Episode 7 with Gene Hamilton

Show Notes

Gene Hamilton, Executive Director of America First Legal Foundation joins Liberty & Justice with host Matt Whitaker, Former acting Attorney General, to discuss Judge Ketanji Brown Jackson’s confirmation hearings and the Biden Administrations war on the rule of law.
Gene Hamilton served as Counselor to the Attorney General at the United States Department of Justice from 2017-2021—providing legal advice, counsel, and strategic guidance.  Learn more about America First Legal at aflegal.org.
The Mission of America First Legal Foundation:
“We believe that all Americans deserve a government that puts their needs, their interests, and their country FIRST.  This is the sacred obligation of every elected leader.  This is the system our Founding Fathers established.  This is the priceless heritage of every American citizen.

Yet America First principles are now under attack like never before.  Our security, our liberty, our sovereignty, and our most fundamental rights and values are being systematically dismantled by an unholy alliance of corrupt special interests, big tech titans, the fake news media, and liberal Washington politicians.

We founded America First Legal to save our country from this coordinated campaign. With your support, we will oppose the radical left’s anti-jobs, anti-freedom, anti-faith, anti-borders, anti-police, and anti-American crusade.”

Matthew G. Whitaker was acting Attorney General of the United States (2018-2019).  Prior to becoming acting Attorney General, Mr. Whitaker served as Chief of Staff to the Attorney General. He was appointed as the U.S. Attorney for the Southern District of Iowa by President George W. Bush, serving from 2004-2009. Whitaker was the managing partner of Des Moines based law firm, Whitaker Hagenow & Gustoff LLP from 2009 until rejoining DOJ in 2017. He was also the Executive Director for FACT, The Foundation for Accountability & Civic Trust, an ethics and accountability watchdog, between 2014 and 2017.   Mr. Whitaker is Author of the book--Above the Law, The Inside Story of How the Justice Department Tried to Subvert President Trump.  Learn more about Matt at Whitaker.tv.

Mr. Whitaker graduated with a Master of Business Administration, Juris Doctor, and Bachelor of Arts from the University of Iowa.  While at Iowa, Mr. Whitaker was a three-year letterman on the football team where he received the prestigious Big Ten Medal of Honor.

Mr. Whitaker is now a Co-Chair of the Center for Law and Justice at America First Policy Institute and  a Senior Fellow at the American Conservative Union Foundation. Matt is on the Board of Directors for America First Legal Foundation and is a Senior Advisor to IronGate Capital Advisors. He is also Of Counsel with the Graves Garrett law firm.  Whitaker appears regularly to discuss legal and political issues on Fox News, Newsmax and other news outlets.  He splits his time between Iowa, Florida and Washington, D.C.


Eposode Transcript

Matt Whitaker [00:00:00] Welcome to Liberty and Justice, I'm Matt Whitaker, I'm joined today by my friend Jeanne Hamilton from the America First Legal Foundation, right? Do I get that right? OK, I should know I'm on the board of this right? But anyway, glad you're here. When we set up this interview, I wanted to talk about this week's Supreme Court hearing in the Senate, which will get to. But also, I know how busy and active Othello has been and a lot of these litigation efforts around the country. And so I want to I want to get to that as well. But let's, you know, let's start off first of all. You're the executive director of Merck, the first legal foundation which tell the listeners and viewers a little bit about AFL, and then we'll just jump off from there. 

Gene Hamilton [00:00:56] Well, thanks for having me on, Matt. Look, America First Legal is an organization, it's a conservative public interest litigation group. There's a number of these on the right, but we are obviously as a conservative movement. We have been outgunned and really out, funded to a significant degree for four decades in in the legal space. The Left has used litigation in the tools that Congress has made available to make a difference for their causes. Our side has not always been so quick on the take to to make the same types of changes and to fight for things that matter. And all too often have been willing to just lay over and let the ACLU do whatever it wants on a particular issue or whatever administration do whatever it wants. And so we were formed to hold the administration accountable to stop the madness from the left, from from these woke mobs and to fight for American values. America First values conservative values to make a difference, and so we've been in existence for less than a year. It's hard to believe it does. It feels just like yesterday, but it's we're coming up on our one year anniversary in a couple of weeks. We've had the opportunity to work on some fantastic stuff so far, make it a really meaningful difference. And you know, that's both in the litigation space and in the oversight space. And there's a lot more to come. 

Matt Whitaker [00:02:37] I know you, like a lot of Americans have been watching Judge could Tunji Brown Jackson in front of the Senate Judiciary Committee, the interview and I guess what are your initial observations? And do you think she's going to ultimately have any problems being confirmed? Well, those are great questions. 

