On this week’s Amicus, Dahlia Lithwick spoke with Stuart Gerson, a lawyer with the conservative legal group Checks and Balances. Among other things, Gerson helped bring a lawsuit, on behalf of El Paso County, Texas, arguing that President Donald Trump’s national emergency declaration for border wall funds is unconstitutional. Lithwick and Gerson discussed the lawsuit, and then the conversation turned to impeachment. A part of that conversation, lightly edited and condensed for clarity, is transcribed below.

Dahlia Lithwick: One of the things that I’ve been thinking about, I’ve been watching the different prominent founding members of Checks and Balances. And you’re all self-sorting, kind of picking a lane [on the president’s unfitness for office]. I think George Conway has very much taken it upon himself to think about the president’s mental fitness. He’s written extensively about that. Paul Rosenzweig has picked another route. And you have really, it seems to me, been laser-focused on very structural arguments, like the one you just laid out about the boundaries between the president’s power and congressional power. And I wonder, I think it’s a lane that, in some ways, it’s so abstract. The arguments that you’re making are incredibly compelling to somebody who went to law school. And yet I think it’s very, very ephemeral to somebody who just buys into the idea that Donald Trump can do whatever he wants because he’s the president and whatever valence you want to put on it, that his executive power is kinglike.

I wonder how you concretize what you’re saying and help folks who are struggling to understand. It’s very, very clear, when George Conway writes about narcissistic personality disorder, what he’s trying to do. Can you explain in a very, very concrete way, for folks who haven’t thought about it as cerebrally as you’re describing, what it is that you feel is at risk?

Stuart Gerson: Well, let me deal with that on two levels. First, in the base level that you described, I’m doing exactly what you’re suggesting. I’m speaking to people who have gone to law school or who have studied policy, political science majors and whatever, to educated people who can act on this and do something about it. It’s in parallel to other arguments. At the same time, I’m party to letters that deal with the president’s toleration, indeed encouragement, of racism, of ethnic stereotyping, of violating the rule of law in a bunch of concrete ways. So we’re all doing these different things. The so-called cerebral arguments that I’m making are indeed targeted to perhaps a narrower audience than things that my friend George has been doing.

"We want a government of the people, and that’s what the Framers had in mind, and it really matters. It’s not just an abstraction."

But that aside, if you’re asking me, let me synthesize this for the mass public who might not have taken as much civics as others, and hasn’t studied the Constitution and some of these somewhat technical issues that I’m describing about, and doesn’t bridle when they hear a president say, “Article II allows me to do anything I want.” This is the second [president to say that]: Nixon said that too.

Here’s the issue, and it’s the issue for people, ordinary people, who are concerned about gun rights and a whole host of other issues. What were the Framers getting at when they put a Second Amendment in the Constitution? When they separated powers? And when we had our first president, George Washington, who refused to be crowned a king, which was offered to him several times? And I’m now talking to the guy in West Virginia, perhaps, who is concerned about his job future and the likes of that. I mean, the response is, you’re never going to get a good deal. You’re going to be a serf, and you’re going to be subjugated forever if we trend towards an authoritarian government.

We want a government of the people, and that’s what the Framers had in mind, and it really matters. It’s not just an abstraction. We don’t want a government that tells us what the truth is when the facts are decidedly different. We don’t want to have a government that, in the name of promoting the economic well-being of its people, sponsors anti-trade policies that then require subsidies within the government that could better go to things that actually would help people. This ultimately is a bread-and-butter issue. Yeah, there’s an abstraction in between it, but we’re trying to avoid dictatorship. That’s not an abstraction. That’s my answer to you. This ought to matter. We need a better-informed public. There’s no question about it, but as I’m looking at the polling data that I’m seeing, the public is becoming better and better informed. What we hope for on the conservative side is that by election time, there are rational choices to make, that we haven’t swung too far to the left with untenable policies that involve the government and economic control and other matters that can be just as dangerous.

There’s too much of the electorate, perhaps a majority of the electorate, both of the left and right of center that is unrepresented now. Well, I condemn the executive in many ways. It’s also true that Congress isn’t doing its job, that the Republicans in the Senate are viewing themselves as a parliamentary party. That’s not what they’re supposed to be. They’re not electing the president. They’re representing their constituents, the House, the same way. We just need a more productive legislature. As unpopular as the president might be, the Congress is at least as unpopular. There’s a reason for that.

Paying attention to the Constitution is a way to come out from under that rock, and ultimately the responsibility lies with the people. When the Constitutional Convention presented the Constitution, Benjamin Franklin was asked what he thought, what had happened, and he said, “We’ve given you a Constitution and a republic, if you can keep it.” We’re being challenged as never before in that area. This is just such an unusual administration. And I hope that people understand that and it matters to them. Their problems are not being solved. They should know that. And there’s a reason why.

Listen to the rest of the episode here: