammar is perfect. 16:07 You don't have typos and misspellings and things you issue publicly. 16:10 And basically like that's the kind of person you want working in your White House is my feeling. 16:14 Like you want the Kate Shaw's of the world who are, no, really, you want people who are just super careful people. 16:19 You do not want the Chris Hayes of the world running. 16:21 running your White House lawyer operation because like I, you know, tweet typos all the time. 16:26 And like, but the White House, they put out official documents all the time. 16:29 Forget legal stuff like that to me is just so indicative of exactly what you're saying. 16:33 Like the same White House that will just put out a misspelling of a dignitary's name on an official document is also going to put out these legal documents. 16:41 And that's where like the rubber hits the road on that stuff. 16:44 Kate Shaw Every White House, and certainly this was true, the Obama White House is doing a million things all the time and is pretty chaotic and everyone is really overwhelmed. 16:52 So I just think you have to have. 16:53 Yes, you have to have people who are by disposition kind of sticklers and careful. 16:58 And I don't get the sense that's the case right in this White House. 17:01 But you also just have to have kind of internal. 17:05 protocols and policies and workflow and org charts. 17:09 And I just it feels like with the amount of staff turnover they've had, I don't even know if there's a staff secretary right now, honestly. 17:14 Right. 17:15 That's a really important position in the White House, too, in terms of controlling the flow of paper into the president's hands and then what comes out of the White House. 17:23 You know, I do have actually a lot of sympathy for the conditions in which a lot of the staff level folks are toiling. 17:28 It's a really difficult place, even under the best of circumstances, I think. 17:32 To work. 17:33 And I think that you see that if you don't have really good systems in place, that things can kind of fall apart really quickly. 17:39 I mean, every White House kind of stands up its own set of processes at the beginning. 17:43 Right. 17:43 And that's what's so crazy. 17:44 Right. 17:44 Every every White House. 17:46 Right. 17:46 There's a very small core of career officials who, you know, do IT and human resources and that kind of thing. 17:51 But basically everyone. 17:53 turns over right of the change of administrations in a White House. 17:56 And so there's no institutional memory whatsoever, right? 17:58 So basically this kind of empty building gets filled on Inauguration Day and you have to figure out how to structure the place, you know, like anew. 18:07 Every White House does it by itself. 18:09 It's really nice to have some people who've served in previous White Houses and we did have that at the beginning of the Obama administration. 18:14 But it is pretty wild just kind of how sort of blank slate the beginning of a new administration is. 18:20 My sense is that I think if you have a rocky start and this administration, I think, really did have a rocky start, it's almost impossible ever to kind of overcome that deficit. 18:30 I think that the transition is a big part of the story, actually. 18:33 So I worked. 18:33 Obviously, you remember this. 18:34 I worked on the transition right into the Obama White House. 18:37 So after the election, sort of November, December, January 2008 into 2009. 18:42 And it's transitions are a really weird period. 18:44 Right. 18:44 Because you have this. 18:46 creature, the president elect, who's not a private citizen anymore, but isn't actually the president. 18:50 And so occupies this kind of liminal status and does start going to briefings and, you know, begins to kind of get ready to govern, but isn't doesn't actually have any governing authority yet. 19:00 And it's kind of the same with the staff, right? 19:01 You're sort of in this interesting kind of extended crossfade where the outgoing administration is sort of winding down. 19:06 and trying to help get you sort of up to speed to the extent you're interested in their input. 19:11 And then they kind of just hand over the keys. 19:14 And so if you run a really tight transition, which Chris Liu, who you have on your show a lot, was executive director of the transition. 19:21 So I worked for him in the Obama transition. 19:23 It was just a really, really well run operation. 19:25 And so you had these kind of top to bottom reviews of every agency. 19:28 So we had teams that would go into every agency and meet with the top officials and try to figure out 19:32 how policy development happened there, where sort of the kind of policy change priorities were, how the offices were structured. 19:38 So these teams would sort of gather information, make recommendations to the president elect. 