Mike Lee

A powerful Republican Senator speaks out on: The future of the Supreme Court, and January 6th and Donald Trump… This Week on Firing Line.

Lee: Mr. Trump needs to step aside.

He was one of Trump’s toughest critics … before becoming a loyal defender.

Lee: Are you ready to stand with me and millions and millions of others who want four more years? [applause]

Senator Mike Lee is a staunch conservative who clerked for Justice Samuel Alito. Now, he’s sounding the alarm over calls to pack the Court…

Lee: We lose ability to protect the court if we allow arguments to take root that are focused on expanding that.

After Trump lost in 2020, he explored ways to challenge the election results…

Lee: I encouraged the president and his political team to exhaust their legal remedies

But on January 6th, he sided with the Vice President.

Lee: Our job is to open and then count. Open, then count. That’s it. That’s all there is.

Now, facing a tough re-election, Trump is on his side. What does Senator Mike Lee say now?

‘Firing Line’ with Margaret Hoover is made possible in part by: Robert Granieri, Charles R. Schwab, The Fairweather Foundation, The Asness Family Foundation and by: The Rosalind P. Walter Foundation, Damon Button and The Marc Haas Foundation Corporate Funding is provided by Stephens Inc.

INTERVIEW

HOOVER: Senator Mike Lee, welcome to Firing Line. LEE: Thank you.

HOOVER: You grew up in a family where the one day you could skip school was when your father argued before the court as Ronald Reagan’s solicitor general.

LEE: Worked like a charm.
HOOVER: You later clerked in the Supreme Court for for Justice Samuel Alito. LEE: Mm Hmm

HOOVER: You also were on a short list for Donald Trump to potentially be nominated to the court. You have now written a book, Saving Nine, which explains the history of having nine justices on the court, and you write that we arrived at that number through a long series of historical accidents that quote brought us somehow to the right place. What is right about the number nine?

LEE: The number nine wasn’t written onto stone tablets. It’s not enshrined in the Constitution. But it’s right because it works and it’s right because it’s been the law since 1869. So for more than a century and a half, we’ve had nine justices. It’s during that same time period that we’ve had the greatest period of peacetime economic expansion the world has ever known. We’ve brought more people out of poverty within our country than anyone would have ever thought possible prior to the American experiment. It works because it’s helped sustain the rule of law in America, and we shouldn’t depart from it.

HOOVER: So if it’s not broke, don’t fix it.
LEE: Exactly. If it’s not broke, don’t fix it. And in fact, by trying to fix it, by trying to change it, you

might break it.

HOOVER: Your book is also a call to arms against what you say is, quote, the left’s audacious plan to pack the Supreme Court and destroy American liberty. Certainly, there are congressional Democrats who are in favor of packing the Court: Jerry Nadler in the House of Representatives, Senator Warren in the Senate, one of your colleagues. However, you admit in the book that about half the Democrats actually are not interested in expanding the court. So my question to you is how imminent a threat is court expansion?

LEE: Look, I think it’s a very real threat, and it’s one we’ve got to take seriously. Just a few years ago, no one no one in Washington would have been taken seriously had they raised the argument of packing the Supreme Court. It has really, since it was last attempted in 1937, had this very lengthy period over the last 85 years of people almost uniformly rejecting it, saying that that was a mistake then. People across party lines in academia, in government, in business, in law, they’ve all said it was a bad idea. That’s started to change really only in the last two years. And now it’s a mainstream thought. So the fact that not everyone is publicly championing it within the Democratic Party, doesn’t give me much comfort here. And as I explained in Saving Nine, you don’t actually have to succeed in packing the court in order to inflict lasting damage on the court and the Constitution itself.

HOOVER: How so?

LEE: Okay. So the last time this was attempted, it was in 1937. It failed as a legislative matter. There were a number of reasons why it failed, and one of the reasons why it failed was because it had its intended effect even before they had voted on it.

HOOVER: Which was?

LEE: It threatened and intimidated the court.

HOOVER: In your book, you spend quite a bit of time criticizing Franklin Delano Roosevelt’s court packing scheme. You call it both politically toxic and constitutionally dangerous. And in 1982, on the original Firing Line, William F Buckley Jr hosted Edward Prichard, who had served as a Supreme Court clerk for Justice Felix Frankfurter, who was an FDR appointee. And Prichard went on to serve in Franklin Delano Roosevelt’s administration. In this interview with Buckley, the subject of Roosevelt’s court packing came up. Take a look at what he said.

PRICHARD: Now the court packing plan I think was a much more difficult issue. I think in retrospect, I must say as a young law student. And I must say that I think I was totally wrong. But I think that he was vexed by a Court that was in my judgment making the wrong decisions.

HOOVER: So the court packing plan didn’t work. Prichard later agrees that it was a bad idea. But you make the case that it worked in the sense that it intimidated some of the justices. You write in your book, quote, The Biden administration is using the threat of court packing in much the same way that Franklin President Roosevelt did in 1937.

LEE: Yes.

HOOVER: How so?

LEE: Well, it’s using it in the sense that even though President Biden himself has yet to come out and well, full throatedly champion this, he has flirted with it. He created a commission to study it. He has never rejected it since he’s become president, as he had overwhelmingly rejected it as a United States senator. And until just a couple of years ago, he always dismissed it as a what he called a bonehead idea.

HOOVER: Well, he did– I mean, to be clear, after the Dobbs decision came down, his press secretary did come out. She said, “that is something the president does not agree with. That is not something he wants to do” when she was asked on Air Force One about expanding the court.

LEE: Yes. So–
HOOVER: And he created a bipartisan commission to study the court.

LEE: Yes. He created a bipartisan committee to study the court. And it was understood that its job was to study this idea, this idea of court packing, an idea that almost everyone – Republican, Democrat, Independent – had over the last 85 years concluded was a bad idea, including Mr. Prichard.

HOOVER: And the report refused to take a stand on court packing.

LEE: It refused to take a stand, but it normalized, it gave credibility to the idea of court packing. It’s one of the reasons why, in the days following the leak of the Dobbs opinion, there were trending posts on Twitter. The hashtag “expand the court” was trending. It normalized it because all of a sudden you had a

whole lot of former judges and professors and practitioners coming together, many of whom concluded that this was a good thing to do.

HOOVER: How do you distinguish between factions of the left who advocate for this position and the majority of sort of centrist Democrats who seem to agree with you and the president that it was a boneheaded idea?

LEE: Look, I like to believe, and I’m willing to accept the premise that most Democrats, most rank and file Democratic voters out there, understand that this is a bad idea. But what I look at when I see Washington, what scares me when I see Washington, one of the things that prompted me to write this book, is that among Democrats in Washington, those serving in the House and in the Senate, you’re not seeing many, if any, come forward and saying ‘this is a bad idea, let’s not do this.’ That’s a disturbing trend. That suggests it’s becoming mainstream–

HOOVER: Well, you have the president saying that he’s not for it.

LEE: Okay. He- that was a tepid denial at best. He’s not exactly completely denying that he wants to do it. When you have your press secretary say that’s not something he wants to do, or words to that effect, that’s hardly a denial. That’s hardly an opposition. That’s hardly something saying that the President of the United States would veto any effort to pack the court.

HOOVER: So there are three co-sponsors on this bill in the Senate, which means it doesn’t have broad support in the Senate. But I think what you’re saying is you’re concerned that radical ideas and extreme ideas can make their way into the mainstream.

LEE: Yes, they make their way into the mainstream. Especially when they’re spoken by leading outspoken advocates of a particular policy within a particular party.

HOOVER: I noticed– I was so surprised to learn as I was doing my research for this that Bernie Sanders isn’t even in favor of packing the court. So I think there’s some–

LEE: And yet you don’t you don’t hear him expressing vocal opposition to it. And sure, there are some Democrats who aren’t yet comfortable with it, but they’re not saying much.

HOOVER: So on the point about the effort to pack the court having been successful anyway, and the idea that the Biden administration is perhaps using this to intimidate the justices, I just have to ask you, I mean, you know, Samuel Alito personally. You know many of the justices personally. And I wonder whether you really think that somebody like Neil Gorsuch or Clarence Thomas or Amy Coney Barrett or Brett Kavanaugh or Sam Alito would be intimidated.

