- The 2024 presidential race and controversies at the Supreme Court, this week on "Firing Line".

- That's why I'm running for reelection.

- [Hoover] Just when you thought it couldn't get any stranger, signs point to a 2020 rematch.

Only this time the former president is under indictment and the Supreme Court faces a series of new tests, from abortion to questions about ethics.

- Imagine that you have dry kindling with kerosene on it and all that is needed is the right spark to ignite a level of political violence that will really strain the system.

- Conservative commentator David French has taken a stand against Donald Trump and has received threats for speaking out against the alt right.

He is an evangelical Christian, a lawyer who has argued high profile religious liberty cases, and is a columnist for the New York Times.

What does conservative commentator David French say now?

- [Presenter] "Firing line with Margaret Hoover" is made possible in part by Robert Granieri, Vanessa and Henry Cornell, the Fairweather Foundation, the Tepper Foundation, the Asness Family Foundation, and by The Rosalind P. Walter Foundation, Damon Button.

- David French, welcome to "Firing Line".

- Well, thanks so much for having me.

I appreciate it.

- You have said that the greatest threat to America is the ever deepening polarization throughout the country.

The prospect of another Trump-Biden matchup appears likely.

And I want to know what impact you think this will have on our country.

- I think the top line is if Trump wins the Republican nomination, the campaign is going to be incredibly vicious.

The campaign is going to be incredibly divisive just by its nature and the nature of how Donald Trump campaigns, and then if you add on top of that, there is an enormous amount of disillusionment in the larger public that these could be the two nominees again.

Democrats, for example, are not exactly overjoyed at the notion of Joe Biden running again.

They'll certainly line up to vote for him over Donald Trump, make no mistake.

But this is not a ticket that truly, honestly, is going to excite too many people, except for the Trump diehards.

And so we're going to see a combination of bitterness and disillusionment, I think, if that's who is actually in the contest at the end of the day.

- In 2020, you wrote in your book, "Divided We Fall: America's Secession Threat and How We Restore Our Nation", quote, "The quest for moral, cultural, and political domination by either side of our national divide risks splitting the nation in two, or in three or in four."

- Correct.

- How serious of a threat do you think this is now?

- Yeah, when I wrote that book in 2020, I was actually a little bit nervous.

Was this going to be taken seriously?

Because was I, would people perceive me as being, engaging in some hyperbole?

And then January 6th happened.

And I just don't think it's too much to say that we're at risk of that.

And I think we'll be in particular risk of that during 2024, especially if Trump is the standard bearer for the Republican Party.

- Well, you've described Florida under Governor Ron DeSantis as, quote, "one of the hotspots of right wing censorship and punitive government."

Do you think his aggressive and vindictive style is really what is appealing to Republican voters?

- It is very appealing to the online right.

And I think what is happening is that DeSantis is making a mistake that many politicians have made, which is confusing Twitter with real life.

And yes, the online right is very performative and it is very punitive.

And so that is what you've seen from DeSantis.

You've seen performative punitive legislation.

But if performative and punitive is the online right, in the much larger right, I'm not sure that that is the winning message, and especially not a winning message if the argument is, "Well, I'm like Trump, but I'm not Trump."

Well, if that's what you're doing, then why wouldn't people go with the original Trump?

So I think he's very online.

And I think that, or at least his team, and I think that is going to hurt him and has hurt him.

- I've heard you use the word, the term "online right".

Give me some texture about what you mean when you say the online right.

- Right, I think of the online right in much the same way that I think of the online left: far more aggressive, far more polarized, far more angry, and far more obsessed with politics.

And that's not necessarily the community that's going to elect the next president of the United States.

- So if Governor DeSantis of Florida has done a great job of playing to the online right, has he been short sighted in how he's established himself for the GOP primary?

- Well, you know, ultimately it remains to be seen.

It's all conjecture.

But as of right now, it does appear that he's reached a point where he's forgetting who his true constituency is.

If you actually look and see who his constituency is so far, it is college educated Republicans who are ready to turn the page on Trump.

And he actually hasn't pulled a lot of support from that core Trump base.

It's way too early to write a postmortem of his candidacy, but I think he's made some decisions that unless he changes them, he's put a ceiling on his support.

- What is your evidence that the Republican Party is ready to move on from Trump, to turn the page?

- So I think the word ready was probably an overstatement.

I would say willing, willing.

There's a difference between ready to and willing to.

And so if they're presented with an alternative, and I think here's the really key part of it.

If they're presented with an alternative that they view as their choice.

A lot of the Republican base is going to circle the wagons as long as they feel like they're being told to leave Trump.