19:43 And so that when you actually when inauguration did happen and everybody did actually report to work as a real government official, you kind of knew what your priorities were and you could actually get down to business like immediately. 19:52 And that was true in the White House, too. 19:53 Sort of try to figure out how all the White House offices were structured and what they did. 19:56 And I'm not the only Obama staffer who would say this. 19:59 Lots of people, I think, had this experience. 20:01 The outgoing Bush staffers were lovely. 20:03 Like they were so helpful. 20:04 You know, everybody cares a great deal about the institution of the White House. 20:07 And so people, though the policy views, obviously the two administrations could not have been more different. 20:11 It was just like really, really cordial, collaborative meetings. 20:15 about what they did and kind of, you know, just what do you need to know was sort of what can we do to help was the general attitude. 20:21 And I know that the outgoing Obama staffers and I obviously have been long gone from the administration, but the Obama staffers who were, you know, winding things down in late 2016. 20:30 definitely had that attitude, I think, to the incoming Trump staffers and had binders prepared and were ready and willing to be as helpful as they could be, particularly because this was, you know, obviously this candidate who was himself, I think, taken aback by the election results, like obviously the whole country was. 20:46 And so they sort of knew this was going to be a team that was not going to necessarily come in with a whole lot of government experience. 20:51 And so my sense is that they were really willing to be, you know, wanted to be as helpful as they could. 20:56 And 20:57 I just don't think that Trump people ever called. 20:59 Like, I don't think they really availed themselves of the opportunity to get briefings from and sort of assistance from the outgoing Obama staffers, in part because there wasn't a real transition, right? 21:10 Chris Hayes Right. 21:10 I mean, part of it, right, is that Christie gets named to run the transition and then he gets fired, which is going to become sort of a little bit of narrative foreshadowing from the showrunners of the Trump serial. 21:21 That, you know, because the president's going to keep cycling through staff. 21:25 But but from what we know, reporting, right, they all that's my understanding from the reporting is that there was a process akin to the one that Chris Lou ran that was like thrown in the trash, essentially started it up again. 21:38 Kate Shaw But I'm not sure what really took its place. 21:40 And I just don't think those meetings happen in a normal way. 21:42 And, you know, they weren't even running the transition from D.C., right? 21:45 It was like run from New York anyway. 21:47 I think most Trump staffers didn't report to work for a couple of days after inauguration because it happened on a Friday and people didn't start working until Monday. 21:54 And it was just like, I remember just going on this unthinkable that you would just sit on two days of actually sort of 22:01 Getting down to business. 22:03 And anyway, so I don't think that they have ever really recovered from that start. 22:09 Chris Hayes It's a really it's a fact that I haven't thought of it in those terms. 22:13 I haven't seen anyone talk about in those terms of just like it's a thing you can't recover from in some deep sense that. 22:19 starting the way they started and the chaos. 22:22 I mean, obviously, I don't think they've helped themselves because I don't, you know, but but even trying to stand up processes after the fact, which sort of brings us to the distinction between the the the travel ban and DACA. 22:33 Right. 22:33 Because to sort of on the other side of that, is it like the travel ban? 22:36 OK, they they come in like Stephen Miller maybe drafts it. 22:39 Some people it's like terribly drafted. 22:41 It gets the courts hate it. 22:43 They three different iterations are now defending the third version. 22:45 DACA isn't like that, right? 22:47 DACA, the DACA rescission, the taking back essentially DACA, I don't know, comes a year, I think I want to say, right? 22:54 In the fall, they did it in September around then. 22:56 So it comes, you know, whatever, nine months in. 22:59 And yet the courts have not been, have been similarly unimpressed with that. 23:05 Kate Shaw So that one is that one was kind of weird in a different way. 23:08 So you had the attorney general and the DHS secretary basically announced that they were going to rescind DACA. 23:15 But the main problem there was that the justification just didn't fly. 23:20 Right. 23:20 So the explanation that the attorney general gave was that DACA was unconstitutional. 