MICHEL MARTIN, HOST:
Donald Trump spoke with Supreme Court Justice Samuel Alito on Tuesday, just hours before the president-elect asked the top court to block his sentencing over his New York hush money case. Alito said in a statement that the two of them did not discuss the case or any others involving Mr. Trump or potentially involving him. Gabe Roth joined me earlier to talk about this development, which was first reported by ABC News. Mr. Roth founded Fix the Court. His group advocates for ways to make the federal courts more open and accountable to the public. Good morning. Thanks for joining us.
GABE ROTH: Good morning.
MARTIN: So let me give a picture of the call, as we understand it. Justice Alito said in a statement that one of his former law clerks asked him to take a call from Mr. Trump regarding his qualifications to serve in a government position, in essence, to give him a job reference. What do you make of it?
ROTH: I mean, well, it's obviously an unmistakable breach of protocol. You have an individual and the president-elect, who is petitioning the Supreme Court related to his sentencing in the hush money case, a Supreme Court justice, who, frankly, should know better. This conversation should not have taken place. And someone like Will Levi, the man in question who's looking for a credential, he has plenty of other credentials. He worked for Mike Lee. He could have Mike Lee call. He could - he's worked - he's been a partner in the law. His dad's a former federal judge. His grandfather was the attorney general. So, you know, it doesn't make sense from his perspective, and it's just - this episode shows the justices don't really care about the ethics because they know that no one's going to stop them from doing whatever it is that they want to do.
MARTIN: Have any ethical rules or laws been broken here, to your knowledge?
ROTH: Laws - I don't see any laws having been broken, but, you know, there are certain protocols that if you are a Supreme Court justice, you really don't intermingle with the executive branch or the incoming executive branch. I mean, maybe you attend the State of the Union speech that happens every year, though Justice Alito famously stopped attending that. But generally, the two branches don't intermingle - and especially at a time when President Trump, we know, is going to have all these executive orders coming down the pike whose fate will be decided by the justices. This, to me, just seems like an opportunity for him to have an audience before one of the nine people determining his and his administration's fate in so many of these issues.
MARTIN: The hush money case is the only one of Mr. Trump's multiple criminal cases to go to trial. Prosecutors said that Trump had tried to cover up a payment to the adult film actress Stormy Daniels, and a state jury convicted him. Now, Mr. Trump asked the court to intervene here. How significant is this?
ROTH: It's a fairly significant case. I mean, this is the first time in American history where you've had a president convicted of felony counts by a jury of his peers in state court. I mean, I don't think anyone actually imagines that President Trump is going to spend a day in jail, on the one hand. On the other hand, this is a state matter, and having the Supreme Court sort of fly in and supersede what the state court decided, you know, that's generally not how laws in this country work. Generally, the state and federal courts are separate. This is really just an opportunity for the Supreme Court to see - for the American people to see where the Supreme Court stands. You know, what are they going to write about this case? Are they going to, you know, try to curry favor with the incoming president, like so many of our businesses across the country have been doing over the last few weeks, or are they going to stand for the rule of law and stand behind what the New York jury decides?
MARTIN: Do you think Justice Alito would have reason to believe or anticipate that this call would be perceived as inappropriate?
ROTH: Oh, yes. I think Justice Alito absolutely should have not taken the call and known that this is inappropriate. He reads the news. He knows what cases are coming down the pike. He knows that even if the hush money case wasn't before the justices, he knows that within weeks, they will move up the chain and go to the Supreme Court. So, yeah. He's got to know better. Usually, the justices are better at hiding their ethics issues. But I guess, you know, now that the Supreme Court greenlit near-absolute immunity for the president and Congress has refused to pass any sort of enforceable ethics for the justices - looks like they're not even trying to hide it.
MARTIN: Can I just get you to articulate what you see as being wrong with this? It doesn't violate any rule, and it doesn't violate a regulation. It doesn't violate a law. What is wrong with this, from your perspective?
ROTH: Sure. So, I mean, it potentially could violate a rule. There is a federal law that applies to the Supreme Court justices that says a justice shall recuse himself from a case when his impartiality might reasonably be questioned. People are reasonably questioning Alito's impartiality, given this call with Trump. So that would mean he would be required to recuse from any Trump-related cases.
However, there is no way to enforce that. Theoretically, a justice would say - you know what? - maybe I should take a step back. I should be taken off the case. I'll take myself off the case. I mean, just recently, we had a case where one of Justice Gorsuch's old friends and patrons, Phil Anschutz, filed a brief and was involved in a Supreme Court case, and he said, you know, I'm going to take a step back. I'm not going to participate in this case because if I rule a certain way, it could benefit the Anschutz's company.
But in terms of actually that happening, you know, there's - that's the carrot. There's no stick, right? There's no way anyone can enforce it. It's all self-enforcing and self-policing. So that is really, you know, sort of what the challenge is for people like me and other people who care about the ethics of our highest court is - how do you get the justices to act in a way that is sort of consistent with what most people would believe are their ethical responsibilities?
MARTIN: Before we let you go, my colleague, Steve Inskeep, spoke earlier with Republican strategist Ron Bonjean. And he put this to him, and Ron Bonjean said that this is just another example of Mr. Trump's being out of the box or behaving, sort of, in an unorthodox fashion.
ROTH: I mean, that's cute, but that doesn't make it OK. You know what I mean? Like, that's - we could say that about a lot of different things that he's done, but, you know, there's still consequences to being out of the box. There are consequences to the imprimatur and the trust that the American people have in the Supreme Court when one of the justices is potentially seen as trying to curry favor with the president-elect or vice versa. So, I mean, out of the box might be good in - you know, if you're talking about how to do a middle school project. But when it comes to the president-elect of the United States, there are consequences in how the country runs.
MARTIN: That is Gabe Roth. He's the founder of Fix the Court. Mr. Roth, thank you so much for joining us.
ROTH: Thanks for having me.
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