Gene Hamilton [00:03:03] Look, I of course, of course. Look, she she is obviously a well-educated and in in in training an incompetent jurist. The problem is that unlike what the left is saying or what some of the senators on the left are saying, or even people maybe in the middle, that they need to really understand she is a committed leftist. She is a committed radical. And you know, some of that has been kind of buried and pushed to the side, and some of it seems to be flaring up in the hearings so far. But what I think is important for everyone to realize is that she is not a judge who seems to be anchored by rule of law principles and really seems to be more oriented towards outcomes in the way that she adjudicate cases. I think one of the perfect examples of this was something that we all saw an inexperienced in the last administration, something that Lindsey Graham highlighted today, which was a decision where she struck down the expansion of a use of authority in the immigration laws to to quickly deport recently arrived. Illegal aliens instructed down, and she was overturned. Eventually, these things take time by the D.C. Circuit in the very clearly explained the errors of her ways. But look, I think for me, one of the ultimate arbiters of how someone is going to be as a jurist can be their application of the immigration laws because sometimes they might seem harsh, they might seem kind of unfair. But if we are a country that it's going to be governed by the rule of law, then we have to have people who are committed to applying those laws, regardless of what the outcome might be. And in that case in particular, I think we saw a very bad sign of what might be to come from her as we go forward. It's a like it's interrupt. Jean, let me I think we think this is important. 

Matt Whitaker [00:05:17] You know, you and I were at the Department of Justice at the same time and you were actually there the entire four years. I was not. But what we both knew was that if we went to the District of Columbia District Court, we would and we draw this judge. We're more than likely to lose. As as an administration, this was very much a judge that was viewed as anti-Trump administration. And I think it is so important to just really emphasize what you just said there on the immigration laws. You know, Congress passed this immigration system. And, you know, we were enforcing it and using all the tools available to prevent illegal immigration to make sure that people with legitimate asylum claims could make those claims and they were adjudicated in a timely manner and all the kind of things you would expect. But when you're when you don't follow the law as a judge and to your point, you try to get a result, then you've completely thrown over the side of the boat, the rule of law and you're kind of in the law of judges. And that is not our constitutional system. And this is what liberals so often want is they want these activist judges. And I think Judge Brown Jackson will be an activist judge now. She'll be in a minority and she'll probably won't do a ton of damage, at least in the near term. But that type of judge that is outcomes based that is, you know, inconsistent with the rule of law that is looking to change the law from the courts instead of passing laws through Congress that represent the people. I think that's where our whole system starts to break down. I mean, I'm certain you agree with me, but you know, I just had I really feel strongly about that. 

Gene Hamilton [00:07:00] Absolutely. If you're 100 percent right. I mean, it is. The statute in question couldn't have been more clear, invested the authority to expand the use of this authority in the sole unreviewable discretion of of the Secretary of Homeland Security. And so for a judge to see language that says this is about as plain as you could ever get in terms of vesting authority in the executive to do something. And she was willing to go around that language and to not uphold that language and to strike something down that is just so plainly authorized by Congress. It should be a big warning sign for everybody, just kind of like last night's, you know, inability to answer the basic question. You know, what is a woman say you're not a biologist is is no way to approach these things, and there should be. There are so many warning signs, whether it's on the sentencing issues further for the child pornography, whether. It's on the immigration stuff, whether it's on the inability to accept basic reality, male versus female. We are confronted with somebody who is going to pose a lot of problems for the rule of law in America. Now look, we'll see you get confirmed. I don't know. That's up to Joe Manchin. That's up to Senator Kelly. That's up to Senator Cinema and other people. What are they going to do? Is this something? Is this the person that they stand for? I think I suspect that over time, people will hold those senators accountable for votes to confirm people like this to the highest court in the land. But ultimately, I think the outcome is probably fairly preordained in terms of what happens. Do you think? 

Matt Whitaker [00:08:45] Let's let's take a step back. I mean, I don't think there's any doubt that that Judge Brown Jackson is qualified for this role. I mean, she was a district court judge, an appellate court judge. She's, you know, a lawyer. She's trained. She's you know, I mean, she obviously there there are. Unfortunately, she's from, you know, sort of that that vein of elite schools. And, you know, we don't really get any what we get, I guess diversity of, you know, sex and race. We're not getting intellectual diversity at all. We're not getting educational diversity at all. And so it like this diversity thing for just based on a couple of factors without looking at the whole picture, I think, is, you know, uniquely a left wing operation because I think conservatives more look to, you know, the whole person and, you know, their diversity of thought, their diversity of experience in those types of things. I mean, you know, I don't know. I don't think we have any state school grads on the on the Supreme Court. I think they're all Yale, Harvard and Amy Coney Barrett is Notre Dame, if I remember, right, which is not a state school by any measure. So, you know, I guess I'm going to keep churning and pulling for someday having a state school grad on the Supreme Court to prove that those like you and I that, you know, didn't go to these fancy law schools can hold our own, you know, at that at that level. But nonetheless, I mean, I think let's take a step back because do you think these confirmation hearings in the full week of pomp and circumstance is worth it? Or should we just sort of take it up or down, vote and call it a day? I mean, we really are. We are, we are. We are hoping any new ground here or is it all just, you know, kind of a little bit of a talisman that we all see what we want to see? 