23:25 So that's why they were undoing it. 23:27 But no court had found that. 23:30 But, you know, that's not to say that only courts can decide, right? 23:32 The executive branch can decide for itself, right? 23:34 What it thinks, at least, obviously, in our system, the judiciary is the ultimate arbiter of constitutionality. 23:39 But the executive branch should make its own determinations of what it thinks the Constitution means and requires. 23:43 I don't think that that's problematic at all that they say we think this thing is unconstitutional. 23:46 But they sort of pointed to courts as having... 23:49 And that actually wasn't true. 23:51 Chris Hayes And the other thing that was weird was that just stop for a second, because that's to me, this is like this is also classic. 23:56 Kate Shaw Like they said that courts had said it in Sessions speech. 24:01 He basically said that the courts had found that DAPA, which is, you know, this extension of DACA was unconstitutional. 24:09 But and that the Supreme Court had essentially agreed. 24:12 And I just don't think that's right. 24:14 So the Fifth Circuit had struck down DAPA, but not on constitutional grounds and found that it was procedurally flawed, that it should have been done differently and never reached the constitutional question at all. 24:23 So there was this kind of misrepresentation of what the Fifth Circuit had done. 24:26 So that's kind of problem one. 24:27 And then problem two is that in the announcement that they were going to rescind DACA largely based on this kind of constitutional flaw that they sort of pointed to the courts as having seen, 24:38 They said, but we're not going to do it just yet. 24:41 We'll sort of wait. 24:42 We'll give kind of this sort of six month kind of phase out period. 24:44 We'll continue doing DACA renewals during that six month period. 24:47 And the courts had a hard time with that, too. 24:49 The thing is unconstitutional. 24:50 Why are you going to keep it in place for another six months? 24:53 So that's, you know, it's different from the travel ban. 24:57 Chris Hayes But it seems like there is something related between the two. 24:59 And that, like, again, it's like a failure of process and care. 25:02 Right. 25:03 There's a way that you do all this stuff. 25:05 It's a lawyerly way you do it like you want to do something from the executive. 25:09 You run a process and you come up with what you explain. 25:13 We're doing this for this reason. 25:14 And these are that this is why it's defensible. 25:16 It's basically the work of lawyering that just is somehow not getting done very well. 25:22 Kate Shaw And I mean, I don't you know, I think that then the Department of Justice has defended in briefs, you know, using this kind of more nuanced. 25:28 Well, there's litigation risk and that's why. 25:30 So it's not that there hasn't been care at sort of at any point in the process. 25:33 But but but the announcement and the rollout, I think you're right, did reflect this kind of lack of care. 25:38 And and there are there just are legal doctrines that constrain what agencies are able to do. 25:43 And, you know, most of the time when the president acts, the president acts through agencies. 25:46 Right. 25:46 And agencies can't. 25:47 just change policy overnight without giving some explanation, and courts will look at those explanations. 25:52 Chris Hayes He's not a king. 25:52 I mean, this to me is like the key thing, right? 25:54 The guy's run a private business for his whole life. 25:56 If Donald Trump, Donald J. Trump, who's the head of Trump Work, a family-run business, wants something done, he just says, like, go do this thing. 26:04 He doesn't have shareholders. 26:05 He doesn't have a board. 26:06 Like, it's a family business. 26:07 It's like if you run a bodega and you're like, we're going to stock the Diet Coke over here. 26:12 Like, you know, you don't ask anyone to do that. 26:14 It's just the way it's your business. 26:16 You go do it. 26:17 And I just feel like that leadership style and that posture has... 26:22 There's a fundamental tension. 26:23 This isn't even dealing with all the like other rule of law questions. 26:26 But even in this like banal way, it just seems like there's a fundamental cultural tension between the way you do things in that environment and like being the president of the United States when you have to like take care of the laws are faithfully executed and be surrounded by lawyers and, you know, dot I's and cross D's. 26:41 Kate Shaw Yeah. 26:41 And I mean, I do think that sort of leadership style issue is connected to these kind of rule of law and sort of legal norms question. 26:48 And my old boss Bob Bauer has made this point. 