And they're going to say, "No.

No.

You media, you know, you don't get to tell us.

Or you prosecutors, you don't get to tell us who our candidate is going to be."

And that's the dynamic we're working with.

- So then what do you think that bodes for the upcoming prosecutions in Georgia and by special counsel Jack Smith?

- Well, number one, I think you have to apply the rule of law.

He's a citizen.

He's not a king.

He's under the rule of law.

But at the same time, we can't in any way assume that the existence of those prosecutions, even if they're credible, even if there's an enormous amount of evidence supporting them, that they're going to chip away substantially at Trump's support within the Republican primary, which raises a host of problems.

But still, you apply the rule of law.

- Is it within the realm of possibility that Donald Trump will serve prison time?

- It is within the realm of possibility.

I do not believe it is with the Manhattan prosecution.

But either the Georgia or the federal prosecutions, they would be alleging violations of felony statutes that carry with them the possibility of real prison time.

Let me put it this way, these are cases that if brought against anyone other than a former president of the United States, and I'm their lawyer and I'm advising my client, I would say, "You are facing potentially years in prison."

Now, the fact that Donald Trump is a former president of the United States might change the calculus to some degree.

But the statutes are the statutes.

The laws are the laws, and they provide for certain and prescribe certain kinds of punishments.

And so if he is convicted, which is a huge if, if he is convicted, I would say it is not probable, but it is certainly possible that we could have a former president in prison.

- Something you can speak to because of your own personal experience is the popularity that Trump has with evangelical Christians.

You have described yourself as a, quote, "traditional orthodox evangelical".

- Yes.

[chuckles] - And you call the continued evangelical loyalty to Trump, quote, "incredibly dark and appalling."

- Yes.

- How do you explain the fusion between evangelical voters and former President Trump?

- Well, you know, it's a great question.

And I think at the end of the day, what you have to understand is that for a lot of evangelical voters, their Republicanism has become a core part of their identity.

So you're talking about generations now, since the first Reagan administration where generations of American Republican evangelicals have been brought up to believe and to be taught that their political identity and their religious identity are inseparable.

And then what you also have to understand is that a lot of these Republican evangelicals have, ever since Trump won, have been just completely immersed in the Fox News world, the right wing media world.

And so they have been convinced and they have been conditioned to believe for many years now that Trump's scandals when he was in office were primarily a result of progressive persecution rather than failings on the part of Donald Trump himself.

And so they view him quite literally as a persecuted president who delivered for them on things like judges, for example.

And so that is a mindset that is locked in to such an extent that even now when it's not a binary choice anymore, it's not Trump versus Biden, it's Trump versus other Republicans, even now that bond with evangelicals still exists.

- Some of the ideas that Trump has proposed for a second term include deploying the military into cities to fight street crime, purging the federal workforce, pardoning the January sixth rioters, herding homeless people into tent cities.

You have noted that the guardrails of democracy generally held against Trump and his most authoritarian impulses during his first term.

What is your confidence level that this would continue to be the case if he were elected to another term as president?

- My confidence level is not high because a second Trump term would begin very differently from the first Trump term.

If you go back to 2017, you'll have seen that he staffed his administration with a lot of mainstream Republican figures.

You'll see that the first major legislative accomplishment, and really the only major legislative accomplishment, was a Paul Ryan-designed tax cut.

It was really only by 2019, 2020 that you began to see the administration take on the fully Trumpian flavor, where a lot of the establishment people had either been turned completely into Trumpists or had been expelled or left the administration.

And so what you'll see coming into a new Trump term is a team very similar in nature as the team he had around him at the end of 2020.

And as we saw that team around him, and Trump combined with that team put our democracy under unbelievable strain.

And so that's why I'm concerned.

The Trump of 2025 and the Trump administration of 2025 would be very different from the Trump administration and staffing of 2017.

- You wrote recently, David, that quote, "There may have been a time when Trump truly commanded his movement.

That time has passed.

His movement now commands him."

If Trump doesn't control the MAGA movement anymore, can anyone?

- [chuckles] Well, the short answer to that is no.

The longer, more hopeful answer to that is the MAGA movement at its core is a minority of the Republican Party.

So there still is a majority of the Republican Party that I believe is capable of moving on from that MAGA movement.

And we've seen it in gubernatorial races for example.

There's a host of Republican governors in the United States of America and who you would not call Trumpian in any way, shape or form.

And they win resounding victories.

I mean, think of Governor DeWine in Ohio with this huge win.

Think of Governor Kemp in Georgia, where he won by almost ten and Herschel Walker lost.

