Utah’s Senator Mike Lee joined me today:
HH: Joined now by United States Senator Mike Lee from the great state of Utah. Merry Christmas, Senator Lee.
ML: Thank you. Merry Christmas to you.
HH: Your phone is horrible, but let’s hope it hangs out here. Yesterday, you voted against unanimous consent to bring forward the bill by Chris Coons and Jeff Flake to establish a special counsel. Why’d you do that, Senator?
ML: I did that because as Mitch McConnell said this week, this is a solution looking for a problem. It is also, I would point out, unconstitutional for reasons articulated by Justice Scalia in his classic dissent in Morrison V. Olson. This is the type of legislation that creates a de facto fourth branch of government, an executive within the executive unaccountable to our chief executive. It’s unconstitutional. I can’t support it, and I’m going to object to unanimous consent on it.
HH: Did you allow the resolution limiting presidential war powers to move with unanimous consent to the floor? Did you object to that, too?
ML: Tell me what you’re talking about there.
HH: Yesterday, by a vote of…
ML: You talking about the Yemen resolution?
HH: Yeah. Did you deny unanimous consent for that as well?
ML: No, I voted for it. I introduced it. That’s there also to address the Constitutional problem. You’ve got a Constitutional problem with we’re fighting an unconstitutional war. It’s never been authorized by Congress.
HH: Now we have a difference of opinion here on the President’s war powers, but it would seem to me if Constitutional infirmity stops you from allowing Jeff Flake’s bill to get a vote, you would also have to get at least an opinion from the Office of Legal Counsel about the Constitutionality of a presidential war powers motion in Yemen, Senator Lee. It just seems to me that one is not consistent with the other.
ML: You are exactly 180 degrees wrong, Hugh. Look, you can…executive branch to take us to war. We’re fighting a war half a world away in Yemen right now, a war that was started by a Democrat, a war that regrettably has been continued under the current Republican president, and a war that’s never been authorized by the United States Congress. Federalist 69 makes clear that one of the distinguishing characteristics between the king of England and the president of the United States is that the president of the United States cannot enter into a war unilaterally. The king didn’t have to go to Parliament. The Congress does have to act before the president can go to war. That’s a problem, and that’s a problem that we’re trying to address with that resolution.
HH: Now most originalists, Senator Lee, simply disagree with you. They believe that the inherent war powers of the presidency are vast, and that the official necessity of a war powers resolution, the occasions for that, are small. But there is a small body of opinion that agrees with you. I’m just saying if that’s going to be the driving force in bringing things to a debate, then let everything on the floor or nothing on the floor. And let the courts and the House figure it out in joint with you, and that you ought not to have stopped Senator Flake. And here’s my real concern. We have six Appeals Court judges being held hostage by Jeff Flake. It’s cruel to them, and it’s dangerous to the Constitution to have that happen, and yet all he wants is a vote on a statute.
ML: I agree with you completely that it’s cruel to those judges. It’s dangerous for our system to allow those to go unconfirmed. Hugh, you’re blaming the wrong person. You want to blame somebody for this? Blame Jeff Flake. Blame Jeff Flake for blocking judges simply because he can’t get a vote on his unconstitutional bill. That’s the problem. Your problem is not with me. It is not just with me, by the way. I’m not the only one who has a hold on this. Mitch McConnell blocked it last time. There are other senators who have a hold as well.
HH: Has Mitch McConnell indicated he wants it to get a vote to you?
HH: If you did not object, do you think someone else would have objected yesterday?
ML: I’m not going to speak for my colleagues, but I’m told that there were three or four others who would have.
HH: I just find it, and I hope you will rise in the caucus and say what is being done via Senator Flake and people who would deny him his vote, because it’s an unconstitutional vote, and everyone, it won’t make it through the House, it’s all a passion play for senators, has real world consequences on these nominees. Their lives are on hold. They’ve sacrificed everything. They’ve put themselves under the public scrutiny. And the Senate is playing games with their lives.
ML: Hugh, that point is not lost on me. You’re arguing with the wrong guy. Get Jeff Flake on here.
HH: He’s always welcome.
ML: Get the Senate Republican Conference on here. These are the guys who are blocking it. These are the guys who are blocking the judges. Now look, as far as I’m concerned, we can be here until Noon on January 3rd of 2019. That’s the way we get these judges through. We’ll see how truly committed they are to this stupid, unconstitutional bill they’re running, and we find out whether they’re willing to stay here through the Christmas holiday. That’s how we get the judges on here.
HH: But if you can persuade people it’s unconstitutional, you can win the vote. Let him have the vote and then he removes his hold. This is all about Senate, honest to goodness, the egos in the Senate drive me crazy. Let everyone vote on everything. The courts will figure it out, or the House will say no. This joint powers resolution, I think, you’d lose in the courts in about five seconds. They’d say it’s a political question and throw you out. But you know, it’s a good debate to have. Just let’s get the judges confirmed. My goodness. All right, Senator Lee, let’s talk about criminal justice reform. I had Tom Cotton on this week. He does not like your bill because it will release child sex abusers, people who import refugees from abroad for the purpose of sex trafficking. They’ll be eligible for good time credit. How do you respond to Senator Cotton?