26:50 That maybe it is the case that, you know, when you come up in this kind of private sector background, in particular sort of this New York kind of real estate background, you view yourself as constrained maybe only by the kind of outer bounds of what you can get away with. 27:06 Right. 27:06 You know, as opposed to and the law, you know, and in private disputes, that's not necessarily so wrong in that you're aggressive, you get sued, you settle, you know, you sort of see how aggressive you can be and sort of what the cost of settlement will be. 27:18 Kind of this sort of independent weight and value of the law just isn't something that you've really internalized. 27:24 So so I think that that's you do sort of see that attitude toward law, I think, continuing in this White House. 27:31 Yeah. 27:31 Yes. 27:32 You the idea that you push until you can get away with. 27:34 It's just not the ethos in government, right? 27:36 It never really has been, at least right in the post-Watergate era and maybe before that it was, but certainly in the modern era. 27:43 That's not the ethos in government. 27:46 You push as hard as you can. 27:47 You see what you can get away with. 27:49 But I do think that is what we seem to be seeing in a lot of spheres. 27:52 Chris Hayes Well, that's like there's a sort of leadership style. 27:54 There's a kind of cultural style emanating from the top. 27:56 There's a kind of like chaos of the beginnings, right, that have sort of emanated through. 28:01 I do feel also there's this I don't know. 28:04 I mean, I guess I want to make an argument on character, which is maybe not unfair. 28:08 But here's an example of how I think about it. 28:12 The Hatch Act. 28:13 Right. 28:14 So the Hatch Act is you're not allowed to sort of campaign politic on government time. 28:20 Exactly. 28:21 But it's sort of complicated because, like, you know, the president's politicking all the time. 28:26 What does that really mean? 28:28 And my understanding is you and your colleagues in the White House Counsel's Office in the Obama administration thought about it a fair amount, about what was okay and what was not, right? 28:36 Kate Shaw A lot of it falls to the White House Counsel's Office to give briefings to White House staff members on things like the Hatch Act and ethics and record retention. 28:45 That's a big deal. 28:45 There's a Presidential Records Act. 28:47 So there are very strict rules governing what kinds of materials you can just sort of get rid of the only copy. 28:53 You mostly have to save any of your substantive writings. 28:57 under the Presidential Records Act if you're a White House staffer, because those are viewed as a property of the United States. 29:01 Right. 29:02 You can't write a memo, send it around to your colleagues, take the only copy home or, you know, shove it in a burn bag and dispose of it. 29:09 Right. 29:09 You have to retain those under this statute, the Presidential Records Act. 29:12 There are a lot of examples of these kinds of rules and norms that you don't show up to day one at the White House knowing. 29:18 So somebody has to instruct you and train you in them. 29:21 And it's usually the lawyers in the White House counsel's office. 29:23 And in our administration, those happen through a series of briefings that every office would have and they would have them regularly because I think everyone understood that you these White Houses are perpetually busy and overwhelmed and overworked places. 29:34 So you can't just send a memo to everyone in their email and say, OK, now you've been informed how you have to deal with paperwork. 29:39 So you have to sit down and have face to face conversations with everyone to kind of instruct them in all of this. 29:44 And I don't know if any of that has happened. 29:47 Chris Hayes It's funny because as I listen to you, my instinct is to be like, these are people that don't care. 29:52 They just don't care as a character judgment about this stuff. 29:55 And it's interesting to hear you say, well, I don't know about their character, but there's a process issue here, which is like no one has briefed them or given them the tools to know to care. 30:05 Right. 30:06 Kate Shaw I don't know that this is total speculation, but I understand. 30:09 I know enough about the dynamics of those early weeks and even first couple of months to suspect that it didn't happen in kind of as rigorous and regimented a way as it did in the early days of our administration. 30:19 Chris Hayes But there's also this sort of deeper question, which sort of relates back to this idea of him as a real estate mogul and what you can get away with, which is like, what? 30:27 Who cares about the Hatch Act and the Presidential Records Act? 30:30 Who is going to enforce it? 30:31 Like, let the pope send his army kind of thing. 30:34 You know, at one point, Kellyanne Conway, this was the iconic example. 