So there is an ability to reforge a Republican coalition that is fundamentally different from the Trump and Trumpist coalition.

It's larger, it's more expansive.

But, but that requires getting through a primary where the MAGA movement has disproportionate influence and impact.

- Fox News and Tucker Carlson, quote, "have agreed to part ways."

Can you imagine him going quietly into the night?

- I don't think there's any scenario where he goes quietly into the night.

I would say that behind Donald Trump, Tucker Carlson was the most influential member of the right.

And I don't just mean ideologically, I also mean culturally.

In other words, the way in which Tucker interacted with the world: his malice, his dishonesty.

I mean, these have become hallmarks of the new right or the Trumpist right.

And he was a cultural driver of that.

He was also an engine of introducing a lot of new right and reactionary right ideas into the culture.

They came through Tucker Carlson in a way they didn't come through any other Fox host.

And so you could have some really interesting cultural effects where a lot of the loudest, angriest and most malicious voices don't have that direct line to the Republican public like they did when Tucker was in that chair.

- Let me ask you about the court.

I mean, you're a lawyer.

You have a fabulous podcast that unpacks legal rulings at every level.

Public trust in the American judiciary, and confidence in the Supreme Court in particular, are at historic lows, as they are with many institutions.

- Right.

- But there have been a series of recent challenges, including the leaked draft of the opinion for overturning Roe v. Wade, the expanded use of emergency motions, a.k.a.

shadow dockets, questions about a possible ethics lapse on the part of justices and members of their family.

What is the best way to restore confidence in the Supreme Court?

- That's a really good question.

I mean first, things like the Dobbs leak undermine public trust because, quite simply, that's just not supposed to happen.

And we have not seen that kind of scandal out of the Supreme Court in a while where something happens that's so out of the norm, that so breaks through all of the guardrails, that it makes you wonder if there's something going on with the institution.

I think the Dobbs leak really hurt.

I also think some of the ethics, some of the disclosures, even if they don't involve technically violating the rules, in other words, the hospitality exemption that allows you to do things like take private jet rides with friends or whatever, that's something that might not technically violate the rules, but to average Americans, that's not what they want to see Supreme Court justices doing.

So some of this is kind of an own goal by the court where the court can take some steps to make sure that those kinds of trips don't happen or that they're completely publicly disclosed.

Button down to where you return to the regular order of business and you don't have leaks.

But then part of it, to be honest, is we have a lot of conversation about the court that I think is just frankly misguided.

And here's what I mean.

A lot of people look at the court as a political actor much more than it really is.

The judges have philosophies, judicial philosophies, but honestly, they're not really political animals.

If they were pure political animals, you would have seen, for example, very different outcomes to some of these election challenges in 2020.

- You're referring to many of the judges who saw challenges to the 2020 election having been Trump appointed.

- Yes.

And rejected them and rejected them.

And so I think if you understand the court is, the court is not a purely political entity.

I'm not going to say that political considerations never come into play.

But if you look at the court rulings in their totality, you can explain them much better by judicial philosophy than by just raw political power and calculation.

- After the Dobbs decision, you wrote, quote, "The pro-life movement should greet the reversal of Roe v. Wade with a spirit of gratitude.

But the movement should also show a profound humility and absence of malice toward their political opponents."

Do you feel they've heeded your advice?

- Oh, you know, I think that there has been an element of, what's the old saying, the dog that caught the car, that there was a lot of unanimity in the pro-life movement around overturning Roe.

But then as soon as Roe was overturned, you exposed an enormous amount of division within the pro-life movement itself, so that there wasn't a kind of united pro-life response to the overturning of Roe.

And then it happened in an atmosphere, again, where especially in these supermajority red states, there's a lot of performative punitive legislation.

And so that was in many ways a very difficult cultural and political atmosphere on the right after Roe.

And so a movement that could have moved very aggressively and directly into the public square with a program that was every bit as focused on helping moms and babies as it was on passing new restrictive laws, I think would have been a much preferable position to be in.

But there's not consensus in the pro-life movement about how to move towards helping moms and babies.

A couple of ideas, for example: Elizabeth Bruenig of "The Atlantic" wrote after Roe was overturned, "make birth free".

In other words, moms do not have to pay money to give birth.

The Mitt Romney child allowance plan, for example, that provides monthly payments to moms even prenatally.

These are the kinds of programs that I'm not going to say are going to eliminate opposition to the pro-life movement, but are really important to concretely meeting people where they are in the real world on an issue, financial instability, which is one of the reasons why people seek out abortions.