LEE: Look, I don’t believe any of those justices are themselves going to be lightly, easily intimidated. And I think we’ve seen in our experiences just in the last few months that they were threatened and intimidated for many weeks between the leaking of the Dobbs opinion and the final issuance of the Dobbs opinion. That didn’t change their votes there. And I think a lot of credit needs to go to them for that very thing. But human beings are what they are. Human beings end up responding to a whole variety of considerations. And over time, I think it’s very plausible that one or more justices can be impacted in one

way or another. And maybe in subtle ways. My point is this: there is not a good reason to increase the number of justices on the Supreme Court in order to achieve a desired political outcome. Whenever you do that, you threaten, inevitably, to politicize the court. And when you do that, you really do undermine the constitutional system.

HOOVER: In your book, you also detail how the founders really intended for the court to be insulated from politics.

LEE: Yes.

HOOVER: You have strongly approved of Mitch McConnell’s handling of the Supreme Court nominees. And I want to ask you about confidence in the Supreme Court nationally, because it’s at historic lows, particularly among Democrats and Independents. And Democrats and Independents account for roughly half of the electorate in this country. And I think of you, especially after having read your book, as an institutionalist for the court.

LEE: Yes.

HOOVER: And it strikes me that this decline in confidence in the court doesn’t so much have to do with the appointment of Trump nominees to the court, but how they were appointed. And so I would think that it would matter to you that such a large number of Americans, even if they aren’t Republicans, have lost confidence in the court.

LEE: Yeah. First of all, that is disappointing. That is discouraging. I will note here that confidence in most of our institutions is declining. There are a whole lot of reasons why that may be happening. I don’t understand all of them, but the decline in the public’s confidence in a whole lot of institutions is becoming more noticeable every day.

HOOVER: And the court had been insulated until very recently.

LEE: Yeah, relatively so. I think there are a lot of reasons for that. Now I think some of it has to do with the fact that the way they’ve been attacked. I mean, first of all, just look at the Dobbs decision. The Democrats’ response to that has been to demonize and delegitimize the court itself. And I think that’s been unfortunate. Now, sometimes they’ll try to couch that in terms to try to argue as an excuse for delegitimizing the court. ‘Well, we don’t, we don’t think the process by which some of Trump’s nominees were put on the court was legitimate.’ Um, I don’t see that as a helpful, productive exercise. I also find it disingenuous because they were put on the court by the process ordained by the Constitution itself.

HOOVER: Look, your opponent – you’re up for reelection – your opponent, Evan McMullin, tweeted after Amy Coney Barrett’s nomination in the final weeks of Trump’s presidency, “refusing to even consider another party’s Supreme Court nomination because it occurred in the final year of the presidency, and then rushing through your own party’s nominee in the final months of the next presidency is itself a form of court packing.” So, your response.

LEE: No, No. He could not be more wrong. Evan McMullin could not be more wrong there. That is not court packing.

HOOVER: It may not be court packing, but do you think it’s appropriate?

LEE: What Evan McMullin is complaining about in that quote, he’s complaining about the fact that we didn’t confirm Merrick Garland to the Supreme Court. President Obama nominated Merrick Garland. We declined to confirm him.

HOOVER: Or to have a hearing.
LEE: Now, I understand that Evan McMullin wishes we had confirmed Merrick Garland to the Supreme

Court instead of Neil Gorsuch. We chose not to. HOOVER: Or to have a hearing. (louder)

LEE: We have an independent stake in the process. Well, the hearing, that’s immaterial. Look, the hearing, we were sparing Merrick Garland the pain and the formality of going through a process that we knew would end in a dead end. I don’t think it would have made any difference to the left had we held a hearing and then voted not to confirm him. We were not going to do it. So somebody is mad about that. McMullin is mad about that. He calls that packing. That’s not packing. That is very, very different.

HOOVER: Do you think it might have made a difference to the legitimacy question of the court if he had been given a hearing and then voted down?

LEE: Perhaps. I don’t know. I don’t really think it would make any difference. I think they were mad at the fact that we didn’t confirm Merrick Garland. Now, in the past, they have held hearings on people they intended to take down. And in some cases, they’ve succeeded. They intended to take down Robert Bork, and they did. They subjected him to a gruesome hearing process. They tried to take down Clarence Thomas. They failed on that one. We knew that we were not going to confirm Merrick Garland, and so we didn’t hold a hearing.

HOOVER: Do you think Republicans bear any responsibility for the politicization of the court? LEE: No, I don’t. Now–
HOOVER: None?

LEE: I think you can always– Well, sure, you can always identify some Republicans who have politicized some issues. And so I’m not going to say Republicans never have any blame on any subject. But I do think there is a stark difference between the two parties. I can tell you what I as a Republican advocate and what I stand for, and I make this point in the book: even with regard to opinions that I regard as wrong, in fact as abhorrent morally, legally, constitutionally, I go out of my way to couch my criticisms of those decisions in such a way that I make clear this is not a bad court that sometimes gets it right. This is a good court. In fact, it’s the best of its kind anywhere in the world. A good court that sometimes gets it wrong because it’s run by fallible, mortal human beings. I can’t say that every Republican speaks that way, but I can tell you that’s the way I always speak, and by and large, most Republican officeholders speak of the Supreme Court more in the terms I’ve just described, the terms that I use. And lately especially–

Democrats used to also. But today’s Democratic Party, especially its elected leaders in Washington, have chosen a very different path.

HOOVER: It feels to me like the same fringe that is promoting packing the court is the fringe that is also that you’re characterizing here. And it seems to me there is a distinction between mainstream Democrats–

LEE: Sure. Sure.
HOOVER: And, you know, the Dick Durbins versus the Elizabeth Warrens.

LEE: Well, yeah, there is a– there is a huge difference between elected Democrats serving in Washington and rank and file Democratic voters throughout the country.

HOOVER: Or Democratic progressive activists.

LEE: There is also some difference among and between Democratic senators serving in Washington, D.C.. But there is a difference, though. There is no one within the Democratic caucus in the Senate or the Democratic rank and file within the House, who’s actively pushing back against those Democrats who are undermining the credibility of the court. I do not see it. Now, I’d love to be proven wrong. I don’t see it.

THE LEAK

HOOVER: You served as a clerk for Justice Alito. Justice Alito’s opinion in Dobbs was leaked in May. In your book, you write how tightly guarded – and you’ve spoken to this in interviews – about how tightly guarded draft opinions are. You recall having kept track of where each copy went of old drafts, how they were shredded and then incinerated and then liquefied. I wonder what insight you can share with me about how the justices’ lives have changed since that leak?

LEE: Well, they’ve endured death threats that used to be rare. One of them, Justice Kavanaugh, has more than just received a death threat. He’s had someone show up at his house with all the equipment necessary to break into his house and kill him and his family. That is a significant change.

MARK MEADOWS TEXTS
HOOVER: Amongst the leaked texts between you and Mark Meadows– LEE: Yes.

HOOVER: –is one from January 3rd where you said you disagreed with some of your colleagues’ plans to object to the election. But you said, quote, “Everything changes, of course, if the swing states submit competing slates of electors pursuant to state law.” My question for you is, can there be alternate slates of electors, even after states have certified election results?

LEE: Yup. Once a state has certified an election result, and particularly once the electors have gathered and cast their votes, arguably not. But there is some argument that up until the moment that the votes are opened and counted, a state official or a state office could identify a mistake they made. A mistake of law, that– or a mistake of fact that a certain number of votes were counted, if they found that the proper result

hadn’t been achieved. It’s unclear. And it’s one of the reasons why I think the Electoral Count Act needs to be updated. Because there ought to be some ordained legal timeline by which this can happen. Look, I was suspicious of this from the very beginning. And what those texts don’t show– these were part of an ongoing series of conversations. Each text isn’t cumulative of previous texts and other conversations I had had with him, and with others, in which I was warning them against this, in which I was saying: ‘Look, I don’t see a path for you.’ Now this would be one thing. I believed that there were going to be no slates. But I was trying to get out of him whether he believed otherwise. And that’s why I suggested, look, this could change if states switch their slates, but I don’t see that happening.

HOOVER: You said, “I’ve been calling state legislators for hours today, and I’m going to spend hours doing the same tomorrow. I’m trying to figure out a path I can persuasively defend.” What kind of path could you have defended?

LEE: Well, again, in theory, if if a state legislature or an officer authorized by state law had identified a defect in the way the state had counted its votes– It couldn’t just be a willy nilly thing, like the legislature decides, we want Donald Trump to be the president. That wouldn’t do it. It would have to be: this is the correct outcome under state law. And we messed up. Putting it in an analogous position to the state of Hawaii in the 1960 presidential election. The state of Hawaii had certified that they had made a mistake of fact as to the Nixon slate, and so they recognized the Kennedy slate as casting their legitimate votes. It would have to be something like that. My point there was I didn’t see any indication that any of this was happening, and I couldn’t get any information out of the White House. But at the same time, I was hearing rumors from around Capitol Hill and around the country suggesting this is happening. I couldn’t get any information about anybody.