30:38 Kellyanne Conway goes and says, like, people should buy Ivanka Trump's, you know, clothing. 30:42 And she's, you know, she gets some ethics office recommendation against her that she shouldn't have done that. 30:48 And there's been a few moments where it seems like they maybe have violated the Hatch Act. 30:52 Actual like finding and it's like right that in 275 gets you on the subway like it doesn't matter and what part of what I think the feeling of legal crisis that we're in is just like if you take the approach of push and push and push and see how far you can push what you find is that a lot of it just pushes over. 31:12 Like if you're like, yeah, they just push the Hatch Act, like who's going to stop us? 31:16 And the answer is no one's going to stop you. 31:18 Now, that's not always the case. 31:19 Right. 31:20 Like when you're talking about the Muslim ban, you're talking about DACA. 31:22 The courts have sort of retained their authority. 31:26 But in all these other ways, these kind of lawyerly norms and lawyerly institutions about all this stuff, for instance, don't tweet threatening the Justice Department to stop investigating you in your campaign. 31:36 Yeah. 31:37 Who's going to stop you? 31:38 Kate Shaw Right. 31:39 I mean, I totally agree that in some ways, one of the things that has been so striking about this era is the way that it has exposed the degree to which a lot of government conduct is governed more by norms than hard law. 31:50 Right. 31:50 And so there are norms regarding the independence of the Justice Department and there are 31:54 Policy memos that White House counsels have issued going back a number of administrations that really narrow the universe of conversations that can happen between political staff members in the White House. 32:07 And, you know, this law enforcement agency, right, that has this kind of awesome prosecutorial power, particularly when it comes to criminal matters. 32:14 But just that that contacts between those two entities should be really limited and carefully monitored. 32:21 That's a longstanding tradition. 32:22 But there's no law that says the president can't pick up the phone and call the Justice Department. 32:27 It's mostly norm governed, not law governed. 32:30 Chris Hayes To me that his tweets about the Justice Department are and his comments about the Justice Department are remarkable. 32:36 I mean. 32:36 He is in front of everyone threatening the Justice Department to stop investigating a criminal investigation of his campaign, his family members and his associates. 32:48 You know, it's just rank intimidation. 32:50 It's one of those things like when you get to the DACA decision, you get to the travel ban where you feel like you've come up against a hard stop. 32:57 There's nothing to say. 32:58 Don't do that. 32:58 I mean, we can I can whine about it on my show, say this is ridiculous. 33:03 But that is part of a broader in some ways, maybe the most kind of iconic way in which this presidency and its relationship to law and the norms is different is the way is the speech of the president, the way that he talks like. 33:15 what he says, what he's willing to say, what he says on Twitter, which are things that are just not conceivable prior to him and have had, you wrote a great law review article entirely, largely about this, about how the president's speech, not just this president, like generally the president's speech should be considered legally, has played a huge role in both this presidency and in some ways the legal problems he's faced. 33:43 Kate Shaw So the travel ban litigation is the kind of prime example of this. 33:47 But I think in a number of cases, his Twitter account and his speech in general are just kind of a huge problem for the lawyers trying to defend the policies of his administration. 33:55 And I think as long as he continues to tweet in the style that he does, that's going to continue to be the case. 34:02 travel ban, in this sanctuary cities litigation. 34:06 Court after court has sort of looked to presidential speech as either undermining positions of the Justice Department, supporting claims made by challengers. 34:13 And I actually have this sort of idiosyncratic view that I offer in this article, which is that I actually think some of the time courts 34:19 should set aside what the president says, right? 34:22 The president should, whether it's this president or President Obama or any other president, should be able to speak freely on a wide range of topics, you know, without necessarily binding himself or his administration to litigation positions. 34:33 Chris Hayes And I continue to think that... 34:36 Everything you say all the time de facto becomes some irreversible, considered legal opinion of the executive. 34:44 Kate Shaw Yeah, that's that's I mean, not everybody agrees with this, but that's my general feeling. 34:47 I'm persuaded by you, by the way. 34:49 But but thank you. 34:50 But in the travel ban case and in a lot of cases where there are arguments that the president is. 34:55 expressing animus bias that that in those kinds of circumstances, it's totally appropriate for courts to take seriously what the president says. 35:04 Right. 35:04 So I think that there is a distinction that you can draw. 35:06 But he's he's been, I think, you know, I think he seems like a difficult client, I think, for lawyers, the lawyers around him and the litigators trying to defend this stuff, I think, have a very, you know, a difficult time. 35:19 And, you know, you see the tweets of his right end up getting, you know, entering the 35:24 You know, within hours sometimes because he does he continues to tweet about high stakes ongoing legal matters. 35:32 Right. 35:32 That both involve his administration's policies and also potentially his personal kind of legal exposure. 35:37 But no one's been able to talk him out of it as far as I can tell. 35:40 Right. 35:41 You know, there's this lawsuit, you know, so he blocks people on Twitter. 35:45 Right. 35:45 So this really interesting lawsuit. 35:47 Chris Hayes The funniest thing in the universe is. 35:48 he blocks that he keeps blocking yeah i mean like first of all like just it's a hilarious thing to imagine like him sitting there scrolling through the phone being like blocked blocked blocked like i don't like your like trolling comment to me the most powerful person in the planet yeah b you can mute people and c like that this is a thing that there's a lawsuit over that the united states government is defending the president's ability to block people 36:12 Kate Shaw Yeah. 36:12 So I just I kind of can't believe DOJ lawyers, right, are briefing this, right? 36:17 The president has the authority to block people on Twitter, right? 36:21 That's the position that they're taking. 36:22 And the lawsuit, if he would just stop, if somebody could just convince him to stop blocking people, right, just mute them, which is something that... 36:27 Literally a judge offered that. 36:28 Chris Hayes Right. 36:28 Kate Shaw The district court, right, sort of suggested this in the hearing on the case and a couple of months ago. 36:33 Have you heard of muting, Mr. President? 36:36 But he doesn't seem to be willing to do that. 36:39 And that's a case in which, you know, I... 36:41 worked for obviously President Obama, and I still have a pretty robust view of presidential power. 36:47 And I, you know, I don't like the idea of making unnecessary law that might constrain the ability of the president in ways that I might actually really care about when all you could make the whole thing go away if he could just be persuaded to stop blocking people. 37:01 But it feels like somehow emblematic of larger themes. 37:05 Chris Hayes But I think this is what, to me, part of what it comes down to. 37:08 And as I try to think about this, because I really do view a lot of my experience of watching this administration is in some ways just because those years of you working in the Obama administration, like I just got to see a certain part of that up close. 37:21 I saw how hard the job is, how demanding it is. 37:23 The stakes of it, which are insane, like, you know, not to get too real world here, but like if you're like, well, my spouse isn't spending enough time with me. 37:31 It's like, no, it's literally the most important job in the world. 37:33 Like you can't win that argument. 37:36 Like that job is the most it's so it's such an important job. 37:40 It's a hard job. 37:42 But I also think I think there's something about both Barack Obama, Harvard Law, editor in law, you know, editor in chief of law review, their professor, lawyer, the people that worked in the White House like yourself. 37:56 I feel like people in that White House knew they couldn't get away with things. 38:02 Like he was Barack Obama. 38:04 He was the first black man in the White House. 38:07 And I just feel like part of the care came from within your souls and who you were as people. 38:14 And part of the care came from like a very good lawyerly culture. 38:16 And part of the care was like, we have zero room for error. 38:20 Kate Shaw Well, first, I should say I'm sorry if I ignored you for two years. 38:25 Chris Hayes You made the country a better place. 38:26 You didn't ignore me. 38:27 You did not ignore me. 38:28 You worked hard. 38:29 You worked really hard. 38:30 I was gone a lot. 38:32 I played a lot of pickup basketball. 38:34 Yeah, you were a little lonely sometimes. 