Gene Hamilton [00:10:41] Right. We'll look at the. I think that these types of hearings can be very much a kabuki theater. Very much just preordained, and everyone kind of knows what's going to happen if people go through the motions. But they do provide opportunities for members, for senators who actually do want to get to the bottom of how somebody is going to approach cases, how they're going to approach the law. And so in response to Senator Blackburn, you know, last night when when a senator can ask a very simple question can provide a very illuminating answer that you never would have received through the written questionnaire that she submitted or through that judicial opinions and the inability to basically say, you know, to answer the question what what is a woman is, is something that wouldn't have come out, but for this hearing, and it's but it's that's incredibly important because that inability to just again accept the basic reality to think that they have to be pleasing to all people at all times, that there are some constituents out the out there that they're going to offend. If they admit that there's a difference between a man and a woman is really informative, and it should be telling two senators who are still supposedly making up their mind now if it's just a up and down party line vote. And that's, you know, that's an indication of a bigger problem that we have as a society. But if people were being objective and if they were actually evaluating this candidate on the merits, I think that they would be right to at least ask more questions of her and to get more information of her. Given what we've seen so far in this hearing, if not to just refuse to confirm her to the highest court in the land. It's one thing to be on the court of appeals. It's one thing to be a district court judge. It's an entirely different thing to be. The the court of last review doesn't mean you're always right, but you're the court of last review. And so what they're going to do, what they can do from that court over time is going to have ripple effects for generations that she's going to be there and she's going to be writing opinions. And we'll see. I mean, we'll see how many times she uses the word woman in judicial opinions. Going forward, it's going to be like a it's going to be like a drinking game at this point in time for this, that's 

Matt Whitaker [00:13:00] always in the legal world or even game. So. Well, you know, we could talk all day about Mississippi, and for some reason the, you know, the squishy leaders in the Senate like Mitch McConnell don't want to actually, you know, pick this fight and I can understand the realpolitik of that. And so, you know, we're probably going to see this wave through. I would be surprised if any Republicans vote in support of this nomination, but it just depends. You know, based on the three nominees and again, you and I were there for together for Kavanaugh on and saw that firsthand. What a nightmare that was. And obviously Gorsuch and Amy Coney Barrett and how they were treated, you know, really, I think Gorsuch was the only one that felt like kind of got a fair shake and a normal experience. The other two, I think, were really shamefully treated, especially the religious issues with Amy Coney Barrett and then the baseless allegations of people that were just making claims of Kavanaugh. Remember, he was accused, I think of by one of the mainstream, you know, outlets of traveling up and down the coast in a pirate ship marauding the coastline for, I mean, it was just it was so bizarre. At some point in time, you just had to like, think of these people answered. 

Gene Hamilton [00:14:20] But let's talk, right? Right? Yeah. Look, I mean, it's it's it's the difference is couldn't be more clear night and day in terms of the approach. Now, look, that doesn't mean that nominees don't need to answer hard questions. And I think the one thing that you see that's different from the way that this hearing is going or these confirmation proceedings are going is that the Republicans are very much focused on substance. They want to get to, OK, how are you going to decide a case? Even Senator Cruz's questions about critical race theory and issues along those lines. It goes to how the person is actually going to decide the case. They're not voting for character assassination, they're not trying to dig up old high school yearbooks, you know, or make up all kinds of crazy things with, you know, surprise star witnesses who come up with crazy stories. They are trying to get to the bottom of how this person is actually going to do their job, whereas what we saw offer in the other side. But maybe with the exception, of course, which was it was one hundred percent character assassination all the time. They didn't care how the person who was going to decide the case. All they cared about was making sure that that person wasn't confirmed and. They couldn't have two different approaches to these hearings. And so I guess, look, we'll see what happens. But but at least the the minority in the Senate, right? Now is focused on the substance, and they're not going after her. Well, let's pivot now 

Matt Whitaker [00:15:45] to talk about the important work of AFL, and why don't you tell us kind of what's hot and heavy right now on your caseload and where you were, you know, holding this administration accountable to the rule of law? 

Gene Hamilton [00:16:03] Well, there is there are so many ways in so many different things that we could talk about. I mean, one thing that we just did today, and it's obviously it's just the beginning of a process is we just filed a FOIA with the department with HHS. They formed a couple of months ago a task force on abortion or the dedicated to expanding abortion, not only in the United States but around the world. And none of their work has been in seeing the light of day. It's a little strange that this would be some focus of the federal government on ways that they can expand abortion. Given everything else that's going on right now to look at. We'll see what happens. We will shine a light on what happens there. But just an example of just one off thing that we're that we're up to at AFL. One of the things that is that we have particularly enjoyed over the last few months, I think is fighting for equal treatment for all under the law in a variety of ways. One of those ways, I think is is we all saw in the news some of these COVID anti-viral medication rationing policies were starting to pop up in different states across the country say, Hey, the supplies are limited. And so instead of just trying to to allocate the medicine based on medical need based on an individual patient circumstances, there's a number of states who just went out and said, Hey, guess what? If you're not right, you're automatically at risk, you're automatically at higher risk. Don't care anything else about your background, whatever you automatically qualify. So in some states, there would be like a scoring system where they would automatically get a point. Others there's different ways of doing things right. Obviously violates the Constitution. It violates multiple federal laws. It's egregious. It's anti-American. We don't treat anybody, any citizen, different on the basis of their skin color. Period, your doctor should be making decisions about you as an individual patient based on your own medical history, not based on some aspersions cast on you as as a minority or discriminate against you because you are a white person just solely based on your race, the color of your skin. So we had a number of states adopt that we we sent letters to to four different states New York, Minnesota, Utah and New Mexico. Three of those states abandon their policies. So that's Minnesota, Utah and New Mexico. We're in active litigation with New York, and we'll see. We're fully briefed for a API in District Court in the Northern District of New York, and we're hoping for a good result for our clients there and for the class of all New Yorkers that he represents. And so that's just one example of one way where, look, we have the radical left, whether they're in this administration, whether the Congress, whether they're in states wherever, where the concept of equal rights in the concept of equality under the law is no longer enough. And instead, what matters is equity and what matters is using the levers and the power of government to, you know, raise one group up and hold another route down based solely on some immutable characteristic, like the color of their skin. We're going to see this stuff a lot more going forward unless we unless we stop it in its tracks. And so that's what we're. Well, one of the many 

Matt Whitaker [00:19:24] things you've been working on that this administration has been fighting are these as Title 42? Why don't you explain what Title 42 is what you all did in the Trump administration? And then kind of why this administration is is fixated on getting on changing Title 42 in the powers under that? 

Gene Hamilton [00:19:49] Yes. Decades ago, Congress passed an authority that really described in detail, I think what some might understand to be an inherent sovereign authority of any government across the world, which is special authorities that recognize the ability to prevent people or things from being brought into the country during times of of pandemics. And so it was an it. It was a tool that was begun to be utilized during the Trump administration again. This authority has been on the books for 70 80 years. It's been used to previously to exclude certain items and certain kinds of animals and other things, but no one had necessarily used it in the way that it was done for for COVID COVID 19. Because, look, there was no real pandemics that people had to deal with in the same way up up until now since the authority was passed. So this authority, what it allowed the administration to do, what was to say, look, if we're worried about and we're concerned about the spread of COVID and its introduction in the United States in all of its variants, one of the ways that it comes into the United States is by people crossing the border and awfully. I mean, it just it's basic reality. And so this authority allows the federal government to prevent the introduction of those people to prevent their entry into the United States in their quick expulsion during times of pandemic, when American citizens are being told to mask up to vaccinate, do all these different things. But at the border, the policies are totally different apparent under this administration. So this administration went in and committed to, I think, eliminating the use of this authority. But of course, I think they also felt somewhat constrained by by the comparison to what was happening domestically with Kofman. And so they they accepted entire categories of people of aliens from coverage of this regime. First, they did so without any kind of actual analysis, any explanation. Then they sprung another explanation along the way. Finally, a District Court judge a few weeks ago enjoined their use of this. Their failure to use this authority. Failure to follow the law that they have in order that they have on the books as being arbitrary and capricious under the admit, under the APA. And so, you know, again, this is this is an authority that is to be used in times like these. The administration has issued orders to to use this authority. They're using it for some single adults. They're not using it for a lot of the family units. They're not using it for the for the unaccompanied minors. And they're doing this. They've been doing this for a year now, decreasing their use of this authority and so refusing to expel people under this authority and instead mass catching of releasing them into the interior of the United States. And again, they've been doing this the entire time that they have had federal mask mandates on transportation facilities and on airplanes. The same time, they trying to force a vaccine mandate through OSHA, on private employers, on federal employees and contractors, you name it. There's no limit to what they wanted to do domestically in the United States. But my gosh, if you're an illegal aliens coming across the border unlawfully, whoa, it's totally different. And so we've been fighting. We've been proud to partner with a number of states to work on things in the immigration arena, and this is one of them with the state of Texas where we have had success so far. We'll see what's to come into it. Obviously, it's a matter of ongoing litigation, so there's only so much I can say about the actual case itself. But it's just illustrative of a broader kind of lack. I think of respect for the rule of law that we see in this administration and the failure to secure our borders. And instead, you know, the massive catch and release of illegal aliens into the interior of the United States into communities all across the United States since January 12th. You know, 

Matt Whitaker [00:24:06] you're you're very knowledgeable in this areas as more expect based on your background and experience, but I can't help but notice the the well placed Georgia medallion behind your head today. And you're the second Georgia bulldog I've had on the show in seven episodes of Doug Collins was the first, and he's a proud Georgian as well. And you guys, you guys all hang together. Whether you're bulldogs, it's nobody cheers for anybody in Georgia except the the Bulldogs, from what I can tell. 

Gene Hamilton [00:24:40] Yeah, the red and black runs strong. 

Matt Whitaker [00:24:43] Speaking of your bulldog advance witness any any insight into the current Senate race between Herschel Walker and I guess Warnock, right, is at the center of that he's taking on. 

Gene Hamilton [00:24:59] Indeed. So look, yeah, just as a 

Matt Whitaker [00:25:02] citizen that lives in the state of Georgia sometimes. 

Gene Hamilton [00:25:08] Herschel Walker is is a great man. He's a great Georgian. He's admitted to anything that people have brought up in the past. Everyone has a past. Everyone has experiences. But Herschel Walker is the kind of guy again that I think that a lot of Georgia fans, you know, watched grow up. They watched him play. They watched the way that he brought this mentality to the game of football that I think that they hope that he will bring to engaging in governance in the United States Senate. So I think I think things look good for him if he takes the same approach to the football. If he takes the same approach to his training and physical conditioning regimen as he did in that area and applies it to the Senate, he'll be an unstoppable force. And so I'm excited. I'm excited to see what happens here. It'll it'll be a good race. I think Herschel is going to prevail. Obviously, it's it's March of 2022, the elections in November, so a lot of things change. But Herschel is, is, is, is, you know, if you look up at Georgia Bulldog in the encyclopedia, his picture is right there. 

[00:26:22] Those of us who grew up in the 80s or the iconic runs and and all he all he did in that in that time period, he was just an absolute load as a running back. Well, as we're concluding here, how can people learn more about America First Legal Foundation and how can they get involved? 

Gene Hamilton [00:26:47] And I'll be questioning you just for today. Absolutely, so so our websites, the best place to go www.aflegal.org You can sign our sign up for our email list there on the website. We're on all the social media networks, Twitter getter, parmesan cheese, you name it. We'll be OK because I'm on our application one of the early days in the newsroom. So are you an investor? It's great. Yeah. Look what we try to put as much out there as we can, but we do need people to to follow us and stay engaged because we're on top of so many of these issues that we're talking about even today where we're doing good work. It's a good place to stay updated. So, so sign up for email updates will keep you posted on our on our cases, on our oversight work, on all the goings on that are that are really, you know, some of the most critical issues that are confronting our country right now, whether that's immigration. But it's critical race theory, whether it's transgender ideology, whether it's abortion, whether it's just rule of law and oversight principles. You know, we're working on them and we want to share our work. So I hope folks will read about and thank you. 

Matt Whitaker [00:28:03] I appreciate the time today. Look forward to seeing you in person someday soon. We haven't been able to spend any time together in quite some time, which is disappointing for both of us. But we keep we keep missing each other. You're walking in the door, I'm walking out, but we'll make. We'll figure out a way that we can. We can. So thanks for joining us today. This has been an interview with Gene Hamilton, the executive director of the America First Legal Foundation. You're watching Liberty and Justice. I'm Matt Whitaker. You can catch us really any time we debut Fridays, 7:00 p.m. on CPAC now. But you know, we're out there on all the podcast networks and on all the social media. So just you look us up. And if you want to go to one stop shop, go to Whitaker.TV. Gene, thanks again and we will be in contact soon. 


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