HOOVER: So you took it upon yourself…

LEE: So, yeah, in the last, I don’t know, 72 hours or so before January 6th, I thought, I really do need to know this because people were assuming that we were going to be getting these competing slates. I saw no indication of that from anywhere else. So I started randomly cold calling legislators who I had never met–

HOOVER: Conducting your own independent study.
LEE: – from all these states, and just saying, ‘I just need to know something. Are you guys planning

something on this?’ Every one of them, without exception, said no. TRUMP’S INACTION ON JAN 6

HOOVER: President Trump endorsed you in your reelection. And while you haven’t always supported him, you did vote for him in 2020. And I want to ask you specifically about January 6th. The former president took an oath to preserve, protect and defend the Constitution of the United States. Do you think that President Trump’s actions leading up to and on January 6th lived up to that oath?

LEE: Look, a lot of things went wrong on January 6th. I think leading up to it, I think he had gotten some bad advice. I think there were some people who, for whatever reason, maybe they believed what they were saying was true, but they weren’t right–

HOOVER: Yeah

LEE: –or, I don’t know what happened. He got some very bad advice. He got some bad intel. And I think he perhaps believed that this stuff was really going to happen, that the election really had been stolen in such a way that he could himself change the outcome of it by notifying people of what was coming. I really don’t know. I do think it’s unfortunate for a variety of reasons that Capitol Hill wasn’t adequately fortified that day.

HOOVER: How about on that day? Did he uphold his oath on that day?

LEE: Well, that’s what I mean. On that day, we knew in the days leading up to it, we had gotten reports from Capitol Hill Police, and from– I think some of it came from the Department of Justice and the FBI, from the Department of Homeland Security, that there were a lot of people who were planning to converge on Capitol Hill, and they were a little worried about Capitol Hill security. There were a lot of things that went wrong that day. I don’t know exactly to whom each of those mistakes are attributable. Sure, I would have loved to have seen more of a direction from the president of the United States earlier in the day saying, ‘Hey, knock this stuff off. Don’t go into the Capitol.’

HOOVER: How about during those 187 minutes?
LEE: Sure.
HOOVER: Do you think doing nothing was upholding his oath to the Constitution? LEE: I don’t think doing nothing was the right thing to do.
HOOVER: Was it not upholding his oath to the Constitution?

LEE: I, you know, I don’t know enough about what he was doing during that time, but it seems to me, had that been me, I would have felt that my oath to the Constitution would have required more than that. I don’t know what he was being told. I don’t know what else he was experiencing during those moments. But I would have been pleased to have seen something earlier than that.

HOOVER: Because you went against Donald Trump’s intentions, efforts, desires by choosing not to object to the certification of the election, which Mike Pence presided over.

LEE: Yes, I voted to certify.

HOOVER: You voted to certify. Um, you chose not to object. And Mike Pence presided over it. But at 2:24 on January 6th, as you well know, President Trump tweeted: “Mike Pence didn’t have the courage to do what should have been done to protect our country and our Constitution.”

LEE: Yeah. I was very disappointed by that. And one of the reasons I was disappointed by it was that I have never – not in my lifetime – I never seen a vice president more loyal and more supportive of the president with whom he served than Mike Pence

HOOVER: So who was right about the Constitution in that moment? Was it Mike Pence?

LEE: Mike Pence. Mike Pence.

HOOVER: So Donald Trump was wrong about the Constitution?

LEE: Yes. Yes. And I think he got some very bad advice about the Constitution that day.

HOOVER: Does that disqualify him from being president again?

LEE: Uh look, what I’ve learned about what qualifies someone to be president is the voters. Only the voters can decide.

HOOVER: How about for you?
LEE: I would love to hear sometime his side of this, his explanation for this. So, yeah. HOOVER: You haven’t gotten it?

LEE: No, no, not yet. In time that may come.

HOOVER: Well, I hope he gives it to you. And I hope he gives it to the American people. LEE: Indeed.

HOOVER: Senator Mike Lee, thank you for coming to Firing Line.

LEE: Thank you.