38:36 Look, you know, it's really useful to talk to you because it grounds me back in the sort of live reality of that place, which you have, I think, a lot of. 38:47 you know, personal kind of empathy connection to that it's easy to lose sight of when you're watching it. 38:54 But yeah, it's a hard job and it could be a lonely job on both sides, obviously. 38:58 Kate Shaw Yeah. 38:58 No, you can't talk about a lot of what you're working on with your spouse, particularly if you're doing a lot of work with classified material. 39:05 Yeah. 39:06 Yes, I think it's right that we knew we thought we couldn't get away with anything, but I don't think we wanted to get away with anything. 39:12 You know, I mean, you're there in just this unbelievable position of public trust. 39:15 And you just the idea of using it for any kind of self-dealing purpose, I don't think would ever have. 39:24 I don't know. 39:25 I don't think would really have entered the minds of most staff members who were there, if any. 39:29 Right. 39:29 So, you know, to the extent you're sort of wrestling with hard questions, it's like if there's ever tension between your obligation to the president as the president and the institutional kind of office of the presidency and the American people, you know, like you sort of are thinking about all of those possible clients and your White House lawyer. 39:44 And, you know, I don't I'm not suggesting that particular staff members in this White House are doing that at all either. 39:48 But I don't think that getting away with anything was something that we, you know, avoided doing because we 39:53 Chris Hayes Because we thought that we got caught. 39:55 Right. 39:55 But I think I don't think what I don't think that I don't think that what I think is that there was a standard that everyone was held to that you were constantly thinking of, which is that you were always walking through a minefield. 40:06 And I felt like that was very present in everyone's mind. 40:09 And I don't know, maybe that that I don't have a comparison set. 40:12 Right. 40:13 It's just you, the only person who worked in the White House that I lived with. 40:17 But 40:17 I don't know if that's particular to Barack Obama and Barack Obama White House, but it did feel to me that that was kind of the case that like there is no room for error with this man at this moment. 40:27 Kate Shaw Yeah. 40:27 I mean, it's the only White House I ever worked in. 40:29 So it's hard for me to compare either. 40:30 But I do think that we the expectations were really, really high. 40:35 I was not in a lot of meetings with the president, but I remember going into one where we had like another White House associate White House counsel and I had had to put together a memo like in some unbelievably short period of time, 36 hours. 40:47 And we had read so much and we had not slept and written this memo. 40:50 You know, it was like 10 or 15 pages and we sort of walked in and he knew how quickly we had, you know, I think he knew when the ask had gone out and he knew that it was two days later that we were in there briefing him. 41:01 And I remember thinking like, I wonder if we'll get some kind of like attaboy, you guys like really turn this around quickly. 41:06 And 41:07 And there was none of that. 41:08 Right. 41:08 Because the expectation was like, this is the White House. 41:11 We're in the Oval Office. 41:12 I need a memo and like I need an excellent memo and I need to turn around as quickly as I need it. 41:16 And no one's really going to get like a cookie for doing that. 41:20 Right. 41:20 Like being here kind of is sort of the reward in and of itself. 41:24 And so like it just there were just incredibly high expectations. 41:26 I think that those emanated from him. 41:27 Right. 41:28 Like he obviously performed at unbelievably high levels, read incredible amounts of briefing materials and just always demonstrated mastery. 41:34 that surpassed every subject matter expert in the room. 41:37 I mean, you went to a couple of roundtables, right, like with him, and you always had the same feeling, right? 41:41 Like he was so smart, he was so thoughtful, he was so well prepared. 41:45 And so, you know, like you kind of had to reflect that back to him to the best of your ability. 41:49 Chris Hayes And I want to just like, just to be clear, like all of these determinations of Barack Obama, like there are lots of things that I personally think that he did wrong in his administration and really significant failures, I think, in that administration on a substantive level. 42:01 I just think that like the baseline of integrity, it's just not even in the, it's just, you know, whatever those mistakes were, they were mistakes that were made on sort of substantive grounds and not because like he wanted more members at his golf course, which is what I'm saying. 