ML: I disagree with every single syllable he’s uttered on that. And look, when we have prisoners locked up in federal custody, very often we’re dealing with federal minimum mandatory sentences, some of which are excessive, some of which have resulted in sentences like unto that imposed on Weldon Angelos, a young man in his mid-20s in Salt Lake city who sold three dime bags of marijuana to a confidential informant. Because of the way he was charged, because of the fact that he had a dime bag, a gun on his person at the time he sold these three dime bags, he was sentenced to a minimum mandatory sentence of 55 years in prison. The federal district judge sentencing him at the time, himself no squish, himself a former federal prosecutor, Judge Paul Cassell, took the unusual step of issuing an opinion disagreeing with the sentence he was about to impose. He said there are rapists who don’t get this much time. There are murderers who don’t get this much time. And yet I, as a federal judge, have no choice but to issue this sentence. And then he said something that would stay with me ever since then. This was about 15 years ago. Only Congress can fix this problem. We’re trying to fix this problem in this bill by giving judges an additional modicum, just a modicum of additional discretion in cases like that, and giving federal prisoners an incentive to receive treatment, counseling and training that will minimize and has been shown in various state systems to minimize the risk of recidivating.
HH: You know, I don’t think you’d get much of a disagreement on that latter. Jon Kyl and I talked about that, and most of us want prison reform. It’s sentencing reform that concerns me. By the way, Senator, you said he’s no squish, not he’s not swish, right? You said squish?
ML: I said squish.
HH: Good. Okay. I just, you know, some people who will have heard the bad phone and heard that wrong, and I know what you mean. You mean he’s a tough on crime guy. Here’s my problem. Senator Cotton made a persuasive case to me, and by the way, I’m a neutral. I talked to Jon Kyl about this, and I said I go back and forth. I don’t like minor crime people to be in prison forever, but we had 70,000 opioid-related deaths in the United States last year. That’s more than we ever had from AIDS in a single year, more than gun violence, more than car wrecks ever. And your bill will allow credits for people who deal in fentanyl, and that seems to me to remove an enormous deterrent to their dealing in fentanyl.
ML: Yeah, well, first of all, that’s disregarding an important feature of the bill, which is that every prisoner in order to even be deemed eligible to earn these credits would first have to be deemed to be a low to minimal risk offender. Somebody who has contributed to the death of their customers is going to be hard to put in that category, as would somebody who is deeply involved in an ongoing criminal enterprise that has violence at its core and as its end. And so look, we can all come up with hypothetical doomsday scenarios, but the fact is that people like Michael Mukasey, himself also not to be a squish, a former attorney general of the United States, a former federal district judge, has explained that bills like this are necessary, because pretty soon, we’re going to cross the threshold where more than one-third of all the money moving through the U.S. Department of Justice will be spent on prison bed space. In many circumstances, this is diverting resources away from where we could actually be protecting the American people We’re locking people like Weldon Angelos up for 55 years.
HH: I’m not a squish, either, but appeals to individual cases don’t particularly move me, because anecdotal evidence is evidence of anecdotes, not of the need for reform of sentencing.
ML: Well, what else are we going to rely on, Hugh? What else are we going to rely on?
HH: Well, the Department of Justice produced that report for Tom Cotton, Senator…
ML: …when you have real world…yes.
HH: …that the Department of Justice report very conclusively confirmed his point of view as to who would be eligible for good time credits here, and there are a lot of people I don’t want eligible.
ML: No, look, what it was referring to was the fact that some people would not be categorically excluded. That does not mean they would be eligible, and that’s…
HH: You’re breaking up again, Senator. This is the trouble…go ahead.
ML: That is misleading. The fact that they would not be categorically excluded from applying for good time credit does not mean they would in fact receive good time credit. It doesn’t even mean that they would be eligible at the end of the day for it. They would first have to be deemed to be low or minimal risk offenders.
HH: Okay, so let’s get to the politics of this. At this point, do you expect a vote on your bill?
ML: Yes, I do. I expect a vote on the bill, because we were promised by Mitch McConnell that if we get the President’s support, and if we could show that we would get 65-plus votes, we would end up getting a vote.
HH: Okay, now I just want to put my point out there where you have a chance to respond to it. I don’t want a vote on your bill until we get a vote on these judges, and that would mean you’d have to let Jeff Flake have a vote on his bill. So it seems to me the grown up thing to do is for the Senate to vote on everything, including on nominees, your bill and Jeff Flake’s bill, and then see what happens in the House if they get out. That’s the grown up thing to do. Is that possible?
ML: Look, if Jeff Flake and Mitch McConnell want to make that offer, that’s something I will gladly consider. But Hugh, don’t tell me what the grown up thing to do in my job is. I don’t tell you how to run your show. Don’t tell me how to cast my vote.
HH: Oh, but the difference is I get to vote for the senators, and I am a citizen, so I do get to tell senators what the grown up thing to do is, and you can tell me how to run the radio show. That’s absolutely right. But if you get all touchy-feely and skittish about criticism, you’re in the wrong business.
ML: Well, Hugh, thank you very much. I really appreciate your insight. I want to get these judges confirmed. I also want to get the criminal justice reform bill passed. I don’t like Jeff Flake’s bill. I think it’s unconstitutional. If he and Mitch McConnell want to make me an offer to get that bill on the floor, we’ll talk.
HH: That is a great idea. I hope you go back and do that. Senator Mike Lee, Merry Christmas to you. Come back early and often. It’s always sparky.
ML: Merry Christmas.
HH: Senator Lee and I always have sparky conversations.
End of interview.