And so I think that there is room for a pro-life message that's very holistic.

But the pro-life movement itself is very divided.

- There's another judicial question before the Supreme Court.

The case Moore versus Harper.

- Right.

- This will determine the validity of a legal idea called the independent state legislature theory.

The theory says that the state legislature has an unlimited independent power to set election rules without being subject to review by state courts.

Conservative lawyer, former Judge Michael Luttig says that Moore v. Harper is, quote, "the single most important case for American democracy since the founding of the nation".

Is there merit to that statement, David?

- I will say it's extremely important.

I'm not going to go to the founding of the nation, but it is extremely important because we're going to be moving into a 2024 cycle where if, let's say Donald Trump loses again narrowly, this issue is going to be front and center in the United States of America.

And I don't think it's an overstatement to say that there are circumstances in which literally the continued unity and social peace of the country could depend on the outcome of the independent state legislature doctrine.

So this is, Judge Luttig was right, this is massively important.

I don't know if it's more important than, say, Dred Scott, but it's massively important for what kind of democracy that we have going forward.

- Let me just unpack it a little bit.

So the case involves a North Carolina Supreme Court ruling that rejected a new congressional map adopted by the state's Republican-controlled legislature over concerns of partisan gerrymandering.

And the Supreme Court would be examining whether the state's highest court overstepped.

Proponents of the theory say the courts have no control over election rules.

- And quite honestly, I do not think the independent state legislature doctrine, as, in the way that you articulated it, with the strength that you articulated it with, I don't think that will have purchase at the Supreme Court.

- So why are you so confident that there wouldn't be purchase?

- Well, let's look at it this way.

Let's look at it from an originalist perspective.

This radically new, and it is radically new reading of the power of the state legislature, is not something we see in the history and tradition of American election regulation.

It's not only not been dominant, it's not even been part of the conversation really, about American elections.

And so you're looking at a court that to greater or lesser degree, a majority is originalist where essentially the proponents of the independent state legislature doctrine are asking them to do something pretty new, quite honestly, pretty new in a republic that's over 200 years old, and say that's consistent with the text, history and tradition of the Constitution.

And it's pretty easy to say, if you're reading the text at all through the history and tradition of American election regulation, then no, the legislatures acting completely alone without a governor's veto or state Supreme Court oversight, that is not how we have run elections in this country.

And for an originalist, the question of how have we done things in the past is actually quite important.

- You've said one of the highlights of your time in law school was sitting in a room with former Congressman Jack Kemp.

Listening to him detail his vision for a broader, multiethnic Republican Party.

He made that case on "Firing Line", the original version with William F. Buckley Jr., in 1987.

Take a look at it here.

- There are no problems in this country that we can't resolve working together.

There really are no limits to the future of this country, and we can't see a better life for each and every American, not only here, but from the inner city to the rural areas of America, by not only working together, but recognizing those ideas that made this country great.

The inalienable rights of people were not written by Jefferson for some people, but for all people, and not for just this country, but for all countries.

And I want the Republican Party to be that type of a party.

- Given Trump and the rise of figures like Marjorie Taylor Greene and George Santos, how does the Republican Party find redemption?

- That is a really good question.

Note the contrast in that language we just saw, which was quite universalist in the sense that, "I want to make life better for all people.

I want to provide a ladder of opportunity for all people," versus the dominant rhetoric you see coming from the populist reactionary right, which is, "I will defend you, the us, against them."

But the them isn't a foreign power.

The them is your fellow Americans on the other side of the aisle, which is an inherently extraordinarily divisive, polarizing message.

So, you know, there are a couple of paths forward.

One, the most difficult, I think the least likely, unfortunately, is a competing message entering the Republican marketplace of ideas that says, "No, let's turn back to that universalist message.

Let's turn back to that message that says we want all Americans to prosper in this country."

There is no us and them.

It's just us.

So can you confront that directly and win in the Republican primary?

I'm pessimistic.

I'm pessimistic.

The more realistic path forward might seem to be something like, "well, you know, that reactionary populism, it just keeps losing.

It just keeps losing and losing, and you're going to have to change course if you want to win again," which I feel like might be the more realistic path to reform.

But however we get from A to B, we need to get to B, we need to turn the page on this reactionary populism.

- David French, thank you for joining me on "Firing Line".

- Thanks so much for having me.

[bright music] - [Presenter] "Firing line with Margaret Hoover" is made possible in part by Robert Granieri, Vanessa and Henry Cornell, the Fairweather Foundation, the Tepper Foundation, the Asness Family Foundation, and by The Rosalind P. Walter Foundation, Damon Button.

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