42:16 now, which again, it's like you can't even you just sort of can't you can't conceive it. 42:23 I mean, I want to maybe this is a I might this might be putting you on the spot so you don't have to answer it. 42:27 But what I don't think we've ever had this conversation. 42:30 What would you say? 42:31 I know, you know, you know, some people because of the very sort of small world of elite law that you had moved in, former Supreme Court clerks, particularly who tend to be the kinds of people who end up in these sorts of administration jobs. 42:44 That, you know, people who have, I think, worked in this administration, I think some of the one or two of the people you clerked with in your clerking class. 42:50 Like, what would you say to someone who was about to take a job in this White House as a lawyer? 42:58 Kate Shaw I think that answers probably changed since the beginning of this administration. 43:01 I think early on, I was persuaded that, you know, everyone should go in and there's nobility in government service. 43:05 And, you know, you can be, you know, a righteous lawyer sort of in any set of circumstances. 43:10 And that, you know, even if you don't align perfectly with the views of Donald Trump, right, like, go serve. 43:15 It's an incredible honor. 43:16 You can do great good from the inside. 43:17 And, I mean, you use the term, I think you've used on your show, you certainly use it off air, this dignity wraith term, which is not yours. 43:23 Chris Hayes It's a Josh Marshall term. 43:24 Kate Shaw Oh, it's a Marshall term. 43:25 Chris Hayes I wish it was mine, but now it's not. 43:27 Kate Shaw It's a really good, but just that association with this administration has not been great for the reputation of a lot of people, a lot of lawyers. 43:33 And so I think it doesn't feel like you can necessarily do that much good on the inside. 43:39 Now, that's talking about political positions. 43:40 I still have friends and former colleagues who are in career positions in the Justice Department and elsewhere in the administration. 43:46 You know, I think that it's good that they're still inside and deep state. 43:52 No, they're just, you know, they're career lawyers that who have been there from trying to bring down our president. 43:57 Chris Hayes It's fine. 43:57 It's cool. 43:58 Like, you know, the people that are trying to bring down our president from the inside who are a part of the deep state. 44:01 That's what you're saying. 44:02 Kate Shaw It's like not the headline I want. 44:06 But I think it's good that they're there. 44:07 I think the political positions are maybe a different story at this point. 44:10 Chris Hayes I was going to pause and then do like an outro of your bio. 44:16 Kate Shaw is a professor of law at Cardoza. 44:19 Kate Shaw You do have to say Cardozo at some point. 44:21 Yeah. 44:21 Chris Hayes Kate Shaw is a professor at a law school here in New York. 44:25 Kate Shaw is a professor of law at Cardozo University. 44:29 She was a former associate White House counsel in the Obama administration. 44:33 She's a legal and Supreme Court analyst for ABC News. 44:38 The mother of my three children. 44:39 The love of my life also. 44:42 Most importantly, her birthday and the greatest lawyer of her generation. 44:47 Stop it. 44:48 As an objective determination, don't edit that out. 44:51 I really hope that's being heard right now in the ears of all the people out there because it's absolutely true. 44:56 All right. 44:57 I love you. 44:57 Crosstalk I love you too. 45:02 Chris Hayes Once again, my great thanks to my wife and love of my life, life partner, mother of my children, co-pilot Kate Shaw, who we have been together since we were 19 years old. 45:16 So we've been doing this for a minute, she and I. 45:20 And it was really, really, really, really fun to have her come on and talk. 45:24 on the podcast. 45:26 So thank you. 45:26 Thank you, babe. 45:27 You can always tweet us with pod hashtag with pod or email us with pod at gmail.com. 45:31 We get fantastic feedback, fantastic feedback. 45:35 And I just realized I was going to do something really funny right now, which is an old Mr. Show skit, which I was about to tell you to send us feedback, email and tweets for our annual reader mailbag. 45:48 which is next week. 45:50 But the thing is, I'm recording that right after I record this. 45:54 So this is a sketch in Mr. Show called the taped in Colin show. 45:59 You ever seen that? 45:59 Oh, it's so funny and so bad. 46:01 Anyway, so to avoid the problems of the taped in Colin show, if we'd love to hear feedback from you, it won't be in next week's mailbag because of when I'm recording this, if that makes sense. 46:10 Why Is This Happening is presented by MSNBC and NBC News, produced by the All In team, and features music by Eddie Cooper. 46:16 You can see more of our work, including links to things we mentioned here, by going to NBCNews.com slash Why Is This Happening.